The opinion
2025 IL 130447
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 130447)
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
DEVIN JOHNSON, Appellant.
Opinion filed October 31, 2025.
JUSTICE O’BRIEN delivered the judgment of the court, with opinion.
Chief Justice Neville and Justices Overstreet and Holder White concurred in the
judgment and opinion.
Justice Cunningham specially concurred, with opinion, joined by Justices Theis
and Rochford.
OPINION
¶1 At issue before this court is whether a trial court must decide a defendant’s
midtrial motion for a directed verdict before proceeding to the defense’s evidence.
The appellate court did not answer this question and instead found that defendant
forfeited appellate review of the issue. 2023 IL App (4th) 221021-U. The appellate
court affirmed defendant’s conviction and sentence. Id. ¶ 64. For the following
reasons, we hold that the trial court must decide the motion before advancing to the
defense’s evidence. Still, we find the error, in the instant case, does not call for
reversal under the plain error rule. We find the evidence is not closely balanced,
and we find that defendant failed to satisfy his burden in establishing second prong
plain error. Therefore, we affirm the judgment of the appellate court.
¶2 BACKGROUND
¶3 Defendant was charged with attempted first degree murder (720 ILCS 5/8-4(a),
(c)(1)(D) (West 2020)) and aggravated battery with a firearm (id. § 12-3.05(e)(1))
for the shooting of Kelvin Bell. At defendant’s jury trial in Rock Island County
circuit court, the evidence established that Bell was shot in the early morning hours
of January 24, 2021, while seated in the front passenger seat of defendant’s vehicle,
parked outside of defendant’s residence.
¶4 Kristopher Kuhlman, a sergeant with the Rock Island Police Department,
testified that he was dispatched at around 2 a.m. on January 24, 2021, to respond to
a report that a subject had been shot. Upon arriving at the scene, Kuhlman observed
a white Cadillac with the passenger side door ajar. There was a man standing in the
open doorway of the vehicle, whom Kuhlman identified as defendant, and a victim,
Bell, seated in the front passenger seat of the vehicle. Defendant, who was
distraught and emotional, stated that Bell had been shot. Kuhlman observed that
Bell had what appeared to be a gunshot wound to the right side of his head. Bell
was making sounds and movements, but he could not speak. Kuhlman also
observed what appeared to be a gunshot hole in the passenger side window.
¶5 Ibrahim Ramirez was the patrol officer who arrived at the scene after Kuhlman.
Ramirez identified a woman at the scene as Alisha Johnson, defendant’s wife.
Ramirez’s body-worn camera was played to the jury. In the video, defendant and
Alisha both state that Bell was seated in the Cadillac when they left to run to the
store and that they returned to find him shot.
¶6 Andrew Lawler, a patrol officer, testified that he searched for evidence after
arriving at the scene. Lawler observed a shell casing and an unfired bullet on the
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ground near the vehicle. The bullet was on the ground just outside the passenger
door, and the shell casing was approximately three feet in front of the vehicle in the
roadway.
¶7 Dr. Scott Schepker treated Bell in the hospital emergency department when Bell
was brought in by paramedics in the early morning hours of January 24, 2021. Bell
had a gunshot wound to the right side of his head. There was swelling and bleeding
at the entrance site of the gunshot wound, and Bell was moaning but not responding.
Bell had some movement of his right extremities but was not moving his left
extremities, which was consistent with trauma to the right side of the brain. Bell
had a blood alcohol level of 0.116, and he tested positive for cocaine metabolites.
Bell was transferred to the University of Iowa Health Center in Iowa City, due to
the extent of his injuries.
¶8 A neighbor of defendant, Roe Ko, testified that he heard people talking and a
single gunshot at around 1 a.m. on January 24, 2021. John Trost, another nearby
neighbor, testified that he was awake when he heard a single gunshot at 1:26 a.m.
on January 24, 2021. Ryan Harker, also a nearby neighbor, testified that he heard a
“really loud bang” at approximately 2 a.m. The police did not recover any local
camera footage in the neighborhood.
¶9 Garrett Alderson, a criminalist with the Rock Island Police Department,
explained how a handgun functions. A magazine is fed into the bottom of the grip
of the handgun, and a cartridge, or unfired bullet, is engaged from the magazine
when the slide is charged, or racked, backwards. Once the handgun with a magazine
is fired, the magazine auto-loads the next cartridge. If there is a cartridge in the
chamber and the handgun is racked again, that cartridge already in the chamber is
ejected, and a new cartridge will be fed into the chamber.
¶ 10 Sean Roman, now retired, was the primary detective on the case. He testified
that the Cadillac in which Bell was shot belonged to Alisha but was typically driven
by defendant. Roman interviewed defendant and Alisha several times at the police
station. Their initial statements were consistent and provided that defendant arrived
home around 1:30 a.m. and he and Alisha drove to the nearby 7-Eleven to buy
cigarettes. When they left, Bell was inside the Cadillac parked outside defendant’s
house. When defendant and Alisha returned from 7-Eleven, they discovered Bell
had been shot. Alisha phoned 911 at that time, at 2 a.m. Defendant initially denied
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going anywhere other than 7-Eleven but was confronted with evidence that his
vehicle was observed on camera driving past the 7-Eleven. In response to the
evidence, defendant stated that he and Alisha drove past the 7-Eleven to go to a
different store but drove back to 7-Eleven because the other store was closed.
¶ 11 In defendant’s second interview, he stated that he was present in the car when
Bell was shot. Defendant observed the shooter run away, but defendant did not get
a good look at the shooter. Defendant and Alisha then drove around after the
shooting to “keep [defendant] out of the situation.” Defendant claimed he did not
attempt to get immediate help for Bell because he believed Bell had died.
¶ 12 In defendant’s third police interview, defendant told Roman that he accidentally
shot Bell. Defendant had been up for two days on a drug and alcohol binge.
Defendant just wanted Bell to get out of his vehicle, and defendant thought the
safety was on the handgun. Defendant could not explain the unfired bullet found on
the ground by the passenger door. Defendant panicked after the shooting and threw
the gun into a river when he and Alisha were driving around. Roman testified that
the gun was never recovered.
¶ 13 Alisha testified that she was sleeping in the early hours of January 24, 2021,
when defendant ran into the bedroom and woke her up. That is reflected in the home
security video recovered from Alisha’s phone. There is no audio on the home
security video, but Alisha testified that defendant was crying and hysterical.
Defendant had a gun in his hand that he put on the bedroom floor, and he told Alisha
to get it away from him. Alisha picked up the gun and stored it under the kitchen
sink. Defendant changed his clothing, and Alisha put those clothes in the washing
machine in the basement. Defendant went out the back door, and Alisha went to
her vehicle out front and drove around and picked up defendant. They drove to
Milan and then returned, stopping at 7-Eleven. Alisha did not see defendant with a
gun in the vehicle, nor did she see him dispose of a gun.
¶ 14 A recorded call that defendant made from jail was played for the jury. In the
call, defendant talked about Bell and stated that the shooting was an accident.
Defendant stated that he pointed the gun to scare Bell, thinking the gun’s safety was
on.
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¶ 15 Darlene Bell, the mother of Bell, testified that she received a telephone call
from Bell at 1:21 a.m. on January 24, 2021, and she spoke with him for about 13
seconds. She did not hear any arguing or commotion in the background. Darlene
also testified regarding Bell’s injuries as a result of the shooting. Darlene testified
that Bell, who was 41 years old, resided in a facility where he was cared for by
medical staff. Bell could no longer hold a normal conversation. He was paralyzed
on the left side, he had no hearing, and he lost one eye. His tracheostomy had been
removed since the accident, but his speech was limited to some mumbling.
¶ 16 After the State rested, defense counsel moved for a directed verdict. The trial
court stated that it was taking the motion under advisement. The court then asked
if the defense would be presenting any evidence. Defense counsel did not object to
the trial court’s decision to take the motion for a directed verdict under advisement.
Instead, defendant was admonished concerning his right to testify, and defendant
waived his right to testify.
¶ 17 As the parties were set to begin the jury instruction conference, the State asked
the court to clarify whether it had denied the motion for a directed verdict or had
taken it under advisement. The trial court repeated that it had taken the motion
under advisement. Again, defense counsel did not object. After the jury instruction
conference, the State asked the court if it was going to decide defendant’s motion
for a directed verdict. The trial court stated it would rule after the verdict. Again,
defendant did not object.
¶ 18 When closing arguments were set to begin, the court brought the jury into the
courtroom, and the defense rested without presenting any evidence. The parties then
delivered their closing arguments. The jury found defendant guilty of both charges,
attempted first degree murder and aggravated battery with a firearm. The jury also
found the State had proven defendant personally discharged the firearm that
proximately caused great bodily harm to Bell.
¶ 19 After the jury returned its verdict, defense counsel asked for a ruling on the
motion for a directed verdict. The trial court stated that the matter was still under
advisement because it “wanted to do some legal research.” The court indicated that
it would issue a written decision shortly. The court subsequently denied defendant’s
motion for a directed verdict by written order, stating that, “[u]pon evaluating all
the evidence presented by the State in the light most favorable to the State, this
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court finds that a reasonable jury could find the State had proven its case beyond a
reasonable doubt.”
¶ 20 Defendant filed a posttrial motion arguing, inter alia, that the trial court erred
by reserving its ruling on his motion for a directed verdict because it gave defendant
a false impression of the strength of the State’s evidence during the trial and
affected his decision as to whether to testify. Defendant asserted that this
uncertainty substantially prejudiced him. The court denied the posttrial motion. The
court indicated it believed it was a matter of trial strategy for defense counsel not
to request a ruling on its motion for a directed verdict and to allow the matter to
remain under advisement. The court noted defense counsel could have requested
that the court rule on the motion if it was crucial to defendant’s decision to testify.
The matter proceeded to the sentencing hearing, where the court merged the two
convictions and imposed a 50-year sentence for attempted first degree murder.
¶ 21 Defendant appealed, contending that (1) the trial evidence was insufficient to
prove him guilty of either attempted first degree murder or aggravated battery with
a firearm, (2) he was denied a fair trial when the trial court failed to rule on his
motion for a directed verdict at the close of the State’s evidence, and (3) his 50-
year sentence was excessive. The appellate court affirmed. 2023 IL App (4th)
221021-U.
¶ 22 As to defendant’s challenge to the sufficiency of the evidence on the charge of
attempted first degree murder, defendant claimed the evidence did not establish that
he had the specific intent to kill Bell. Id. ¶ 30. The appellate court disagreed, finding
the trial evidence, viewed in the light most favorable to the State, was sufficient to
prove beyond a reasonable doubt that defendant possessed the intent to kill when
he shot Bell. Id. ¶ 34. Given that the aggravated battery with a firearm conviction
was merged with defendant’s conviction for attempted first degree murder and no
sentence was entered on the battery count, the appellate court did not address the
sufficiency of the evidence to sustain that conviction. Id. ¶ 54. The appellate court
also found that the trial court did not err in imposing the 50-year sentence. Id. ¶ 62.
¶ 23 The remaining issue, which is the subject of this appeal, was defendant’s
argument that the trial court denied him a fair trial by failing to rule on his motion
for a directed verdict. Id. ¶ 41. Defendant contended that the trial court’s failure to
rule prejudicially interfered with his right to testify. Id. The appellate court found
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the issue forfeited because defendant did not object to the trial court’s decision to
reserve its ruling on the motion and did not ask for a ruling before making the
decision whether to testify. Id. ¶ 43. Citing a conflict among appellate court district
opinions, the appellate court also found that there was no clear or obvious error for
purposes of plain error, because the law was not sufficiently settled on the issue of
whether the trial court could reserve ruling at the time of defendant’s trial. Id. ¶ 53.
As such, the court concluded that the issue was not reviewable under the plain error
doctrine. Id. ¶ 54.
¶ 24 Defendant filed a petition for leave to appeal in this court. His petition
challenged only the appellate court’s judgment as to defendant’s directed verdict
claim. The petition did not raise any issue with the appellate court’s judgment with
respect to the sufficiency of the evidence or his sentence. We granted defendant’s
petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Dec. 7, 2023).
¶ 25 ANALYSIS
¶ 26 Defendant contends the trial court denied him of a fair trial when it failed to
decide his midtrial motion for a directed verdict before advancing the trial to the
defense’s case. He argues the error warrants reversal because the State cannot prove
the error harmless beyond a reasonable doubt. The State claims defendant forfeited
review of the issue by failing to object when the trial court proceeded to the
defense’s case without first deciding defendant’s motion for a directed verdict.
Defendant responds, arguing that moving for a directed verdict and raising the issue
in his posttrial motion preserved the issue for appellate review. Because defendant
failed to object to the trial court’s procedural decision, we find the issue forfeited.
¶ 27 Both a trial objection and a written posttrial motion raising the issue are required
to preserve appellate review of alleged errors that could have been raised during
trial. People v. Enoch, 122 Ill. 2d 176, 186 (1988). Absent a trial objection and a
failure to raise the issue in a posttrial motion, the issue is forfeited for review on
appeal. People v. Ward, 154 Ill. 2d 272, 293 (1992). This rule serves two important
purposes. First, “failure to raise the issue at trial deprives the circuit court of an
opportunity to correct the error, thereby wasting time and judicial resources.”
People v. Jackson, 2022 IL 127256, ¶ 15 (citing People v. McLaurin, 235 Ill. 2d
478, 488 (2009)). Second, the “rule also prevents criminal defendants from sitting
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idly by and knowingly allowing an irregular proceeding to go forward only to seek
reversal due to the error when the outcome of the proceeding is not favorable.” Id.
(citing People v. Ford, 19 Ill. 2d 466, 478-79 (1960), and People v. Carlson, 79 Ill.
2d 564, 577 (1980)). The failure to preserve the issue generally precludes appellate
review. People v. Herron, 215 Ill. 2d 167, 175 (2005).
¶ 28 Defendant’s motion for a directed verdict alone is insufficient to preserve the
issue for appellate review. Here, defendant challenges the trial court’s procedural
decision to move on to the defense’s case without first deciding defendant’s motion
for a directed verdict. To preserve the issue, defendant was required to object. See
People v. Lindbeck, 202 Ill. App. 3d 831, 837-38 (1990) (to preserve claim based
on directed verdict, defendant must object to trial court’s decision to defer its ruling
on the motion). As the trial court explained during the posttrial motion hearing,
defendant “could have asked [the court] to rule, especially if it was going to make
a difference,” or defendant could have informed the court that a ruling was “crucial”
to his decision to testify. Defendant never made this objection and, as a result,
forfeited the issue for appellate review.
¶ 29 Defendant maintains that, if the issue is forfeited, we should still review his
claim for plain error. The plain error rule is a narrow exception to forfeiture
principles. People v. Moon, 2022 IL 125959, ¶ 21. “Plain errors or defects affecting
substantial rights may be noticed although they were not brought to the attention of
the trial court.” Ill. S. Ct. R. 615(a) (eff. Jan. 1, 1967). The plain error rule does not,
however, call for the review of all forfeited errors, as “[a]ny error, defect,
irregularity, or variance which does not affect substantial rights shall be
disregarded.” Id.; People v. Precup, 73 Ill. 2d 7, 16 (1978).
¶ 30 Before addressing defendant’s plain error argument, we begin by considering
the State’s assertion that defendant’s forfeited claims are not even subject to plain
error review. The State contends that, when a defendant does not testify at trial, he
is foreclosed from arguing on appeal that the trial court erred in deferring its ruling
on a motion for a directed verdict. The State’s argument invokes two prior decisions
from this court. See People v. Patrick, 233 Ill. 2d 62 (2009); People v. Averett, 237
Ill. 2d 1 (2010). Patrick and Averett both involved challenges to a trial court’s
blanket policy regarding motions in limine to exclude evidence of a defendant’s
prior convictions at trial. Under that policy, the trial court would not decide the
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motion until the defendant testified at trial. In the consolidated appeal of Patrick,
this court held that a trial court abuses its discretion under that blanket policy.
Patrick, 233 Ill. 2d at 73. The Patrick court went on to determine that a claim based
on this blanket policy was unreviewable, even for plain error, if the defendant did
not testify at trial. Id. at 77. This court explained that, without the defendant’s actual
testimony, the reviewing courts would be forced to speculate on the substance of
that testimony and the prosecution’s questions on cross-examination. Id. at 77-78.
Consequently, this court held that the defendant must testify and obtain a definitive
ruling on his motion in limine before the issue could be reviewed on appeal. Id. at
79.
¶ 31 Subsequently, this court decided the consolidated appeal of Averett, which
involved the same blanket policy regarding motions in limine as in Patrick. See
Patrick, 237 Ill. 2d 1. The Averett defendants did not testify and acknowledged that,
under Patrick a defendant’s choice against testifying rendered the claim
unreviewable on appeal. Id. at 11-12. The defendants offered alternative bases for
reviewing the error, arguing that their testimony was irrelevant to any of the
alternative grounds for reversal. Id. at 12. They offered three alternative theories to
allow review independent of their choice to testify because none of the theories
required a showing of prejudice to obtain a reversal of the trial court’s decision.
Specifically, the defendants contended the error could be reviewed as (1) structural
error warranting automatic reversal without a showing of prejudice,
(2) constitutional error reviewable regardless of their choice to testify, or (3) second
prong plain error not subject to a showing of prejudice.
¶ 32 This court rejected all three arguments. First, the court found the error did not
qualify as structural error because the error was subject to harmless error review.
Id. at 14. Second, this court found the error did not deprive the defendants of their
constitutional right to testify or remain silent. Id. at 17. While the blanket policy
made a defendant’s decision to testify more difficult strategically, the deferred
ruling in no way restricted a defendant’s ability to testify or remain silent. Id. at 15-
16. Finally, adhering to Patrick, this court found the error could not be reviewable
as second prong plain error given the defendants’ choice against testifying. Id. at
19. Consequently, this court “conclude[d] that the trial courts’ decisions to defer
ruling on the defendants’ motions under a blanket policy [were] unreviewable on
appeal because the defendants chose not to testify at trial.” Id. at 23.
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¶ 33 We decline to extend the reach of Patrick and Averett beyond the unique
circumstances presented in those decisions. The nature of the motion in Patrick and
Averett (motion in limine) is distinct from the motion for a directed verdict. A
motion in limine to exclude prior convictions directly affects the scope and
substance of a defendant’s potential testimony. Here, by contrast, the midtrial
motion does not directly affect the scope of any potential testimony. Rather, the
midtrial motion for a directed verdict is directed at the State’s evidence, which has
already been presented. Accordingly, we reject the State’s reliance upon Patrick
and Averett and find the respective holdings from those decisions have no bearing
on whether the instant issue is reviewable on appeal. Defendant is not foreclosed
from requesting plain error review.
¶ 34 The plain error rule allows courts to review forfeited errors under two
alternative prongs, when a clear and obvious error occurred and (1) 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) 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. Herron, 215 Ill. 2d
at 177. Each prong is intended to ensure the same thing, a fair trial. Id. at 179.
Defendant maintains the burden of establishing clear or obvious error. People v.
Reese, 2017 IL 120011, ¶ 72. As always, the first step in plain error analysis is to
determine whether a clear or obvious error occurred. People v. Thompson, 238 Ill.
2d 598, 613 (2010).
¶ 35 Defendant contends the trial court committed a clear and obvious error in failing
to rule on his midtrial motion for a directed verdict before proceeding to the
defense’s case. Specifically, defendant argues that said error violated section 115-
4(k) of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115-4(k) (West
2020)), as well as his constitutional right to testify or remain silent and his right to
counsel. We begin with defendant’s statutory argument based on section 115-4(k).
¶ 36 Section 115-4(k) of the Code permits a defendant to move for a directed verdict
at either the close of the State’s evidence (midtrial) or at the close of all evidence.
It provides:
“When, at the close of the State’s evidence or at the close of all of the evidence,
the evidence is insufficient to support a finding or verdict of guilty the court
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may and on motion of the defendant shall make a finding or direct the jury to
return a verdict of not guilty, enter a judgment of acquittal and discharge the
defendant.” Id.
The instant dispute revolves around timing and when the trial court must decide a
midtrial motion for a directed verdict. Specifically, the issue is whether section 115-
4(k) requires a trial court to decide the midtrial motion for a directed verdict before
proceeding to the defense’s case. Statutory interpretation is a question of law, which
we review de novo. People v. Bradford, 2016 IL 118674, ¶ 15. Our primary goal in
statutory interpretation is to ascertain and effectuate the legislature’s intent. People
v. Giraud, 2012 IL 113116, ¶ 6. The best indication of this intent is the statutory
language, given its plain and ordinary meaning. Id.
¶ 37 Section 115-4(k) is silent as to when the trial court must decide a midtrial
motion for a directed verdict. Both parties contend that this statutory silence
supports their interpretation. Defendant argues that, absent express authorization in
the statutory language, the trial court must decide the midtrial motion before
proceeding to the defense’s case. The State argues that, absent language indicating
otherwise, the timing for a decision on such a motion is left to the discretion of the
trial court, which may reserve its ruling and continue forward with the trial.
¶ 38 The appellate court in this case found “the law was not sufficiently settled” on
whether a trial court is permitted to advance to the defense’s case without first
deciding the defendant’s midtrial motion for a directed verdict. 2023 IL App (4th)
221021-U, ¶ 46. Citing a split among the districts on the issue, the appellate court
found the error could not be clear or obvious for purposes of the plain error rule.
Id. ¶ 54. We begin by examining those decisions. See People v. Trump, 62 Ill. App.
3d 747 (1978); People v. Rascher, 223 Ill. App. 3d 847 (1992); People v. Watkins,
206 Ill. App. 3d 228 (1990).
¶ 39 In Trump, 62 Ill. App. 3d 747, the appellate court considered the propriety of a
reserved ruling on a motion for a directed verdict made at the close of all evidence
(as opposed to a midtrial motion). Trump distinguished such a motion from a
midtrial motion for a directed verdict made at the close of the State’s evidence and
offered reasons for prohibiting a trial court from proceeding further with the trial
without first deciding the midtrial motion for a directed verdict. Id. at 748. The
reason “is that the defendant ought not to be forced to decide whether to produce
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evidence in his defense without knowing that the prosecution’s evidence was
sufficient.” Id.
¶ 40 Rascher, 223 Ill. App. 3d 847, like this case, involved a defendant who filed a
midtrial motion for a directed verdict at the close of the State’s evidence. The trial
court reserved its ruling and proceeded with the trial. Ultimately, the trial court
denied the motion after the jury returned its verdict. Id. at 849. Although the
appellate court had already found that defendant’s conviction should be reversed
based on the insufficiency of the evidence, it went on to comment on the trial court’s
decision to proceed further with the trial without deciding defendant’s midtrial
motion for a directed verdict. Id. at 854. Echoing the rationale in Trump, the
appellate court found that “the defendant was entitled to a ruling on the motion
rather than having to guess as to whether the State had proved its case.” Id. The
appellate court added, “[a] trial court should not reserve ruling on a motion for
directed verdict at the close of the State’s evidence” and “[t]he practice could be
reversible error in some cases.” Id. at 855.
¶ 41 The appellate court reached the opposite conclusion in Watkins, 206 Ill. App.
3d 228. The Watkins court declined to follow Trump, noting that section 115-4(k)
did not mandate a trial court to rule on a motion for a directed verdict at the close
of the State’s evidence. Id. at 243. Consequently, the court held that section 115-
4(k) did not operate as a per se bar on proceeding with a trial without first deciding
the midtrial motion for a directed verdict. Id.; see People v. Ramirez, 244 Ill. App.
3d 136, 150 (1993) (rejecting defendant’s claim that he was prejudiced by the trial
court’s failure to enter order of acquittal of codefendants at the close of State’s
evidence; defendant did not explain how calling codefendants as witnesses would
be exculpatory, so he did not show prejudice in the reserved ruling); People v.
Faulkner, 64 Ill. App. 3d 453, 457 (1978) (no abuse of discretion in reserving ruling
on defendant’s motion for a directed verdict and permitting the State to reopen its
case).
¶ 42 Returning to the present case, we first reject the State’s and the appellate court’s
conclusion that the statutory silence and mere existence of a district split on an issue
necessarily means that no clear or obvious error occurred. The question is whether
the error is “plain,” meaning the error is “clear” or “obvious.” See People v.
Piatkowski, 225 Ill. 2d 551, 565 n.2 (2007). The fact that multiple appellate panels
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from different appellate districts disagree over a general legal issue does not excuse
the appellate court from substantively addressing the initial question in plain error
review—whether clear or obvious error occurred based on the precise facts
presently before the court. See generally People v. Keene, 169 Ill. 2d 1, 17 (1995)
(“to determine whether a purported error is ‘plain’ requires a substantive look at
it”).
¶ 43 As to that question, we find the trial court committed clear or obvious error
when it proceeded to the defense’s case without first deciding defendant’s midtrial
motion for a directed verdict. We have reviewed the above cases, and we agree with
the rationale espoused in Trump and Rascher. As we will explain, section 115-4(k)
requires the trial court to decide defendant’s motion for a directed verdict before
proceeding to the defense’s case.
¶ 44 As noted above, section 115-4(k) is silent as to when the trial court must decide
a defendant’s midtrial motion for a directed verdict. When a statute is silent on a
particular point, we focus on the legislature’s intent, and we will not interpret
statutory silence in a way that defeats the purpose of that provision. People v.
Garcia, 241 Ill. 2d 416, 422-23 (2011). The right to a directed verdict under section
115-4(k) is primarily rooted in the due process clause of the fourteenth amendment
(U.S. Const., amend. XIV). Section 115-4(k) is intended to protect an accused
against conviction “except upon evidence that is sufficient fairly to support a
conclusion that every element of the crime has been established beyond a
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 313-14 (1979). By enacting
section 115-4(k), our legislature created a state law avenue meant to ensure this
protection by allowing for a motion for a directed verdict as a means of testing the
constitutional sufficiency of the evidence. Section 115-4(k) permits two
opportunities to move for a directed verdict: at the close of the State’s evidence
(midtrial) and at the close of all evidence. 725 ILCS 5/115-4(k) (West 2020).
¶ 45 In this case, defendant moved for a directed verdict midtrial, which implicates
additional substantial rights of the defendant. The midtrial motion requires the trial
court to determine whether the defendant must proceed with the introduction of
evidence in his defense, which implicates defendant’s constitutional right to testify,
present evidence in his own defense, or remain silent. Patrick, 233 Ill. 2d at 69 (a
criminal defendant’s right to testify on his own behalf, or not to testify at all, is
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rooted in the fifth, sixth, and fourteenth amendments of the United States
Constitution (see U.S. Const., amends. V, VI, XIV)). The purpose of such a motion
is to avoid forcing a defendant into going forward with his own evidence when the
State’s case is insufficient. This is based on the principle that a defendant need not
adduce any evidence in his defense unless the State presents sufficient evidence of
the crime charged. Hence, the legislative purpose is achieved only when the trial
court decides the midtrial motion before proceeding to the defense’s case.
¶ 46 Reading section 115-4(k) as permitting the court to proceed to the defense’s
case without deciding the motion for a directed verdict thwarts the legislative
purpose. “Making the important decision to testify without an opportunity to
evaluate the actual strength of the State’s evidence restricts the defense in planning
its case.” Patrick, 233 Ill. 2d at 69-70 (citing Brooks v. Tennessee, 406 U.S. 605,
612 (1972)). A defendant may testify and fill gaps in the State’s evidence or supply
further evidence of his guilt even if the State’s own evidence is constitutionally
insufficient to prove defendant’s guilt. See generally 6 Wayne R. LaFave et al.,
Criminal Procedure § 24.6(b) (Nov. 2024 Update). In cases involving multiple
charges or multiple defendants, the choice to testify may hinge on whether the
State’s evidence is legally sufficient as to certain charges or other defendants.
¶ 47 Importantly, we do not believe this interpretation would impose an undue
burden on the trial courts. “A motion for a directed verdict asserts only that as a
matter of law that the evidence is insufficient to support a finding or verdict of
guilty.” People v. Withers, 87 Ill. 2d 224, 230 (1981). The decision on a motion
requires the trial court to consider only whether a reasonable mind could fairly
conclude the guilt of the accused beyond a reasonable doubt. People v. Connolly,
322 Ill. App. 3d 905, 914-15 (2001). When a motion is made after the State’s case-
in-chief, the trial court only considers the evidence presented by the State. At that
point, the court has all the necessary information needed to decide the motion.
¶ 48 While we acknowledge that several foreign jurisdictions permit a trial court to
reserve its ruling on a midtrial motion for a directed verdict, we emphasize that
every respective foreign statute or rule expressly authorizes such a procedure. For
example, Rule 29 of the Federal Rules of Criminal Procedure governs motions for
directed verdicts in federal criminal proceedings and provides:
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“(b) Reserving Decision. The court may reserve decision on the motion,
proceed with the trial (where the motion is made before the close of all the
evidence), submit the case to the jury, and decide the motion either before the
jury returns a verdict or after it returns a verdict of guilty or is discharged
without having returned a verdict. If the court reserves decision, it must decide
the motion on the basis of the evidence at the time the ruling was reserved.”
Fed. R. Crim. P. 29(b).
Unlike section 115-4(k), Rule 29(b) includes an express authorization for a federal
district judge to defer its ruling on a midtrial motion for a directed verdict. Other
jurisdictions have followed the federal example, expressly authorizing reserved
ruling for motions made at the close of the State’s evidence. See Mich. S. Ct. R.
6.419 (updated May 1, 2025) (Michigan); N.Y. Crim. Proc. Law § 290.10
(McKinney 2024) (New York); W. Va. R. Crim. P. 29 (eff. Sept. 1, 1995) (West
Virgina); D.C. Super. Ct. R. Crim. P. 29 (amended May 3, 2017) (District of
Columbia). The common element is that the governing rule expressly authorizes
the trial court to reserve its ruling and continue forward with the trial. By contrast,
our legislature did not include such an express authorization in section 115-4(k).
See e.g., Johnson v. State, 158 A.3d 1005, 1014 (Md. 2017) (noting that, in the
absence of express authorization, the trial court is not permitted to reserve ruling
on a motion for directed verdict).
¶ 49 Accordingly, we hold that section 115-4(k) must be read as requiring the trial
court to decide a midtrial motion for a directed verdict before advancing to the
defense’s case. That is not to say that the court must make an immediate ruling.
Should the court find itself in a position where it is not yet prepared to make a ruling
on the motion, it may take a recess to contemplate its decision on the motion. Only
after the motion is decided, however, should the trial proceed to the defense’s case.
Therefore, we find the trial court in this case clearly or obviously erred by failing
to comply with section 115-4(k) when it proceeded to the defense’s case without
first deciding defendant’s midtrial motion for a directed verdict.
¶ 50 We now turn to the question of whether the trial court’s violation of section
115-4(k) in this case is reversible under either prong of the plain error rule.
Defendant maintains the burden of persuasion under both prongs. Moon, 2022 IL
125959, ¶ 20. Under the first prong of the plain error rule, when the evidence of a
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defendant’s guilt is closely balanced, “there is the possibility that an innocent
person may have been convicted because of some error which is obvious in the
record, but which was not properly preserved for review.” People v. Green, 74 Ill.
2d 444, 454 (1979) (Ryan, J., specially concurring). The conviction of an innocent
person due to an error during the pretrial or trial proceedings would be a miscarriage
of justice; therefore, a reviewing court may find the forfeited error reversible under
the first prong of the plain error rule when the evidence is closely balanced. Id.
¶ 51 The charge at issue, attempted first degree murder, requires the State to prove
defendant performed an act that constituted a substantial step toward the
commission of first degree murder. 720 ILCS 5/8-4(a), 9-1(a) (West 2020). This is
a specific-intent crime and requires the State to prove that defendant performed the
act with the specific intent to kill the victim. People v. Lopez, 166 Ill. 2d 441, 445-
46 (1995). The central issue at trial and in this appeal is the element of intent.
¶ 52 After careful review of the record, we conclude the evidence is not closely
balanced. The evidence showed that defendant aimed a loaded gun at Bell’s head.
The gun fired, and the bullet hit Bell’s head. “The very fact of firing a gun at a
person supports the conclusion that the person doing so acted with an intent to kill.”
People v. Mitchell, 209 Ill. App. 3d 562, 569 (1991). The recovery of an unfired
cartridge on the ground outside of the vehicle suggested that defendant not only
pointed the gun at Bell’s head but also “racked” the gun to ensure a bullet was in
the chamber before pulling the trigger. This is inconsistent with an accidental firing.
Rather, defendant’s acts are consistent with an intent to shoot the victim by making
sure that a bullet was in the chamber before firing. Defendant’s conduct after the
shooting overwhelmingly confirmed that he intended to shoot Bell. Rather than
seeking immediate emergency assistance, defendant fled the scene to his home.
Inside his home, he attempted to cover up his involvement by having Alisha wash
his bloodstained clothes. He then exited the back of the home, and Alisha drove her
vehicle around back to pick him up, presumably to avoid being seen. Alisha then
drove defendant away from the scene of the crime, where, by his own admission,
he threw the weapon into a river.
¶ 53 The only evidence negating an intent is defendant’s self-serving statements
made during his final police interview and in his recorded phone call made from
prison. Specifically, defendant claimed he meant only to scare Bell when he pointed
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the gun at his head. He believed the safety was on and the gun went off by accident.
This, however, does not render the evidence in the case close. Defendant lied
several times in his statements to police. At the scene and again in his first interview
at the police station, defendant stated that Bell was in the vehicle when he and
Alisha left to go to 7-Eleven and, when they returned, defendant found Bell had
been shot. Defendant changed his story during the second interview. That time, he
claimed to be present for the shooting but could not get a good look at the shooter’s
identity. During his third interview, defendant finally admitted to shooting Bell and
offered his self-serving excuse that he pointed the gun at Bell to scare him and the
gun accidentally fired. His repeated inconsistent statements and his efforts to hide
his involvement all lead to the conclusion that the shooting was intentional. Because
the evidence is not closely balanced, the error is not reversible under the first prong
of the plain error rule.
¶ 54 Next, defendant contends that the error is reversible as second prong plain error.
Under the second prong of the plain error rule, “the concern *** is addressing
unpreserved errors that undermine the integrity and reputation of the judicial
process regardless of the strength of the evidence or the effect of the error on the
trial outcome.” Jackson, 2022 IL 127256, ¶ 24 (citing Moon, 2022 IL 125959,
¶¶ 26-27). Errors that fall under the second prong of the plain error rule are the
types of error that “erode the integrity of the judicial process and undermine the
fairness of the defendant’s trial” (Herron, 215 Ill. 2d at 186), and these errors are
rare (People v. Rivera, 227 Ill. 2d 1, 19-20 (2007) (citing Washington v. Recuenco,
548 U.S. 212, 218-19 (2006))).
¶ 55 Second prong plain errors have been equated with structural error. Thompson,
238 Ill. 2d at 613-14. The structural error doctrine is intended to “ensure insistence
on certain basic, constitutional guarantees that should define the framework of any
criminal trial.” Weaver v. Massachusetts, 582 U.S. 286, 294-95 (2017). Such errors
presume prejudice because of the importance of the right involved. Jackson, 2022
IL 127256, ¶ 28 (citing Herron, 215 Ill. 2d at 187). The United States Supreme
Court has identified structural error in a complete denial of counsel, denial of self-
representation at trial, trial before a biased judge, denial of a public trial, racial
discrimination in the selection of a grand jury, and a defective reasonable doubt
instruction. Recuenco, 548 U.S. at 218 n.2. We may determine whether an error is
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structural as a matter of state law regardless of whether it is deemed structural under
federal law. Averett, 237 Ill. 2d at 13.
¶ 56 We find defendant’s contention that the error is second prong plain error
warranting automatic reversal is contradicted by his arguments. In his brief to this
court, defendant argued he preserved the issue for appellate review. He did not
argue that the preserved error warranted automatic reversal. Instead, defendant
exclusively argued the error was reversible because the State could not prove the
error was harmless beyond a reasonable doubt. “Structural errors are not subject to
harmless-error review.” Id. at 14; United States v. Gonzalez-Lopez, 548 U.S. 140,
148 (2006) (errors subject to harmless error analysis generally do not fall within
the class of structural errors). An error that, if preserved, would be considered
exclusively for harmless error cannot evolve into structural error or second prong
plain error when it is unpreserved. Given that defendant presented this error as the
type of error subject to harmless error analysis and errors subject to harmless error
analysis are not structural errors, we must conclude that defendant failed to satisfy
his burden of persuasion in establishing second prong plain error.
¶ 57 Finally, we consider defendant’s argument that the trial court’s deferred ruling
on his midtrial motion for a directed verdict violated his constitutional right to
testify or remain silent because it deprived him of crucial information as to the
strength of the State’s evidence before he decided to testify. According to
defendant, this, in turn, deprived him of the guiding hand of counsel because the
deferred ruling affected counsel’s ability to advise defendant on whether defendant
should testify or whether counsel should present other evidence.
¶ 58 We find it unnecessary to consider this constitutional question, given our
holding that the trial court’s deferred decision does not warrant reversal under the
plain error rule. Courts must avoid constitutional questions where the case can be
decided on nonconstitutional grounds. In re E.H., 224 Ill. 2d 172, 180 (2006). Here,
we have found error but ultimately concluded the error did not warrant reversal as
plain error. Defendant’s constitutional argument is premised on the same
underlying error. Like the argument based on section 115-4(k), defendant’s
constitutional argument is forfeited and subject to the same plain error analysis.
And, because the evidence is neither close nor does the error rise to the level of
second prong plain error, the result will be the same: we honor defendant’s
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procedural default and affirm his conviction and sentence. Accordingly, we do not
reach the constitutional arguments raised by defendant in this appeal.
¶ 59 CONCLUSION
¶ 60 For the foregoing reasons, we hold that section 115-4(k) of the Code requires
the trial court to decide a midtrial motion for a directed verdict prior to advancing
to the defense’s case. Therefore, the trial court erred when it failed to timely decide
defendant’s midtrial motion for a directed verdict. However, we conclude that the
error does not warrant reversal under the plain error rule given that the evidence is
not closely balanced and defendant failed to meet his burden of persuasion in
establishing second prong plain error. The judgments of the appellate court and the
circuit court are affirmed.
¶ 61 Judgments affirmed.
¶ 62 JUSTICE CUNNINGHAM, specially concurring:
¶ 63 The majority holds that the trial court erred when it deferred ruling on the
defendant’s motion for a directed verdict that was presented at the close of the
State’s evidence. According to the majority, under section 115-4(k) of the Code of
Criminal Procedure of 1963 (Code) (725 ILCS 5/115-4(k) (West 2020)), a trial
court must rule on a defendant’s motion for a directed verdict when it is presented
midtrial and may not, under any circumstances, defer ruling on the motion until the
close of all the evidence. The majority then holds, however, that the trial court’s
error in this case does not amount to plain error and, on that basis, affirms the
defendant’s convictions.
¶ 64 I strongly disagree with the majority’s holding that section 115-4(k) of the Code
requires a trial court to rule on a motion for a directed verdict when it is presented
midtrial. Nothing in the language of the statute supports that conclusion. Thus, the
trial court did not err when it deferred ruling on the defendant’s motion, and there
is no need to reach the question of plain error. I therefore concur only in the
judgment of the majority affirming the defendant’s convictions.
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¶ 65 Section 115-4(k) of the Code states:
“When, at the close of the State’s evidence or at the close of all of the evidence,
the evidence is insufficient to support a finding or verdict of guilty the court
may and on motion of the defendant shall make a finding or direct the jury to
return a verdict of not guilty, enter a judgment of acquittal and discharge the
defendant.” Id.
¶ 66 The defendant argues that, under this provision, a trial court has no discretion
to defer ruling on a motion for a directed verdict that is presented midtrial. Instead,
according to the defendant, the motion must be ruled on by the court at the time it
is presented. The defendant contends this is necessary because he must be able to
make a “fully informed” decision as to whether to testify or remain silent, and he
can only make that “fully informed” decision with the benefit of the trial court’s
ruling on the sufficiency of the evidence. The defendant maintains that
“[a]ny other reading [of section 115-4(k)] would allow a court to require a
defendant to waive his fundamental right to testify or to remain silent, and to
require defense counsel to decide whether to present evidence, while depriving
them of information they need to make informed and intelligent decisions. ***
That is, construing the statute any other way would produce an unjust result the
legislature could not have intended.”
Because the trial court in this case deferred ruling on his motion, the defendant
argues that the court violated section 115-4(k) and, further, that this violation
amounted to plain error.
¶ 67 Although the majority rejects the defendant’s plain error argument and
therefore affirms the defendant’s convictions, it agrees with the defendant that the
trial court violated section 115-4(k). Adopting the defendant’s reasoning, the
majority holds that, because section 115-4(k) “implicates” a defendant’s right to
testify or remain silent (supra ¶ 45), the statute must be read as requiring the trial
court to rule on the midtrial motion at the time it is presented and that a trial court
may not, under any circumstances, defer ruling on the motion until the close of all
the evidence (supra ¶ 49). I strongly disagree.
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¶ 68 According to the majority, the legislature has determined that a defendant
cannot make an informed decision as to whether to testify or remain silent unless
the trial court first rules on a motion for directed verdict that has been presented
midtrial and, further, that the legislature enacted section 115-4(k) specifically to
address this concern. However, there is nothing in the language of the statute to
suggest that this is true. Surely, if the legislature believed that a trial judge’s ruling
on a motion for directed verdict was necessary to obtain a valid waiver of a
defendant’s right to testify, it would have said so. But the statute is completely silent
on this point.
¶ 69 Of course, the reason section 115-4(k) says nothing about ensuring a valid
waiver of the right to testify is because that is not why the statute was enacted. As
the majority itself recognizes, the purpose of section 115-4(k) is to protect a
defendant’s right not to be convicted based on insufficient evidence. Supra ¶ 44
(citing Jackson v. Virginia, 443 U.S. 307, 313-14 (1979)). The majority correctly
explains, “[b]y enacting section 115-4(k), our legislature created a state law avenue
meant to ensure this protection by allowing for a motion for a directed verdict as a
means of testing the constitutional sufficiency of the evidence.” Supra ¶ 44.
¶ 70 Section 115-4(k) requires the trial court to enter a judgment of acquittal when
it determines the evidence is insufficient to support a guilty verdict. The statute
does not specify when during a trial the court must enter a judgment of acquittal
because the statute does not need to do so. As the State correctly notes, the statute’s
purpose of ensuring that a defendant is not convicted based on insufficient evidence
is achieved regardless of when the court enters the judgment of acquittal—a
defendant is equally acquitted whether the judgment of acquittal is entered
immediately after the close of the State’s evidence, after the close of all the
evidence, or after the jury has returned its verdict.
¶ 71 When a trial court defers ruling on a motion for a directed verdict after the State
has presented its case, the question for the defendant is whether, given his
assessment of the State’s evidence and its effect on the jury, he believes that
testifying would improve the likelihood of an acquittal. There is nothing in the
language of section 115-4(k) to support the majority’s holding that the legislature
has concluded that a defendant, assisted by counsel, can make this decision only if
the trial court first denies his motion for a directed verdict.
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¶ 72 Moreover, there is no basis for concluding that a trial is rendered fundamentally
unfair if a defendant must decide whether to testify before the trial court has ruled
on the motion for directed verdict. Indeed, the facts of this case illustrate that point
and it is useful to highlight exactly what occurred. After the defendant presented
his motion for directed verdict, the trial court stated that it was taking the motion
under advisement. The following colloquy then occurred:
“MR. WELTE [(DEFENSE COUNSEL)]: Your Honor, I would like to
make a record.
THE COURT: Sure.
MR. WELTE: Mr. Johnson, you are aware that it is absolutely your right to
testify should you choose to?
THE DEFENDANT: Yes.
MR. WELTE: And Mr. Khoury and myself spoke with you in chambers
about this issue?
THE DEFENDANT: Yes.
MR. KHOURY [(DEFENSE COUNSEL)]: And you are knowingly and
voluntarily waiving your right to testify at this trial?
THE DEFENDANT: Yes.
MR. WELTE: And you are doing so of your free will?
THE DEFENDANT: Yes.
THE COURT: Do you have any questions about that, Mr. Johnson?
THE DEFENDANT: No, sir.
THE COURT: And you understand if you didn’t—if you don’t testify, the
State’s—or the jury is going to be instructed that they can’t consider that in any
way in deciding whether or not the State’s carried its burden of proof?
THE DEFENDANT: Yes.
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THE COURT: Okay. Anybody promise you anything or threatened you
with anything to get you to make this decision?
THE DEFENDANT: No, sir.
THE COURT: Okay. I’ll find that he’s knowingly and voluntarily made the
decision not to testify.”
As the foregoing shows, there was no fundamental unfairness in this case, where
the defendant was fully admonished and made a knowing and valid waiver of his
right to testify. If the majority’s interpretation of section 115-4(k) were correct, it
would mean that the legislature has concluded that a defendant who has been fully
and properly admonished cannot make a valid waiver if he does not have the benefit
of the trial judge’s ruling on the motion for directed verdict. I see no basis for
thinking that was the legislature’s intent.
¶ 73 The majority expressly and repeatedly acknowledges that section 115-4(k) is
silent as to when the ruling on the motion for a directed verdict must be made. Supra
¶¶ 37, 44. Yet the majority then inexplicably concludes that the statute requires the
trial court to rule on the motion when it is presented. Supra ¶¶ 45, 49, 58. There is
no justification for this contradictory conclusion. The trial court in this case did not
violate section 115-4(k) when it deferred ruling on the defendant’s motion for a
directed verdict before he made a knowing and valid waiver of his right to testify.
Accordingly, I concur only in the judgment of the majority.
¶ 74 JUSTICES THEIS and ROCHFORD join in this special concurrence.
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