The Bar News

Quick Take on the Illinois Supreme Court's Ruling in People v. Sebby

Kerry Bryson reviews People v. Sebby, handed down by the court Friday, June 2.

People v. Sebby

By Kerry Bryson, Office of the State Appellate Defender

On October 27, 2011, LaSalle County Sheriff's Deputies went to the Sebby residence to serve a custody order. They were looking for the defendant's mother, Bonnie, who they believed had current physical custody of the defendant's niece (L.S.). L.S.'s mother, Casey, was the defendant's sister. Casey died in a car accident a month prior, and the custody order directed law enforcement to assist L.S.'s biological father in obtaining custody of her.

Deputies had gone to the Sebby residence on two occasions during the week prior to October 27, but had been unsuccessful in serving Bonnie with the custody order. On the 27th, deputies arrived at 6 a.m., knocked on the door, and were met by a young woman who did not live at the home. The events that followed were recounted by both the deputies and the defendant and his family and friends, with each side giving a version which differed from the other, and with each version being plausible. The encounter ended with the defendant's arrest for resisting.

Ultimately, the case proceeded to jury trial. During jury selection, there were defects in the Rule 431(b) admonishments provided by the court (commonly known as the Zehr admonishments). Defense counsel, however, did not object to the defective admonishments. On appeal, the defendant relied on the plain error doctrine to challenge the unpreserved 431(b) error.

The supreme court majority began its analysis by reviewing the plain error doctrine and confirming that Rule 431(b) error is not second-prong plain error unless there is evidence that the error led to the selection of a biased jury. In order for Rule 431(b) error to be plain error, then, it must fit under the first prong of the plain error test; that is, the evidence must have been closely balanced. 

The supreme court noted that the first-prong plain error analysis requires the reviewing court to evaluate the totality of the evidence and conduct a "qualitative, commonsense assessment" of it within the context of the case. While this seems to be a simple-enough standard, in practice it is not. The high court instructed that reviewing courts should assess the evidence on the elements of the charged offense, as well as any evidence bearing on witness credibility. Ultimately, the question is not the sufficiency of close evidence, but rather the closeness of sufficient evidence. 

Applying this test here, the supreme court majority concluded that the evidence was closely balanced. The majority also rejected the state's assertion that there must be an independent showing of prejudice under the closely balanced evidence prong of the plain error analysis. Under the first prong, the error is made prejudicial by the fact that it occurred in a close case. The supreme court noted that this principal has remained unchanged since the plain error test was developed in Herron.

The majority also clarified that Rule 431(b) error is not trivial or de minimis and declined to attach a "substantiality" requirement on to the first-prong plain error analysis. Finally, the majority was critical of the state's suggestion that defense counsels may opt to "sit on their hands" and allow errors to go unchallenged in the trial court if they believe the evidence to be closely balanced. The high court called the state's suggestion "fanciful and denigratory to the defense bar," and noted that it defied logic.

Chief Justice Karmeier authored a dissenting opinion explaining his belief that the court was applying the Rule 431(b) requirements too rigidly. He suggested that reversal should not be required where there was no indication that any juror was biased and where the evidence was sufficient to convict, even if not overwhelming. Justice Karmeier stated that, in limited instances, the character of the error could make a difference in the first-prong plain error analysis. He also suggested that the supreme court "take a step back" and re-evaluate its Rule 431(b) jurisprudence.

In a separate dissenting opinion, Justice Burke (joined by Justice Freeman) concluded that, under prior opinions of the supreme court (Glasper and Thompson), the Rule 431(b) error was remedied by the court's giving of IPI Criminal 4th No. 2.03 at the close of the case. That instruction essentially "mirrors" Rule 431(b), and it is presumed that jurors follow the instructions they are given. Thus, any 431(b) error was cured by the instruction.

This lengthy opinion may clarify some aspects of first-prong plain error, but it does not really change anything. The plain error test remains the same as when it was defined in Herron.

Posted on June 4, 2017 by Mark S. Mathewson
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