No. 2-12-1203 Opinion filed August 5, 2014 ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Du Page County. ) Plaintiff-Appellee, ) ) v. ) No. 12-CF-697 ) BERNARD THOMAS, ) Honorable ) John J. Kinsella, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE SCHOSTOK delivered the judgment of the court, with opinion. Justice Spence concurred in the judgment and opinion. Justice Hudson specially concurred, with opinion.

OPINION

¶1 On September 12, 2013, a jury found the defendant, Bernard Thomas, guilty of one count

of retail theft (720 ILCS 5/16-25(a)(1) (West 2012)). The sole issue raised in this appeal is the

constitutional validity of the trial court’s statement to the jury—in response to a written question

asking for the legal definition of the term “reasonable doubt”—that “[i]t is for you to determine.”

In arguing that this response violated his due process right to have the State held to the burden of

proving his guilt beyond a reasonable doubt, the defendant relies on two recent appellate court

cases, People v. Turman,

, and People v. Franklin,

, which held that it is reversible error per se for a trial court to tell a jury that it must

define “reasonable doubt” for itself. We view this holding as questionable under applicable

precedent of the United States Supreme Court and the Illinois Supreme Court. We instead hold

that a court must consider the totality of the circumstances and determine whether there is a

reasonable likelihood that the jury applied a lesser standard than beyond a reasonable doubt. We

conclude that this standard is not met here and therefore affirm the defendant’s conviction.

¶2 BACKGROUND

¶3 The defendant was indicted on two counts of felony retail theft. Count I alleged that, on

March 27, 2012, he took several bottles of liquor from a Jewel-Osco store in Elmhurst with the

intent to permanently deprive Jewel-Osco of the possession and benefit of the merchandise,

having been previously convicted of theft (720 ILCS 5/16-25(a)(1) (West 2010)). Count II

alleged the same retail theft, with the added element that the value of the liquor taken was over

$300 (thereby increasing the sentence (720 ILCS 5/16-25(f)(3) (West 2010))).

¶4 The jury trial commenced on September 11, 2012. During jury selection, the trial court

made comments giving the prospective jurors an overview of the case, including the charges and

the schedule of the trial. With respect to the State’s burden of proof, the trial court stated that:

the State bore the burden of proving the charges beyond a reasonable doubt; the burden of proof

never shifted to the defendant; the defendant was presumed innocent of the charges throughout

the trial; at the end of the trial, if the State did not prove its case beyond a reasonable doubt, the

jurors would be required to find the defendant not guilty; and if the jurors found that the State

had sustained its burden of proof beyond a reasonable doubt, they would be required to find the

defendant guilty. The trial court did not make any comments about the meaning of the term

“reasonable doubt.”

¶5 Nathan Bown, an assistant director for the Osco portion of the Jewel-Osco store, testified

that on February 11, 2012, he noticed that an unusual amount of liquor was missing from one of

the shelves in aisle 7. He checked the surveillance video for the day before and saw an African-

American man placing bottles of liquor inside his jacket, which was puffy and black with a furry

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lining at the neck. The man later walked out the northwest entrance of the store. Bown did not

call the police, because he did not know who the man was, but he monitored aisle 7 closely after

that. Bown later observed, via video, the same man stealing liquor from aisle 7 on February 20

and 29 and March 12, 14, and 27, 2012. As of March 27, he still had not contacted the police

because he still did not know who the man was. However, he backed up the surveillance video

to preserve it.

¶6 Rafael Lopez, a Jewel-Osco employee, testified that he was working at the store on

March 31, 2012. About 3 p.m. that day, Lopez saw a man leave the store through the entrance

doors. The man, who walked right past him, was African-American and had a tattoo on his neck,

and he was wearing a heavy winter coat with a furry lining, although it was a warm afternoon.

Lopez noticed that he had a big bulge in his midsection. Lopez identified the defendant in court

as the man he saw leaving the store on that day and as the man shown in photographs of aisle 7

taken on that day. Lopez continued to watch as the defendant approached the passenger side of a

gold four-door vehicle with an older African-American man in the driver’s seat. The defendant

got into the car. As the car drove away, Lopez was behind it and made a note of the number of

the license plate, which had a “handicapped” emblem. At trial, he testified that the number was

either 117346 or 117396 (he could not tell whether he had written down a “4” or a “9”). Lopez

notified his manager.

¶7 On April 1, Bown learned that another potential theft of liquor had occurred on March

31. When he checked the surveillance video for that day, he saw the same man he had seen

earlier taking bottles of liquor and then walking out the northwest entrance. As on earlier

occasions, the red lights on the anti-theft towers activated. Bown called the Elmhurst police and

gave them the surveillance video and the license plate number observed by Lopez. Lopez was

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interviewed by the Elmhurst police, who showed him an array of six photographs. He identified

a photograph of the defendant as the man he had seen leaving the store.

¶8 On April 5, Bown saw a man in the store who looked like the suspect in the surveillance

videos. The man was pushing a cart containing some liquor bottles. Bown called the police. He

then began following the man, whom he identified in court as the defendant. After he followed

the defendant up and down a few aisles, the defendant abandoned his cart and left the store. The

defendant did not steal anything on April 5. Bown testified that he later determined, by looking

at the video, that on March 27 the defendant had stolen six bottles of Ciroc vodka and three

bottles of Hennessey cognac. Bown also generated a receipt showing the total value of the liquor

taken on that date, which exceeded $300 ($38.99 per bottle of Ciroc vodka and $32.99 per bottle

of Hennessey cognac).

¶9 Police officer Alexander Kefaloukas of the Elmhurst police department testified that he

went to the Jewel-Osco store at about 5:30 p.m. on April 5, 2012, after a report was received

about a potential theft in progress. He met with a store employee who gave him a description of

a suspect, which he relayed to other police officers.

¶ 10 Elmhurst police officer Michael Campise testified that he responded to the Jewel-Osco

store at about 5:30 p.m. on April 5. While there, he saw an African-American man loitering

outside the store. The man walked to a tan Chevy Lumina, which had a license plate with a

“handicapped” emblem and the number 117346, and got in. Campise told other officers to

detain the car if it drove away. He later learned that this man was Horace Smith.

¶ 11 Campise received a report that the suspect was leaving the store, and he arrested the

defendant. Kefaloukas joined him and they searched the defendant, who was wearing a black

“poofy” jacket with fur on the hood. The defendant had a small amount of change in his pocket

but no other money, and no credit or debit cards.

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¶ 12 Elmhurst police officer Edward Coughlin interviewed the defendant at the police station

at about 6:30 p.m. He gave the defendant Miranda warnings. The defendant, who had a tattoo

on the side of his neck, appeared agitated and said that he had not stolen anything. Coughlin told

him that they were interested in prior incidents, not events at the Jewel-Osco that day. The

defendant said that he had been at the store to pick up some things for his wife. Coughlin

expressed skepticism, noting that the defendant had only six cents on him when he was brought

to the police station. The defendant contended that a police officer on the street had taken his

credit card. However, after Coughlin showed the defendant a surveillance DVD and mentioned

the dates that the defendant had been seen in the store, the defendant admitted that he had stolen

liquor from the store. The defendant stated that Smith would drive him to the store, where he

would take bottles of liquor from the shelf and put them in his jacket. He would then sell the

liquor on the street to get money for his heroin habit. His habit cost him about $60 per day.

Coughlin had seen people under the influence of narcotics before and the defendant did not seem

to be under the influence at the time of the interview.

¶ 13 After closing arguments, the trial court instructed the jury. As part of the instructions, the

trial court gave Illinois Pattern Jury Instructions, Criminal, No. 2.03 (4th ed. Supp. 2009)

(hereinafter, IPI Criminal 4th No. 2.03 (Supp. 2009)):

“The defendant is presumed to be innocent of the charges against him. This

presumption remains with him throughout every stage of the trial and during your

deliberations on the verdict and is not overcome unless from all the evidence in this case

you are convinced beyond a reasonable doubt that he is guilty.

The State has the burden of proving the guilt of the defendant beyond a

reasonable doubt, and this burden remains on the State throughout the case. The

defendant is not required to prove his innocence.”

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¶ 14 The jury sent out three notes during its deliberations. Only the second is at issue here.

That note read, “[W]hat is the legal definition of reasonable doubt?” The trial court commented

to the parties:

“It’s not the first time I heard that question. I don’t think the law in Illinois has

changed, nor the position of the Supreme Court. The only question is how do I wish to

word my response. My inclination is to say: It is for you to determine; that is for you to

determine.”

The State assented; the defense suggested that the jurors be told that if they wanted to find the

defendant not guilty, they should do so. The trial court then consulted the IPI Criminal and

noted that it did not recommend any definition. The trial court’s written response read, “It is for

you to determine.”

¶ 15 The jury found the defendant guilty of count I and not guilty of count II. On October 12,

2012, the defendant was sentenced to six years’ imprisonment. After his motion to reconsider

the sentence was denied, he filed a timely notice of appeal.

¶ 16 ANALYSIS

¶ 17 The sole issue on appeal is whether the trial court violated the defendant’s due process

rights through its response to the jury’s note asking for the legal definition of “reasonable doubt.”

The defendant concedes that he did not raise this issue in the trial court (through either a

contemporaneous objection or a posttrial motion) and thus the issue is forfeited unless the trial

court’s actions amounted to plain error. The plain error doctrine allows a reviewing court to

consider unpreserved error when “(1) 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) a clear or obvious error occurred and that error is

so serious that it affected the fairness of the defendant’s trial and challenged the integrity of the

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judicial process, regardless of the closeness of the evidence.” People v. Piatkowski,

(2007). The first step in determining whether plain error exists is determining whether

an error actually occurred. People v. Naylor,

(2008).

¶ 18 The defendant argues that, under Turman and Franklin, the trial court’s response to the

jury’s question about the definition of “reasonable doubt”—“It is for you to determine”—was

plain error. We begin by setting out the fundamental analysis applicable to this issue, as

expressed by the United States and Illinois Supreme Courts, before turning to an examination of

Turman, Franklin, and later decisions.

¶ 19 A. Constitutional Requirements

¶ 20 The requirement to correctly instruct the jury on fundamentals such as the proper burden

of proof is of constitutional dimension. “[T]he Due Process Clause protects the accused against

conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the

crime with which he is charged.” In re Winship,

(1970). However, in

considering whether a particular jury instruction violated the defendant’s due process rights, “the

proper inquiry is not whether the instruction ‘could have’ been applied in an unconstitutional

manner, but whether there is a reasonable likelihood that the jury did so apply it.” (Emphasis in

original.) Victor v. Nebraska,

(1994).

¶ 21 In 1994, the United States Supreme Court issued its decision in Victor, in which it

considered whether the jury instructions defining “reasonable doubt” in two state criminal cases

violated due process. The Court began by laying out the analytical framework for such claims:

“The beyond a reasonable doubt standard is a requirement of due process, but the

Constitution neither prohibits trial courts from defining reasonable doubt nor requires

them to do so as a matter of course. [Citation.] Indeed, so long as the court instructs the

jury on the necessity that the defendant’s guilt be proved beyond a reasonable doubt,

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[citation], the Constitution does not require that any particular form of words be used in

advising the jury of the government’s burden of proof. [Citation.] Rather, ‘taken as a

whole, the instructions [must] correctly conve[y] the concept of reasonable doubt to the

jury.’ ”

at 5 (quoting Holland v. United States,

(1954)).

¶ 22 The Court then summarized the key issue: “The constitutional question *** is whether

there is a reasonable likelihood that the jury understood the instructions to allow conviction

based on proof insufficient to meet the Winship standard.” Id. at 6. In assessing this likelihood,

the court should consider other instructions or comments to the jury that occurred during the

trial. See id. at 13, 21-22 (considering the other instructions given during the defendants’ trials,

which provided context for the instructions at issue). Thus, the standard to be applied in cases

such as the one before us is: taken as a whole, were the instructions to the jury such that there is a

reasonable likelihood that the jury understood those instructions as allowing a conviction under a

lesser standard than proof beyond a reasonable doubt?

¶ 23 B. Illinois Supreme Court Precedent

¶ 24 There is no dispute that attempts to define the term “reasonable doubt” for jurors are

discouraged in Illinois. In People v. Speight,

(1992), the Illinois Supreme

Court commented that “[t]he law in Illinois is clear that neither the court nor counsel should

attempt to define the reasonable doubt standard for the jury.” Reflecting this sentiment, there is

no recommended jury instruction that would provide such a definition. See Illinois Pattern Jury

Instructions, Criminal, No. 2.05, Committee Note, at 78 (4th ed. 2000) (“The Committee

recommends that no instruction be given defining the term “ ‘reasonable doubt.’ ”). 1

1 Nothing in Illinois’s hands-off approach to defining “reasonable doubt” for jurors is

incompatible with Victor, in which the Court noted that due process neither requires nor

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¶ 25 Nevertheless, it is equally clear that providing a jury with a definition of “reasonable

doubt” does not necessarily constitute reversible error. A review of Illinois Supreme Court

precedent on this issue demonstrates this: typically, the supreme court finds that giving such a

definition either is not error or is harmless error. See, e.g., People v. Lucas,

(1910) (expressing no condemnation of the trial court’s instruction that the term means “a

serious, substantial doubt and not a mere possibility of a doubt”; supreme court held this

instruction was not error, noting that “reasonable doubt” need not exclude all possibility of

doubt, as that state of certainty was almost unattainable in human affairs (internal quotation

marks omitted)); People v. Moses,

(1919) (commenting that the giving of

lengthy instructions is unnecessary because “there is no better definition of the meaning of the

words ‘reasonable doubt’ than the words themselves” but adding that such lengthy definitions

are not necessarily reversible error; affirming the conviction); People v. Malmenato,

(1958) (although supreme court discouraged the practice of defining “reasonable doubt,”

trial court’s instruction on the topic was not error); Speight,

(although

“neither the court nor counsel should attempt to define the reasonable doubt standard for the

jury,” prosecutor’s comments were not reversible error in light of trial court’s immediate

admonishment to the jury to disregard the comments).

¶ 26 One of the few supreme court cases to find that an instruction defining reasonable doubt

was reversible error is People v. Cagle,

(1969), in which the trial court had

prohibits definitions of the term. Victor,

. See also People v. Failor,

(1995) (Victor did not conflict with the prevailing practice in Illinois of not defining

“reasonable doubt” and trial court did not err in refusing to provide jurors with a definition of the

term).

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instructed the jury that “a doubt, to justify an acquittal, must be reasonable, and it must arise

from a candid and impartial investigation and consideration of all the evidence in the case and

unless it [meets a standard described at some length], it is insufficient to authorize a verdict of

not guilty.” (Internal quotation marks omitted.) The supreme court held that this instruction

improperly shifted the burden of proof to the defendant by implying that an acquittal must be

justified, contrary to the presumption of innocence. In reaching this conclusion, the supreme

court noted that it had “repeatedly held that the legal concept of ‘reasonable doubt’ needs no

definition.”

Nevertheless, giving an instruction on the concept was not necessarily

prejudicial or reversible error, so long as the instruction did not improperly minimize the State’s

burden of proof or attempt to shift that burden to the defendant.

¶ 27 In the years since Victor, the Illinois Supreme Court has only rarely addressed the issue

of defining “reasonable doubt,” but the essential principles are unchanged. In People v. Keene,

(1995), a case involving prosecutorial comments about reasonable doubt, the

supreme court reaffirmed that, although it is unwise, defining the term is not automatic error:

“This court has cautioned against attempts by counsel as well as trial judges to

explain the reasonable doubt standard. [Citation.] The danger is that, no matter how

well-intentioned, the attempt may distort the standard to the prejudice of the defendant. If

sufficient prejudice results, reversal is warranted.” (Emphasis added.)

.

In Keene, the court held that the prosecutor’s comments did not rise to the level of plain error.

More recently, the supreme court issued People v. Green,

(2007), in which it

considered whether the failure to formally instruct the jury that the State bore the burden of proof

as to each and every element of the offense (as part of Illinois Pattern Jury Instructions, Criminal,

No. 14.04 (4th ed. 2000)) rendered the trial fundamentally unfair. The supreme court held that

the essential requirements for a fair trial had been met because IPI Criminal 4th No. 2.03 (Supp.

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) (which lays out the State’s general burden of proof and the presumption of the defendant’s

innocence) had been given. Green,

(“once IPI Criminal 4th No. 2.03 was

given, the constitutional threshold was met”). Although it does not directly bear on the issue of

definining reasonable doubt, Green is illuminating because it reflects Victor’s emphasis on the

constitutional requirement that jurors be told that they must apply the beyond a reasonable doubt

standard, and Victor holds that it is unimportant whether “reasonable doubt” is defined so long as

the proper standard is applied.

¶ 28 Thus, under Illinois Supreme Court precedent, it remains the law in Illinois that defining

“reasonable doubt” is discouraged but is not reversible error per se.

¶ 29 C. Turman and Franklin

¶ 30 In 2011, the First District Appellate Court issued Turman,

, in which it held that the trial court committed reversible error when it answered a jury’s

request for a definition of “reasonable doubt” by saying that “ ‘reasonable doubt is not defined

under Illinois law. It is for the jury to collectively determine what reasonable doubt is.’ ” The

parties had agreed to this response, and the defendant had not identified it as error in his posttrial

motion, instead raising it for the first time on appeal. The appellate court stated that the issue

was subject to plain error analysis, rejecting the State’s argument that the defendant had

acquiesced in the error and could not raise it on appeal. Id. ¶ 27.

¶ 31 Analyzing the trial court’s response to the jury’s question, the Turman court held that,

although the first part of the response (that the term was not defined under Illinois law) was

correct, the second part was error:

“By instructing the jurors that they should collectively determine what reasonable doubt

was, the court allowed the jury to use a standard that in all likelihood was below the

threshold of a reasonable doubt standard. *** The effort by the trial court in this case

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can be construed as an attempt to define that which the Illinois Supreme Court has said

cannot be defined in this way.” Id. ¶ 25.

The Turman court went on to say that the trial court’s response was plain error under both prongs

of the analysis. The response was error under the first prong because the court viewed the

evidence as close, and the response “did not clarify the meaning of reasonable doubt.” Id. ¶ 27.

It also held that, because the error allowed the jury to apply an incorrect standard of proof, it

affected the fairness and integrity of the trial and violated the defendant’s right to due process,

thereby amounting to plain error under the second prong. Id.

¶ 32 The Turman court did not provide any detailed explanation as to what aspect of the trial

court’s response created the probability that the jury applied a lesser standard of proof. Was it

the use of the word “collectively,” which might have suggested that reasonable doubt meant

whatever a majority of the group thought, without regard for the beliefs of individual jurors? Or

was it simply that the trial court gave some response, and the court read Illinois law as saying

that any response (other than refusing to answer the question) was automatic error? The Turman

decision left these questions unanswered.

¶ 33 One year later, the Third District Appellate Court issued Franklin,

. In Franklin, the trial court had stated, during jury selection: “ ‘Beyond a reasonable

doubt means beyond a reasonable doubt. It’s what each of you individually and collectively, as

12 of you, believe is beyond a reasonable doubt.’ ” Id. ¶ 4. During the State’s rebuttal closing,

the prosecutor reminded the jurors that the trial judge had told them that “ ‘[r]easonable doubt is

what you believe to be reasonable doubt. You decide what reasonable doubt is. Not [defense

counsel], not the State, you decide.’ ” Id. ¶ 15. The defendant did not make any

contemporaneous objections or raise the issue in his posttrial motion, but raised the issue on

appeal.

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¶ 34 The majority in Franklin began by stating that “[t]he United States Constitution does not

prohibit courts from defining reasonable doubt” (citing Victor), but “judges in Illinois courts are

prohibited from doing so” (citing Failor and Speight). Id. ¶ 24. The Franklin majority went on

to state that any attempt to define “reasonable doubt” was error per se: “A trial court’s attempt to

explain reasonable doubt is improper because there is no better definition of reasonable doubt

than the words themselves.” Id. ¶ 25; see also id. ¶ 27 (the instruction given was improper

“because it contravene[d] the Illinois Supreme Court’s mandate that trial courts not define

reasonable doubt for the jury”). The Franklin majority then followed Turman in holding that,

“by telling jurors that it was for them to collectively determine what reasonable doubt meant,”

the trial court’s instruction created a reasonable likelihood that the jury had convicted the

defendant based on a standard of proof less than beyond a reasonable doubt, a structural error

requiring reversal. Id. ¶ 28.

¶ 35 Justice Carter dissented from this holding. He set out the constitutional requirements for

instructing a jury in a criminal trial, including instructions on the presumption of innocence and

the State’s burden to prove the commission of the offense beyond a reasonable doubt. In

particular, he noted the United States Supreme Court’s statement that “ ‘the Constitution neither

prohibits trial courts from defining reasonable doubt nor requires them to do so’ ” and “ ‘does

not require that any particular form of words be used in advising the jury of the government’s

burden of proof.’ ” Id. ¶ 48 (Carter, J., concurring in part and dissenting in part) (quoting Victor,

). Thus, contrary to the majority’s approach:

“[T]he United States Supreme Court’s ruling in Victor establishes that a jury instruction

defining reasonable doubt is not automatically erroneous, *** and that such an instruction

does not automatically violate a defendant’s right to a fair trial as guaranteed by the due

process clause. See Victor,

; Green,

(adopting some of the

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language set forth in Victor but in a different context). Indeed, the Supreme Court noted

in Victor that it had only found that a reasonable doubt instruction violated the due

process clause one time in the past. See Victor,

. According to the Supreme

Court, due process is violated only if under the totality of the circumstances, there is a

reasonable likelihood that the jury understood that the instructions allowed it to find the

defendant guilty based upon a standard of proof that was less than beyond a reasonable

doubt.”

¶ 36 Justice Carter then reviewed all of the trial court’s extensive (and correct) comments to

the jury regarding the State’s burden of proof, the presumption of innocence, and the meaning of

“reasonable doubt,” as well as all of the prosecutor’s comments (which included the statement

that beyond a reasonable doubt was the highest standard of proof available under the law). He

concluded that, considering all of the instructions received by the jury, there was not a

reasonable likelihood that the jurors believed the trial court’s response allowed them to find the

defendant guilty under a lesser standard of proof. Id. ¶ 49.

¶ 37 D. Developments Since Turman and Franklin

¶ 38 Less than six months after it decided Franklin, the Third District issued another opinion

addressing comments about the meaning of “reasonable doubt.” In People v. Max,

, the prosecutor had made two comments about reasonable doubt. During the initial

closing argument, the prosecutor acknowledged that the State had the responsibility to prove

beyond a reasonable doubt that the defendant engaged in theft and said he thought the jury would

find the State had met this standard. He then said, “ ‘[n]ow, beyond a reasonable doubt,

there’s—there’s no dictionary definition of that. I would suggest to you that if you imagine a

balance—’ ” Id. ¶ 40. Defense counsel objected and the objection was sustained. In the

defendant’s closing, her attorney argued that the State had failed to prove that she took any

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money, noting that the State had not introduced her financial records or shown that she bought

expensive items. Id. ¶ 41. On rebuttal, the prosecutor stated: “ ‘We all know better in our heart

of hearts exactly what went on here. And when you know inside your heart of hearts, you know

we have met our burden of proof of proving [the defendant] guilty beyond a reasonable doubt,

and we don’t have to show where she spent the money.’ ” Id. ¶ 42.

¶ 39 Justice Carter wrote the opinion in Max, joined by two justices who were not on the panel

in Franklin. The opinion reiterated much of Justice Carter’s dissent in Franklin and applied

Victor’s “totality of the circumstances” test rather than the per se approach of Turman and

Franklin. The court then held that, considering all of the information received by the jury in the

case, there was not a reasonable likelihood that the jurors understood the prosecutor’s comments

to mean that they could find the defendant guilty under a lesser standard than proof beyond a

reasonable doubt. Id. ¶ 56. 2

¶ 40 The First District also appears to have retreated from its position in Turman, to the extent

that Turman held that telling jurors that they must define “reasonable doubt” for themselves

2 In People v. Sullivan,

, the Third District (including one of the

justices from the Franklin majority) once again addressed an attempt to define “reasonable

doubt.” However, the court simply distinguished Turman and Franklin on the ground that those

cases involved comments made by the trial judge, whereas Sullivan involved a prosecutorial

comment, which did “not carry as grave a danger of distorting the reasonable doubt standard.”

Id. ¶ 29. The court concluded that the defendant had not shown that the prosecutor’s comment

on the reasonable-doubt standard was “so egregious that it risked the jury using a lesser standard

to convict” the defendant. Id. ¶ 33.

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violates a defendant’s due process rights. In People v. Johnson,

, the

trial court had made the following comments during jury selection:

“ ‘The State has the burden of proof beyond a reasonable doubt. In Illinois we do

not—it is not defined by the Supreme Court or by the State legislature. That’s something

for you to decide. But if any of you have served on a civil jury, if you use the analogy of

a scale, all you have to do is tilt it. And that’s proof beyond a preponderance of the

evidence.

In a criminal case, if you use the same scale, it’s a balance like this. (Indicating.)

Proof beyond a reasonable doubt is the highest burden that there is at law in Illinois and

the United States.’ ” Id. ¶ 52.

The Johnson court rejected the defendant’s argument that these comments constituted plain

error, stating: “Although we do not condone the reference and comparison to the civil standard,

we cannot say that the trial court’s comments constitute error, particularly where the court told

jurors that reasonable doubt was the highest burden at law and that it was for them to decide what

reasonable doubt meant.” (Emphasis added.) Id. ¶ 54. Johnson did not cite to either Turman or

Franklin, however.

¶ 41 In People v. Downs,

, this court recently addressed the issue of

the proper response to juror confusion about the meaning of reasonable doubt. Like the present

case, it involved a jury note asking for a definition of reasonable doubt. However, the note in

Downs was more detailed and suggested that the jury fundamentally misunderstood the standard:

“ ‘What is your definition of reasonable doubt[:] 80%[,] 70%[, or] 60%?’ ” Id. ¶ 4. The trial

court consulted with the parties’ attorneys and eventually responded: “ ‘We cannot give you a

definition ***[;] it is for you to define ***.’ ” Id. As here, the defendant did not raise the

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correctness of this response before the trial court, and thus on appeal the issue was subject to

plain error analysis.

¶ 42 We began by noting the firm position of Illinois law that no definition of “reasonable

doubt” should be given and stated that, “[b]ased on this authority, we believe that it is abundantly

clear that giving an erroneous definition of ‘reasonable doubt’ qualifies as error.” (Emphasis

added.) Id. ¶ 22. We then considered whether the trial court’s response constituted an erroneous

definition of reasonable doubt.

¶ 43 Analyzing Turman and Franklin, we summarized their holdings as focusing 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.” Id. ¶ 27. In Downs, the danger that the jury would apply a lesser

standard to convict was obvious, in light of the reference in the jury’s question to percentages as

low as 60 percent. “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.” Id. ¶ 28. We

therefore held that the integrity and fairness of the trial had been impugned, and we reversed the

conviction and remanded for a new trial.

¶ 44 Importantly, although in Downs we rejected the State’s request to depart from Turman

and Franklin, we noted that, because of the peculiar facts relating to the content of the jury’s

note in Downs, we would reverse even if the per se error approach of Turman and Franklin was

incorrect:

“[T]he jury’s question regarding reasonable doubt gives us a concrete and undeniable

view into the jury’s 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

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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 ***.” Id. ¶ 37.

¶ 45 E. Application to This Case

¶ 46 In this case, the trial court initially provided no definition of reasonable doubt to the jury.

Thus, it conformed to the dictate of Speight that courts should not attempt to provide such a

definition. And, even when the jury asked for the “legal definition” of the term, the trial court

simply responded that the definition was for the jurors to determine.

¶ 47 This response was unquestionably correct. As our supreme court has held, neither the

court nor counsel should attempt to define reasonable doubt for the jury. Speight,

. As a practical matter, the refusal to supply a definition requires jurors to wrestle with the

term’s meaning themselves. This is no bad thing: the American legal system is premised on the

belief that jurors represent the conscience of the community and will act diligently and

thoughtfully in applying the law. Thus, absent any concrete demonstration of error or confusion,

jurors should be trusted to apply the beyond a reasonable doubt standard appropriately. See

United States v. Glass,

(7th Cir. 1988) (“ ‘Reasonable doubt’ must speak for

itself. Jurors know what is ‘reasonable’ and are quite familiar with the meaning of ‘doubt.’ ”).

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A trial court’s instruction that the meaning of “reasonable doubt” is for jurors to determine is a

correct statement of Illinois law.

¶ 48 The defendant argues that a trial court’s instruction telling jurors that they must define

reasonable doubt inevitably encourages them to apply a standard that is less than proof beyond a

reasonable doubt. However, he provides no explanation as to why this should be so, other than

citing to Turman and Franklin. To the extent that Turman and Franklin held that simply

instructing jurors that they must determine the meaning of “reasonable doubt” is (1) a violation

of the Illinois Supreme Court’s proscription against providing a definition or (2) reversible error

per se, we find them unpersuasive. See O’Casek v. Children’s Home & Aid Society of Illinois,

(2008) (decisions of one district of the appellate court are not binding on

other districts). To the extent that those two cases rest on some other basis, such as the use of the

word “collectively” in the instructions in those cases, they are distinguishable from this case.

Either way, the defendant’s reliance on these cases is unavailing.

¶ 49 Under Victor, we must consider all of the instructions received by the jury and determine

whether there is a reasonable likelihood that the jury convicted the defendant under a lesser

standard than proof beyond a reasonable doubt. Here, however, the defendant’s sole contention

of error is the wording of the trial court’s response to the jury’s second question. We have found

that there was no error in this response. Absent any other evidence that the jury applied a lesser

standard than proof beyond a reasonable doubt in convicting the defendant of count I, we cannot

conclude that there is a reasonable likelihood that the defendant’s due process rights were

violated by the trial court’s instructions to the jury. Victor,

.

¶ 50 As we find no error in the trial court’s instructions to the jury in this case, we likewise

find no plain error. Naylor,

. Accordingly, the defendant’s forfeiture must

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stand. People v. Pastorino,

(1982) (“[p]lain error doctrine is a ‘narrow and

limited exception to the general waiver rule”).

¶ 51 CONCLUSION

¶ 52 The judgment of the circuit court of Du Page County is affirmed.

¶ 53 Affirmed.

¶ 54 JUSTICE HUDSON, specially concurring:

¶ 55 I agree with the majority that there is no reasonable likelihood that the jury applied an

incorrect standard of proof in the present case. I write separately to caution trial courts against

proceeding down a path that is fraught with peril. It is true that a “trial court has a duty to

provide instruction to the jury where it has posed an explicit question or requested clarification

on a point of law arising from facts about which there is doubt or confusion.” People v. Childs,

(1994). On the other hand, “[a] trial court may exercise its discretion and

properly decline to answer a jury’s inquiries where the instructions are readily understandable

and sufficiently explain the relevant law, where further instructions would serve no useful

purpose[,] or would potentially mislead the jury ***.”

. As set forth by the majority,

precedent of both the United States Supreme Court and our supreme court is abundantly clear—

there is no need for a trial court to attempt to define “reasonable doubt” any further than the plain

meaning of those two common words conveys. I believe that the better practice is to let the

phrase speak for itself.

¶ 56 Indeed, even stating something as seemingly innocuous as “it is for you to decide” carries

risks. Such an instruction could be read as directing a jury that it must try to define or interpret

the objective meaning of the term. On the other hand, it could be read as vesting a jury with the

discretion to interpret the term to mean whatever it wants it to mean (like 80%, 70%, or 60%

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certitude, as the question was posed by the jury in Downs,

). In short,

any attempt to interpret, define, or even comment on the term “reasonable doubt” risks reversal.

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