THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TERANT PEARSON, Defendant-Appellant, 356 Ill. App. 3d 390

JUSTICE WOLFSON delivered the opinion of the court: As of the moment they were selected and sworn, the 12 jurors who decided this case had not heard the words “presumption of innocence.” Nor had they heard the defendant had no duty to present evidence or that the defendant could not be penalized for declining to testify. The question is this: Did the trial court’s failure to address these basic principles threaten the integrity of the judicial process? We hold that it did, and we reverse the defendant’s conviction for aggravated unlawful use of a weapon and remand the cause for a new trial.

FACTS Before the questioning of potential jurors began, the trial court made some preliminary comments, but they did not contain any reference, direct or indirect, to the presumption of the defendant’s innocence or to the principles that the defendant is not required to offer any evidence on his own behalf and the defendant’s failure to testify cannot be held against him. During jury selection, the trial judge questioned the potential jurors about their previous experiences with crime and the legal system.

The judge also asked the venire the following questions: “Is there anybody seated in the jury box, should the State meet their burden of proof beyond a reasonable doubt that could not go back into the jury room with your fellow jurors and the law as I give it to you and sign a verdict form of guilty? *** Should the State fail to meet their burden of proof beyond a reasonable doubt, is there anybody seated in the jury box who could not and would not go back into the jury room with your fellow jurors and the law as I give it to you and sign a verdict form of not guilty?” The trial judge did not question potential jurors about the presumption of innocence, whether they understood that defendant had no duty to present evidence, or whether they would hold against the defendant his decision not to testify.

Neither the State’s Attorney nor defense counsel requested additional questions, although the trial judge offered them that opportunity. At trial, Detective Tim McDermott testified he and his partners, John Burzinski and Carl Suchocki, were conducting a directed patrol in the area of 3500 West Ohio Street in Chicago on September 21, 2002, at 2:58 in the afternoon. When they arrived at 3500 West Ohio Street, several individuals began to shout, “He’s got a gun,” and pointed to defendant standing nearby.

Detective McDermott and Officer Suchocki got out of their vehicle and walked toward defendant, who looked at them, pulled a handgun from his waistband, and began to run. The officers ran after defendant. Officer Suchocki was running just a few feet behind defendant. Detective McDermott saw the gun in defendant’s hand as he was running. During the chase, defendant threw the gun over his shoulder into a fenced parkway. Detective Mc-Dermott retrieved the gun, a 9-millimeter semiautomatic handgun, while Officer Suchocki pursued defendant. Eventually, Suchocki caught defendant and placed him under arrest.

Detective McDermott gave defendant the Miranda warnings, and defendant said he understood his rights. Defendant also said, “I didn’t rob nobody, I just had a gun.” Upon further examination of the gun, the officers discovered one bullet in the chamber and five in the magazine. The gun was ready to fire. Later, when defendant was questioned at the police station, he again admitted having a gun. Officer Suchocki described the same sequence of events and his testimony corroborated Detective McDermott’s. The parties stipulated defendant had a prior conviction for delivery of a controlled substance.

The State rested its case. Defendant did not testify and rested his case without offering any evidence. The trial judge gave several instructions to the jury after final arguments. Those instructions covered, among other things, the presumption of innocence, the State’s burden of proof, and defendant’s right not to testify without adverse implication. The defendant was convicted of aggravated unlawful use of a weapon and sentenced, based on his criminal history, to a Class X prison term of eight years.

On appeal, he contends: (1) he was deprived of a fair trial because the trial court failed to question potential jurors about their acceptance of basic principles of law; (2) he received ineffective assistance of counsel because his lawyer did not ask the court to question jurors regarding those principles; (3) the trial court failed to give proper Rule 605(

a) admonishments (210 Ill. 2d R. 605(a)); and (4) the court’s order requiring defendant to submit a DNA sample was an unreasonable search and seizure. DECISION I. Failure to Ask the Questions Contained in Rule 431(

b) Defendant contends the trial court had a sua sponte duty to ask certain questions of prospective jurors concerning the defendant’s basic rights. He relies on People v. Zehr, 103 Ill. 2d 472, 476, 469 N.E.2d 1062 (1984), where the supreme court held a trial court abused its discretion during voir dire by refusing defense counsel’s request to ask questions concerning the State’s burden of proof, the right of the defendant not to testify without penalty, and the presumption of innocence.

Before we can address the issue raised by defendant, we must determine whether his failure to preserve it in the trial court prohibits us from making any further inquiry. Defendant recognizes he forfeited the issue he now raises by not making a request for questions to jurors and by failing to preserve the error in his posttrial motion. See People v. Enoch, 122 Ill. 2d 176, 186, 522 N.E.2d 1124 (1988). He asks us to consider the trial court’s omission under the plain error doctrine. Supreme Court Rule 615(

a) provides: “Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court.” 134 Ill. 2d R. 615(a). Our supreme court has held the plain error rule may be invoked to review forfeited alleged errors under two circumstances, stated in the disjunctive: (1) the evidence in a criminal case is closely balanced or (2) the error is so fundamental and of such magnitude that the accused is denied the right to a fair trial and remedying the error is necessary to preserve the integrity of the judicial process. People v.

Johnson, 208 Ill. 2d 53, 64, 803 N.E.2d 405 (2003); see also People v. Nieves, 192 Ill. 2d 487, 502-03, 737 N.E.2d 150 (2000). The procedural default is to be honored “if, in the end, the error is found not to rise to the level of plain error as contemplated by Rule 615(a).” People v. Keene, 169 Ill. 2d 1, 17, 660 N.E.2d 901 (1995). Some courts have held the first stop in a plain error analysis is to determine whether any error in fact occurred. People v.

Sims, 192 Ill. 2d 592, 621, 736 N.E.2d 1048 (2000) (before invoking the plain error exception it is appropriate to determine whether any error occurred); People v. Wade, 131 Ill. 2d 370, 376, 546 N.E.2d 553 (1989); People v. Precup, 73 Ill. 2d 7, 17, 382 N.E.2d 227 (1978); People v. Bradley, 336 Ill. App. 3d 62, 66, 782 N.E.2d 825 (2002). The supreme court imposed a four-part plain error test in People v. Crespo, 203 Ill. 2d 335, 788 N.E.2d Ill. (2001), where an Apprendi sentencing issue was raised.

The court held an appellate court may correct an error not raised at trial only if there was (1) an error, (2) that is plain, (3) that affects substantial rights, and (4) that “ ‘ “seriously affectfs] the fairness, integrity, or public reputation of the judicial proceedings.” ’ [Citations.]” Crespo, 203 Ill. 2d at 348. The Crespo analysis was used to affirm use of a possibly defective witness identification instruction in People v. Tisley, 341 Ill. App. 3d 741, 793 N.E.2d 181 (2003). In People v.

Metcalfe, 202 Ill. 2d 544, 552, 782 N.E.2d 263 (2002), the supreme court held the question of whether a trial court has the sua sponte duty to remove a juror for cause should be examined under the plain error doctrine. The reason, said the court, is “because the issue affects defendant’s constitutional right to a fair trial.” Metcalfe, 202 Ill. 2d at 552. The court went on to find there was no error. On several occasions this court has used the plain error doctrine to examine issues concerning the selection of a fair and impartial jury. See People v. Bowman, 325 Ill.

App. 3d 411, 425, 758 N.E.2d 408 (2001); People v. Boston, 271 Ill. App. 3d 358, 360, 648 N.E.2d 1002 (1995); but see People v. Williams, 221 Ill. App. 3d 1061, 582 N.E.2d 1355 (1991) (defense counsel did not request the Zehr questions and the trial court did not ask them; the court held the failure to make the Zehr inquiries was not plain error in light of the overwhelming evidence against the defendant but did not consider whether a substantial right was at stake). Because of the nature of the forfeited issue in this case, we feel obliged to examine it in spite of the strong evidence presented by the State.

In Zehr, 103 Ill. 2d at 477, the court said: “We are of the opinion that essential to the qualification of jurors in a criminal case is that they know that a defendant is presumed innocent, that he is not required to offer any evidence in his own behalf, that he must be proved guilty beyond a reasonable doubt, and that his failure to testify in his own behalf cannot be held against him.

If a juror has a prejudice against any of these basic guarantees, an instruction given at the end of the trial will have little curative effect.” Supreme Court Rule 431 was amended in 1997 to ensure compliance with the Zehr requirements. 177 Ill. 2d R. 431, Committee Comments. Rule 431(

b) provides: “If requested by the defendant, the court shall ask each potential juror, individually or in a group, whether that juror understands and accepts the following principles: (1) that the defendant is presumed innocent of the charge(

s) against him or her; (2) that before a defendant can be convicted the State must prove the defendant guilty beyond a reasonable doubt; (3) that the defendant is not required to offer any evidence on his or her own behalf; and (4) that the defendant’s failure to testify cannot be held against him or her; however, no inquiry of a prospective juror shall be made into the defendant’s failure to testify when the defendant objects.” (Emphasis added.) 177 Ill. 2d R 431(b). It is noteworthy that the Supreme Court Rules Committee submitted the proposed Rule 431(

b) without the words “[i]f requested by the defendant.” See Recommendations to the Supreme Court of Illinois, Illinois Supreme Court Rules Committee, at 3-4 (March 1997). The court, without additional comment, added the words. They are not a mere suggestion. We take the added words to mean what they say: if defense counsel does not make the request, the trial court has no obligation to ask the questions. See M. Toomin, Jury Selection in Criminal Cases: Illinois Supreme Court Rule 431 — A Journey Back to the Future and What It Portends, 48 DePaul L.

Rev. 83, 94-95 (1998) (“What is apparent is that the court might have better accomplished its avowed purpose by vesting trial judges with the responsibility of ensuring that Zehr inquiries be made rather than leaving this to the discretion of defense counsel”). We have found no Illinois decision creating a judge’s sua sponte duty to ask any particular question during voir dire, no matter how significant the answer might be. In fact, our courts have declined to impose such a duty in several cases. See People v.

Porter, 111 Ill. 2d 386, 401-02, 489 N.E.2d 1329 (1986) (no sua sponte duty to ask the venire about any possible acquaintance between prospective jurors, the parties, attorneys, witnesses, and the victims); People v. Gardner, 348 Ill. App. 3d 479, 487, 810 N.E.2d 180 (2004) (no sua sponte duty to ask a gang bias question); Bowman, 325 Ill. App. 3d at 425 (no sua sponte duty to ask additional questions where juror said “probably” when asked if her past experience would cause her to be unfair); People v. Diggs, 243 Ill. App. 3d 93, 96, 612 N.E.2d 83 (1993) (no sua sponte duty to ask a racial bias question).

It appears to us that Zehr cannot be considered in isolation. It takes shape and form in Rule 431(b). 177 Ill. 2d R. 431(b). The rule does not require the trial court to ask the questions unless they are requested by defense counsel. Failing to ask the questions, standing alone, was not error. II. Ineffectiveness of Counsel Defense counsel not only failed to request the Rule 431(

b) questions (177 Ill. 2d R. 431(b)), he declined the court’s invitation to pose his own questions. Defendant now contends he received ineffective assistance of counsel. To establish ineffective assistance of trial counsel, a defendant must demonstrate that counsel’s representation was objectively unreasonable and, but for the attorney’s errors, there was a reasonable probability the outcome at trial would have been different. Strickland v. Washington, 466 U.S. 668, 694, 80 L. Ed. 2d 674, 698, 104 S. Ct. 2052, 2068 (1984); People v. Patterson, 192 Ill. 2d 93, 107, 735 N.E.2d 616 (2000).

A defendant’s claim must satisfy both parts of the Strickland test, and the failure to satisfy either part precludes a finding of ineffective assistance of counsel. Patterson, 192 Ill. 2d at 107. A defendant must overcome the strong presumption that counsel’s challenged actions were a part of sound trial strategy and not due to incompetence. People v. Coleman, 183 Ill. 2d 366, 397, 701 N.E.2d 1063 (1998). In this case, the alleged error was defense counsel’s failure to request additional voir dire questions directed at the potential jurors’ understanding of the Zehr principles.

We see no plausible reason for counsel’s failure to request the questions. In some cases, defense counsel chooses not to ask certain voir dire questions as a matter of trial strategy. For example, in gang cases, counsel might forgo asking gang bias questions during voir dire to avoid emphasizing gang involvement in the crime. See People v. Furdge, 332 Ill. App. 3d 1019, 1026, 774 N.E.2d 415 (2002) (decision not to ask gang bias questions during voir dire was part of counsel’s trial strategy).

Here, we find no strategic reason for omitting voir dire questions about the presumption of innocence and the defendant’s rights not to present evidence and not to testify. By asking the questions, counsel could assess each potential juror’s beliefs regarding these basic principles, whether he or she understood the principles, and whether he or she would follow those principles when rendering a verdict. The venire’s understanding of these principles is especially important when, as here, the defense does not intend to present any testimony See People v. Davis, 313 Ill.

App. 3d 585, 591, 730 N.E.2d 518 (2000) (“[b]ecause defendant’s trial strategy was to rely on his presumption of innocence and the failure of the State to prove the case against him, it was of the utmost importance that the jury understood the presumption of innocence and the State’s burden of proof’). Finding no reasonable explanation for counsel’s failure to request voir dire questions on the Zehr principles, we believe defendant has satisfied the first prong of the Strickland test.

Having found trial counsel’s conduct objectively unreasonable, we must decide whether defendant was prejudiced under the second prong of the Strickland test. Under this prong, our focus is on whether defendant has shown a reasonable probability that the jury would have reached a different conclusion if counsel had requested voir dire on the Rule 431(

b) questions (177 Ill. 2d R. 431(b)). Strickland, 466 U.S. at 696, 80 L. Ed. 2d at 699, 104 S. Ct. at 2069. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068. Under the prejudice prong, we consider not only whether counsel’s error might have been outcome determinative, but also whether counsel’s performance rendered the trial unreliable or fundamentally unfair. People v. Jura, 352 Ill. App. 3d 1080, 1092, 817 N.E.2d 968 (2004), citing People v. Richardson, 189 Ill. 2d 401, 411, 727 N.E.2d 362 (2000).

A factor that weighs heavily against defendant is the overwhelming weight of the evidence against him. As mentioned above, the State’s case was strong. Two police officers testified they saw defendant with a gun just a few feet away in broad daylight. Their stories were very similar. Defendant presented no evidence and relied on the theory that the police officers fabricated their story. Defendant contends we cannot have confidence in the jury’s verdict in this case because it is impossible to determine if the jurors held any prejudice against the Zehr principles.

In Strickland, the United States Supreme Court said: “In making the determination whether the specified errors resulted in the required prejudice, a court should presume, absent challenge to the judgment on grounds of evidentiary insufficiency, that the judge or jury acted according to law.” Strickland, 466 U.S. at 649, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068. We conclude defendant was not prejudiced by counsel’s error. We do not find any reasonable probability that a jury consisting of reasonable people would have reached a different result given the strength of the State’s case.

We believe defendant’s claim of ineffective assistance of counsel does not satisfy the second Strickland prong. At the same time, we feel an additional observation about Rule 431(

b) questions is warranted. We have said a defense lawyer’s failure to request the questions satisfied the objectively unreasonable prong of the Strickland test when the trial court does not ask the questions. We leave open the question of what the result would be when counsel’s failure to request the questions is part of a case where the evidence is close. III. Failure of the Trial Court to Meet the Requirements of Rule 431(

a) All of Supreme Court Rule 431 (177 Ill. 2d R. 431) is on the table in this case. Whether Rule 431(

a) was complied with in this case is a matter we address pursuant to the plain error doctrine. Rule 431(

a) provides: “The court shall conduct voir dire examination of prospective jurors by putting to them questions it thinks appropriate, touching upon their qualifications to serve as jurors in the case at trial. The court may permit the parties to submit additional questions to it for further inquiry if it thinks they are appropriate and shall permit the parties to supplement the examination by such direct inquiry as the court deems proper for a reasonable period of time depending upon the length of examination by the court, the complexity of the case, and the nature of the charges.

Questions shall not directly or indirectly concern matters of law or instructions. The court shall acquaint prospective jurors with the general duties and responsibilities of jurors.” (Emphasis added.) 177 Ill. 2d R. 431(a). Before the rule was amended in 1997, trial courts were to conduct voir dire in accordance with Rule 234 (134 Ill. 2d R. 234). 134 Ill. 2d R. 431. At the time, the last sentence we have emphasized was part of Rule 234 but was permissive, telling trial judges they “may” acquaint prospective jurors with the general duties and responsibilities of jurors.

In 1997, “may” was changed to “shall,” and the same language was added to Rule 431(a). 177 Ill. 2d R. 431(a); compare 134 Ill. 2d R. 234 with 177 Ill. 2d R. 234. We take the change to mean the requirement is mandatory. Emerald Casino, Inc. v. Illinois Gaming Board, 346 Ill. App. 3d 18, 33, 803 N.E.2d 914 (2003). The change from permissive to mandatory took place 10 years after the Illinois Supreme Court decided People v. Emerson, 122 Ill. 2d 411, 522 N.E.2d 1109 (1987).

There, the defendant complained that the trial court violated the Zehr decision by refusing his request to question the venire more thoroughly concerning their attitudes about the presumption of innocence. The State contended the trial court fulfilled the Zehr requirement with remarks it made about the presumption of innocence at the outset of voir dire. The court agreed with the State: “[W]e believe that the purpose expressed in Zehr was satisfied here by the trial judge’s general admonition coupled with his subsequent discussion of the presumption of innocence.” Emerson, 122 Ill. 2d at 427.

It has become standard practice for trial judges in this state to discuss the presumption of innocence with jurors before jury selection begins. See “Jury Selection,” Illinois Judicial Conference, Administrative Office of the Illinois Courts (1997). In addition to Emerson, there are several decisions where the trial court’s failure to strictly follow Zehr was excused, at least in part, by its pre-voir dire comments to prospective jurors. See, e.g., People v. Benford, 349 Ill. App. 3d 721, 732, 812 N.E.2d 714 (2004); People v. London, 256 Ill. App. 3d 661, 668-69, 628 N.E.2d 621 (1993); People v. Barnett, 173 Ill.

App. 3d 477, 485-86, 527 N.E.2d 1071 (1988). A trial court’s preselection comments to jurors played an important role in People v. Casillas, 195 Ill. 2d 461, 474, 749 N.E.2d 864 (2000). There, the trial court’s repeated and lengthy discussion, before voir dire, about the presumption of innocence erased any prejudice that might have been caused by the failure to give the presumption of innocence instruction (Illinois Pattern Jury Instructions, Criminal, No. 2.03 (3d ed. 1992)) at the close of the case. We have found no criminal case directly addressing the last sentence of Rule 431(a), but in Schaffner v.

Chicago & North Western Transportation Co., 129 Ill. 2d 1, 35, 541 N.E.2d 643 (1989), the court held the trial judge’s statements concerning the differences in proof required in civil and criminal proceedings “were intended to serve” the purpose of the last sentence in Rule 234 — the civil counterpart to Rule 431. At the time, the last sentence in Rule 234 was permissive. 134 Ill. 2d R. 234. We conclude Rule 431(

a) requires trial judges to inform prospective jurors about a defendant’s basic rights, as set out in Rule 431(b), so that they will be informed about their “general duties and responsibilities. ’’ 177 Ill. 2d R. 431. Failure to do so is error. IV The Impact of the Trial Court’s Failure to Inform the Jury of Defendant’s Basic Rights Before Selection Was Completed Now we must decide whether the trial court’s error was harmless or reversible. We understand the evidence against the defendant was very strong.

At the same time, we are required to consider whether the error was “so fundamental and of such magnitude that the accused was denied the right to a fair trial” and remedying the error is necessary to preserve the integrity of the judicial system. People v. Williams, 193 Ill. 2d 306, 348-49, 739 N.E.2d 455 (2000). Our courts have reversed convictions without stopping to consider the State’s evidence where a defendant’s substantial rights are endangered. See, e.g., People v. Bracey, 213 Ill. 2d 265, 273, 821 N.E.2d 253 (2004) (failure to obtain a new jury waiver for retrial); People v.

Blue, 189 Ill. 2d 99, 138, 724 N.E.2d 920 (2000) (pervasive pattern of prosecutorial misconduct); People v. Vargas, 174 Ill. 2d 355, 366-67, 673 N.E.2d 1037 (1996) (judge left courtroom during a portion of cross-examination of a State witness); People v. Stromblad, 74 Ill. 2d 35, 41, 383 N.E.2d 969 (1978) (failure to instruct on an essential element of the offense). The result in this case necessarily turns on the significance and value we give the rights the trial court did not discuss and the prospective jurors did not hear. Rule 431(

b) calls them “principles.” 177 Ill. 2d R. 431(b). The court in Zehr referred to them as “basic guarantees” for obtaining a fair and impartial jury. Zehr, 103 Ill. 2d at 477-78. The United States Supreme Court has described the presumption of innocence as “a basic component of a fair trial under our system of criminal justice” (Estelle v. Williams, 425 U.S. 501, 503, 48 L. Ed. 2d 126, 130, 96 S. Ct. 1691, 1692 (1976)) and as the “undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of ¡justice]” (Coffin v. United States, 156 U.S. 432, 453, 39 L.

Ed. 481, 491, 15 S. Ct. 394, 403 (1895)). An impartial jury is guaranteed by the federal constitution (Morgan v. Illinois, 504 U.S. 719, 726-28, 119 L. Ed. 2d 492, 501-02, 112 S. Ct. 2222, 2228-29 (1992)) and by the Illinois Constitution (People v. Strain, 194 Ill. 2d 467, 475, 742 N.E.2d 315 (2000)). The right to an impartial jury “is so fundamental to due process that any infringement of that right requires reversal by a reviewing court.” People v. Boston, 271 Ill. App. 3d 358, 360, 648 N.E.2d 1002 (1995). We do not engage in an empty academic exercise.

Our experience tells us it is not unusual for prospective jurors to express an unwillingness to accept the presumption of innocence or the right of a defendant to decline to testify without penalty. We find support for that view in social science research: “ ‘Attitudinal surveys conducted by the National Jury Project in jurisdictions throughout the country reveal that a substantial proportion of persons eligible for jury service: — agree that a person who is brought to trial is probably guilty ***.’ ” M.

Toomin, Jury Selection in Criminal Cases: Illinois Supreme Court Rule 431 — A Journey Back to the Future and What It Portends, 48 DePaul L. Rev. 83, 101 n.142 (1998), quoting 1 E. Krauss & B. Bonora, Jury-work § 2.04(2)(a) (1997). Instances of juror bias against the presumption of innocence are demonstrated in our decisions. For example, in People v. Pendleton, 279 Ill.

App. 3d 669, 674, 665 N.E.2d 350 (1996), a potential juror told the trial judge during voir dire that she would have a difficult time presuming defendant was innocent because she believed that once a case has come as far as a trial the defendant is probably guilty. On appeal, this court said the juror should have been excused for cause, because her voir dire answers indicated an inability to hold the State to its burden of proof. Pendleton, 279 Ill. App. 3d at 674.

If a juror has a prejudice against any of the basic guarantees contained in Zehr, “an instruction given at the end of the trial will have little curative effect.” Zehr, 103 Ill. 2d at 477. We conclude that selecting jurors who have not heard anything about three of the four basic rights contained in Rule 431(

b) is an error “of such gravity that it threatens the very integrity of the judicial process.” Blue, 189 Ill. 2d at 138. We believe the error requires a new trial no matter which plain error analysis we use. We therefore reverse defendant’s conviction and remand this cause for a new trial. The State’s evidence is sufficient to obviate any double jeopardy claims. Because our decision leaves the defendant unconvicted, we also reverse the order requiring him to submit to DNA testing. Nor is there any need at this time to discuss the propriety of the trial court’s Rule 605(

a) admonishments. CONCLUSION For the reasons stated, we reverse the defendant’s conviction and remand this cause for a new trial. Reversed and remanded. BURKE, EJ., concurs.