Petition for Writ of Certiorari — Miguel Adorno, Petitioner v. Michael Melvin, Warden

Supreme Court briefMar 2, 2018

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No. 18IN THE

SUPREME COURT OF THE UNITED STATES

MIGUEL ADORNO,

Petitioner

- vs MICHAEL MELVIN, Warden,

Respondent

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Seventh Circuit

APPENDIX

ALAN M. FREEDMAN

Midwest Center for Justice, Ltd.

P.O. Box 6528

Evanston, IL 60204

Phone: (847) 492-1563

Email: fbpc@aol.com

Counsel of Record for Petitioner

APPENDIX

Appendix A: Opinion of the United States Court of Appeals for the Seventh Circuit

(December 1, 2017)

Appendix B: Order of the United States Court of Appeals for the Seventh Circuit

denying rehearing en banc (January 4, 2018)

Appendix C: Order of the United States District Court, Northern District of Illinois

(April 29, 2016)

Appendix D: Order of the Illinois Supreme Court (September 25, 2013)

Appendix E: Order of the Illinois Appellate Court (June 14, 2013)

A-1

Appendix A

Opinion of the United States Court of Appeals for the Seventh Circuit

(December 1, 2017)

A-2

Adorno v. Melvin, 876 F.3d 917 (2017)

Garson Fischer, Attorney, Office of the Attorney General,

Chicago, IL, for Respondent–Appellant.

876 F.3d 917

United States Court of Appeals,

Seventh Circuit.

Before Bauer, Sykes, and Hamilton, Circuit Judges.

Miguel ADORNO, Petitioner-Appellee,

Michael MELVIN, Respondent-Appellant.

Opinion

Sykes, Circuit Judge.

No. 16-2273

Argued January 12, 2017

Decided December 1, 2017

Rehearing and Rehearing En

Banc Denied January 4, 2018 *

Synopsis

Background: Following affirmance on direct appeal of

petitioner's state-court conviction for attempted murder

and using a firearm, 2013 WL 3063703, he filed a petition

for federal habeas relief. The United States District Court

for the Northern District of Illinois, No. 14 C 00791, John

J. Tharp, Jr., J., 2016 WL 1719788, granted the petition.

The state appealed.

[Holding:] The Court of Appeals, Sykes, Circuit Judge,

held that state trial judge's comments to jury during voir

dire about reasonable doubt standard did not invite jury to

convict on a lesser standard, as would violate petitioner's

due process rights.

Reversed.

Bauer, Circuit Judge, filed concurring opinion.

*918 Appeal from the United States District Court for

the Northern District of Illinois, Eastern Division. No. 14

C 00791—John J. Tharp, Jr., Judge.

Attorneys and Law Firms

Miguel Adorno, an Illinois prisoner, was convicted of

attempted murder using a firearm. On direct appeal he

challenged certain remarks by the trial judge about the

state's burden of proof. More particularly, he argued

that the judge's comments—delivered impromptu during

voir dire—invited the jury to convict on less than

the reasonable-doubt burden of proof required by the

Constitution's guarantee of due process of law. He also

claimed that the judge's remarks violated state law. The

Illinois Court of Appeals addressed only the state-law

argument and rejected the claim; the court made no

reference to federal law. Adorno then sought federal

habeas relief under 28 U.S.C. § 2254. Applying de novo

review, the district judge found a due-process violation

and granted the petition.

[1] [2] We reverse the judgment. Because the state court

did not specifically address Adorno's federal claim, our

first task is to decide whether the Richter presumption

applies. See Harrington v. Richter, 562 U.S. 86, 131 S.Ct.

770, 178 L.Ed.2d 624 (2011). When a state prisoner

presents a federal claim to a state court and the court

denies relief without explanation, Richter requires a

federal habeas court to presume that the state court

adjudicated the claim on the merits. Id. at 99, 131 S.Ct.

770. The presumption triggers deferential review under

§ 2254(d); the federal court must give the state-court

judgment the benefit of any arguments or theories that

could have supported the state court's judgment. Id. at 102,

131 S.Ct. 770.

The Richter presumption is rebuttable, but we do not need

to decide whether it has been rebutted here. Even under de

novo review, Adorno's claim fails. There is no reasonable

likelihood that the jury convicted him on less than the

reasonable-doubt standard.

Alan Michael Freedman, Noah John Magrisso,

Attorneys, Midwest Center for *919 Justice, Ltd.,

Evanston, IL, for Petitioner–Appellee.

I. Background

A-3

Adorno v. Melvin, 876 F.3d 917 (2017)

While attending a house party in the Hermosa

neighborhood in Chicago, Adorno was accused of stealing

an iPod and a laptop from one of the hosts. After the

laptop was retrieved from the back seat of the car Adorno

arrived in, he and his friends were asked to leave. A

fistfight ensued between Adorno and Jeffery Nagamine,

the host's brother. According to several witnesses, Adorno

threatened to kill Nagamine and retrieved a gun from his

friend's car to make good on the threat. As the other guests

retreated back into the house, Adorno fired several shots

into the crowd. The partygoers were lucky; no one was

killed and only one person was hit, sustaining a gunshot

wound to the arm.

Adorno was arrested and initially told police that he knew

nothing about the house party. He claimed to have spent

the entire evening with his mother. Later Adorno admitted

his involvement in the shooting but claimed that he fired

his gun at the crowd in self-defense. The State's Attorney

charged him with attempted murder in the first degree

while armed with a firearm.

The case proceeded to jury trial. During voir dire,

the judge preliminarily informed the venire about the

presumption of innocence and the burden of proof in

criminal cases. He told the prospective jurors that Adorno

was presumed innocent and that the presumption could

be overcome only if the state proved his guilt beyond a

reasonable *920 doubt. The judge explained that Adorno

was not required to present any evidence on his own

behalf but could instead rely entirely on the presumption

of innocence. The judge then discussed the standard of

proof in greater detail:

Illinois does not define reasonable doubt, but any of you

who may have sat on a civil jury there's a preponderance

of the evidence, reasonable doubt is the highest burden

of proof in our country and in our [s]tate. Those of you

who may have sat on civil cases, preponderance of the

evidence, if you look at this like a scale, all you have

to do is tilt it. So the definition of preponderance of

the evidence is, it's more likely than not that the event

occurred.

Again, Illinois doesn't define reasonable doubt. That's

up for you to decide in words, but in analogy to the scale

thing, you would have to tip it like this, so that would

be some insight into what proof beyond a reasonable

doubt would be.

The last sentence in this passage implies that a nonverbal

hand gesture accompanied the judge's “scale” analogy, but

no record was made of it.

A jury was seated, and at the close of the evidence, the

judge read formal instructions about the presumption of

innocence, the elements of the charged crime, and the

state's burden to prove every element beyond a reasonable

doubt. The jury convicted Adorno as charged, and the

judge imposed a sentence of 30 years.

On direct appeal Adorno challenged the judge's attempt

to explain the reasonable-doubt standard during voir dire.

Citing Victor v. Nebraska, 511 U.S. 1, 114 S.Ct. 1239, 127

L.Ed.2d 583 (1994), he argued that the judge's remarks

invited the jury to convict on less than the reasonabledoubt standard required by the federal Constitution's

guarantee of due process. His argument relied almost

exclusively on federal law, but he also alluded to Illinois

common law, which precludes trial judges from defining

reasonable doubt, and to Illinois Supreme Court Rule

431(b), which requires judges to verify that the jurors

understand and accept the reasonable-doubt standard. He

raised other challenges as well, though none are relevant

here.

The state appellate court affirmed. In evaluating Adorno's

challenge to the voir dire remarks by the judge, the court

relied exclusively on state law and treated the claim as

one alleging ordinary trial error rather than an error

of constitutional magnitude. That is, the court applied

the state-law framework for evaluating improper judicial

comments at trial and concluded that because the remarks

were not prejudicial, Adorno was not entitled to relief.

Adorno skipped state postconviction proceedings and

moved directly to federal court seeking habeas relief under

§ 2254, repeating his federal constitutional challenge to the

judge's voir dire remarks. The district judge determined

that the state court had not adjudicated Adorno's federal

claim on the merits and thus reviewed it de novo,

without the deference normally required by § 2254(d)(1).

The judge concluded that the state trial judge's remarks

improperly invited the jury to convict on a constitutionally

insufficient standard of proof. Accordingly, the judge

granted Adorno's § 2254 petition and ordered Illinois to

release him or file notice within 30 days of its intent to retry

the case against him. The State appealed.

A-4

Adorno v. Melvin, 876 F.3d 917 (2017)

Johnson v. Williams, 568 U.S. 289, 292, 133 S.Ct. 1088,

185 L.Ed.2d 105 (2013), the Court held that the Richter

II. Discussion

presumption applies in cases like this “when a defendant

[3]

[4]

[5] We review the judge's § 2254 ruling de convicted in state court attempts to raise a federal claim,

either on direct appeal or in a collateral state proceeding,

novo. Thompkins v. Pfister, 698 F.3d 976, 983 (7th Cir.

and a state court rules against the defendant and issues an

2012). A state court's decision on a prisoner's federal

opinion that addresses some issues but does not expressly

claim ordinarily is entitled to substantial deference on

address the federal claim in question.” See also Lee v.

federal habeas review; we will not set it aside unless it

Avila, 871 F.3d 565, 571 (7th Cir. 2017).

“was contrary *921 to, or involved an unreasonable

application of, clearly established Federal law” or “was

based on an unreasonable determination of the facts

in light of the evidence presented in the [s]tate court

proceeding.” 28 U.S.C. § 2254(d)(1), (2). The AEDPA 1

standard is deliberately difficult, setting a high bar for

relief; the prisoner must demonstrate that the state court's

ruling was “so lacking in justification that there was

an error well understood and comprehended in existing

law beyond any possibility for fairminded disagreement.”

Richter, 562 U.S. at 103, 131 S.Ct. 770.

[6] But deferential review under AEDPA “applies only

to claims that were actually ‘adjudicated on the merits in

[s]tate court proceedings.’ ” Harris v. Thompson, 698 F.3d

609, 623 (7th Cir. 2012) (quoting § 2254(d)). For all other

claims, we apply the pre-AEDPA standard of 28 U.S.C. §

2243 and review de novo. Id.

In its decision resolving Adorno's direct appeal, the Illinois

Appellate Court did not explicitly address the federal

claim. Though Adorno's briefing squarely challenged the

trial judge's voir dire remarks on federal due-process

grounds, the court made no mention of federal law in its

opinion. The court's only hint of a nod to a claim based on

federal law is a single sentence that contains faint echoes

of the Victor standard: “We do not believe that the court's

comments during voir dire could reasonably be construed

as inviting the jury to convict [the] defendant based on less

than the reasonable doubt standard.”

Even when a federal claim is wholly unaddressed by the

state court, however, a question remains whether it was

“adjudicated on the merits” for purposes of § 2254(d).

Where, as here, a state prisoner adequately presents a

federal claim to a state court and the court denies relief,

the Supreme Court has instructed us to presume that the

federal claim was adjudicated on the merits “in the absence

of any indication or state-law procedural principles to the

contrary.” Richter, 562 U.S. at 99, 131 S.Ct. 770; see also

Keith v. Schaub, 772 F.3d 451, 454 (7th Cir. 2014). In

[7] Although “the Richter presumption is a strong one

that may be rebutted only in unusual circumstances, it

is not irrebuttable.” Williams, 568 U.S. at 302, 133 S.Ct.

1088. The presumption may give way if “the state court

relies exclusively on state law, and the state standard is

less protective than the federal one”; or if the governing

federal standard was simply “ ‘mentioned in passing in a

footnote or ... buried in a string cite’ ”; or if the prisoner

can show that the claim was overlooked “ ‘as a result of

sheer inadvertence.’ ” Brady v. Pfister, 711 F.3d 818, 825

(7th Cir. 2013) (quoting Williams, 568 U.S. at 301–03, 133

S.Ct. 1088). We do not need to decide whether the Richter

presumption has been rebutted here; the due-process claim

fails on plenary review.

[8] [9] [10] The Fourteenth Amendment's guarantee of

due process includes the requirement in criminal cases that

the state prove every element of a charged offense beyond

a reasonable doubt. *922 In re Winship, 397 U.S. 358,

364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). As a matter

of Illinois common law, trial judges are instructed not to

attempt to define reasonable doubt for the jury. People v.

Thomas, 191 Ill.App.3d 187, 138 Ill.Dec. 568, 547 N.E.2d

735, 741 (1989). In contrast, “the [federal] Constitution

neither prohibits trial courts from defining reasonable

doubt nor requires them to do so as a matter of course.”

Victor, 511 U.S. at 5, 114 S.Ct. 1239. Accordingly, the

voir dire remarks by the trial judge in Adorno's case

will amount to federal constitutional error only if “there

is a reasonable likelihood that the jury understood the

[remarks] to allow conviction based on proof insufficient

to meet the [reasonable-doubt] standard.” Id. at 6, 114

S.Ct. 1239.

[11] There is no reasonable likelihood of that here. The

trial judge expressly recognized that under Illinois law

there is no need for a judicial definition of the term

“reasonable doubt.” He told the prospective jurors that it

was “up for you to decide in words” what the term means.

A-5

Adorno v. Melvin, 876 F.3d 917 (2017)

That was not, as Adorno argues, an invitation to the jury

to convict on some lesser standard of proof.

conviction was not tainted by a due-process violation, the

order granting habeas relief was unwarranted and is

The judge's reference to the civil burden of proof using

the metaphor of a scale likewise did not invite the jurors

to convict on a constitutionally insufficient standard of

proof. The judge invoked the civil standard solely for the

purpose of distinguishing it from the criminal reasonabledoubt standard, explaining that proof by preponderance

of the evidence is insufficient for criminal cases. And he

emphasized that “reasonable doubt is the highest burden

of proof in our country and in our [s]tate.” Finally, at

the close of the case, the judge formally instructed the

jury on the presumption of innocence, the elements of

the offense, and the state's burden to prove each of the

elements beyond a reasonable doubt. The propriety of

those instructions was and is unchallenged.

REVERSED.

Bauer, Circuit Judge. Concurring.

Attempts at defining reasonable doubt have always

occasioned problems. Both “reasonable” and “doubt”

are words in common usage and are constantly used in

the language of law. No matter how glib the speaker,

it is necessary to use other words that require further

definition in trying to refine the terms “reasonable” or

“doubt.” The language used by this learned trial judge

makes that point clearly.

[12] The judge's voir dire comments must be viewed “in

the context of the entire charge,” not in isolation. Jones

v. United States, 527 U.S. 373, 391, 119 S.Ct. 2090,

144 L.Ed.2d 370 (1999). Taken as a whole, nothing in

the judge's remarks creates a reasonable likelihood that

the jury “underst[ood] the phrase [‘reasonable doubt’] to

mean something less than the very high level of probability

required by the Constitution in criminal cases.” Victor,

511 U.S. at 14, 114 S.Ct. 1239. Put slightly differently,

the judge's remarks do not suggest that the jurors would

have understood that they were free to convict Adorno on

less than proof beyond a reasonable doubt. Because the

Illinois Pattern Instructions and the Seventh Circuit

Criminal Instructions make this point emphatically.

Judges and lawyers must accept the fact that we select

jurors who presume to be reasonable and who understand

through years of normal living what is meant by “doubt.”

*923 It is with a sore heart then, that I concur in the

opinion.

All Citations

876 F.3d 917

Footnotes

Circuit Judge Joel M. Flaum did not participate in the consideration of this petition for rehearing en banc.

The Antiterrorism and Effective Death Penalty Act of 1996.

End of Document

A-6

Appendix B

Order of the United States Court of Appeals for the Seventh Circuit

denying rehearing en banc (January 4, 2018)

A-7

Case: 16-2273

Document: 37

Filed: 01/04/2018

Pages: 1

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

January 4, 2018

Before

WILLIAM J. BAUER, Circuit Judge

DIANE S. SYKES, Circuit Judge

DAVID F. HAMILTON, Circuit Judge

No. 16-2273

Appeal from the

United States District Court for the

Northern District of Illinois,

Eastern Division.

MIGUEL ADORNO,

Petitioner-Appellee,

No. 14 C 00791

MICHAEL MELVIN,

Respondent-Appellant.

John J. Tharp, Jr.,

Judge.

ORDER

On consideration of the petition for rehearing and for rehearing en banc, no

judge in active service has requested a vote on the petition for rehearing en banc,* and

all of the judges on the original panel have voted to deny rehearing. It is therefore

ordered that the petition for rehearing and for rehearing en banc is DENIED.

Circuit Judge Joel M. Flaum did not participate in the consideration of this petition for rehearing

en banc.

A-8

Appendix C

Order of the United States District Court, Northern District of Illinois

(April 29, 2016)

A-9

Adorno v. Pierce, Not Reported in F.Supp.3d (2016)

case. Id. The trial judge's initial instructions included

those required by Illinois Supreme Court Rule 431, which

provides that a trial judge must ask prospective jurors

whether they understand and accept:

2016 WL 1719788

Only the Westlaw citation is currently available.

United States District Court,

N.D. Illinois, Eastern Division.

(1) that the defendant is presumed innocent of the

charge(s) against him or her;

Miguel Adorno, Petitioner,

Guy Pierce, Respondent.

(2) that before a defendant can be convicted the State

must prove the defendant guilty beyond a reasonable

doubt;

Case No. 14 C 00791

Signed 04/29/2016

(3) that the defendant is not required to offer any

evidence on his or her own behalf; and,

(4) that if a defendant does not testify it cannot be held

against him or her. 2

MEMORANDUM OPINION AND ORDER

John J. Tharp, Jr., United States District Judge

*1 The petitioner, Miguel Adorno, a prisoner at the

Pontiac Correctional Center, brings this pro sehabeas

corpus petition pursuant to 28 U.S.C. § 2254 challenging

his criminal conviction in the Circuit Court of Cook

County for attempted murder in the first degree while

armed with a firearm. The evidence at Adorno's jury

trial showed that he shot a gun during a fight at a

party and struck a victim in the arm. Illinois v. Adorno,

2013 IL App (1st) 110028-U, 2013 WL 3063703, at *1

(Ill. App. Ct. June 14, 2013). Adorno claims that the

trial judge violated his due process rights by giving jury

instructions that diminished the State's burden of proof.

This Court concludes that the Illinois Appellate Court's

decision on this issue was contrary to clearly established

federal law as set forth by the Supreme Court of the

United States, see 28 U.S.C. § 2254(d)(1), and that under

the resulting de novo review, the trial judge improperly

instructed the jury on “reasonable doubt” in a manner that

created a reasonable likelihood of conviction based on

a constitutionally insufficient degree of proof. Therefore,

the petition for a writ of habeas corpus is granted.

Ill. S. Ct. R. 431(b); see also Illinois v. Zehr, 469 N.E.2d

1062 (Ill. 1984); Illinois v. Kidd, 7 N.E.3d 188, 195 (Ill.

App. Ct. 2014) (explaining that Rule 431 is a codification

of the Supreme Court of Illinois's Zehr decision). There is

no requirement that the trial judge use specific language

when examining the prospective jurors regarding the Rule

431 principles. Kidd, 7 N.E.3d at 199 (citations omitted).

The trial judge explained that a defendant is presumed

innocent, that the presumption stays with him throughout

the trial, and that it is not overcome unless the evidence

convinces the jury that the defendant is guilty beyond a

reasonable doubt. Trial Tr. K-16, ECF No. 13-4. The

judge also explained that the burden of proving the

defendant guilty beyond a reasonable doubt is on the

State, and that a defendant is not required to prove his

innocence. Id. at K16 – K18. The judge then said the

following about reasonable doubt:

A. Background

At the start of jury selection at Adorno's trial, the judge

gave the venire a number of preliminary instructions

which, he explained, were not final or complete. Trial

Tr. K-14, ECF No. 13-4. The judge explained that the

jury's full instructions would come after all the evidence

and final arguments from the lawyers at the end of the

*2 Illinois does not define reasonable doubt, but any

of you who may have sat on a civil jury there's a

preponderance of the evidence, reasonable doubt is the

highest burden of proof in our country and in our

State. Those of you who may have sat on civil cases,

preponderance of the evidence, if you look at this like

a scale, all you have to do is tilt it. So the definition of

preponderance of the evidence is, it's more likely than

not that the event occurred.

Again, Illinois does not define reasonable doubt. That's

up for you to decide in words, but in analogy to the scale

thing, you would have to tip it like this, so that would

A-10

Adorno v. Pierce, Not Reported in F.Supp.3d (2016)

be some insight into what proof beyond a reasonable

doubt would be.

Id. at K17 – K18. Nothing in record explains what the

judge did, or referred to, when he told the jury that “you

would have to tip it like this.”

At the end of the trial, the judge read the final jury

instructions and also provided the jury with a copy of

the instructions. The jury instructions again explained

that Adorno was presumed innocent and that the

burden was on the State to prove each element of the

charges beyond a reasonable doubt. Trial Tr. N30-N31,

ECF No. 13-4. The final jury instructions made no

mention of the preponderance of the evidence standard

or scales, and did not offer any further explanation of

the “beyond a reasonable doubt” standard. Following

deliberations, the jury found Adorno guilty. The trial

judge sentenced Adorno to 15 years' imprisonment for

attempted murder, and a mandatory consecutive 15-year

sentence for discharging the firearm. Adorno, 2013 IL App

(1st) 110028-U, 2013 WL 3063703, at *1.

Adorno filed a direct appeal raising three issues, including

the argument that the trial judge's attempt to explain

the reasonable doubt standard during voir dire violated

Adorno's due process rights. Appellant Br. 21-26, ECF

13-1. Relying upon Victor v. Nebraska, 511 U.S. 1 (1994),

Adorno argued that the there was a reasonable likelihood

that the jury understood the trial judge's instructions to

allow conviction based on proof insufficient to meet the

reasonable-doubt standard set forth in In Re Winship, 397

U.S. 358 (1970). See id.

Although the Illinois Appellate Court agreed that the

trial judge's remark on the meaning of reasonable doubt

was improper, it rejected Adorno's argument that the

improper instruction had deprived him of due process.

Adorno, 2013 WL 3063703, at *10. The appellate court

noted that Adorno did not contemporaneously object or

move for a new trial because of the trial judge's definition

of reasonable doubt and so held that a plain-error

standard should be applied in evaluating the issue. The

appellate court concluded that the trial judge's comments

on the reasonable-doubt standard did not constitute

reversible error. The court explained: “For comments by

a trial judge to constitute reversible error, the defendant

must show that the remarks were prejudicial and that

he was harmed by the comments.” Adorno, 2013 WL

3063703, at *9 (citing Illinois v. Heidorn, 449 N.E.2d 568,

573 (Ill. App. Ct. 1983)). It further stated: “The verdict will

not be disturbed unless the judge's remarks constituted a

material factor in the conviction or unless prejudice to the

defendant appears to be their probable result.” Id. at *10.

After reproducing the trial judge's offending comments

about the meaning of “reasonable doubt,” the appellate

court noted that “the trial court made subsequent pre-and

post-trial admonishments to the jury that its comments

were to be disregarded as well as anything except the

evidence received in the case.” Id. at *10. It quoted

the judge's final jury instructions on reasonable doubt:

“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 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.” Id.

*3 The appellate court then concluded the judge's

comments during voir dire could not “reasonably be

construed as inviting the jury to convict defendant based

on less than the reasonable doubt standard.” Id. This

conclusion is not further explained; the appellate court

did not address the accuracy of the definition given,

the comparison to the preponderance standard, or the

invocation of scales as a representation of reasonable

doubt. “Moreover,” the court concluded, “the subsequent

remarks cured any possible error” and Adorno had “not

shown that he was prejudiced by the comments.” Id.

Finally, the court said: “We conclude, in view of the

overwhelming evidence of defendant's guilt, that the trial

court's comments while improper and should not have

been made, had no effect on the verdict of the jury

and constituted harmless error.” Id. The appellate court

therefore affirmed the conviction.

Adorno petitioned for leave to appeal to the Supreme

Court of Illinois, which denied his request. Illinois v.

Adorno, No. 116316, 996 N.E.2d 16 (Ill. Sept. 25, 2013)

(Table). Adorno did not file a post-conviction petition

in Illinois state court; he proceeded directly to filing his

federal petition for a writ of habeas corpus. That petition

raises only one claim: that his right of due process was

violated by the judge's erroneous definition of reasonable

A-11

Adorno v. Pierce, Not Reported in F.Supp.3d (2016)

doubt, which created a reasonable likelihood that the jury

convicted on a lesser degree of certainty than required by

the Constitution.

B. Discussion

Because the state appellate court adjudicated Adorno's

claims on the merits, this Court's review of the habeas

corpus petition is governed by the Antiterrorism and

Effective Death Penalty Act of 1996 (AEDPA). This

Court may not grant habeas relief unless the state court's

decision on the merits was contrary to, or involved an

unreasonable application of, clearly established federal

law, as determined by the Supreme Court of the United

States, or the state court decision is based on an

unreasonable determination of facts. 28 U.S.C. § 2254(d);

McManus v. Neal, 779 F.3d 634, 649 (7th Cir. 2015).

1. Forfeiture of Procedural Default Defense

Before turning to the merits of Adorno's due process

claim, the Court notes that the state appellate court,

the last state court to rule on merits of Adorno's claim,

held that the claim was not properly preserved in the

trial court through a contemporaneous objection and

timely post-trial motion. Adorno, 2013 WL 3063703, at *8.

Despite Adorno's failure to properly preserve the issue,

the appellate court went on to review the claim for plain

error, and also discussed it within the context of ineffective

assistance of counsel. 3 Id. at *8-*11.

The state court's finding that the claim was not properly

preserved at trial, resulting in plain error review, created

a procedural default defense for the respondent. Gray

v. Hardy, 598 F.3d 324, 329 (7th Cir. 2010). However,

the State failed to assert the procedural default, instead

answering the claim on the merits. Procedural default is

an affirmative defense that is forfeited if not raised in

response to a habeas petition. Cheeks v. Gaetz, 571 F.3d

680, 685 (7th Cir. 2009) (citation omitted). Therefore this

Court will address the merits of Adorno's claim that he

was deprived of his right of due process at trial because the

jury was erroneously instructed about reasonable doubt.

2. Governing Federal Law

As a threshold issue, this Court agrees with the petitioner

that the trial judge's comments on reasonable doubt are

appropriately viewed as part of the jury instructions,

although they were made to the entire venire and they

were preliminary in nature. The context of the remarks

compels this conclusion. After welcoming the venire and

questioning them on their familiarity with the parties,

lawyers, and potential witnesses in the case, the trial judge

stated:

*4 Ladies and gentlemen, I now

want to talk to you about some

principles of law that apply to

all criminal cases. These are not

your final nor complete instructions.

Those will come after you've heard

all of the evidence and the final

arguments of the lawyers. When the

time for giving instructions come

[sic], I will read them to you,

and will get them in writing along

your [sic] verdict forms for your

consideration.

Trial Tr. K14, ECF No. 13-4. The trial judge then went

on to explain: “You must follow the law as I give it to

you and you may not use your own ideas of what the law

should be.” The judge then set forth the charges against

Adorno, explained that he was presumed to be innocent,

and stated that the presumption of innocence could not

be overcome unless the jury was convinced beyond a

reasonable doubt that he was guilty. Id. at K15-K16.

The judge continued with the preliminary instructions,

including the required Rule 413 statements, which is the

context in which the judge gave his explanation of the

reasonable-doubt standard.

Inexplicably, however, the Illinois Appellate Court

characterized the judge's statements on reasonable doubt

not as instructions of law but as general comments by the

judge. The appellate court then analyzed the statements

not by reference to constitutional standards applicable

to attempts to define the meaning of reasonable doubt

but to state law applicable to assessing whether stray

comments made by a judge during the course of a trial

may have prejudiced a party. 4 In defining reasonable

doubt for the jury, however, the trial judge was not making

spontaneous, offhand comments to the jurors; he was

instructing them on the meaning of the most fundamental

concept in our criminal jurisprudence. These were not

stray remarks; they were instructions of law—even if not

“complete” or “final”—provided by the judge so that

jurors could understand the questions put to them during

voir dire pursuant to Rule 431. Indeed, the trial judge

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prefaced his remarks by saying that he was giving the

prospective jurors “principles of law” to apply. The State

does not disagree with this view, and it does not argue that

the statements about reasonable doubt should be reviewed

simply as a comment by the trial judge. Resp. Br. 9-10,

ECF No. 12. It too treats the statements as part of the

jury instructions and applies the corresponding line of

authority. See id.

Adorno, therefore, has properly identified the clearly

established federal law that applies to his claim that the

instructions on reasonable doubt violated his right of due

process. “[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.” Winship, 397 U.S. at 364; see also

Victor v. Nebraska, 511 U.S. at 5. A jury must therefore

be instructed on the “necessity that the defendant's

guilt be proved beyond a reasonable doubt,” but “the

Constitution does not require that any particular form of

words be used in advising the jury of the government's

burden of proof.” Victor, 511 U.S. at 5 (citing Jackson

v. Virginia, 443 U.S. 307, 320 n.14 (1979); Taylor v.

Kentucky, 436 U.S. 478, 485-86 (1978)). According to the

Supreme Court, the Constitution neither requires, nor

the [preponderance standard] divert[s] attention to the

evidence, which is a step removed, being the instrument

by which the jury's mind is influenced. [Formulations of

the preponderance standard], consequently, are awkward

vehicles for expressing the degree of the jury's belief.” 2

McCormick On Evid. § 339 (7th ed.).

With respect to review of a trial judge's instructions

on reasonable doubt, “[t]he 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.” Victor,

511 U.S. at 6. See also Tyler v. Cain, 533 U.S. 656, 658

(2001) (“a jury instruction is unconstitutional if there

is a reasonable likelihood that the jury understood the

instruction to allow conviction without proof beyond

a reasonable doubt”). And because “[i]t is critical that

the moral force of the criminal law not be diluted by a

standard of proof that leaves people in doubt whether

innocent men are being condemned,” Winship, 397 U.S.

at 364, an erroneous reasonable-doubt instruction is a

structural error mandating the automatic reversal of a

criminal conviction. Sullivan v. Louisiana, 508 U.S. 275

(1993); see also United States v. Marcus, 560 U.S. 258, 263

(2010) (citing “erroneous reasonable doubt instruction” as

prohibits, the defining of reasonable doubt for the jury. 5

Victor, 511 U.S. at 5 (citing Hopt v. Utah, 120 U.S. 430,

440-41 (1887)). But where a court attempts to explain the

meaning of reasonable doubt, the Constitution requires

that “'taken as a whole, the instructions must correctly

convey the concept of reasonable doubt to the jury.”'

Victor, 511 U.S. at 5 (quoting Holland v. United States,

348 U.S. 121, 140 (1954)).

part of “limited class” of structural errors). 6 The Supreme

Court has held in no uncertain terms that “the essential

connection to a 'beyond a reasonable doubt' factual

finding cannot be made where the instructional error

consists of a misdescription of the burden of proof, which

vitiates all the jury's findings.” Sullivan, 508 U.S. at 281

(emphasis in original).

*5 Winship describes the “beyond a reasonable doubt”

standard as one requiring “utmost certainty.” 397 U.S. at

364. The standard is required in criminal cases because it

“impresses on the trier of fact the necessity of reaching

a subjective state of certitude of the facts in issue.”

Id. (citing Doreen & Rezneck, In Re Gault and the

Future of Juvenile Law, 1 Family Law Quarterly 4 at

26-27 (1967)). In Winship, the Supreme Court expressly

rejected the notion that it is a standard comparable to

the preponderance-of-the-evidence, which “is susceptible

to the misinterpretation that it calls on the trier of

fact merely to perform an abstract weighing of the

evidence.” Id. at 367 As noted in McCormick, “[t]he

'reasonable doubt' formula points to what we are really

concerned with, the state of the jury's mind, whereas

3. Application to Adorno's Claim

According to the petitioner, the Illinois Appellate Court's

decision was “an unreasonable application” of the

Supreme Court's decisions in Victor and Cage, and its

application of harmless-error analysis violated Sullivan's

holding that an erroneous reasonable doubt instruction

is a structural error that cannot be harmless. Adorno

takes particular issue with the trial judge's reference

to the preponderance-of-the-evidence standard and the

analogy drawn by the judge between the government's

burden and a balance scale. Adorno contends that the

judge's statements were “confusing” and “license[d] jurors

to convict on a standard less than the constitutionally

required 'near certitude of the guilt of the accused.”' Pet. 7,

ECF No. 1 (quoting Jackson v. Virginia, 443 U.S. 307, 315

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(1979)). The jury, Adorno argues, could have interpreted

the judge's instruction as allowing conviction based on a

“tilt of the scale.” Id. Furthermore, he maintains, “[b]y

comparing reasonable doubt to a scale that has to be

tipped, the trial judge made it seem like the defendant must

present a defense,” and implied that the prosecution and

defense began on equal footing. Reply 5, ECF No. 15.

*6 In its very brief counterargument, the State contends

that the appellate court's ruling was consistent with Victor

because it concluded that the trial judge's comments “did

not invite the jury to convict based on less than the

reasonable doubt standard.” Answer 9-10, ECF No. 12.

It further contends that the “alternative” conclusion that

any error was harmless because of the overwhelming

evidence of guilt, even if improper, is “irrelevant to

federal habeas inquiry” because the primary conclusion

was based on an appropriate application of the holding in

Victor. Id. at 11.

The State's position is untenable. The appellate court

failed to apply the due-process inquiry set forth in Victor

and Sullivan and, indeed, did not discuss at all whether

the trial judge's definition of reasonable doubt comports

with the Winship standard. The petitioner characterizes

these deficiencies as a misapplication of federal law,

but that description understates the problem in the

appellate court's analysis. This is not a case in which

the state court identified but misapplied the appropriate

legal principles; this is a case in which the state court

applied the wrong law altogether. It therefore contradicts

clearly established federal law. As the Supreme Court

has explained: “A state-court decision is contrary to this

Court's clearly established precedents if it applies a rule

that contradicts the governing law set forth in our cases.”

Brown v. Payton, 544 U.S. 133, 141 (2005). “A decision

is 'contrary to' federal law if the state court applied an

incorrect rule—i.e., one that 'contradicts the governing

law'.” Caffey v. Butler, 802 F.3d 884, 894 (7th Cir. 2015).

Put more simply, a “state court's decision is 'contrary

to' federal law if it employs the wrong legal standard

established by the Supreme Court.” Ford v. Wilson, 747

F.3d 944, 952-53 (7th Cir. 2014). See also Early v. Packer,

537 U.S. 3, 8 (2002) (per curiam) (AEDPA deference

required “so long as neither the reasoning nor the result”

of the state-court decision contradicts Supreme Court

precedent) (emphasis added); Panetti v. Quarterman, 551

U.S. 930, 954 (2007) (Early “indicat [es] that § 2254 does

not preclude relief if either the reasoning [or] the result

of the state-court decision contradicts [Supreme Court

precedent]”) (internal quotation marks omitted).

That is precisely what occurred here. The state appellate

court did not identify and rely upon the appropriate

standard for reviewing the trial judge's instructions about

reasonable doubt; it applied a framework applicable to an

entirely different problem. Rather than review the judge's

statements about reasonable doubt as the preliminary

instructions of law they plainly were, the state appellate

court mischaracterized them as the equivalent of stray

comments by the judge that the jurors were later instructed

to disregard. No reasonable juror would have understood

that, in subsequently instructing the jurors that “[n]either

by these instructions nor by any ruling or remark which

I have made do I mean that to indicate any opinion as

to the facts or as to what your verdict should be,” [ECF

No. 13-4 at N 28], the judge was instructing the jurors

to disregard his earlier instructions about important

“principles of law” governing the criminal trial, including

his instructions on the meaning of reasonable doubt.

Adorno's claim, as presented to the state appellate court

and in his habeas petition, is not whether the judge said

something that suggested to the jury that he had an

opinion on the merits of the case; the issue he raises is

whether the judge explained the applicable standard of

proof to the jurors in a manner that made it reasonably

likely that they understood that standard to be less

demanding than required by the Supreme Court. The

state appellate court did not apply the legal framework

necessary to address that issue.

*7 The State maintains that, notwithstanding the

appellate court's mischaracterization of the trial judge's

statements about reasonable doubt as comments to be

disregarded rather than instructions the jurors were

required to follow, the appellate court applied the correct

standard because it included a single sentence stating:

“We do not believe that the court's comments during voir

dire could reasonably be construed as inviting the jury

to convict defendant based on less than the reasonable

doubt standard.” Adorno, 2013 IL App (1st) 110028-U,

2013 WL 3063703, at *10. Although this language nods

toward the inquiry required by Victor, which Adorno used

in framing the issue in appellate brief, the appellate court's

analysis shows that despite using some of the right words,

it employed the wrong standard in reaching its conclusion.

See McManus, 779 F.3d at 659 (reversing denial of habeas

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relief where, despite reciting the correct standard, the state

court “never actually applied it”).

Here,

the

appellate

court's

conclusion

was

incontrovertibly based on its mischaracterization of the

judge's instructions about reasonable doubt as comments

that the jury had been told to disregard, not on an

evaluation of whether the import of the words suggested

a standard that was something less than the “utmost

certainty” required by Winship. Immediately after quoting

the trial judge's comments about reasonable doubt, the

appellate court stated, without further analysis, that

“the trial court made subsequent pre-and post-trial

admonishments to the jury that its comments were to

be disregarded as well as anything except the evidence

received in the case.” [¶ 53]. At no point did the appellate

court consider whether the jury instructions as whole

correctly conveyed the concept of reasonable doubt to the

jury; see Victor, 511 U.S. at 5. Indeed, having dismissed

the trial judge's comments as stray remarks, the appellate

court never examined the correctness of trial judge's

“insight into” reasonable doubt at all. Moreover, it never

inquired whether it was reasonably likely “that the jury

understood the instructions to allow conviction based on

proof insufficient to meet the Winship standard” of proof

beyond a reasonable doubt. See Victor, 511 U.S. at 6.

Additional evidence of the appellate court's failure to

apply the controlling Supreme Court standard is its

conclusion that “in view of the overwhelming evidence of

defendant's guilt, that the trial court's comments, while

improper and should not have been made [sic], had no

effect on the verdict of the jury and constituted harmless

error.” Adorno, 2013 WL 3063703, at *10. Harmless error

has no place in the analysis under the controlling standard

because the Supreme Court has held that an erroneous

reasonable doubt instruction results in structural error.

Sullivan, 508 U.S. at 281. See also, e.g., Morris v. Cain, 186

F.3d 581, 585 (5th Cir. 1999) (the state habeas court's legal

determination that misdescription of reasonable doubt

standard in jury instructions was harmless “was contrary

to clearly established federal law as determined by the

United States Supreme Court in Sullivan”). Structural

errors “'defy analysis by 'harmless error' standards.”

Neder, 527 U.S. at 7 (quoting Arizona v. Fulminante, 499

U.S. 279, 309 (1991)). Even the State concedes that the

appellate court was wrong to engage in harmless-error

review, although it says that this error is of no consequence

because it was simply an “alternative” conclusion to the

holding that the judge's remark was not a violation of due

process.

*8 Not so. By simply inquiring whether Adorno had been

prejudiced by the trial judge's explanation of reasonable

doubt, the state appellate court did not identify and

apply the correct line of Supreme Court precedent to

a statement that was part of the jury instructions on

reasonable doubt. By analyzing the statement as an

“improper remark” and not an instruction, the state

appellate court applied a lesser degree of scrutiny than is

required and failed to answer (or even ask) whether the

instructions correctly conveyed the concept of reasonable

doubt. In employing a prejudice analysis to determine

whether an error had been made in the first place, the state

appellate court here made a mistake similar to that which

prompted the Seventh Circuit to affirm the grant of habeas

relief in Harrison v. McBride, 428 F.3d 652 (7th Cir.

2005). In Harrison, the petitioner asserted a due process

claim of judicial bias—another species of structural error.

Observing that the state supreme court had reviewed the

bias claim under an abuse of discretion standard, the

Seventh Circuit held that the state court had reviewed

the claim too narrowly. Id. at 667 (concluding that the

due process guarantee of an impartial judge “indisputably

is much broader” than the protection that would be

afforded by an abuse of discretion standard). As a

result, conduct that violated the clearly established federal

standard passed muster under the more lenient state

court standard of review. See also McManus, 779 F.3d

at 659 (“By subjecting a constitutionally inadequate trialcourt decision to deferential review, the Indiana Supreme

Court did not adequately vindicate the federal due-process

interests at stake.”). As in Harrison and McManus, here

the state court's erroneous resort to a more permissive

standard of review 8 contradicts the Supreme Court's clear

statement that the right is so fundamental to due process

that any erroneous denial of the right requires reversal,

not just those that as to which actual prejudice can be

proved. Accordingly, the state court decision is contrary

to clearly established federal law as determined by the

Supreme Court of the United States.

4. Adorno's Entitlement to Relief

Although the state court decision is contrary to the

clearly established federal law from the Supreme Court,

satisfying a necessary condition for habeas relief, see §

2254(d), Adorno is not automatically entitled to a writ

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of habeas corpus. “Where a district court properly finds

that a state court's decision was contrary to or involved

an unreasonable application of clearly established federal

law, it must still answer the question underlying § 2254(a):

whether a petitioner is actually 'in custody in violation of

the Constitution or laws or treaties of the United States.”'

Mosley v. Atchison, 689 F.3d 838, 842 (7th Cir. 2012).

“Where the state court's decision is 'contrary to' federal

law, that decision is not entitled to the usual AEDPA

deference and is therefore reviewed de novo with the

reviewing court applying the correct legal standard.” Id.

at 844 (7th Cir. 2012). See also, e.g., Lafler, 132 S. Ct.

at 1390-91 (after determination that state court decision

was contrary to Strickland v. Washington because the state

court applied the wrong standard, the Supreme Court

engaged in its own Strickland analysis to determine if

the prisoner was entitled to habeas corpus relief). And

because this court's review is de novo, relevant federal law

is not confined to the contours limned by Supreme Court

precedent.

Although it may be possible to elucidate the meaning of

reasonable doubt in a manner that comports with due

process, 9 the trial judge's attempt in this case confirms the

truth of the Seventh Circuit's declaration that “an attempt

to define reasonable doubt presents a risk without any real

benefit.” United States v. Hall, 854 F.2d 1036, 1039 (7th

Cir. 1988). See also United States v. Shaffner, 524 F.2d

1021, 1023 (7th Cir. 1975) (“It is our opinion that any

use of an instruction defining reasonable doubt presents

a situation equivalent to playing with fire.”). Applying

the Victor standard de novo, this Court concludes that

“taken as a whole,” the jury instructions did not “correctly

convey the concept of reasonable doubt to the jury,”'

and, further, that there is a reasonable likelihood that the

jury understood the instructions to allow conviction based

on proof insufficient to meet the standard of “beyond a

reasonable doubt.” See Victor, 511 U.S. at 5-6.

*9 To begin, the trial judge described reasonable doubt

by comparison to the preponderance-of-the-evidence

standard without adequately distinguishing them and

without making clear the much greater level of certainty

required to find guilt beyond a reasonable doubt.

Indeed, although he told the jurors the definition of

“preponderance of the evidence” (“more likely than not”),

the trial judge never actually told the jurors that “the

preponderance of the evidence” constitutes a “burden of

proof,” much less that it is a lesser burden of proof than

“reasonable doubt,” or one that does not apply in criminal

cases. In this regard, the state appellate court's instruction

falls short of even the trial court's problematic attempt

to define reasonable doubt in Lanigan v. Maloney, 853

F.2d 40, 47 (1st Cir. 1988), where in affirming a grant

of habeas relief, the First Circuit criticized (among other

aspects of the trial court's attempt to define reasonable

doubt) its “confused and confusing” discussion of the

preponderance standard because “[n]owhere did the

instruction actually contrast the level of proof required for

the government to meet its burden in a criminal case with

the level of proof needed by a civil plaintiff, except to say

that, in the criminal case, the standard was proof beyond

a reasonable doubt rather than a preponderance of the

evidence.”

Further, as the Supreme Court noted in Winship, the

preponderance of the evidence standard “is susceptible to

the misinterpretation that it calls on the trier of fact merely

to perform an abstract weighing of the evidence in order to

determine which side has produced the greater quantum,

without regard to its effect in convincing his mind of the

truth of the proposition asserted.” 397 U.S. at 367-68.

This problem is exacerbated where the trial judge invokes

a metaphorical scale that further suggests that applying

the reasonable-doubt standard is a quantitative rather

than qualitative exercise. Federal courts have consistently

condemned efforts to define reasonable doubt by resort

to scales and other analogies based on assessments of

the quantity, rather than the quality, of the evidence

presented. See, e.g., Reed v. Roe, 100 F.3d 964 (9th Cir.

1996) (government conceded error where the trial court

described reasonable doubt by reference to a numerical

scale); United States v. Pungitore, 910 F.2d 1084, 1145 (3d

Cir. 1990) (use of scale analogy to illustrate proof beyond

a reasonable doubt constituted an improper attempt to

quantify reasonable doubt and citing cases disapproving

of the practice). Cf. United States v. Hall, 854 F.2d 1036,

1044 (7th Cir. 1988) (Posner, J., concurring) (“It is one

thing to tell jurors to set aside unreasonable doubts,

another to tell them to determine whether the probability

that the defendant is guilty is more than 75, or 95, or

99 percent.”). 10 Here, the only comparison that the trial

judge made between the two standards of proof was by

means of a scale analogy, so there is little reason to think

that the jurors were left with any other impression but

that proof beyond a reasonable doubt requires a greater

quantum of evidence than does proof by a preponderance

of the evidence. Nothing the judge said told the jurors

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that it is the degree of certainty, rather than the quantum

of evidence, that distinguishes the two standards, or that

“utmost certainty” or some equivalent is required by the

reasonable doubt standard.

*10 Clearly, there is a gap in the trial record to the

extent that the judge appears to have used a physical

gesture to illustrate his comment that reasonable doubt

required a tilting of the scales “like this.” Neither

the petitioner nor the respondent attempts to explain

how much tilting the judge pantomimed (assuming that

that is what he did). But this only serves to highlight

how inapt the scale analogy is to explain reasonable

doubt; no matter where the trial judge put his hands to

illustrate the respective positions of the two sides of a

scale, it is reasonably likely that the jurors would have

been left with the impression that their verdict should

be determined by quantitative, rather than qualitative,

factors. If the trial judge's demonstration suggested less

than a complete vertical tilt to the scale (e.g.,with hands

at the two o'clock and eight o'clock positions), it would

reasonably suggest that some numerical ratio applies in

comparing the evidence presented by the government

to that adduced by the defendant. And because the

defendant has no obligation to present any evidence at all,

a demonstration that reflected a full, completely vertical

tilt to the scale would be even more problematic; any

scale with significant weight on only one side will tilt

decisively to that side, a fact that makes it reasonably

likely that a jury would understand the scale analogy to

require conviction any time a defendant presented little or

no evidence.

In a criminal trial the defendant is presumed innocent

and has no burden of production or proof. The

reasonable doubt standard is not a relative measurement

comparing one side's evidentiary presentation to the

other's, but that is the message an analogy to a

balance scale provides to a jury—or at least there

is a reasonable likelihood that jurors may understand

it that way. Jurors may have reasonable doubts

notwithstanding a one-sided evidentiary presentation; a

doubt is “reasonable” if it “arises from the evidence

or lack of evidence.” Johnson v. Louisiana, 406 U.S.

356, 360 (1972) (citation omitted) (emphasis added).

The reasonable-doubt standard requires a jury to attain

“a subjective state of certitude of the facts in issue.”

Winship, 397 U.S. at 364. As Adorno argues, the jury

is not tasked with simply weighing evidence, but with

determining whether the government's evidence persuades

it to high degree of certainty that the defendant is guilty.

Nothing in the trial judge's attempt to define the standard

accurately conveyed this degree of certainty contemplated

by Winship. And because he never told the jury what

was to be weighed on the scales, he invited the incorrect,

but reasonable, conclusion that the jury's task was to

weigh the prosecution's case against the defendant's, or

the evidence of guilt versus evidence of innocence, rather

than to determine, in light of all of the evidence presented,

whether there was near-certainty about the defendant's

guilt. Given the quantum of evidence adduced against

Adorno, as recounted by the Illinois Appellate Court, the

scales almost certainly would have tipped in favor of the

State, and might have tipped dramatically. But that is not

what the Supreme Court contemplated in Winship. The

jurors must be convinced of the defendant's guilt as an

absolute, not a relative, matter.

That the judge stated several times, in both the preliminary

and final jury instructions, that the defendant is presumed

innocent, that the burden of proof is with the government,

and that only proof beyond a reasonable doubt can sustain

a conviction does not mean that the instructions as whole

accurately conveyed what “reasonable doubt” is. Those

instructions—no matter how many times they were given

—could do nothing to cure the misimpression that the

judge's prior statements created because they offered no

further elucidation of the meaning of the standard. The

only time the trial judge gave the jurors “some insight into”

the term was during jury selection, with the incomplete

and faulty comparison to the preponderance standard

and the simulation of a scale. No attempt was ever

made to retract or correct the incomplete comparison to

the preponderance standard. 11 The jurors, then, likely

applied that flawed definition each time the term was used,

compounding, rather than mitigating, the risk that they

understood the instructions to allow conviction based on

insufficient proof.

*11 The trial judge further compounded the risk that the

jurors would misconstrue the level of certainty required

by the reasonable doubt standard by expressly telling

them that the state “doesn't define reasonable doubt” and

“that's up for you to decide in words.” Trial Tr. K-16,

ECF No. 13-4. To say that reasonable doubt should not

be defined for the jury is not, of course, to say that the term

lacks a fixed meaning and may be interpreted to mean

whatever the jurors believe it should mean, 12 but that is

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Adorno v. Pierce, Not Reported in F.Supp.3d (2016)

the import of the trial judge's statements. Moreover, that

jurors are to apply “reasonable doubt” without further

definition does not mean that they should be instructed

that the meaning is “up for [them] to decide,” any more

than the fact that jurors have the power to nullify the law

means that they should be instructed about that power.

See, e.g., United States v. Davis, 724 F.3d 949, 954-55

(7th Cir. 2013) (“Although jury nullification is a natural

and at times desirable aberration under our system, it is

not to be positively sanctioned by instructions”) (internal

quotation marks omitted). Nevertheless, here the trial

judge issued an express invitation to the jurors to define

the term as they saw fit, with the benefit of his own

problematic “insight.” The judge's implication that the

term has no fixed meaning—that the jury could “decide”

on a meaning rather than to simply give the term its plain

and ordinary meaning—is a further reason that the jury

instructions did not, as a whole, accurately convey what

“reasonable doubt” is, and in combination with the judge's

own faulty explanation, created a substantial risk that the

jurors would apply a standard insufficient to satisfy due

process.

To recap: The trial judge invoked the preponderance-ofthe-evidence standard but failed to distinguish it from

proof beyond a reasonable doubt. Indeed, the trial judge

never said outright that the preponderance standard

does not apply in criminal cases. If he intended to use

the preponderance standard merely as a comparative

baseline, he did not finish the thought. The judge told

the jury to use a scale analogy without saying what was

to be weighed on that scale. He said nothing to advise

the jury that “beyond a reasonable doubt” is a qualitative

standard based on the degree of certainty the evidence

engenders rather than a quantitative comparison of the

evidence presented by each side. Instead, he affirmatively

invited the jurors to supply their own definition of the

term. Although not every attempt to define “reasonable

doubt” will violate the due-process clause, in this case,

these statements by the trial judge created a reasonable

likelihood that the jury would apply a lesser standard of

certainty than the Constitution demands. Because of this

structural error, Adorno was denied due process.

The petition for a writ of habeas corpus is therefore

granted. Judgment will be issued in the petitioner's favor.

The respondent is ordered to release Adorno from custody

unless the State of Illinois files in this Court a timely

notice of appeal from the Judgment or written notice

within 30 days of the entry of the Judgment of its intent

to retry Adorno and confirmation that counsel has been

appointed for him. Execution of the writ is stayed in the

interim. Nothing in this opinion, however, precludes the

State from retrying the petitioner whether or not he is

released pursuant to the Judgment in this matter.

All Citations

Not Reported in F.Supp.3d, 2016 WL 1719788

Footnotes

On the Court's own motion, Rick Harrington is terminated as the respondent. Guy Pierce, Warden, Pontiac Correctional

Center, is added as Respondent. The Clerk is directed to alter the case caption to Adorno v. Pierce.

Rule 431(b)(4) also provides that “no inquiry of a prospective juror shall be made into the defendant's decision not to

testify when the defendant objects.” There is no indication in the record that the defendant objected to the Court's inclusion

of the instruction prohibiting any adverse inference from a defendant's decision not to testify.

Adorno only raises the underlying due process claim, and does not assert an ineffective assistance of counsel claim,

in his habeas petition.

This standard used by the appellate court applies to numerous categories of comments by the judge during trial; it is

not specific to the reasonable-doubt definition or to jury instructions in general. See, e.g., Illinois v. Anderson, No. 2015

IL App (1st) 131143-U, 2015 WL 9272728, at *24 (Ill. App. Ct. Dec. 15, 2015); Illinois v. Burgess, 40 N.E.3d 284, 320

(Ill. App. Ct. 2015); Illinois v. Lopez, 974 N.E.2d 291, 302 (Ill. App. Ct. 2012). The same standard is applied to evaluate

whether a judge's comments constitute reversible error in both civil and criminal trials. See In re Marriage of Cicinelli,

2015 IL App (2d) 140657-U, 2015 WL 8528005, at *6 (Ill. App. Ct. Dec. 10, 2015); Nichols v. Agnew, 2014 IL App (1st)

132901-U, 2014 WL 3906845, at *14 (Ill. App. Ct. Aug. 11, 2014).

Illinois “has long and consistently held that neither the trial court nor counsel should define reasonable doubt for the jury.”

People v. Downs, ___ N.E. 3d ____, 2015 IL 117934, ¶ 19, 2015 WL 3791445, at *4 (Ill. June 18, 2015). But the fact that

the trial court may have violated this state rule prohibiting a court from defining reasonable doubt is irrelevant to whether

Adorno is entitled to habeas relief, because a violation of a state law is a noncognizable claim. Estelle, 502 U.S. at 67.

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Adorno v. Pierce, Not Reported in F.Supp.3d (2016)

The Seventh Circuit also prohibits trial courts from defining reasonable doubt for the jury. United States v. Bruce, 109

F.3d 323, 329 (7th Cir. 1997). However, a violation of a Seventh Circuit precedent does not entitle Adorno to relief under

AEDPA, either, because Adorno must demonstrate that the state court addressing his claim violated clearly established

precedent as set forth by the Supreme Court of the United States. Glebe v. Frost, 135 S. Ct. 429, 431 (2014) (per

curiam) (“As we have repeatedly emphasized, [ ] circuit precedent does not constitute clearly established Federal law,

as determined by the Supreme Court.”) (internal quotation marks and citations omitted). And in any event, the Seventh

Circuit's rule is based on its supervisory authority, not on a determination that the Constitution precludes all attempts to

elucidate the meaning of reasonable doubt.

In Sullivan, the trial court gave an erroneous reasonable-doubt instruction identical to the one that the Supreme Court

had held to be unconstitutional in Cage v. Louisiana, 498 U.S. 39 (1990) (per curiam). 508 U.S. at 277. In evaluating the

challenged instruction, Cage inquired whether whether jurors “could have understood the charge as a whole.” 498 U.S.

at 329. The Supreme Court later clarified in Victor that 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.” Victor, 511

U.S. at 6 (quoting Estelle, 502 U.S. at 72 & n.4) (emphasis in original). Despite this later clarification of the standard stated

in Cage, the holding from Sullivan that an erroneous reasonable-doubt instruction is structural error remains undisturbed.

The Supreme Court has reiterated this principle several times in the two decades following Sullivan. See Marcus, 560 U.S.

at 260 (citing Sullivan for proposition that erroneous reasonable doubt instruction results in structural error); Hedgpeth v.

Pulido, 555 U.S. 57, 61 (2008) (per curiam) (same); United States v. Gonzalez-Lopez, 548 U.S. 140, 148 (2006) (same);

Neder v. United States, 527 U.S. 1, 8 (1999) (same).

Notably, although Adorno's brief before the state appellate court identified the controlling Supreme Court cases of Victor v.

Nebraska, 511 U.S. 1 (1994), Sullivan v. Louisiana, 508 U.S. 275 (1993), and Cage v. Louisiana, 498 U.S. 39 (1990) (per

curiam), the appellate court addressed none of these precedents. That does not mean that the state court's determination

necessarily contradicts those controlling Supreme Court precedents, but here it underscores the state court's application

of the wrong legal inquiry.

Although at the outset of its discussion the Illinois Appellate Court stated that it would review only for plain error, it later set

forth and applied the simple “prejudice” standard applicable to all judicial comments, and then proceeded to a harmlesserror analysis.

As previously noted, the Constitution is agnostic when it comes to defining reasonable doubt for a jury, neither prohibiting

nor requiring the attempt. Victor, 511 U.S. at 5. The decision is left to federal lower courts and state courts under their

supervisory power. Id. at 17. Both Illinois and the Seventh Circuit prohibit trial courts from defining the reasonable doubt

standard for the jury. See United States v. Glass, 846 F.2d 386, 387 (7th Cir. 1988); Bruce, 109 F.3d at 329; Downs, 2015

WL 3791445, at *4. That fact does not, however, entitle Adorno to relief. A violation of the Illinois rule is not cognizable

under § 2254. Estelle, 502 U.S. at 67. As for the Seventh Circuit's rule, like that of the Supreme Court, is premised on

supervisory authority rather than a constitutional command, and so does not itself provide a basis for habeas relief. See

Cupp v. Naughten, 414 U.S. 141, 146 (1973) (instructing that a prisoner has no right to habeas corpus relief when a

state court violates a rule established by a federal court when that rule is not mandated by the Constitution); Vargas v.

Keane, 86 F.3d 1273, 1280 (2d Cir. 1996) (recognizing that rule prohibiting trial courts from straying from pattern jury

instructions on reasonable doubt is based on court's supervisory authority, not constitutional, and cannot be basis for

habeas corpus relief).

Some courts have found that referring to scales and the preponderance standard in the context of reasonable doubt did

not violate the due-process rights of the accused. See United States v. Romero, 32 F.3d 641, 650-52 (1st Cir. 1994)

(finding no constitutional violation when jury was instructed on differences between beyond a reasonable doubt from

preponderance of the evidence by analogizing to a scale, and how evidence must move the scale more towards the

government side under the reasonable doubt standard to show the government has a heavier burden); Little v. Murphy,

62 F. Supp. 2d 262, 269 (D. Mass. 1999) (rejecting habeas petitioner's argument that reasonable doubt instructions

improperly included reference to preponderance of evidence and scales). However, the totality of the jury instructions

in these cases went much further to clarify the degree of proof needed to meet the standard. In Romero, the trial court

expressly stated that the jury should “disregard the particular notion of preponderance” and that the government had a

“heavier burden” where the “scale must tip more to the government's side”; the court later explained that the jury needed

to be “firmly convinced” of the defendants' guilt. 32 F.3d at 651. Moreover, the First Circuit agreed that “the use of the

scale analogy has the potential for misleading the jury into applying a diluted burden of proof” but held, considering all the

instructions as a whole, that there was not a due process violation. United States v. Romero, 32 F.3d 641, 652 (1st Cir.

1994). In Little, although the court referred to the preponderance standard (and said, crucially, “That's not enough”), the

A-19

Adorno v. Pierce, Not Reported in F.Supp.3d (2016)

jury instructions also included this statement: “A fact is proved beyond a reasonable doubt when it is proved to a moral

certainty, when it is proved to that degree of certainty that satisfies your conscience and your judgment as reasonable

people and leaves in your mind a well settled conviction of guilt. That's what we do mean by reasonable doubt.” Little v.

Murphy, 62 F. Supp. 2d 262, 269 (D. Mass. 1999). The judge's only reference to “scales” was to say that if the evidence

seemed equally consistent with guilt as with innocence, then the defendant must be acquitted. Id. at 269.

The trial court's challenged instruction bears some resemblance to the Federal Judicial Center pattern criminal jury

instructions that were in effect at the time of the Victor decision. Justice Ginsburg's concurrence in Victor suggested that

the Federal Judicial Center's instructions are “clear, straightforward, and accurate.” Victor, 511 U.S. at 26 (Ginsburg, J.,

concurring). The relevant instruction provided:

[T]he government has the burden of proving the defendant guilty beyond a reasonable doubt. Some of you may have

served as jurors in civil cases, where you were told that it is only necessary to prove that a fact is more likely true than not

true. In criminal cases, the government's proof must be more powerful than that. It must be beyond a reasonable doubt.

Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant's guilt. There are very

few things in this world that we know with absolute certainty, and in criminal cases the law does not require proof that

overcomes every possible doubt. If, based on your consideration of the evidence, you are firmly convinced that the

defendant is guilty of the crime charged, you must find him guilty. If on the other hand, you think there is a real possibility

that he is not guilty, you must give him the benefit of the doubt and find him not guilty.

Federal Judicial Center, Pattern Criminal Jury Instruction 21. Any resemblance, however, is overborne by the significant

differences in the instructions. Most notably, here the trial court failed to explain that the government's proof must be

“more powerful” than what is required under the preponderance standard, and it did not explain that reasonable doubt

requires the jury to be “firmly convinced” or certain. The FJC instruction does not analogize application of the reasonable

doubt standard to the comparative weighing of evidence on a scale.

Indeed, prohibitions on defining reasonable doubt for jurors are based on the principle that “[j]urors know what is

'reasonable' and are quite familiar with the meaning of 'doubt.”' Glass, 846 F.2d at 387. That is, the words are to be

given their plain and ordinary meaning. Telling judges not to “muddy the waters” with further explanation, see id., is quite

different from allowing judges to suggest that the term lacks a fixed meaning. Rather than being open to interpretation,

as the trial judge suggested here, “the phrase 'reasonable doubt' is well understood and certainly is neither confusing

nor ambiguous when used, and needs no further explanation or explication.” United States v. Hernandez, 39 Fed.Appx.

365, 371 (7th Cir. 2002); see United States v. Langer, 962 F.2d 592, 600 (7th Cir. 1992) (“reasonable doubt” is “selfexplanatory and is its own best definition”) (quoting Seventh Circuit Pattern Criminal Jury Instruction 2.07).

End of Document

A-20

Appendix D

Order of the Illinois Supreme Court

(September 25, 2013)

A-21

People v. Adorno, 996 N.E.2d 16 (Table) (2013)

374 Ill.Dec. 569

996 N.E.2d 16 (Table)

(The decision of the Court is referenced

in the North Eastern Reporter in a table

captioned “Supreme Court of Illinois

Dispositions of Petitions for Leave to Appeal”.)

Supreme Court of Illinois

People

Miguel Adorno

NO. 116316

End of Document

SEPTEMBER TERM, 2013

September 25, 2013

Synopsis

Lower Court: No. 1–11–0028

Opinion

Disposition: Denied.

All Citations

996 N.E.2d 16 (Table), 374 Ill.Dec. 569

A-22

Appendix E

Order of the Illinois Appellate Court

(June 14, 2013)

A-23

People v. Adorno, Not Reported in N.E.2d (2013)

2013 IL App (1st) 110028-U

UNPUBLISHED OPINION. CHECK COURT RULES

BEFORE CITING.

NOTICE: This order was filed under Supreme

Court Rule 23 and may not be cited as

precedent by any party except in the limited

circumstances allowed under Rule 23(e)(1).

Appellate Court of Illinois,

First District, Fifth Division.

The PEOPLE of the State of

Illinois, Plaintiff–Appellee,

Miguel ADORNO, Defendant–Appellant.

when it attempted to define reasonable doubt during

voir dire, thus inviting the jury to convict him using a

constitutionally deficient standard; and 3) the trial court

erred by denying his motion in limine to exclude his

prior conviction for conspiracy to commit murder without

proper consideration of the factors required by People

v. Montgomery, 47 Ill.2d 510 (1971). For the following

reasons, we affirm.

¶ 3 BACKGROUND

¶ 4 The evidence presented at trial established that

defendant fired a weapon during a disturbance at a party

which occurred in the early morning hours of January 23,

2010. As a result of the shooting, Shannon Fanning was

shot in the arm.

No. 1–11–0028.

June 14, 2013.

Appeal from the Circuit Court of Cook County. No. 10

CR 2831(01), Vincent M. Gaughan, Judge Presiding.

¶ 5 Prior to trial, defense counsel filed a motion in

limine to bar evidence of defendant's prior conviction for

conspiracy to commit murder on the basis that it would

be more prejudicial than probative. The trial court denied

the motion, stating:

“Relying on the standard in People

vs. Montgomery, certainly it's within

that purview. The next step is to

find out if it's material and relevant.

I do find that out. The next step

is the balancing step to see if it's

more probative than prejudicial. I

determined that it would be more

probative than prejudicial, so your

motion in limine is denied.”

ORDER

Justice HOWSE delivered the judgment of the court:

*1 ¶ 1 HELD: Defendant was not entitled to a jury

instruction for the lesser offense of reckless conduct when

he knowingly fired a weapon in the direction of his victim;

defendant's due process right to a fair trial was not violated

by the trial court's comments to the jury during voir

dire; the trial court properly denied defendant's motion in

limine after applying the factors established in People v.

Montgomery, 47 Ill.2d 510 (1971).

¶ 2 This appeal arises from defendant Miguel Adorno's

convictions for attempted first degree murder and

aggravated battery with a firearm following a jury trial.

He was sentenced to a 15–year prison term for attempted

murder and a mandatory consecutive 15–year prison

term for personally discharging a firearm. On appeal,

defendant contends that: 1) the trial court should have

instructed the jury on the offense of reckless conduct

as a lesser included offense of attempted first degree

murder and aggravated battery with a firearm based

on his conduct in relation to the offense; 2) that the

trial court violated his due process right to a fair trial

¶ 6 During voir dire, while questioning the prospective

jurors on the Zehr principles, the trial court stated the

following:

“Then the other thing is, the State has the burden of

proof, and that burden of proof is proof beyond a

reasonable doubt, and that lasts throughout each and

every stage of the trial.

Does anybody have any qualms about the State has

the burden of proof or the proof being proof beyond a

reasonable doubt? Raise your hand either in the inner

or outer part of the courtroom.

Nobody has raised their hand.

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People v. Adorno, Not Reported in N.E.2d (2013)

2013 IL App (1st) 110028-U

Illinois does not define reasonable doubt, but any of you

who may have sat on a civil jury there's a preponderance

of the evidence, reasonable doubt is the highest burden

of proof in our country and in our State. Those of you

who may have sat on civil cases, preponderance of the

evidence, if you look at this like a scale, all you have

to do is tilt it. So the definition of preponderance of

the evidence is, it's more likely than not that the event

occurred.

*2 Again, Illinois doesn't define reasonable doubt.

That's up for you to decide in words, but in analogy

to the scale thing, you would have to tip it like this, so

that would be some insight into what proof beyond a

reasonable doubt would be.”

¶ 7 There was no objection made by defense counsel to the

trial court's comments regarding reasonable doubt during

voir dire.

¶ 8 At trial, Jasmine Nagamine testified that she was a

24–year old nurse who lived in the basement apartment

at 2026 North Karlov in Chicago on January 22, 2010,

with her then roommate, Melissa West (Missy). Missy has

since joined the Army. Jasmine hosted a small party at

her apartment with her brother, Jeffrey, and his friends:

Shannon Fanning, the victim, Sharall, John, Billy, Ashlee

and Alex. Defendant, whom she knew through a friend,

arrived with two males and three females that she did not

know. She knew defendant both as Miguel and as K–Oz.

Everyone in the apartment was drinking except Jasmine

and one of the girls who had come with defendant because

she was “passed out.”

¶ 9 Jasmine saw her roommate Missy engage in an

argument with defendant, and Missy told her to get

defendant and his group to leave. Jasmine told them

to leave and looked for Missy's laptop computer in the

living room, but could not find it there. Jasmine heard a

horn beeping outside. She subsequently went outside and

retrieved Missy's laptop from the backseat of a car parked

outside and went back into the apartment.

¶ 10 Jasmine further testified that her brother stood in

the doorway telling defendant and his group that they

had to leave. Everyone inside exited the apartment and

arguments ensued between defendant's friends and her

brother's friends. Defendant then pushed Jasmine, but

her brother grabbed her before she could push him back.

Defendant then hit her brother, and they began to fight.

The fight eventually ended up on the ground before it

broke up. After the fight, defendant went to the trunk

of the car from which the laptop was retrieved and

started pounding on it, saying “open the trunk.” Jasmine's

brother then told everyone to get back inside and everyone

began rushing towards the door. Jasmine heard three

to five gunshots and Shannon entered the apartment,

bleeding. The police were called and Jasmine told them

what happened. She subsequently identified defendant in

a lineup.

¶ 11 Jeffrey Nagamine testified that on the night of the

shooting, he and some of his friends went to his sister

Jasmine's apartment at approximately 10:15 p.m. for a

small gathering. When they arrived, only Jasmine and her

roommate Missy were present. Sometime later, defendant,

whom Jeffery knew by his nickname K–Oz, arrived with

two other men and three women. They appeared to have

been drinking and one of the women was throwing up.

Everyone at the party was drinking.

¶ 12 According to Jeffrey, approximately an hour and a

half after defendant's arrival, he saw defendant walk into

the bathroom, which was connected to Missy's bedroom,

and stay there for an extended period of time. Jeffrey

saw Missy knock on the bathroom door, but defendant

did not answer. Missy then went into her bedroom and

Jeffrey heard her yelling. Missy and defendant came out

of her bedroom arguing and went out of the front door.

They then argued in front of the apartment. Subsequently,

Jeffrey saw Jasmine and Missy walk over to a silver

Chevrolet Impala which was double parked near the

apartment with its engine running and remove Missy's

computer from the back seat. Missy walked back into

the apartment and defendant followed her. Jeffrey stood

by the door and when defendant asked to be let inside

to speak to Jasmine, Jeffrey told him that he and his

friends had to leave. Everyone inside then exited the

apartment. Once Jasmine and Missy were back outside,

they argued with defendant over an Ipod. Defendant

pushed Jasmine, Jeffrey pulled her behind him and as

he turned back around, defendant hit him in his left

jaw. A fight between defendant and Jeffrey ensued, with

Jeffrey punching defendant three to four times. Defendant

ended up on the ground before Jeffrey retreated. However,

defendant got up and yelled to Jasmine, “Your brother

doesn't know me. Your brother's going to die tonight.”

A-25

People v. Adorno, Not Reported in N.E.2d (2013)

2013 IL App (1st) 110028-U

*3 ¶ 13 As all of the people from the party began

walking back to the apartment, defendant ran over to the

Chevrolet Impala and started banging on the trunk saying,

“Open the trunk, I have to get my banger.” Jeffrey testified

that he took that to mean that defendant had a gun, and he

began pushing people back into the apartment. He heard

defendant demand that his friend who was standing next

to the car “pop the trunk.” The friend reached into the car

and did so; defendant then reached into the trunk. Jeffrey

then heard six to eight gunshots. Once back inside the

apartment, Jeffrey saw that Shannon was bleeding from

his inside right forearm. The paramedics were called, and

Jeffrey later identified defendant from a lineup.

¶ 14 Shannon Fanning testified that he was friends with

Jeffrey and Jasmine and also knew Missy. On January 22,

2010, he went to Jasmine and Missy's apartment with some

other friends for a gathering and defendant, whom he did

not know, arrived approximately 40 minutes later with

a group of people. Shannon noticed people “pacing”—

going in and out of rooms, “looking suspicious.” Shannon

saw defendant enter the bathroom and later saw Missy

and defendant having a conversation with raised voices.

Missy and Jasmine then left the apartment and asked

defendant to leave once they were just outside the

apartment.

¶ 15 Shannon was standing behind Jeffrey and defendant

during their fight, and saw one of the men who had come

with defendant approach the fight. Shannon grabbed

the person by the jacket and pulled him back. Shannon

did not punch, kick or injure the person. The fight

between defendant and Jeffrey ended with defendant on

the ground; Jeffrey did not hit defendant once he was on

the ground. People from the party were standing around,

separating the two, until defendant said he was going to

get a gun. At that point, everyone started walking back to

the apartment. Meanwhile, defendant walked to the rear

of a Chevrolet Impala that was parked in the middle of the

street with its engine running. Defendant was banging on

the trunk, asking for someone to open the trunk. Shannon

and the others were going back inside the apartment when

he heard gunshots. He was the last one in, and turned

around to see defendant moving forward as he fired the

last few shots. Shannon felt a hit in his arm before getting

the license plate to the car and going inside. Paramedics

were called and he was subsequently taken to the hospital

where he was treated for a broken arm. Shannon identified

defendant from a photo array while he was being treated

in the hospital.

¶ 16 Ernest Alexander, who testified pursuant to

subpoena, stated that he had known defendant for a few

months prior to the shooting. Earlier that evening, Ernest

was at Serbio Urbino's house drinking with defendant and

three girls he just met that evening: Ashley, Monika and

one whose name he did not know. Defendant showed him

a gun and said something like “I don't go out without

the banger.” Ernest identified the gun at trial as the

one defendant showed him that night. The group left

Serbio's and went to the store for more liquor in someone's

car. Defendant got separated from the group before

they left because he was stopped by the police. Ernest

put defendant's gun in the trunk after defendant left.

Defendant rejoined the group after calling for someone to

come pick him up. The group then went to the basement

apartment on Karlov where there was a party in progress.

Ernest knew one of the girls there from high school. Ernest

testified that everyone was drinking and talking; however

at some point, the girl who lived there made a commotion

over someone stealing something. She went to the car

that Ernest and the group had come in and grabbed a

laptop computer and an Ipod. When she got back to the

apartment, everyone was yelling for Ernest and his group

to leave. Ernest testified that he turned around to say that

he was sorry for what happened and then leave, but he

saw that a fight had started behind him. He did not see

who started the fight, and saw someone beating defendant

up. Ernest ran towards the fight to try and break it up,

but someone grabbed him and pulled off his vest. When

Ernest got to the fight, it was over. He pushed Jeffrey off of

defendant and told Jeffrey and Shannon to just go inside

because they were going to leave.

*4 ¶ 17 Ernest testified that he saw defendant go to the

trunk of the car they arrived in and heard defendant say,

“Give me my banger, give me my banger,” meaning “give

me my gun.” Ernest did not remember if the trunk was

open and was walking to retrieve his vest when he heard

gunshots. Ernest saw defendant shooting the gun towards

the group of people and heard five to six shots. Ernest

eventually got back in the car, followed by defendant, and

the group went to defendant's house. Ernest then called a

friend to pick him up and later voluntarily turned himself

in to police.

A-26

People v. Adorno, Not Reported in N.E.2d (2013)

2013 IL App (1st) 110028-U

¶ 18 Chicago police officer Vincent Stinar testified that

he and other police officers went to an apartment at

5626 West Grand, where they were allowed entry after

knocking. They were directed to a rear bedroom and

knocked for access. Defendant came out and was taken

into custody. A gun was in plain view under a radiator in

the room, and there was a magazine in the handle.

¶ 19 Chicago police department evidence technician Sheila

Caldwell testified that she took photos of the scene on

Karlov, defendant's bedroom, and the Chevrolet Impala.

She recovered four shell casings from the ground in

front of 2026 North Karlov and recovered a gun from

defendant's bedroom.

¶ 20 The parties stipulated that the gun recovered from

defendant's bedroom, People's Exhibit No. 6, was a FIE–

Titen Model .25 caliber semi-automatic pistol and that the

four fired cartridges recovered at the scene were fired from

that gun.

¶ 21 Defendant testified in his own defense, admitting

that he was a convicted felon, having pled guilty to

conspiracy to commit murder in 2008. In January 2010,

he lived at 5626 West Grand with his family, and on

the night of the shooting, he went to Serbio's house with

Ernest, Ashley, Monika and Marlene. Everyone there was

drinking. Defendant stated that they all left together to

attend a party on Cicero and Addison. Because that was a

known “bad area,” defendant took his gun for protection,

which Ernest put in the trunk. According to defendant,

Jasmine texted him while they were out, so they went to

her house instead.

¶ 22 After being at Jasmine's house for an hour and

a half, defendant went to the bathroom. He heard

Jasmine and Missy running through the room connected

to the bathroom laughing, and he decided to “scare

them to the back door.” Instead, they opened the door

and asked defendant what was going on. Missy said to

him, “could you please get the f*ck out of my room.”

Defendant denied stealing anything from that room. A

verbal confrontation took place before Jasmine and Missy

went outside and retrieved a laptop computer from the

back seat of the car defendant and his friends had arrived

in. The car was not where they left it; instead it was

running in the middle of the street with Serbio inside.

¶ 23 Jasmine then said that everyone had to leave.

Defendant tried to apologize to Jasmine, but her brother

Jeffrey started saying, “b* * * * a* * n* * * * * * stealing.”

Defendant stated that this is when the fight began and

Jeffrey hit him first. Defendant acknowledged that Jeffrey

had the upper hand during the fight, so he ran away.

However, Jeffrey caught up to him and hit him again.

The crowd started running towards them, which scared

defendant so he kneeled down and put his hands over

his head. While he was on the ground, defendant could

see a lot of feet around him and testified that “people”

continued to hit him while he was on the ground. He

managed to push someone out of his way and run to the

car. Defendant's initial plan was to get inside, but he was

being chased by people who were saying, “grab him, we're

going to kill him.” Defendant, fearing for his life, started

yelling, “pop the trunk, I got a gun in the trunk,” thinking

that the people chasing him would be scared and stop.

When he reached the trunk however, people who were

chasing him were right on his heels. Defendant testified

he reached into the trunk, grabbed the gun and fired it

from under his arm without turning around first. He fired

the weapon several more times into the air. After that he

went home, put the gun in his bedroom and went to sleep.

Shortly thereafter, he was arrested.

*5 ¶ 24 On cross-examination, defendant admitted that

the gun recovered by police belonged to him and that he

called it a “banger .” He further stated that he fired the

first shot without turning around first, from under his

arm. After that, he turned around and shot, although the

people were now running back towards the apartment.

Defendant stated that he fired into the air from behind the

trunk on the sidewalk, but did not remember how many

shots he fired. He denied chasing the group back towards

the house, denied that based on where the shell casings

were recovered from, that he would have had to walk

towards the house from the trunk of the car. Defendant

did admit that once he fired the gun at the group, no one

came near him and that everyone was inside the gate at

that point.

¶ 25 Defendant also entered the stipulated testimony of

Melissa West into evidence, which was as follows: Melissa

was at her apartment with her roommate Jasmine on

January 22, 2010, and some other friends. During the

gathering, three males and three females whom she did

not know came into her apartment. Defendant was one of

those males. After a period of time, defendant went into

A-27

People v. Adorno, Not Reported in N.E.2d (2013)

2013 IL App (1st) 110028-U

the bathroom and remained a long time; when Melissa

went to check on him, she found him in her bedroom

going through her things. Melissa told Jasmine to have

defendant leave. Melissa then noticed that her Ipod was

missing from her bedroom and her laptop computer

was missing from the living room. Melissa went outside

and recovered her laptop computer from the car that

defendant arrived in. She demanded that her Ipod be

returned. Defendant then punched Jeffrey and a fight

ensued. Jeffrey was getting the best of defendant and she

stepped in and protected defendant. Defendant said, “I'll

kill you, Jeff.” Defendant then banged on the trunk of the

car he came in and said, “I got a banger,” the trunk opened

and Melissa heard numerous shots.

¶ 26 The State entered evidence in rebuttal: a certified copy

of defendant's May 20, 2008, conviction for conspiracy to

commit murder; the testimony of Chicago police detective

Brian Tedeschi who interviewed defendant on January

23, 2010, at 2:20 a.m., during which defendant stated

that he knew nothing about what happened at 2026

North Karlov because he was home with his mother all

day; and the testimony of Monika Herrera, one of the

women who went with defendant to the party at Jasmine's

apartment. Monika's testimony was substantially similar

to that of the other State's witnesses, except she stated

that when defendant came to the car to get his gun from

the trunk, Marlene, the driver, would not open the trunk.

Defendant then pounded on the window, went in through

the back, fought his way to the front, and opened the

trunk. Defendant then got out of the car, walked around

to the back of it, while the other group was walking back

to the apartment. Monika then heard five to six gunshots.

¶ 27 The jury found defendant guilty of attempted first

degree murder and that he was armed with a firearm.

The trial court then sentenced him to 15 years for

attempted first degree murder while armed with a firearm

and a consecutive 15–year sentence. This timely appeal

followed.

fair trial when it attempted to define reasonable doubt

during voir dire, thus inviting the jury to convict him

using a constitutionally deficient standard; and 3) the trial

court erred by denying his motion in limine to exclude his

prior conviction for conspiracy to commit murder without

proper consideration of the factors required by People v.

Montgomery, 47 Ill.2d 510 (1971).

¶ 30 Reckless Conduct Instruction

¶ 31 Defendant contends that the trial court should have

instructed the jury on the offense of reckless conduct as a

lesser included offense of attempted first degree murder.

Defendant alleges that his testimony supports the giving

of the reckless conduct instruction because his testimony

is evidence that defendant acted recklessly in firing his gun

and injuring Shannon. Therefore, defendant argues that

the trial court erred in refusing defense counsel's request

for a reckless conduct instruction. Defendant requests that

his convictions be reversed and a new trial granted with

proper jury instructions.

¶ 32 A trial court's refusal to issue a specific jury

instruction is reviewed under an abuse of discretion

standard. People v. Douglas, 362 Ill.App.3d 65, 76 (2005).

Where some credible evidence exists to support an

instruction for a lesser offense, it is an abuse of discretion

to fail to give that instruction. People v. DiVencenzo, 183

Ill.2d 239, 249 (1998). Whether a defendant has met the

evidentiary minimum for a certain jury instruction is a

matter of law, and thus, our review is de novo. People v.

Tijerina, 381 Ill.App.3d 1024, 1030 (2008).

¶ 28 ANALYSIS

¶ 33 An instruction on a lesser included offense will be

given upon a defendant's request if there is slight evidence

in support of the offense. People v. Scott, 256 Ill.App.3d

844, 850 (1993). A trial court's “ ‘refusal to give an

instruction is harmless error and does not warrant reversal

where the evidence is so clear and convincing that the jury

could not have reasonably found that the defendant was

not guilty.’ “ People v. Blan, 392 Ill.App.3d 453, 459 (2009)

(quoting People v. Taylor, 233 Ill.App.3d 461, 465 (1992)).

*6 ¶ 29 On appeal, defendant contends that: 1) the trial

court should have instructed the jury on the offense of

reckless conduct as a lesser included offense of attempted

first degree murder and aggravated battery with a firearm;

2) that the trial court violated his due process right to a

¶ 34 A person commits reckless conduct when he or she,

by any means lawful or unlawful, recklessly performs an

act or acts that: 1) cause bodily harm to or endanger the

safety of another person; or 2) cause great bodily harm or

permanent disability or disfigurement to another person.

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720 ILCS 5/12–5 (West 2010). On the other hand, a person

commits aggravated battery with a firearm by knowingly

or intentionally by means of discharging a firearm causing

injury to another person while committing a battery. 720

ILCS 5/12–4.2(a) (West 2010). To sustain a conviction

for attempted murder, it must be shown that the accused

acted with specific intent to kill, but intent is a state of

mind which, if not admitted, can be shown by surrounding

circumstances, and the intent to take a life may be inferred

from the character of the assault, the use of a deadly

weapon, and other circumstances. People v. Anderson, 108

Ill.App.3d 563, 566 (1982). Furthermore, specific intent to

take a human life is a material element of the offense of

attempted murder, but the very fact of firing a gun at a

person supports the conclusion that the person doing so

acted with the intent to kill. People v. Seats, 68 Ill.App.3d

889, 895 (1979).

*7 ¶ 35 Defendant cites to People v. Williams, 293

Ill.App.3d 276 (1997) in support of his contention. In that

case, the defendant was convicted of unlawful use of a

weapon by a felon, four counts of aggravated discharge

of a firearm and involuntary manslaughter. Williams, 293

Ill.App.3d at 278. On appeal, defendant contended that

the trial court erred in refusing to instruct the jury on the

offense of reckless conduct. Williams, 293 Ill.App.3d at

278. In that case, defendant and the victim were involved

in a confrontation, after which the victim fired a shot at

him. Williams, 293 Ill.App.3d at 278. According to the

defendant, he then turned around and fired his gun six

times into the air above their heads with his eyes closed;

one of the bullets struck and killed the victim. Williams,

293 Ill.App.3d at 278. Each of the remaining witnesses

had a different version of events. Williams, 293 Ill.App.3d

at 278. In finding that the defendant was entitled to

an instruction on reckless conduct, the court noted that

defendant never stated that he knowingly fired his gun

directly at the other men. The court held that whether his

firing of the gun in the air, over the heads of the men with

his eyes closed constituted firing the gun in the direction

of another person was a factual question to be resolved by

the finder of fact. Williams 293 Ill.App.3d at 282.

¶ 36 The evidence presented here is distinguishable from

that presented in the Williams case. Defendant testified

at trial that he was beaten up by Jeffrey following a

misunderstanding at the party; as the crowd of people

approached him, he knelt to the ground and was hit by

“people” as he was on the ground; he pushed his way

through the crowd and ran towards the car; the group

chased him to the car hot on his heels. When he got to

the car, defendant reached into the trunk, got his gun and

fired the first shot from under his arm without looking. He

then fired the remaining shots into the air. In Williams, the

defendant testified he fired all of the shots in the air with

his eyes closed.

¶ 37 According to defendant's testimony, the people

chasing him were right on his heels, therefore defendant

knew he was firing the weapon in their direction when he

reached into the trunk and fired the gun under his arm

without looking.

¶ 38 Illinois courts have clearly and consistently held that

when a defendant points a firearm in the direction of an

intended victim and fires the weapon, he has not acted

recklessly. People v. Sipp, 378 Ill.App.3d 157, 166 (2007).

Because defendant knowingly fired his gun in the direction

of the crowd, a reckless conduct instruction was not

appropriate. We do not find the court abused its discretion

in refusing to instruct the jury on reckless conduct.

¶ 39 Defendant argues the trial court refused to so instruct

the jury because it mistakenly believed that an argument of

self-defense was inconsistent with and negated a reckless

conduct instruction. However if a decision of the trial

court is correct, we may affirm the decision on any basis

in the record, regardless of the rationale. People v. Dinelli,

217 Ill.2d 387, 403 (2005).

*8 ¶ 40 Arguendo, if the court did commit error

when it refused to give the reckless conduct instruction,

the error was harmless because the evidence in this

case is overwhelming. Five eyewitnesses, two of whom

were defendant's friends who came to the party with

him, contradicted his version of events. They testified

defendant fired his weapon in the direction of the

partygoers, not straight up in the air as defendant testified.

After yelling words to the effect of “open the trunk, I'm

going to get my banger,” and “your brother is going to

die tonight,” all the witnesses testified that defendant went

to the car after the fight was over, retrieved the gun, and

repeatedly fired at the group that was retreating to the

apartment. The evidence elicited in this case shows that

defendant knew the victim and others were present in the

general vicinity of the apartment building, and defendant

fired his weapon multiple times in their direction. Because

the evidence is overwhelming, any error in failing to

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give the instruction was harmless. People v. Stewart, 406

Ill.App.3d 518, 539 (2010). Accordingly, the trial court

did not err in refusing to instruct the jury as to reckless

conduct.

¶ 41 Judicial Comments during Voir Dire

¶ 42 Next, defendant contends that the trial court violated

his due process right to a fair trial when it attempted

to define reasonable doubt during voir dire, thus inviting

the jury to convict him using a constitutionally deficient

standard. In his argument, defendant equates the trial

court's comments during voir dire with jury instructions,

and requests a new trial.

¶ 43 We first note that the record contains no

contemporaneous objection to the court's comments nor

did defendant include this issue in his motion for new

trial. The waiver rule governs alleged errors made during

voir dire. People v. Campbell, 264 Ill.App.3d 712, 728

(1992). The record shows that defendant neither objected

to the trial court's comments when made during voir dire

nor mentioned any objection in his post-trial motion.

Both a contemporaneous objection and a written posttrial motion are required to preserve an issue for appellate

review, otherwise the issue is waived. People v. Enoch,

122 Ill.2d 176, 186–88 (1988). Because defendant did not

preserve the issue for review, we cannot review the merits

of the trial court's error unless the alleged error constitutes

plain error. Campbell, 264 Ill.App.3d at 729.

¶ 44 Defendant, while apparently conceding that the

issue is procedurally waived, nonetheless argues that we

should review the merits of the issue under the plain error

doctrine. He contends that both prongs of the plain error

analysis are met because the evidence was closely balanced

and the integrity of the trial was challenged because the

error gave the jury permission to convict based on a lesser

standard.

¶ 45 Fairness is the foundation of our plain error

jurisprudence. People v. Herron, 215 Ill.2d 167, 177 (2005).

A fair trial, however, is different from a perfect trial.

Herron, 215 Ill.App.3d at 177. The plain error doctrine is a

not a general savings clause preserving for review all errors

affecting substantial rights whether or not they have been

brought to the attention of the trial court; rather, it is a

narrow and limited exception to the general waiver rule

whose purpose is to protect the rights of the defendant

and the integrity and reputation of the judicial process.

Herron, 215 Ill.2d at 177.

*9 ¶ 46 Under the plain error doctrine, a reviewing court

may consider a forfeited error if 1) the evidence in a case is

so closely balanced that the jury's guilty verdict may have

resulted from the error and not the evidence and 2) where

the error is so serious that the defendant was denied a

substantial right and thus a fair trial. Herron, 215 Ill.2d at

178–79. Under a plain error analysis, the defendant bears

the burden of persuasion with respect to prejudice. United

States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 1778

(1993).

¶ 47 We must first determine whether error occurred at

all before proceeding to consider whether either prong of

the doctrine has been satisfied. People v. Brewer, 2013 IL

App (1st) 07281, ¶ 21. The ultimate question of whether

a forfeited claim is reviewable as plain error is a question

of law that is reviewed de novo. Brewer, 2013 IL App (1st)

07281, ¶ 21.

¶ 48 Here, we do not believe that the evidence is so

closely balanced to permit us to reach the merits of the

claimed error under the first prong of plain error. Five

witnesses for the State testified to substantially the same

sequence of events: defendant and his friends went to a

party at Jasmine's house; a laptop and Ipod came up

missing after defendant was discovered in Missy's room;

both items were retrieved from the car that defendant

and his friends arrived in; there were multiple arguments

between those present and then a physical fight ensued

between defendant and Jeffrey, during which Jeffrey

bested defendant; defendant then went to the car that

they arrived in to retrieve a gun to shoot Jeffrey; when

his friends would not aid him in retrieving the gun, he

went inside the trunk himself, retrieved the gun and began

shooting at the people who were attempting to go back

into the apartment. He was also identified in a lineup

by several witnesses. In contrast, defendant's evidence

suggested that the argument between he and Missy was

merely a misunderstanding; that he was not upset when

Jeffrey called him a b*tch nor was he upset that he had

gotten beaten up; he retrieved the gun in fear of his life and

he fired his gun once without looking then several times in

the air. In summary, our review of the evidence leads us to

conclude that it is not closely balanced.

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¶ 49 Turning to the second part of the plain error analysis,

we note that a less rigid application of the waiver rule

prevails when misconduct of the trial judge is involved.

People v. Barrow, 133 Ill.2d 226, 260 (1989). Because of

this relaxed standard, and because the judge's comments

deal with a most serious subject matter—the State's

burden of proof—we elect to resolve the plain error issue

in defendant's favor and address the merits of the issue.

People v. Berry, 244 Ill.App.3d 14, 25 (1991).

to do is tilt it. So the definition of preponderance of

the evidence is, it's more likely than not that the event

occurred.

¶ 50 It is well established that the concept of reasonable

doubt needs no definition and that it is improper for the

court or counsel to attempt to define reasonable doubt

to the jury. People v. Thomas, 191 Ill.App.3d 187, 196–

97 (1989). We must therefore consider whether these

comments require reversal of defendant's conviction. For

comments by a trial judge to constitute reversible error,

the defendant must show that the remarks were prejudicial

and that he was harmed by the comments. People v.

Heidorn, 114 Ill.App.3d 933, 937 (1983).

¶ 53 We note that the trial court made subsequent pre- and

post-trial admonishments to the jury that its comments

were to be disregarded as well as anything except the

evidence received in the case. Specifically regarding the

burden of proof, during the jury instructions phase of the

trial, the trial court admonished the jury as follows:

Again, Illinois doesn't define reasonable doubt. That's

up for you to decide in words, but in analogy to the scale

thing, you would have to tip it like this, so that would

be some insight into what proof beyond a reasonable

doubt would be.”

“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 you are convinced beyond

a reasonable doubt that he is guilty.

*10 ¶ 51 In this case, we conclude that reversal is not

required. Not all improper comments constitute reversible

error. Heidorn, 114 Ill.App.3d at 937. The verdict will

not be disturbed unless the judge's remarks constituted a

material factor in the conviction or unless prejudice to the

defendant appears to be their probable result. Heidorn,

114 Ill.App.3d at 937.

¶ 52 As previously stated, the trial judge made the

following statements during voir dire:

“Then the other thing is, the State has the burden of

proof, and that burden of proof is proof beyond a

reasonable doubt, and that lasts throughout each and

every stage of the trial.

Does anybody have any qualms about the State has

the burden of proof or the proof being proof beyond a

reasonable doubt? Raise your hand either in the inner

or outer part of the courtroom.

Nobody has raised their hand.

Illinois does not define reasonable doubt, but any of you

who may have sat on a civil jury there's a preponderance

of the evidence, reasonable doubt is the highest burden

of proof in our country and in our State. Those of you

who may have sat on civil cases, preponderance of the

evidence, if you look at this like a scale, all you have

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.”

¶ 54 We do not believe that the court's comments during

voir dire could reasonably be construed as inviting the jury

to convict defendant based on less than the reasonable

doubt standard. Moreover, the subsequent remarks cured

any possible error. Defendant has not shown that he was

prejudiced by the comments, thus reversal is not required.

See Berry, 244 Ill.App.3d at 26; Heidorn, 114 Ill.App.3d at

937. We conclude, in view of the overwhelming evidence

of defendant's guilt, that the trial court's comments, while

improper and should not have been made, had no effect

on the verdict of the jury and constituted harmless error.

*11 ¶ 55 Alternatively, defendant raised trial counsel's

ineffectiveness for the failure to preserve this issue.

However, we have considered the merits of this issue and

have determined that any error in the comments made

during voir dire were cured by subsequent instructions to

the actual jury and the evidence against the defendant

was overwhelming. To get a new trial on the basis of

ineffective assistance of counsel, a defendant alleging

ineffective assistance must not only show an error but

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he must show that but for the alleged error there is

reasonable probabilty the outcome of the trial would have

been different but for the error. Strickland v. Washington,

466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984). Here

the evidence against the defendant is overwhelming and

there is no reasonable probability the outcome of the

trial would have been different absent the alleged error.

Therefore, defendant cannot satisfy the prejudice prong of

Strickland. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064.

¶ 56 Admission of Defendant's Prior Conviction

¶ 57 Finally, defendant contends that the trial court

erred by denying his motion in limine to exclude his

prior conviction for conspiracy to commit murder without

proper consideration of the factors required by People v.

Montgomery, 47 Ill.2d 510 (1971).

¶ 58 Evidence of past crimes which do not relate to

testimonial credibility may be admitted if they are relevant

for some proper purpose other than impeachment. People

v. Williams, 161 Ill.2d 1, 39 (1994). It is a fundamental

tenet of our criminal justice system, however, that the

introduction of evidence of other crimes to show or

suggest a propensity to commit crime is an improper

purpose and is prohibited. Williams, 161 Ill.2d at 39–40.

¶ 59 In Montgomery, our supreme court held that evidence

of a witness' prior conviction is admissible to attack

the witness' credibility where: 1) the prior crime was

punishable by death or imprisonment in excess of one

year, or involved dishonesty or false statement regardless

of the punishment; 2) less than 10 years has elapsed since

the date of conviction of the prior crime or release of

the witness from confinement, whichever is later; and

3) the probative value of admitting the prior conviction

outweighs the danger of unfair prejudice. Montgomery, 47

Ill.2d at 516. The last factor requires a judge to conduct

a balancing test, weighing the prior conviction's probative

value against its potential prejudice. People v. Mullins, 242

Ill.2d 1, 14 (2011).

¶ 60 Montgomery further explained that in performing this

balancing test, the trial court should consider the nature

of the prior conviction, the nearness or remoteness of

that crime to the present charge, the subsequent career

of the person, the length of the witness' criminal record,

and whether the crime was similar to the one charged.

Montgomery, 47 Ill.2d at 518; Mullins, 242 Ill.2d at

14–15. If the trial court determines that the prejudice

substantially outweighs the probative value of admitting

the evidence, then the evidence of the prior crime must

be excluded. Montgomery, 47 Ill.2d at 518; Mullins, 242

Ill.2d at 15. The determination of whether a witness' prior

conviction is admissible for purposes of impeachment is

within the sound discretion of the court. Montgomery, 47

Ill.2d at 517–18; Mullins, 242 Ill.App.2d at 15.

*12 ¶ 61 In this case, we note that defendant's testimony

was essentially his entire defense, thus his credibility was

a central issue before the jury. Accordingly, his prior

convictions were crucial in measuring his credibility. “

‘Similarity alone does not mandate exclusion of a prior

conviction.’ “ Mullins, 242 Ill.2d at 16 (quoting People v.

Atkinson, 186 Ill.2d 450, 463 (1999)). This is especially so

when the jury is instructed to consider the evidence of the

defendant's prior convictions for the limited purpose of

impeachment, which ensures that the jurors understood

the narrow reason for which the prior convictions were

admitted. See Atkinson, 186 Ill.2d at 463.

¶ 62 Additionally, in Atkinson, our supreme court

specifically rejected the notion that the Montgomery

balancing test is not properly performed unless the trial

court explicitly states that it is doing so on the record.

Atkinson, 186 Ill.2d at 462–63; see also People v. Williams,

173 Ill.2d 48, 83 (1996) (trial court did not disregard

Montgomery rule simply because it did not explicitly state

for the record that it was balancing the opposing interests).

¶ 63 Here, defense counsel sought to exclude evidence

of defendant's prior conviction for conspiracy to commit

murder. In denying defendant's motion in limine, the

trial court specifically stated that it was applying the

Montgomery rule and further that in conducting the

balancing step, it concluded that the prior conviction was

more probative than prejudicial. Contrary to defendant's

argument, the record does not demonstrate that the

trial court failed to weigh the probative value of

the impeachment against its possible prejudicial effect.

Rather, the record reflects that the trial court was very

much aware of the Montgomery standard and gave

proper consideration to the relevant factors as part of its

balancing process. Thus the trial court's decision to admit

defendant's prior conviction was not error.

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¶ 64 CONCLUSION

¶ 65 For the foregoing reasons, the judgment of the circuit

court of Cook County is affirmed.

Presiding Justice McBRIDE and Justice PALMER

concurred in the judgment.

All Citations

¶ 66 Affirmed.

Not Reported in N.E.2d, 2013 IL App (1st) 110028-U,

2013 WL 3063703

End of Document

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