No. 2-12-1156 Opinion filed May 30, 2014 ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Kane County. ) Plaintiff-Appellee, ) ) v. ) No. 07-CF-2986 ) MARK A. DOWNS, ) Honorable ) Timothy Q. Sheldon, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE BIRKETT delivered the judgment of the court, with opinion. Justices Hutchinson and Spence concurred in the judgment and opinion.

OPINION

¶1 This case was last before us on an appeal from the dismissal, during the first stage of a

Krankel hearing (see People v. Krankel,

(1984)), of posttrial claims of ineffective

assistance of counsel. People v. Downs,

(Downs I). In Downs I, we

reversed the dismissal, because the preliminary inquiry in the Krankel hearing was erroneously

converted into an adversarial hearing on the merits and defendant, Mark A. Downs, was required

to represent himself. As the circuit court of Kane County had acknowledged during the hearing

that some of defendant’s allegations indicated possible neglect, we remanded the case with

directions to appoint counsel and continue the case from that point.

. The trial court

complied with our directive and appointed counsel, held a Krankel hearing, and denied

defendant’s motion for a new trial. Defendant appeals, arguing again that his counsel was

ineffective. Defendant also argues, for the first time in this matter, that the trial court committed

plain error by erroneously defining “reasonable doubt” for the jury in response to the jury’s

question. Despite the procedural irregularity in raising the reasonable-doubt issue, we agree and

reverse.

¶2 I. BACKGROUND

¶3 In Downs I, we provided a full summary of the events underlying that appeal, and we

need not repeat it; rather, we will summarize the events pertinent to the issues raised in this

appeal. In April 2009, following a jury trial, defendant was convicted of the first-degree murder

of Nico Contreras. At trial, defendant was represented by the Kane County public defender,

David Kliment. The State’s primary witness was Ruben Davila, a gang member who defected

from the Latin Home Boys in Aurora to their rivals, the Almighty Ambrose gang. Davila was

testifying pursuant to a favorable plea agreement under which he would not be charged in the

Contreras murder and would plead guilty to a reduced charge in an unrelated murder. Davila

testified that he and defendant went to the home of Robert Saltijeral (who was a member of

Davila’s previous gang and that defendant shot through the outside wall and windows into a

room in which they believed Saltijeral was sleeping. As it turned out, Saltijeral had moved from

the residence or at least was not sleeping there. Instead of Saltijeral, the unfortunate Contreras

occupied the room and was shot dead as he slept.

¶4 As the jury deliberated on the evidence elicited during the trial, they submitted five

questions or requests to the trial court. Pertinently, in one question, the jury asked, “What is

your definition of reasonable doubt[:] 80%[,] 70%[, or] 60%?” Following a brief consultation

with the State and defendant, the trial court responded, “We cannot give you a definition [of

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reasonable doubt;] it is your duty to define [it].” The jury returned a guilty verdict.

¶5 After the verdict but before sentencing, defendant filed two pro se motions alleging that

Kliment had provided ineffective assistance. In defendant’s second motion, defendant

incorporated the allegations from the first motion. The second motion was 60 pages long and

contained 34 allegations of ineffectiveness. On July 31, 2009, the trial court appointed Ronald

Haskell to represent defendant. On October 27, 2009, Haskell filed a second amended motion

alleging Kliment’s ineffectiveness. The motion adopted five of the claims that defendant raised

in his pro se motions. On November 25, 2009, defendant filed an additional pro se motion

raising 13 more claims of ineffectiveness.

¶6 Among the five claims adopted by Haskell was the allegation that defendant told

Kliment, on both the first and the second day of the jury trial, that he wanted to dismiss the jury

and proceed with a bench trial. Kliment explained, during the faulty preliminary inquiry hearing,

that he acknowledged defendant’s requests those days but tried to talk defendant out of

dismissing the jury, because, in Kliment’s estimation, it would be a very bad move given that

following a bench trial the trial court had previously found codefendant Elias Diaz guilty of first-

degree murder. Kliment averred that defendant was never “insistent” about dismissing the jury

and proceeding with a bench trial; defendant, by contrast, stated that he told Kliment that he was

“almost 100 percent certain” that he wanted to waive the jury and proceed with a bench trial.

¶7 Haskell also adopted the claim that Kliment failed to sufficiently investigate and present

defendant’s alibi defense. Defendant claimed that he was at work and working at the time of the

murder. Kliment explained that he contacted defendant’s then-employer, but that the employer

did not retain employment records going that far back in time. Defendant argued that Kliment

should have called defendant’s sister and brother to offer testimony about his alibi. Both

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defendant’s sister and brother provided written statements supporting defendant’s alibi.

Defendant’s sister wrote that both her brothers lived with her at the time of the murder and that

she recalled driving them to work for seasonal positions at Borg-Warner in West Chicago.

According to the sister, their shifts began at 6 p.m. and ended at 6 a.m., extending through the

night of the murder.

¶8 Although the trial court had already appointed an attorney to represent defendant, the trial

court took another look at how it wanted to proceed. The trial court determined that it had not

held a proper preliminary inquiry before appointing counsel and, even though counsel was ready

to proceed on the amended motion that adopted several of defendant’s claims, the trial court

rescinded Haskell’s appointment and conducted three days of hearings. Defendant presented

each of his pro se ineffective-assistance claims and the trial court permitted both Kliment and the

State to comment on each of the allegations or to answer questions posed by the trial court.

After defendant finished presenting all of his claims, the trial court addressed each claim

individually and determined that there was no basis to believe that Kliment had provided

ineffective assistance. It thus ruled that there was no basis to appoint counsel to represent

defendant on any of the claims. Defendant’s claims, then, were effectively denied.

¶9 Defendant appealed and we held that the trial court had conducted an improper Krankel

hearing by allowing the State and Kliment to participate and turning the preliminary inquiry into

an adversarial hearing on the merits. See generally Downs I,

.

Based on this conclusion, we remanded the cause and directed the trial court to appoint an

attorney to represent defendant on his claims of ineffective assistance.

. Because we

were remanding for further proceedings on defendant’s ineffective-assistance claims, we

declined to consider the merits of defendant’s contentions, specifically the claims regarding a

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mid-trial jury waiver and defendant’s alibi defense. Id. ¶ 52.

¶ 10 Upon remand to the trial court, Haskell was once again appointed to represent defendant.

On October 3, 2012, Haskell filed a third amended motion, declining to adopt four of the five

claims that he had originally adopted. Haskell’s motion raised only a general charge of

ineffective assistance, and this claim did not allege any specific acts by Kliment that constituted

deficient representation. Similarly, the claim did not allege any specific instance or type of

prejudice. In the motion, Haskell noted that he was “disposed to decline to adopt” defendant’s

pro se allegations but that he nevertheless advanced the single, general claim because “the best

judgment of trial counsel’s overall performance lies with the [trial court] which had the ability to

observe counsel throughout the trial.”

¶ 11 Specifically, Haskell averred in the October 2012 third amended motion that he reviewed

the transcripts of the earlier faulty, Krankel hearing in making the determination to decline to

adopt or raise any substantive and specific claims on defendant’s behalf. Haskell explained, in

the motion:

“[T]he information provided by all participants during the hearings became an invaluable

resource for this counsel’s investigation in preparing the instant motion. Although not

sworn, the statements made were offered in open court and thus Krankel counsel found

them to be reliable with respect to determinations made in the context of this motion.”

Haskell further explained that his investigation into defendant’s claims was modeled on the

procedures employed for postconviction petitions. Haskell averred that, consistent with Illinois

Supreme Court Rule 651(c) (eff. Apr. 26, 2012), he “consulted sufficiently with Defendant to

ascertain his allegations of ineffectiveness,” he reviewed the pro se pleadings and trial

transcripts, and he reviewed the transcripts from the initial Krankel hearing.

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¶ 12 Before the trial court, however, defendant contradicted Haskell’s averments. Defendant

stated that Haskell never spoke with him about any substantive issues before filing the third

amended motion. Haskell then explained to the trial court that, when he had averred that he

“consulted sufficiently with Defendant to ascertain his allegations of ineffectiveness,” he meant

that he reviewed the transcripts of the earlier Krankel hearing, relying particularly on defendant’s

pro se presentation of his claims during that faulty preliminary inquiry. Haskell related that,

based on defendant’s and Kliment’s statements during the faulty preliminary inquiry, he

determined not to adopt defendant’s specific claims of ineffective assistance.

¶ 13 The trial court entertained arguments on the motion and then held that the motion did not

support a claim of ineffective assistance because it did not allege either specific acts of deficient

performance or specific examples of prejudice. The trial court denied the motion. Defendant

timely appeals.

¶ 14 II. ANALYSIS

¶ 15 On appeal, defendant raises two issues. First, for the first time in any of these

proceedings, either in the trial court or in the appellate court, defendant argues that the trial court

committed plain error in instructing the jury in response to its question concerning the definition

of reasonable doubt. Second, defendant argues that Haskell provided ineffective assistance by

essentially abdicating his role as counsel and refraining from presenting any of defendant’s

potentially meritorious claims. We begin with defendant’s claim of plain error.

¶ 16 A. Plain Error and Reasonable Doubt

¶ 17 Defendant first argues that the trial court erred its response to the jury as to the definition

of reasonable doubt. During deliberations, the jury sent several questions to the trial court.

Pertinently, the jury asked, “What is your definition of reasonable doubt[:] 80%[,] 70%[, or]

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60%?” After receiving the question, the trial court gathered the parties, and the following

colloquy occurred:

“THE COURT: All right. We’re present in court, outside the presence of the jury,

and Mr. Downs is present.

And the jury has another question. I believe you will enjoy this: What is your

definition of reasonable doubt, 80%, 70%, 60%?

MR. KLIMENT: Can I answer that?

THE COURT: Actually, don’t they have it in the instructions, where they say the

committee recommends no instruction on reasonable doubt?

MR. KLIMENT: That’s absolutely true. We can’t give them a definition of

reasonable doubt. We are one of the few states that can’t.

MR. STAJDOHAR [Prosecutor]: What if we only answer: It’s yours to define.

THE COURT: We cannot give you a definition, it’s yours to define.

MR. STAJDOHAR: That is for you as a jury to define.

THE COURT: Okay. You may go back.”

The trial court’s written reply stated, “We cannot give you a definition it is your duty to define.”

¶ 18 Defendant argues that, by telling the jury that it had a duty to define reasonable doubt, the

trial court ran afoul of the prohibition in Illinois against defining reasonable doubt for a jury.

Defendant contends that, as a result of the court’s response, there is a reasonable likelihood that

the jury used a lesser standard to convict him, and that this represents reversible error. Before

addressing the merits of defendant’s contention, we must first address whether and how we can

review this argument.

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¶ 19 Defendant acknowledges that he did not raise this issue in the trial court or during the

initial appeal. The State argues that defendant’s failure to raise the issue before the second

appeal to this court constitutes waiver or forfeiture and that we should not consider the issue.

Defendant argues that we may consider the issue under the plain-error doctrine. We therefore

turn our attention to the requirements of the plain-error doctrine.

¶ 20 The plain-error doctrine provides that a forfeited claim may be reviewed under two

circumstances: (1) when a clear or obvious error occurred and the evidence is so closely

balanced that the error alone threatened to tip the scales of justice against the defendant,

regardless of the seriousness of the error; or (2) when a clear or obvious error occurred and that

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 strength of the evidence. People v. Johnson,

(2010). “Clear” or “obvious” in the context of the plain-error doctrine

means that the law is well settled at the time of trial; if the law was unclear at the time of the

trial, but becomes clear (i.e., settled) during the appeal, then the error is not “plain” for purposes

of the plain-error doctrine. In re M.W.,

(2009) (citing People v. Piatkowski,

, 565 n.2 (2007), citing United States v. Olano,

(1993)). The

purpose of the plain-error doctrine is to ensure that a defendant receives a fair trial, but a

defendant is not guaranteed a perfect trial. Johnson,

. It is not intended to be a

general saving clause, but rather it is construed as a narrow and limited exception to the

forfeiture rule applicable to unpreserved claims of error.

¶ 21 When seeking review under the plain-error doctrine, a defendant carries the burden of

persuasion to show that the forfeiture should be excused.

. If the defendant fails to

meet his or her burden of persuasion, the procedural default will be honored, and the issue will

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be deemed forfeited. People v. Hillier,

(2010). The first step in considering

a defendant’s invitation to review a forfeited issue under the plain-error doctrine is to determine

whether an error occurred.

We thus turn to whether defendant’s claim constitutes error.

¶ 22 It is well established in Illinois that the term “reasonable doubt” is self-defining and does

not need any further defining in court instructions. See, e.g., People v. Speight,

(1992) (neither the trial court nor counsel should try to define “reasonable doubt” for the

jury); People v. Cagle,

(1969) (“reasonable doubt” needs no definition);

People v. Malmenato,

(1958) (“reasonable doubt” needs no elaboration;

attempting to more specifically define it is futile). Further, the Illinois Pattern Jury Instructions

recommend that no instruction be given defining the term “reasonable doubt.” Illinois Pattern

Jury Instructions, Criminal, No. 2.05, Committee Note, at 78 (4th ed. 2000). Based on this

authority, we believe that it is abundantly clear that giving an erroneous definition of “reasonable

doubt” qualifies as error. The next question we must address is whether the trial court’s response

to the jury’s question was such an erroneous definition.

¶ 23 Two recent cases have held that an instruction similar to “it is your [the jury’s] duty to

define” the term “reasonable doubt” is erroneous. In People v. Turman,

, the jurors had been deliberating for a time when they asked for a “ ‘more explicit,

expansive definition of reasonable doubt.’ ” The trial court ultimately answered the question

with the reply, “ ‘It is for the jury to collectively determine what reasonable doubt is.’ ”

(Interestingly, the defendant did not object at trial or include this issue in his posttrial motion,

resulting in a procedural default; the appellate court conducted a plain-error analysis.

¶¶ 19-

27.)

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¶ 24 The appellate court held that the trial court’s instruction to the jury on reasonable doubt

constituted error. Id. ¶ 25. The court reasoned that, by instructing the jurors that they should

collectively determine what reasonable doubt was, it was likely that the jury used a standard that

was actually below the reasonable doubt standard. Id. According to the court, a circular

definition would have been better (e.g., “reasonable doubt” is not any doubt, but only that doubt

which is reasonable), and forgoing a definition altogether would have been best of all. Id. (The

court then proceeded to hold that the error satisfied both elements of the plain-error doctrine. Id.

¶ 27.)

¶ 25 Similarly, in People v. Franklin,

, during voir dire, the trial

court defined “reasonable doubt” to be “ ‘what each of you individually and collectively, as 12 of

you, believe is beyond a reasonable doubt.’ ” The defendant argued that the erroneous

reasonable-doubt instruction was compounded when the State referred to it in its closing

argument. Id. ¶ 20. (Once again, the defendant did not preserve the error, and the appellate

court proceeded under the plain-error doctrine. Id. ¶ 22.)

¶ 26 In analyzing whether the reasonable-doubt instruction constituted error, the court noted

the prohibition in Illinois against defining the term and held that the trial court’s instruction

contravened that prohibition. Id. ¶ 27. In addition, the court reasoned that, “by telling [the]

jurors that it was for them to collectively determine what reasonable doubt meant, there [was] a

reasonable likelihood that the jurors understood the instruction to allow a conviction based on

proof less than [beyond] a reasonable doubt.” Id. ¶ 28. (The court then determined that the

erroneous reasonable-doubt instruction constituted structural error (id. ¶ 23) and thus was

cognizable as plain error (id. ¶ 28).)

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¶ 27 Turman and Franklin focus on (1) the improper instruction that the jury is to collectively

determine the meaning of reasonable doubt, and (2) the danger that the jury will convict a

defendant on proof that did not meet the reasonable-doubt standard. Both of those concerns are

squarely implicated in this case. First, the trial court instructed the jury: “We cannot give you a

definition [of reasonable doubt;] it is your duty to define [reasonable doubt].” We are unable to

construe the trial court’s instruction as meaning anything but that the jury, collectively, was to

define reasonable doubt. See Turman,

; Franklin,

.

¶ 28 Second, the danger that the jury might have used a standard less than reasonable doubt is

manifest. In both Turman and Franklin, the danger arose from the instruction itself requiring the

jurors to collectively define reasonable doubt. Turman,

;

Franklin,

. That same concern is present here. As noted, there is

no plausible interpretation of the trial court’s written instruction other than as a command to

define the term according to the jury’s collective decision. But in this case, we can take a further

step, confirming the likelihood that the jury used a lesser standard. In its question about the

meaning of reasonable doubt, the jury sought to quantify it in terms of percentages (which, we

note, were disturbingly low). This question proves that the jury was considering the concept of

“beyond a reasonable doubt” to be a level of confidence in the evidence somewhere between

60% and 80%. The question, at best, suggests that the jury was predisposed to use a standard

less than reasonable doubt, and the trial court, by telling the jury that the court would stay out of

it and let the jury do whatever it wanted, only compounded the error. 1 We further note that the

1 For what it might be worth, the jury’s question put the trial court into a real bind; the

only acceptable answer that we can think of would have been to tell the jury that reasonable

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reasonable-doubt question was the second question the jury submitted to the trial court; the jury

also asked whether it could have the transcripts of three witnesses’ testimony, and the trial court

answered that it could but cautioned that preparation would take several hours. The jury then

delivered its verdict before the transcripts were ready. This circumstance further suggests that,

rather than wait the necessary few hours, the jury based its verdict on one of the fairly low

percentages that it imagined to constitute the necessary standard. Thus, the jury’s questions and

the timing of its verdict bolster our conclusion that there is a reasonable likelihood (in fact, we

believe it to be a substantial likelihood) that the jury convicted defendant by a standard less than

beyond a reasonable doubt. Accordingly, we believe that defendant has fully carried his burden

of persuasion and demonstrated that an error occurred. We must therefore continue along the

path of plain error.

¶ 29 Once an error has been demonstrated, the defendant must show that one (or both) of the

two elements of the plain-error analysis are satisfied. As noted, under the plain-error doctrine, a

reviewing court may consider a forfeited claim when (1) a clear or obvious error occurred and

the evidence is so closely balanced that the error alone threatened to tip the balance against the

defendant, regardless of the seriousness of the error; or (2) a clear or obvious error occurred and

that 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 strength of the evidence. Johnson, 238 Ill. 2d

doubt is not defined as a percentage, but rather is the highest standard of proof known in law, and

that the jury had all of the instructions needed to answer its question. At oral argument,

however, both defendant and the State expressed that to tell the jury that reasonable doubt is not

defined as a percentage would have strayed into providing a definition of reasonable doubt and

would have constituted error.

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. Defendant argues that the error in this case may be reviewed under either prong of the

plain-error analysis.

¶ 30 Defendant was convicted due to the testimony of Davila, a former gang member who had

been turned and convinced to testify against his former associates. Davila was extensively

impeached by his criminal history and his motivation to curry favor with the State by fulfilling

his agreement to testify. While the evidence presented in this case was sufficient to prove

defendant’s guilt beyond a reasonable doubt, we do not believe that it was overwhelmingly in

favor of the State. In any event, we do not have to provide a definitive answer on the closely-

balanced prong, because an erroneous reasonable-doubt instruction has long been held to

constitute structural error and to satisfy the second prong of the plain-error analysis.

¶ 31 The second prong of the plain-error analysis is equated with structural error. People v.

Thompson,

(2010). Structural error is a systemic error that erodes the

integrity of the judicial process and undermines the fairness of the defendant’s trial, and such

error requires an automatic reversal.

The concept of structural error is fairy tightly

circumscribed, having been recognized only in a limited number of cases: where there is a

complete denial of counsel, where there is a trial before a biased judge, where there is racial

discrimination in the selection of a grand jury, where there is a denial of self-representation at

trial, where there is a denial of a public trial, and where there is a defective reasonable-doubt

instruction.

. Both Turman,

, and Franklin,

, determined that the defective reasonable-doubt instruction amounted to

structural error. So too here. The trial court’s written instruction to the jury squarely raised the

two concerns motivating the holdings in Turman and Franklin: that the trial court told the jury to

collectively define the term “reasonable doubt,” and that the jury would likely use a standard less

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than reasonable doubt to convict the defendant. Accordingly, we hold that the defective

reasonable-doubt instruction here amounted to structural error and requires reversal. See

Thompson, 238 Ill. 2d at 613-14 (automatic reversal is required where there is structural error).

¶ 32 The State is not without weighty arguments on its side. The weightiest is that defendant

waived or forfeited (in any event, procedurally defaulted) his claim that the trial court

erroneously instructed the jury regarding reasonable doubt. This is a definite problem.

Defendant did not raise the issue in the trial court, did not raise the issue in a posttrial motion

(even the one first drafted by Haskell adopting five of defendant’s contentions of ineffective

assistance), did not raise the issue on appeal to this court in Downs I, did not raise the issue on

remand in the trial court, and raises it for the first time only in his second appeal to this court.

The State does not, however, cite pertinent authority that would suggest that the issue would not

be susceptible to a plain-error analysis. See Ill. S. Ct. R. 341(h)(7) (eff. July 1, 2008) (failure to

cite authority in support of appellate argument waives or forfeits the contention on appeal). In

fact, we note that, if defendant did not raise a plain-error issue now, he would indeed forfeit the

ability to raise the instruction error in a postconviction petition. People v. Coady,

(1993) (in postconviction proceedings the plain-error doctrine does not operate to save

claims that were forfeited by the defendant in the underlying prosecution). Notwithstanding the

State’s lapse, we note that we are empowered, under Illinois Supreme Court Rule 366(a)(5) (eff.

Feb. 1, 1994), to make any ruling that the case requires. The State does not suggest how

ignoring the structural defect of the erroneous reasonable doubt instruction would accomplish

justice in this case; in other words, the State does not provide a reason why we should sanction a

result in which there was a substantial likelihood that defendant was convicted by proof that was

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less than beyond a reasonable doubt. For these reasons, while the State’s procedural-default

contention has surface appeal, it is ultimately untenable, and we reject it.

¶ 33 Next, the State argues that we should not review this claim under the plain-error doctrine.

The State appears to try to argue that the trial court’s instruction did not constitute error and so

we cannot go on to consider whether it fulfills either prong of the plain-error analysis. We quote

the State’s argument in its entirety:

“There are two steps in plain error review under Rule 615(a) to determine if error

occurred.

‘An unpreserved error will not be “noticed” under Rule 615(a) unless it is

“clear or obvious.” [People v. Piatkowski,

, 565 n.2 (2007) (the

term “plain” as used in the plain-error rule is synonymous with “clear” or

“obvious”; error is not plain if the law was “unclear at the time of trial but

becomes clear on appeal because the applicable law has been clarified”) (citing

United States v. Olano,

(1993)).]

If such an error is found, a reviewing court will grant relief in either of two

circumstances: (1) if “the evidence [is] so closely balanced that the error alone

threatened to tip the scales of justice against the defendant,” or (2) if the error is

“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.” In

re M.W.,

(2009).’

At the time of the trial, the law defining ‘reasonable doubt’ for a jury was ‘clear or

obvious.’ Piatkowski,

n.2. Since the law was clear, it is not a basis for

this Court to review defendant’s argument. Therefore, the first step of plain error review

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has been met and defendant’s argument does not qualify for review under it. In re M.W.,

.”

¶ 34 We are not sure whether the State has inadvertently added or dropped a “not” from its

analysis. As best we can parse the argument, 2 the State appears to argue that defendant has not

passed the first step of plain-error analysis because the law was clear when the trial took place;

however, the authority quoted by the State sets forth a different rule: if the law under which error

is claimed is settled, as opposed to being in conflict or unsettled, then the error is “clear” or

“obvious” as those terms are used in the explanation of the plain-error doctrine. If the law is

clear or obvious, then it may be noticed under the plain-error doctrine. In re M.W.,

. But the State then argues, based on In re M.W., that, “[because] the law was clear, it is not a

basis for this Court to review defendant’s argument.” This conclusion does not follow from the

predicate, and, in fact, it conflicts with the quoted authority. In any event, the first step of plain-

error analysis is to determine if an error was committed. Hillier,

. We have

determined the existence of an error by following Turman and Franklin along with other cases

setting their groundwork. The State fails to convince us that the first step of plain-error analysis

has not been fulfilled, or even that its argument is “logically coherent.”

¶ 35 Next the State argues that Turman and Franklin were wrongly decided and that we

should not follow them. Regarding Turman, the State focuses on the passage in which the

appellate court expressed concern that the trial court “allowed the jury to use a standard that in

all likelihood was below the threshold of a reasonable doubt standard.” Turman, 2011 IL App

2 Defendant wryly notes that “the State’s argument may not be logically coherent.” To

say the least.

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(1st) 091019, ¶ 25. 3 The State argues that here the trial court’s response did not allow the jury to

use a standard that fell below the reasonable-doubt standard, because the trial court prefaced the

response with the phrase, “[w]e cannot give you a definition [of reasonable doubt].” The State

notes that Turman suggested that forgoing a definition would have been the best course (id.), and

cites to several cases that iterated the rule that neither the trial court nor counsel should define

reasonable doubt for the jury. See People v. Failor,

(1995) (and cases

cited therein). The State then reasons that the jurors are neither the court nor counsel, so they are

free to define reasonable doubt. There are at least two flaws in the State’s reasoning.

¶ 36 First, the prohibition against the court or counsel defining reasonable doubt for the jury is

concerned with potentially misleading the jury. Speight,

; Turman,

; Franklin,

. It is precisely because

the jury was told to define reasonable doubt for itself, leading to the likelihood that the jury used

a lesser standard to convict the defendant, that Turman and Franklin found that it was error to

exhort the jury to make up its own definition of reasonable doubt. Turman,

; Franklin,

. However, the State argues that

giving the jury free rein to make up its own definition of reasonable doubt is not error. This

argument is contradicted by well-settled and long-standing authority (e.g., Speight,

) and the express reasoning of Turman,

, and Franklin,

.

¶ 37 The second, and perhaps more important, flaw in the State’s reasoning is that the jury’s

question regarding reasonable doubt gives us a concrete and undeniable view into the jury’s

3 The State reiterates its argument that defendant procedurally defaulted our review of the

reasonable doubt issue. We have already dealt with this issue and need not address it again.

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thought process regarding reasonable doubt. By asking if reasonable doubt was 80%, 70%, or

60%, the jury clearly showed that it was already contemplating a standard less than the

reasonable-doubt standard required under the law. By instructing the jury that it was “your duty

to define [the term ‘reasonable doubt’],” the trial court gave the jury clear license to continue

down its mistaken pathway of equating reasonable doubt to some percentage of confidence. The

State claims that Turman was based on speculation. Even if it were, here we do not have that

speculation, because the jury’s question provides insight into the jury’s thinking, and we do not

have to speculate that the jury used a lesser standard. The jury’s question clearly shows that

there is a reasonable likelihood that it used a lesser standard in convicting defendant. Because of

this difference, we can follow the principles elucidated in Turman even if Turman were wrongly

decided due to speculation as to what the jury might have done.

¶ 38 The State makes essentially the same argument as to why we should not follow Franklin.

The same two flaws in its reasoning discussed above persist in its argument regarding Franklin.

As a result, we also reject this argument.

¶ 39 Because the jury’s question shows that it was already considering reasonable doubt to be

some standard less than that required under the law, and because the primary principle

motivating the reasonable-doubt cases is that the jury must not use a lesser standard in

determining a defendant’s guilt, we reject the State’s arguments regarding Turman and Franklin.

Because the State has failed to convince us not to follow the principles underlying Turman and

Franklin, we maintain our conclusion that the trial court’s reasonable-doubt instruction was error

because the jury likely used a standard less than reasonable doubt to return its guilty verdict.

Similarly, the State has offered nothing to change our conclusion that this error represented

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structural error requiring reversal. 4 Accordingly, we hold that defendant has demonstrated the

existence of a plain error that satisfies the second prong of the plain-error analysis.

¶ 40 The State next argues that defendant’s contentions under the first prong fail. In sum, the

State argues that the evidence was not closely balanced, because the witnesses challenging

Davila’s credibility were themselves not credible. We need not fully consider the issue, as we

have determined that defendant has carried his burden of persuasion on the second prong.

However, we note that the State’s argument does not address the substantial infirmities that

Davila himself brought to the table and the fact that his credibility was key to the State’s case.

The fact that the jury might have found Davila credible does not translate into an overwhelming

case in the State’s favor. Rather, the case was essentially “he said, they said,” and there was

little objective evidence corroborating Davila’s testimony. Thus, we do not think that the

evidence rose beyond closely balanced. That said, again, because defendant firmly prevails on

the second prong, we need not further consider the first prong.

¶ 41 B. Ineffective Assistance

¶ 42 Defendant’s remaining claim on appeal is the very narrow claim that Haskell provided

ineffective assistance concerning defendant’s pro se claims of ineffective assistance at trial. Our

determination on the reasonable-doubt issue requires a new trial, where the alleged ineffective

assistance from the first trial will be unlikely to recur. Thus, we need not address this issue.

4 At oral argument, the State attempted to summarize its argument regarding structural

error. The State asserted that, as a result of the case’s procedural posture, namely, a return

appeal from a limited remand, the error cannot constitute structural error. While that might have

been the intended point behind the State’s written argument, we remain unsure of the point’s

coherence and, in any event, we remain unpersuaded.

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¶ 43 III. CONCLUSION

¶ 44 For the foregoing reasons, we reject the State’s arguments and find plain error arising

from the deficient reasonable-doubt instruction. Accordingly, we vacate defendant’s conviction

and sentence and remand the matter for a new trial.

¶ 45 Vacated and remanded.

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