People v. Glasper

JUSTICE BURKE, dissenting:

I agree with the majority’s conclusion that the trial court violated Supreme Court Rule 431(b)(4) (177 Ill. 2d R. 431(b)(4)) and People v. Zehr, 103 Ill. 2d 472 (1984), when — despite defendant’s request to do so — the court refused to ask potential jurors whether they understood and accepted that the defendant’s exercise of his right not to testify could not be held against him. I disagree, however, with the majority’s conclusion that the trial court’s error does not warrant reversal because, in light of the weight of the evidence produced at trial, the error was harmless beyond a reasonable doubt. Zehr expressly holds that the voir dire error at issue here is prejudicial error requiring reversal and, therefore, harmless-error analysis is inapplicable. Accordingly, I dissent.

The general principles governing voir dire are well established. Both the United States and Illinois Constitutions guarantee an accused the right to trial by an impartial jury. U.S. Const., amends. VI, XTV; Ill. Const. 1970, art. I, §§8, 13; People v. Strain, 194 Ill. 2d 467, 475 (2000); see generally G. Braden & R. Cohn, The Illinois Constitution: An Annotated & Comparative Analysis 41 (1969). To secure this right, inquiry is permitted during voir dire “ ‘to ascertain whether the juror has any bias, opinion, or prejudice that would affect or control the fair determination by him of the issues to be tried.’ ” People v. Lobb, 17 Ill. 2d 287, 300 (1959), quoting Connors v. United States, 158 U.S. 408, 413 , 39 L. Ed. 1033, 1035 , 15 S. Ct. 951, 953 (1895); 177 Ill. 2d R. 431. The extent and scope of the voir dire examination rests generally within the discretion of the trial court. Strain, 194 Ill. 2d at 476 . However, this discretion is not unbounded. Jurors “must harbor no bias or prejudice which would prevent them from returning a verdict according to the law and evidence.” Strain, 194 Ill. 2d at 476 . Accordingly, “ ‘a failure to permit pertinent inquiries to enable a party to ascertain whether the minds of the jurors are free from bias or prejudice which would constitute a basis of challenge for cause, or which would enable him to exercise his right of peremptory challenge intelligently, may constitute reversible error.’ ” Strain, 194 Ill. 2d at 476-77 , quoting Lobb, 17 Ill. 2d at 300 . See also, e.g., Gomez v. United States, 490 U.S. 858, 876 , 104 L. Ed. 2d 923, 939 , 109 S. Ct. 2237, 2248 (1987) (“errors occurring during jury selection may be grounds for reversal of a conviction”); United States v. Brown, 799 F.2d 134, 135-36 (4th Cir. 1986) (“Although the trial court has broad discretion in the conduct of voir dire, an abuse with resulting reversible error will occur where the court’s restriction hindered defendant’s opportunity to make reasonable use of his challenges”).

In Zehr, this court considered whether the trial court’s failure to permit certain inquiries requested by the defendant during voir dire constituted reversible error. The questions tendered by the defendant would have asked the jurors whether they understood and accepted that the State has the burden of proof, that the defendant’s right not to testify may not be held against him, and that the defendant is presumed innocent. Zehr, 103 Ill. 2d at 476 . The trial court refused to ask the questions, but did instruct the jurors concerning the burden of proof, the presumption of innocence, and the defendant’s right not to testify. In addition, the jurors were asked whether they would follow the law as given them by the court even though they might personally disagree with it and whether any reason, moral, religious or otherwise, would prevent their being fair and impartial. Zehr, 103 Ill. 2d at 476-77 . The defendant did not testify at trial and was convicted.

On appeal, the appellate court reversed, holding that the trial court had abused its discretion in failing to include the defendant’s questions in the voir dire examination. Zehr, 103 Ill. 2d at 475 . This court affirmed the judgment of the appellate court, stating:

“We are of the opinion that essential to the qualification of jurors in a criminal case is that they know that a defendant is presumed innocent, that he is not required to offer any evidence in his own behalf, that he must be proved guilty beyond a reasonable doubt, and that his failure to testify in his own behalf cannot be held against him. If a juror has a prejudice against any of these basic guarantees, an instruction given at the end of the trial will have little curative effect. It is also vital to the selection of a fair and impartial jury that a juror who finds that the State has failed to sustain its burden of proof of guilt beyond a reasonable doubt have no prejudices against returning a verdict of not guilty. We note parenthetically that it is equally important that a juror who finds that the State has sustained its burden of proof have no prejudice against returning a verdict of guilty. We agree with the appellate court that ‘[e]ach of these questions goes to the heart of a particular bias or prejudice which would deprive defendant of his right to a fair and impartial jury’ ( 110 Ill. App. 3d 458, 461 ), and although they need not have been asked in precisely the form submitted, the subject matter of the questions should have been covered in the course of interrogation on voir dire.” Zehr, 103 Ill. 2d at 477 .

Based on this reasoning, we held that “[t]he refusal to ask the questions resulted in prejudicial error which required reversal.” Zehr, 103 Ill. 2d at 477-78 .

The holding in Zehr was subsequently codified in Supreme Court Rule 431(b) (177 Ill. 2d R. 431(b)). See 177 Ill. 2d R. 431, Committee Comments, at Ixxix (Rule 431(b). “is intended to ensure compliance with the requirements of People v. Zehr, 103 Ill. 2d 472 (1984)”). At the time of defendant’s trial in this case, Rule 431(b) required the trial judge, if requested by the defendant, to ask

“each potential juror, individually or in a group, whether that juror understands and accepts the following principles: (1) that the defendant is presumed innocent of the charge(s) against him or her; (2) that before a defendant can be convicted the State must prove the defendant guilty beyond a reasonable doubt; (3) that the defendant is not required to offer any evidence on his or her own behalf; and (4) that the defendant’s failure to testify cannot be held against him or her; however, no inquiry of a prospective juror shall be made into the defendant’s failure to testify when the defendant objects.

The court’s method of inquiry shall provide each juror an opportunity to respond to specific questions concerning the principles set out in this section.” 177 Ill. 2d R. 431(b).

In accordance with Rule 431(b)(4) and Zehr, defendant in the case at bar asked the trial court to question the venire as to whether they understood that his right not to testify could not be held against him. The judge refused, stating:

“I don’t ask them about that. I tell them. I give them the law thing and I don’t want any questions about it.”

Defendant did not testify and was convicted. The appellate court affirmed. No. 1 — 04—3005 (unpublished order under Supreme Court Rule 23).

On its relevant facts, the present case is indistinguishable from Zehr. Here, as in Zehr, defendant asked the trial court to question prospective jurors as to whether they understood that his exercise of the right not to testify could not be held against him. As in Zehr, the trial court refused to do so. And, like the defendant in Zehr, defendant in this case now argues on appeal that the trial court’s failure to ask the requested question constitutes reversible error. The issue presented in Zehr and the issue posed here are identical. Resolution of this case should therefore be a simple matter of applying the holding of Zehr, as well as Rule 431(b)(4), and reversing the judgment of the appellate court.

The majority, however, concludes otherwise. The majority holds that reversal is not required in this case because the evidence of defendant’s guilt is overwhelming and, when weighed against this evidence, the trial court’s error in refusing to question the venire was harmless “beyond a reasonable doubt.” 4 234 Ill. 2d at 203. I disagree with this result for several reasons.

First, although the majority acknowledges that language in Zehr may have “suggested]” that reversal is required when the trial court fails to properly interrogate the venire (234 Ill. 2d at 197), the majority nevertheless determines that it is appropriate to apply harmless-error analysis in this case because “there is no indication that the Zehr court contemplated, or was even asked to contemplate, whether harmless error could apply” (234 Ill. 2d at 190). Thus, according to the majority, the issue is one of “first impression” (234 Ill. 2d at 189). This is incorrect.

Prejudicial error is reversible error. It is the opposite of harmless error. Zehr held that the failure to ask the tendered questions was “prejudicial error which required reversal.” Zehr, 103 Ill. 2d at 478 . Unquestionably then, the court in Zehr rejected the proposition that the failure to ask the proposed questions was harmless error. Indeed, having found prejudicial, reversible error in the voir dire proceeding, when the trial judge refused to ask the proposed questions, there would have been no reason for the Zehr court to then go on and examine the evidence subsequently produced at trial — that evidence was simply irrelevant.

It is important to note that, in finding prejudicial, reversible error, the court in Zehr was applying a principle which has long been the law in Illinois: the failure to permit voir dire questioning which pertains to a critical area of potential bias is prejudicial error because it deprives the defendant of the right to select an impartial jury. As early as 1873, for example, in Lavin v. People, 69 Ill. 303 (1873), this court applied this principle when it considered whether a trial court’s failure to ask the venire if they were members in or affiliated with a temperance society required reversal of the defendant’s conviction for violating a liquor law. Addressing this issue, this court stated:

“It is the policy of our laws to afford each and every person who may have a cause for trial in our courts, a fair and impartial trial. This can only be done by having the mind of each juror who sits to pass judgment upon the life, liberty or rights of a suitor entirely free from bias or prejudice. In order to determine whether the person who may be called as a juror possesses the necessary qualifications, whether he has prejudged the case, whether his mind is free from prejudice or bias, the suitor has the right to ask him questions, the answer to which may tend to show he may be challenged for cause, or disclose a state of facts from which the suitor may see proper to reject such juror peremptorily.” Lavin, 69 Ill. at 304-05 .

The court went on to hold:

“That the refusal of the court to permit the questions asked to be answered, was error, for which the judgment should be reversed, there can be no doubt. [Citations.]

It can not be said the cause was tried by a jury, such as is contemplated by law.” Lavin, 69 Ill. at 306 .

More recently, in People v. Stack, 112 Ill. 2d 301 (1986), this court held that the failure to allow a question tendered by the defendant regarding the insanity defense was prejudicial, reversible error. In so holding, the court noted that the insanity defense was a controversial legal issue against which members of the community may have been prejudiced. The court stated:

“Inquiry into the feeling or viewpoint of the venire regarding such controversial legal propositions is consistent with a bona fide examination conducted so that the parties can intelligently exercise their prerogatives to challenge. Furthermore, a defendant’s sixth and fourteenth amendment rights to an impartial jury (U.S. Const., amends. VI, XIV) are diminished when jurors are prejudiced against an appropriate verdict of not guilty by reason of insanity.” Stack, 112 Ill. 2d at 312-13 .

As in Zehr, the Stack court rejected the State’s argument that a general admonition to the jury to follow the law was sufficient to address any potential bias. The court concluded that such an admonition would be inadequate to protect the “defendant’s right to an impartial jury.” Stack, 112 Ill. 2d at 313 .

In People v. Strain, 194 Ill. 2d 467 (2000), this court held that the failure to permit certain voir dire questions regarding gang bias required reversal of the defendant’s conviction. We held:

“The trial court was required to conduct voir dire in a manner to assure the selection of an impartial panel of jurors, free from bias and prejudice. Because of the trial court’s refusal to probe for gang bias, defendant was denied an informed and intelligent basis on which to assert challenges for cause or to exercise peremptory challenges.” Strain, 194 Ill. 2d at 481 .

See also, e.g., People v. Jimenez, 284 Ill. App. 3d 908, 913 (1996) (“Defendant need not prove that the jury impanelled actually harbored prejudice against him. [Citation.] Because of the improper refusal of an appropriate question, which would have tested an area of potential bias not covered by other questions [regarding gang bias], the conviction must be reversed”); People v. Oliver, 265 Ill. App. 3d 543, 551 (1994) (trial court’s failure to pose questions regarding the insanity defense meant that “[t]he conduct of jury selection proceedings in this case did not ensure that defendant would be afforded his constitutional right to a trial before an impartial jury”); People v. Lanter, 230 Ill. App. 3d 72 (1992) (reversible error in failing to allow voir dire questioning regarding drugs and alcohol).

In each of the foregoing cases, courts of review in this state have held that where the tendered questions go to a critical area of potential bias, a general instruction or admonition could not ensure that the defendant would be tried before an impartial jury and, therefore, the failure to ask the questions was prejudicial, reversible error. It was this principle of law that was relied upon by the defendant in Zehr. See 234 Ill. 2d at 190 (taking judicial notice of the briefs filed in Zehr). Citing to cases such as People v. Lobb, 17 Ill. 2d 287, 300 (1959), and People v. DeLordo, 350 Ill. 148 (1932), the defendant in Zehr argued that “[t]he failure to ask the tendered questions prejudiced [him] by denying him the opportunity to make challenges for cause and to exercise his peremptory challenges intelligently, thereby thwarting the selection of an impartial jury.” This court agreed. Zehr, 103 Ill. 2d at 477 . Indeed, the only difference between the cases discussed above and Zehr is that, unlike questions regarding gangs or the insanity defense, which are case specific, the questions tendered in Zehr apply to every criminal case, regardless of the facts— which of course is why the holding of Zehr was subsequently codified in a supreme court rule.

Reversal in Zehr had nothing to do with whether the evidence produced at trial was closely balanced. Instead, reversal was premised on this court’s conclusion that the failure to ask the tendered questions violated the defendant’s right to select an impartial jury and was, therefore, prejudicial, reversible error. Thus, in my view, the majority’s statements that the application of harmless error in this case is an issue of “first impression” and that Zehr merely “suggests” that reversal is required are simply not defensible.

In support of their decision to apply harmless-error analysis in this case, the majority points to People v. Emerson, 122 Ill. 2d 411 (1987). According to the majority, Emerson “moved away” from Zehr’s holding that the failure to ask the tendered questions amounts to “prejudicial error” (234 Ill. 2d at 197) and, therefore, harmless-error analysis is appropriate. Again, I disagree.

Initially, I note that if the application of harmless error is in fact being addressed for the first time in this case, then there could not have been a previous holding for Emerson to “move away” from. The majority’s statement that Emerson “moved away” from Zehr’s finding of prejudicial error is a tacit admission that the application of harmless error is not, after all, an issue of first impression.

Moreover, the majority’s contention that Zehr’s finding of prejudicial error is no longer valid in light of Emerson fails on the merits. In Emerson, the defendant contended that, in violation of Zehr, “the trial judge erred in failing to question the venire more thoroughly with respect to their attitudes concerning the presumption of innocence.” Emerson, 122 Ill. 2d at 425 . This court disagreed, holding that the trial judge sufficiently complied with Zehr. Emerson, 122 Ill. 2d at 427 . Although the trial judge did not individually question the jurors about the presumption of innocence, the judge did question the venire as a whole as to whether they understood that the defendant was innocent until proven guilty beyond a reasonable doubt and whether they would follow the law. Further, the judge posited a hypothetical to the venire which explained the presumption of innocence. Emerson, 122 Ill. 2d at 426 . Based on these facts, we concluded that the “purpose expressed in Zehr” had been satisfied such that the voir dire was sufficient to insure the selection of a fair and impartial jury. Emerson, 122 Ill. 2d at 427 .

Contrary to the approach taken by the majority in this case, Emerson makes it clear that the proper way to address a defendant’s challenge regarding a trial court’s failure to pose Zehr and Rule 431(b) questions is to consider the quality of the voir dire proceeding, not the weight of the evidence produced at trial. Indeed, if anything, Emerson did not “move away” from Zehr’s holding that the voir dire error is prejudicial error, it reaffirmed it. Applying the approach of Emerson here, it is apparent that reversal is required since, as in Zehr, no questions whatsoever were asked of the venire regarding defendant’s right not to testify. See People v. Starks, 169 Ill. App. 3d 588, 593 (1988) (finding reversible error where “no preimpanelment question posed to prospective jurors individually or as a group tested them specifically as to their attitude toward defendant’s failure to testify”).

Furthermore, regardless of whether the majority actually views the application of harmless error as an issue of first impression or not, I cannot agree with the adoption of that standard in this case because it cannot be reconciled with the nature of the error identified in Zehr. Here, at the outset of its analysis, the majority emphasizes that Zehr is “long-standing precedent” and strongly reaffirms “this court’s mandate in Zehr” which requires that the tendered questions be asked. 234 Ill. 2d at 189. But Zehr holds that the trial court is required to ask the tendered questions because they are “essential” to obtaining an impartial jury. Zehr, 103 Ill. 2d at 477 . By definition, the absence of something that is an “essential” requirement to ensuring an impartial tribunal cannot be harmless. See People v. Cole, 54 Ill. 2d 401, 411 (1973) (“The right to a trial by an impartial tribunal is so basic that a violation of the right requires a reversal”). By reaffirming Zehr but then applying harmless error, the majority is embracing a contradiction. This cannot be correct.

The majority attempts to get around this problem, in part, by stating that its holding that harmless-error analysis applies in this case does not mean “that a Rule 431(b)(4) violation could never result in reversible error.” 234 Ill. 2d at 200. The majority explains:

“If the facts in this case demonstrated that the trial court’s failure to question the venire in accordance with Rule 431(b)(4) resulted in defendant being tried before a biased jury, we would not hesitate to reverse defendant’s conviction, as a trial before a biased jury would constitute structural error.” 234 Ill. 2d at 200-01.

Notably, however, at no point in its opinion does the majority explain how jurors harboring bias against a defendant’s right not to testify can be identified if defense counsel is precluded from making the relevant inquiry on voir dire. Certainly, in cases where a juror is challenged for cause based on a response to a question that was actually given, there would be record evidence for an appellate court to review to determine whether there was bias. But that is impossible to do when the question is not asked in the first place. The fact of the matter is, if the question is precluded, there will be no evidence of record to establish juror bias. The Supreme Court of Kentucky recognized this point in Hayes v. Commonwealth, 175 S.W.3d 574 (Ky. 2005):

“If any jurors who sat in judgment of [the defendants] had expressed such a prejudice [against the defendants’ right not to testify], the trial court would have been required to strike those jurors for cause. But how could defense counsel identify jurors holding such prejudice if defense counsel is precluded from making the relevant inquiry on voir dire? By limiting the voir dire to exclude any inquiry into that issue on the notion that to do so might give the defendants an unfair advantage during closing arguments, the trial court prevented them from identifying any jurors so prejudiced and thereby precluded the exercise of possible challenges for cause and interfered with the intelligent exercise of peremptory strikes.” Hayes, 175 S.W.3d at 585 .

Citing to our own decision in Zehr, the Kentucky court went on to conclude:

“[T]he failure to permit counsel to ascertain during voir dire whether any of the prospective jurors would hold against them the fact that they exercised their Fifth Amendment privilege not to testify was an abuse of discretion that denied [the defendants] their fundamental right to a fair and impartial jury, an error that is not subject to harmless error analysis.” Hayes, 175 S.W.3d at 586 .

The Hayes court properly understood our opinion in Zehr and recognized what the majority here does not: once the threshold determination is made that a tendered voir dire question goes to a critical area of potential bias that cannot be ameliorated by admonitions or instructions and, therefore, the failure to pose the question denies the defendant the right to select a fair and impartial jury, the weight of the evidence is irrelevant and harmless-error analysis is necessarily inapplicable. See, e.g., Strain, 194 Ill. 2d at 476-77 ; Stack, 112 Ill. 2d at 311-13 ; Lobb, 17 Ill. 2d at 300 ; Lavin, 69 Ill. at 304-06 .

The majority’s improper labeling of the harmless-error issue as one of first impression; the self-contradicting and unpersuasive contention that this court “moved away” from Zehr’s finding of prejudicial error in Emerson; and the contradiction between the majority’s reaffirmance of Zehr on the one hand and the adoption of harmless-error analysis on the other are all problems that relate to the central issue of whether harmless-error analysis should be applied to a violation of Zehr and Rule 431(b)(4). There is, however, an additional problem with the majority opinion that relates to the nature of the underlying error itself.

Stating that Rule 431(b)(4) questioning is not constitutionally required, the majority reaches the following conclusion:

“[W]e cannot say that Rule 431(b)(4) questioning is indispensable to a fair trial.” 234 Ill. 2d at 196.

Then, addressing the problem of juror bias directly, the majority discounts any concerns regarding bias in this case because the jurors

“were both admonished and instructed against forming an adverse inference against defendant based on his decision not to testify.” 234 Ill. 2d at 201.

These statements represent a complete reversal of our holding in Zehr that questioning the jury regarding a defendant’s right not to testify is essential to ensuring an impartial jury and a fair trial, and that admonitions and instructions are inadequate to address the potential bias against that right. They also represent a complete turnabout from the position taken by the majority at the outset of its analysis to reaffirm Zehr’s finding of error (234 Ill. 2d at 189). There is no recognition by the majority of this inconsistency.

Further, this wholesale rejection of the Zehr court’s basis for finding error fails on its own terms. The majority concludes that Zehr questioning cannot be essential to obtaining a fair trial because it must be requested by the defendant and the “default position” is for the trial court “to refrain from Zehr questioning.” 234 Ill. 2d at 200. For this reason, according to the majority, Rule 431(b)(4) questioning is not “indispensable to a fair trial” (234 Ill. 2d at 196), and the denial of that questioning “does not require automatic reversal” (234 Ill. 2d at 200). But if the majority’s reasoning is correct, there can be no reversible error based solely on a trial court’s erroneous refusal to ask a tendered question. The “default position” described by the majority would exist in every case where a proffered question is refused. Thus, under the majority’s reasoning, every case in Illinois and elsewhere that has found reversible error in such a situation is wrongly decided. See generally 6 W. LaFave, J. Israel, N. King & O. Kerr, Criminal Procedure §22.3(a), at 78 n.23 (3d ed. 2007) (collecting cases finding reversible voir dire error). That is a dramatic and unwarranted position to take.

More to the point, the majority’s “default position” reasoning was expressly rejected in Zehr. Zehr was in the exact same posture as the version of Rule 431(b) at issue here; the trial court was not required to ask the relevant questions on its own. Nevertheless, despite this “default position,” this court held in Zehr that the tendered questions were “essential to the qualification of jurors,” that they went “ ‘to the heart of a particular bias or prejudice which would deprive defendant of his right to a fair and impartial jury’ ( 110 Ill. App. 3d 458, 461 ),” and that “[t]he refusal to ask resulted in prejudicial error which required reversal.” Zehr, 103 Ill. 2d at 477-78 . At no point in its opinion does the majority explain how, under principles of stare decisis, questions which were held indispensable in Zehr — under the same factual situation presented here — are now dispensable, or why instructions and admonitions deemed inadequate in Zehr are now sufficient to assuage the concerns regarding jury bias. This is a serious omission.

The majority’s unsupported rejection of Zehr also completely eliminates the rationale behind Rule 431(b)(4), for if the admonition and instruction given in this case are sufficient to assuage any concerns regarding juror bias, then there is no need for the questioning required by Rule 431(b)(4) and Zehr. Further, the majority’s rejection of Zehr renders this court’s 2007 amendment of Rule 431(b) nonsensical. That amendment removed the phrase “If requested by the defendant” from the rule, thereby imposing a duty on the trial court to question each potential juror on whether he or she understands and accepts the four principles identified in Zehr, regardless of a defense request. Official Reports Advance Sheet No. 8 (April 11, 2007), R. 431(b), eff. May 1, 2007; 234 Ill. 2d at 187 n.2. But why impose this burden on the trial courts at all if the questions are not necessary to ensure a fair trial and a proper instruction or admonition will do the job? What is the point? The majority opinion leaves us with a supreme court rule which requires that questions be asked only because the court says so, not because they are actually necessary to receive a fair trial before an impartial jury. Again, this is hardly a sensible result.

Finally, the majority relies on People v. Rivera, 227 Ill. 2d 1 (2007) (Rivera II), aff’d, 556 U.S. 148 , 173 L. Ed. 2d 320 , 129 S. Ct. 1446 (2009), wherein this court held that a trial court’s erroneous denial of a defendant’s use of a peremptory challenge is subject to harmless-error analysis.

In Rivera II, we specifically stated that we were not addressing challenges “for cause.” See Rivera II, 227 Ill. 2d at 20 (indicating that defendant Rivera was not arguing that the juror in question “was subject to excusal for cause”). This fact is important. A challenge for cause is a “challenge supported by a specified reason, such as bias or prejudice, that would disqualify that potential juror.” Black’s Law Dictionary 245 (8th ed. 2004). In contrast, a peremptory challenge is “[o]ne of a party’s limited number of challenges that do not need to be supported by a reason” although the challenge may not be used to discriminate against a protected minority. Black’s Law Dictionary 245 (8th ed. 2004). See Swain v. Alabama, 380 U.S. 202, 220 , 13 L. Ed. 2d 759, 772 , 85 S. Ct. 824, 836 (1964), rev’d on other grounds, Batson v. Kentucky, 476 U.S. 79 , 90 L. Ed. 2d 69 , 106 S. Ct. 1712 (1986); Hayes v. Missouri, 120 U.S. 68, 70 , 30 L. Ed. 578, 580 (1887). Put simply, challenges for cause are of constitutional dimension because they eliminate persons who would be unable, due to their bias or prejudice, to afford a defendant his constitutional right to a fair trial. Peremptory challenges, on the other hand, are not of “constitutional dimension.” Ross v. Oklahoma, 487 U.S. 81, 88 , 101 L. Ed. 2d 80, 90 , 108 S. Ct. 2273, 2278 (1988). See also Rivera, 556 U.S. at 158 , 173 L. Ed. 2d at 329 , 129 S. Ct. at 1454 (stating that peremptory challenges are “state-provided” rights, and that errors of state law do not automatically equate to a federal constitutional violation). The type of bias which might prompt a defendant’s exercise of a peremptory challenge would not necessarily render that person unqualified to be a juror. Moreover, because peremptory challenges are not of constitutional dimension, a state could, if it so chose, eliminate peremptory challenges without violating any federal constitutional principle. However, a state may not take away a defendant’s right to challenge a juror for cause based on a bias against a defendant’s right not to testify. Cf. Carter v. Kentucky, 450 U.S. 288, 305 , 67 L. Ed. 2d 241, 254 , 101 S. Ct. 1112, 1121-22 (1981) (“a state trial judge has the constitutional obligation, upon proper request, to minimize the danger that the jury will give evidentiary weight to a defendant’s failure to testify”).

The majority’s reliance on Rivera II for applying harmless error in this case is understandable in light of the majority’s conclusion that Rule 431(b)(4) questioning is not necessary for a fair trial. In the view of the majority, Rule 431(b)(4) questions are the functional equivalent of the peremptory challenges addressed in Rivera II. But that is not what Zehr held. Rivera II is completely irrelevant to the threshold question in this case, i.e., whether Zehr’s holding that the relevant questions are essential to obtaining an impartial tribunal should be overturned in the first place. Moreover, as noted, the majority has not even acknowledged, let alone justified, its departure from Zehr under principles of stare decisis.

In sum, the majority opinion can be read in two ways. On the one hand, the majority may intend to reaffirm Zehr’s holding that the relevant questions are essential to obtaining a fair trial. If that is the case, then the majority’s adoption of harmless-error analysis is unwarranted because, as Zehr recognizes, the absence of something essential to a fair trial cannot be harmless. On the other hand, the majority may intend to overrule Zehr’s holding that the questions are essential. But if that is the case, the majority has failed to provide any justification under principles of stare decisis for reaching that result. Regardless of which meaning is intended by the majority, either result is unsound. I would adhere to the straightforward application of Zehr and Rule 431(b)(4) and reverse defendant’s conviction.

For the foregoing reasons, I respectfully dissent.

JUSTICE FREEMAN joins in this dissent.

It is not clear why the majority chooses to use the harmless “beyond a reasonable doubt” standard here since that standard is used for constitutional error (see In re E.H., 224 Ill. 2d 172, 180-81 (2006)), and the majority has concluded that constitutional error did not occur in this case (see 234 Ill. 2d at 196).