Opinion
1-19-1158
09-30-2021
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARELL CARTER, Defendant-Appellant.
This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Cook County. No. 16 CR 16027 Honorable Kenneth J. Wadas, Judge, presiding.
PRESIDING JUSTICE REYES delivered the judgment of the court. Justices Lampkin and Martin concurred in the judgment.
ORDER
REYES, PRESIDING JUSTICE
¶ 1 Held: We affirm defendant's conviction for residential burglary over his contention that the trial court failed to comply with Supreme Court Rule 431(b) (eff July 1, 2012).
¶ 2 Following a jury trial, defendant Marell Carter was found guilty of residential burglary (720 ILCS 5/19-3 (a) (West 2016)) and violation of an order of protection (720 ILCS 5/12-3.4(a)(1) (West 2016)). Due to his criminal background, he received a Class X sentence of eight years in prison and a concurrent three-year sentence, respectively. On appeal, he contends that his conviction for residential burglary should be reversed and the cause remanded for a new trial because the trial court failed to comply with Supreme Court Rule 431(b) (eff. July 1, 2012) when questioning the venire and the evidence at trial was closely balanced. We affirm.
Defendant makes no argument regarding his conviction for violation of an order of protection.
¶ 3 Defendant was charged by information with residential burglary, violation of an order of protection, criminal trespass to a residence, and criminal damage to property following an incident at the home of Tenene Williams on August 20, 2016. Relevant here, count I for residential burglary alleged that defendant knowingly and without authority entered Tenene's dwelling place intending to commit therein felony violation of an order of protection.
For clarity, we will refer to Tenene Williams, her sister Tia Williams, and her son Marquies Carter by their first names.
¶ 4 Prior to trial, the State filed a motion to admit evidence of other crimes to show defendant's propensity to commit domestic violence (725 ILCS 5/115-7.4 (West 2016)) against Tenene. The motion alleged that on July 4, 2016, defendant slapped Tenene in violation of an order of protection. On August 30, 2015 and August 14, 2014, defendant went to Tenene's home in violation of an order of protection; he was convicted of violation of an order of protection in case number 14 DV 7583101. Additionally, on three different occasions in 2014, defendant grabbed Tenene's neck or choked her. On December 25, 2012, while at Tenene's home, defendant threw her to the ground. On June 18, 2012 and October 17, 2008, he broke windows at her home, and on November 11, 2007, he punched and choked her.
Although the State's motion indicated that the incident occurred on August 14, 2014, Tenene testified at trial that the incident occurred on August 9, 2014.
¶ 5 After argument, the trial court found the 2007 and 2008 incidents too remote. Additionally, the court barred the 2012 incidents as too prejudicial, but ruled they could be admitted in rebuttal if defendant testified to them. The court found the incidents in 2016, 2015, and 2014 admissible as they were relevant, close in time, and involved physical violence against Tenene.
¶ 6 The State proceeded on the counts of residential burglary and violation of an order of protection.
¶ 7 At the beginning of voir dire, the trial court told the venire that defendant was presumed innocent of the charges and would continue to be presumed innocent throughout the proceedings. The court then explained:
"It is absolutely essential as we select this jury that each of you understand and embrace these fundamental principles; that is, that all persons charged with the crime are presumed to be innocent and that it is the burden of the State who has brought the charges to prove the defendant guilty beyond a reasonable doubt.
What this means is that the defendant has no obligation to testify on his own behalf or to call any witnesses in his defense. He may simply sit here and rely upon what he and his lawyer perceive to be the inability of the State to present sufficient evidence to meet their burden. Should that happen, you will have to decide the case on the basis of the evidence presented by the prosecution.
The fact that the defendant does not testify must not be considered by you in any way in arriving at your verdict. However, should the defendant elect to testify or should his lawyer present witnesses in his behalf, you are to consider that evidence in the same manner and by the same standards as the evidence presented by the State's attorneys. The bottom line, however, is that there's no burden upon the defendant to prove his innocence. It's the State's burden to prove him guilty beyond a reasonable doubt."
¶ 8 The trial court then questioned the venire in groups and individually, explaining that" [t]he State has the burden of proof beyond a reasonable doubt" and asking whether "you agree with and accept that proposition of law?" The court also explained that the "defense has no burden," and that defendant was presumed innocent, did not have to call witnesses or testify, and defendant's decision not to testify could not be held against him. The court then asked whether "you agree with and accept those propositions of law?" All potential jurors answered these questions affirmatively.
¶ 9 At trial, Tenene testified that she lived on the 1200 block of North Pulaski with her children, Tenisha Lovelady and Marquies Carter, and her sister Tia Williams. Tenene, who was 40 years old at the time of trial, began a relationship with defendant when they were 16 years old. Defendant is Marquies's father and previously lived at the North Pulaski address. Tenene and defendant's relationship, which was "off and on" and became violent, ended in 2012. However, she encouraged Marquies's relationship with defendant, and defendant remained close to her family members.
¶ 10 The State next asked Tenene about the events of August 9, 2014. The trial court instructed the jury that it would hear evidence that defendant was involved in offenses other than those charged in this case which was to be received on the issues of his intent, motive, state of mind, and propensity to commit domestic violence, and could be considered only for those limited purposes.
¶ 11 Tenene testified that on August 9, 2014, she lived at the North Pulaski address and an active order of protection barred defendant from the premises. Around 3 a.m., defendant arrived and rang the doorbell. Tenene saw defendant through a window, phoned the police, and was escorted by officers to another address. During the drive, Tenene saw defendant on the street, identified him to officers, and defendant was arrested. Defendant was ultimately convicted of violation of an order of protection. Thereafter, a new order of protection was issued effective August 13, 2015, which would expire on August 11, 2017. Tenene was in court when defendant was handed this order of protection.
¶ 12 In the early morning of August 20, 2016, Tenene was in bed at home when she heard a knock at the back door. She asked who was there and a voice answered, "Larry." Tenene went into the kitchen to look out a window and again asked who was there. The person said "Tenene, open the door," and she recognized defendant's voice. As she entered the living room to call 911, she heard the door handle shaking and wood breaking. As Tenene stood in "disbelief," the door was "kicked in," and defendant ran around the house, looked under furniture, and said, "I know someone's here, where is he." When police officers arrived, Tenene stated defendant ran out the back, and described defendant and his outfit. Officers left, and returned with defendant. Tenene did not invite defendant over or permit him to enter her home.
¶ 13 During cross-examination, Tenene acknowledged that in 2014 defendant was invited to Marquies's eighth grade graduation and party. Several weeks before the August 2016 incident, Tenene's grandfather died. Defendant was at the hospital, Tenene's grandmother's home, and the post-funeral repast. Tenene denied speaking to defendant or dancing with him at these events. She denied calling defendant on August 20, 2016, and asking him to come over and for money. Tenene denied inviting defendant to her home while the order of protection was valid.
¶ 14 During redirect, Tenene testified that defendant had his own relationships with her family, including her grandparents and a cousin who lived with them. Defendant attended her grandfather's funeral and repast. The order of protection did not cover the hospital, and Tenene did not think it was appropriate to contact the police during her grandfather's funeral. She encouraged Marquies's relationship with defendant, and did not restrict his ability see defendant. During recross, Tenene testified that defendant visited her grandparents' home while her grandfather was dying, and that she asked him to leave. However, she did not ask him to leave the repast.
¶ 15 Chicago police officer Kyle Lang testified that he responded to a call of a violation of an order of protection at the North Pulaski address around 3 a.m. on August 20, 2016, and spoke to Tenene, who directed him to the back door. The door appeared to be kicked in, with wood splinters and chunks on the floor. Lang entered the back yard and alley, and observed a person hiding beside a garage, "trying to make himself small" with his arms "tucked" and head down. At trial, Lang identified defendant as this person. Lang said, "let me see your hands." Defendant turned around, said "oh, you got me," and sat. Lang handcuffed defendant and relocated to the front of the North Pulaski address. There, Tenene identified defendant, stated he entered her residence in violation of an order of protection, and said she wanted him "locked up." Lang verified that a valid order of protection prohibited defendant from entering the North Pulaski address. During cross-examination, Lang acknowledged that he did not witness the door being damaged or photograph the damage.
¶ 16 Tia testified that she lived on the second floor of the North Pulaski address, and Tenene lived on the first floor. On August 19, 2016, when she had dinner with Tenene and Marquies, the back door was closed and looked "normal." She then went upstairs to bed. Tia later heard Tenene screaming her name and went downstairs. There, Tia saw the back door was broken off the hinges and could no longer be locked and there was wood on the floor.
¶ 17 The State entered certified copies of Tenene's order of protection against defendant in case number 14 CR 16183 and defendant's conviction for violation of an order of protection in case number 14 DV 7583101.
¶ 18 Defendant testified that he had known Tenene for 23 years and she was the mother of his child. In May 2016, he went to Tenene's grandmother's home to see her grandfather and cousin "all the time." If Tenene was present when he visited, she did not ask him to leave. Also, in May 2016, defendant and Tenene spoke during a party at her grandparents' home. On June 6, 2016, Tenene accompanied him to the Daley Center, the Department of Motor Vehicles, and to a restaurant. Several weeks before August 20, 2016, defendant visited Tenene's grandparents' home while her grandfather was dying and attended the visitation and funeral. Tenene was present and did not ask him to leave. After the funeral, Tenene's grandmother and cousin invited defendant to the repast at Tenene's grandparents' home. Tenene, who was present, did not say defendant could not come or ask him to leave.
¶ 19 On the evening of August 19, 2016, Tenene called defendant, said he gave her bedbugs, and asked him to bring $500 to exterminate the house. He arrived at the North Pulaski address around 1 a.m. on August 20, 2016, and Tenene became angry because he did not bring money. She went inside, and soon after, defendant saw "police lights." He ran and hid because there was an order of protection against him.
¶ 20 During cross-examination, defendant testified that he lived at the North Pulaski address with Tenene for 16 years, and moved out in 2013. He maintained contact with Marquies and was close to Tenene's cousin and grandparents. He would spend the night in the basement apartment of the cousin who lived with Tenene's grandparents.
¶ 21 In 2014, in court, defendant received a copy of an order of protection stating that he should not enter Tenene's home and must stay away from her. Defendant understood the order and knew it was effective on August 20, 2016, but denied entering the house that day. Rather, earlier in the day, defendant cashed his paycheck and sent Tenene a photograph of the money. She responded by telling him to bring $500 to fumigate her house. Defendant went over at Tenene's request, but knew he would be breaking the law. A friend drove defendant to the alley. He called Tenene, she came outside, and his friend left. Tenene had directed defendant to the back of the house, and he did not want to go through the front door because "a lot" of people were selling drugs in front of the house.
¶ 22 When defendant was in the yard, the back door was closed, in its frame, and no light was coming through. After Tenene went back inside through that door, the police arrived and defendant "took off." He entered a different backyard and knocked on a door, but was arrested. Defendant told the police that Tenene told him to come over. He acknowledged that the errands he described, and the meal and funeral that Tenene mentioned in her testimony, did not occur at the North Pulaski address.
¶ 23 During redirect, defendant denied damaging or kicking the back door. He could not determine, from where he was standing in the yard, whether the back door was damaged.
¶ 24 In rebuttal, the State presented Tenene, who denied accompanying defendant to the Daley Center, the Department of Motor Vehicles, and a restaurant in 2016.
¶ 25 The jury found defendant guilty of residential burglary and violation of an order of protection. Defendant filed a motion and supplemental motion for a new trial alleging, in pertinent part, that the State did not prove beyond a reasonable doubt that he entered Tenene's home. The trial court denied the motions. Due to his criminal background, defendant was sentenced to a Class X term of eight years in prison for residential burglary and a concurrent three-year term for violation of an order of protection. The trial court denied defendant's motion to reconsider sentence. On June 12, 2019, this court granted defendant leave to file a late notice of appeal.
¶ 26 On appeal, defendant contends that his conviction for residential burglary should be reversed and the cause remanded for a new trial because the trial court failed to comply with Supreme Court Rule 431(b) when it asked potential jurors whether they "agreed and accepted" the enumerated principles. Defendant admits that he failed to object to the trial court's failure to comply with the rule, but asks this court to review his claim pursuant to the plain error doctrine because the evidence supporting his residential burglary conviction, specifically, whether he actually entered the North Pulaski address, was closely balanced.
¶ 27 The plain error doctrine permits this court to consider an unpreserved error when an error occurred and (1) the evidence was so closely balanced that the error alone threatened to tip the scales of justice against the defendant, or (2) the error was so serious that it affected the fairness of the defendant's trial and challenged the integrity of the judicial process, regardless of the closeness of the evidence. People v. Piatkowski, 225 Ill.2d 551, 564-65 (2007). "However, a violation of [Supreme Court] Rule 431(b) is not a second-prong, structural error that requires automatic reversal under a plain-error analysis." People v. Birge, 2021 IL 125644, ¶ 24 (not yet released for publication in the permanent law reports); see also People v. Sebby, 2017 IL 119445, ¶ 52 ("A Rule 431 (b) violation is not cognizable under the second prong of the plain error doctrine, absent evidence that the violation produced a biased jury."). The first step in plain error review is to determine whether an error occurred. See People v. Hood, 2016 IL 118581, ¶ 18 (without error, there can be no plain error). A defendant has the burden to establish plain error. See People v. Thompson, 238 Ill.2d 598, 613 (2010).
¶ 28 Supreme Court Rule 431(b) provides that, during the examination of prospective jurors, a trial court shall ask each potential juror, individually or in a group, whether the juror understands and accepts that (1) the defendant is presumed innocent of the charges against him; (2) the State must prove the defendant guilty beyond a reasonable doubt before the defendant can be convicted; (3) the defendant is not required to offer any evidence on his own behalf; and (4) if a defendant does not testify, it cannot be held against him. Ill. S.Ct. R. 431(b) (eff. July 1, 2012). The method of inquiry must allow each juror to respond to specific questions concerning the enumerated principles. Id. Each question "goes to the heart of a particular bias or prejudice which would deprive defendant of his right to a fair and impartial jury." (Internal quotations omitted.) People v. Zehr, 103 Ill.2d 472, 476 (1984).
¶ 29 Although the rule mandates a specific question and response process, where the trial court must ask each juror whether he or she understands and accepts each principle in the rule, the trial court is not required to use the specific language of the rule. People v. Kidd, 2014 IL App (1st) 112854, ¶ 36. Rather, to comply with the rule, the court must (1) instruct the prospective jurors on the four principles, (2) ask if they understand those principles, and (3) ask if they accept those principles. Birge, 2021 IL 125644, ¶ 34. There is no requirement that the trial court recite the four principles separately or explain them in any particular fashion. Id. Whether the trial court violated Rule 431(b) involves construction of the rule and is reviewed de novo. Thompson, 238 Ill.2d at 606.
¶ 30 The record reveals the trial court erred by failing to ask the jurors whether they understood the four principles set forth in Rule 431(b). Although at the outset the court told the prospective jurors that they needed to "understand and embrace" the Zehr principles, during the portion of voir dire where the jurors answered the trial court's questions, the court asked whether the jurors agreed with and accepted the principles. See People v. Wilmington, 2013 IL 112938, ¶ 32 (a "trial court's failure to ask jurors if they understood the four Rule 431(b) principles is error in and of itself" (emphasis in original)).
¶ 31 Consequently, we must determine whether the evidence supporting the residential burglary charge was closely balanced.
¶ 32 To determine whether the evidence was closely balanced, we "must evaluate the totality of the evidence and conduct a qualitative, commonsense assessment of it within the context of the case." Sebby, 2017 IL 119445, ¶ 53. This requires "an assessment of the evidence on the elements of the charged offense or offenses, along with any evidence regarding the witnesses' credibility." Id. Our supreme court has held evidence is close when a factfinder is left to resolve a credibility contest, which occurs when the State and defense present credible versions of events and neither version is corroborated or contradicted by extrinsic evidence. Id. ¶ 63; see also People v. Naylor, 229 Ill.2d 584, 607 (2008) ("Given these opposing versions of events, and the fact that no extrinsic evidence was presented to corroborate or contradict either version, the trial court's finding of guilty necessarily involved the court's assessment of the credibility of the two officers against that of defendant."). A case is closely balanced when "it can hardly be said that reasonable jurors could only draw from [the competing facts] a conclusion of guilt." People v. Nelson, 193 Ill.2d 216, 223 (2000). When the evidence is closely balanced, a Rule 431(b) error is "potentially dispositive" and therefore prejudicial. Sebby, 2017 IL 119445, ¶¶ 68-69.
¶ 33 Relevant here, defendant was charged with residential burglary for knowingly and without authority entering Tenene's dwelling place with the intent to commit therein felony violation of an order of protection. See 720 ILCS 5/19-3 (a) (West 2016).
¶ 34 Defendant argues that the evidence at trial regarding residential burglary was closely balanced because the outcome depended on which version of events the jury accepted. He notes that although Tenene testified that he broke down her back door and entered the home, he denied entering the house and testified that he remained in the yard. He concludes that absent another witness who observed him inside the home, or photographs corroborating Tenene's version of events, the outcome of trial rested on credibility determinations, and therefore, the requirements of the plain error rule have been met.
¶ 35 Contrary to defendant's argument, the evidence was not closely balanced. At trial, although defendant admitted going to Tenene's home in violation of a valid order of protection, he denied entering the house or seeing damage to the back door. Tenene, on the other hand, testified that defendant broke the back door, entered her home, and searched the house for another man. Additionally, Tia testified that the back door to Tenene's home was functional when she went to bed, and that when she returned after hearing Tenene screaming, the back door was off its hinges and could no longer be locked, and there was wood on the floor. Officer Lang also testified that the back door "appeared" to be kicked in and there were wood splinters and chunks on the floor.
¶ 36 Accordingly, the trier of fact was not solely faced with a credibility contest between defendant and Tenene; rather, Tenene's testimony regarding the broken door was corroborated by Tia and Lang. Cf. Naylor, 229 Ill.2d at 607 (when "no extrinsic evidence" was presented to corroborate or contradict two versions of events, the guilty finding rested on the "assessment of the credibility of the two officers against that of defendant"). Although defendant is correct that no other witnesses observed him break the door and enter the house, the State presented two witnesses who testified that the door was broken, and defendant admitted his presence at Tenene's home in violation of the order of protection. Consequently, the evidence was not so closely balanced that the court's error in voir dire alone may have tipped the scales in favor of the State and, thus, defendant has not established plain error. See Sebby, 2017 IL 119445, ¶ 78. His procedural default must therefore be honored.
¶ 37 For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.
¶ 38 Affirmed.