People v. Thomas

Illinois Official Reports

Appellate Court

People v. Thomas, 2014 IL App (2d) 121203

Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.

Caption BERNARD THOMAS, Defendant-Appellant.

District & No. Second District

Docket No. 2-12-1203

Filed August 5, 2014

Held In a prosecution for retail theft where no definition of reasonable

(Note: This syllabus doubt was initially given to the jury and the trial court, in response to

constitutes no part of the the deliberating jury’s request for the “legal definition” of reasonable

opinion of the court but doubt, responded that the definition was to be determined by the jury

has been prepared by the there was no error, plain or otherwise, since the response was correct,

Reporter of Decisions regardless of defendant’s contention that the response would lead the

for the convenience of jury to apply a standard that would be less than proof beyond a

the reader.) reasonable doubt.

Decision Under Appeal from the Circuit Court of Du Page County, No. 12-CF-697; the

Review Hon. John J. Kinsella, Judge, presiding.

Judgment Affirmed.

Counsel on Thomas A. Lilien and Steven E. Wiltgen, both of State Appellate

Appeal Defender’s Office, of Elgin, for appellant.

Robert B. Berlin, State’s Attorney, of Wheaton (Lisa Anne Hoffman

and James P. French, Assistant State’s Attorneys, of counsel), for the

People.

Panel 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 2010)). 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, 2011 IL App (1st) 091019, and People v.

Franklin, 2012 IL App (3d) 100618, 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

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with a furry 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 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

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“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.

¶ 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.”

¶ 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

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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 judicial process, regardless of the

closeness of the evidence.” People v. Piatkowski, 225 Ill. 2d 551, 565 (2007). The first step

in determining whether plain error exists is determining whether an error actually occurred.

People v. Naylor, 229 Ill. 2d 584, 593 (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, 397 U.S. 358, 364 (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, 511 U.S. 1, 6 (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, [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.’ ” Id. at 5 (quoting Holland v. United States, 348 U.S.

121, 140 (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

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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, 153 Ill. 2d 365, 374 (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

¶ 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, 244 Ill. 603,

615 (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, 288 Ill. 281, 285-86 (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, 14 Ill. 2d 52, 61 (1958) (although supreme court discouraged the practice of

defining “reasonable doubt,” trial court’s instruction on the topic was not error); Speight, 153

Ill. 2d at 374-75 (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, 41 Ill. 2d 528, 536 (1969), in which the trial court

had 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.” Id. Nevertheless, giving an instruction on the

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 prohibits definitions of the

term. Victor, 511 U.S. at 5. See also People v. Failor, 271 Ill. App. 3d 968, 971 (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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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. Id.

¶ 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, 169 Ill. 2d 1 (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.) Id.

at 24-25.

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, 225 Ill. 2d 612 (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. 2009) (which lays out the State’s general burden of proof and

the presumption of the defendant’s innocence) had been given. Green, 225 Ill. 2d at 624

(“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, 2011 IL App (1st) 091019,

¶ 19, 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

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in this case 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, 2012 IL App (3d)

100618. 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.

¶ 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, 511 U.S. at 5). Thus, contrary to the majority’s approach:

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“[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, 511 U.S. at 5; Green, 225 Ill. 2d at

622 (adopting some of the 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, 511

U.S. at 5. 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.” Id.

¶ 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, 2012 IL

App (3d) 110385, 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 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

2

In People v. Sullivan, 2014 IL App (3d) 120312, the Third District (including one of the justices

from the Franklin majority) once again addressed an attempt to define “reasonable doubt.” However,

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¶ 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

violates a defendant’s due process rights. In People v. Johnson, 2013 IL App (1st) 111317,

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, 2014 IL App (2d) 121156, 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 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

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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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 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, 153 Ill. 2d

at 374. 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, 846 F.2d 386, 387 (7th Cir. 1988) (“ ‘Reasonable

doubt’ must speak for itself. Jurors know what is ‘reasonable’ and are quite familiar with the

meaning of ‘doubt.’ ”). 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, 229 Ill. 2d 421, 440 (2008) (decisions of one district of the appellate court

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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, 511 U.S. at 6.

¶ 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, 229 Ill. 2d at 593. Accordingly, the defendant’s forfeiture must

stand. People v. Pastorino, 91 Ill. 2d 178, 188 (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, 159 Ill. 2d 217, 229 (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.” Id. at 228. 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% certitude, as the question was posed by the jury in Downs, 2014 IL App (2d)

121156). In short, any attempt to interpret, define, or even comment on the term “reasonable

doubt” risks reversal.

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