Opinion
No. 2-11-0113
06-24-2013
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL A. LUCIANO, Defendant-Appellant.
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).
Appeal from the Circuit Court
of Kane County.
No. 07-CF-1613
Honorable
Karen M. Simpson,
Judge, Presiding.
JUSTICE delivered the judgment of the court.
Justices Jorgensen and Zenoff concurred in the judgment.
ORDER
¶ 1 Held: The trial court properly summarily dismissed defendant's postconviction petition. Defendant's ineffective-assistance-of-counsel claims were properly summarily dismissed where defendant did not demonstrate arguable prejudice resulting from counsels' failure to raise the issues regarding the location of the meeting and the trial court's voir dire of potential jurors pursuant to Supreme Court Rule 431(b). ¶ 2 Defendant, Michael A. Luciano, appeals the judgment of the circuit court of Kane County, summarily dismissing his postconviction petition. Defendant argues that he received ineffective assistance of counsel regarding two issues: the first regarding the location of a meeting at which defendant was supposed to have volunteered to shoot the victim, and the second regarding inadequate questioning of potential jurors under Supreme Court Rule 431(b) (eff. May 1, 2007) (codifying the principles set forth in People v. Zehr, 103 Ill. 2d 472 (1984)). We affirm.
¶ 3 I. BACKGROUND
¶ 4 This case comes to us after the summary dismissal of defendant's postconviction petition. The facts relating to defendant's underlying conviction for the murder of Willie Arce (Arce) have been set forth in detail in People v. Luciano, Nos. 2-08-0589 & 2-08-0943 cons. (March 23, 2010) (unpublished order under Supreme Court Rule 23) (Luciano I), and we do not need to repeat them in similar detail here. Instead, we summarize the facts pertinent to the issues raised by defendant in his postconviction petition. As necessary, we will include additional pertinent facts in our analysis. ¶ 5 Defendant's conviction for Arce's murder hinged on circumstantial evidence, much of which was given by defendant's former colleagues in the Aurora Latin King street gang. The evidence indicated that Arce had stolen drugs or funds from the Latin Kings, perhaps to feed his drug habit. As a result, Arce was supposed to be punished, or "violated," but kept refusing to submit to the gang's punishment. Because of Arce's resistance, the gang ordered more severe violations, but Arce avoided them. Eventually, Angel Luciano, defendant's father and leader of the gang at that time, issued a shoot-but-do-not-kill order against Arce. Jose Hernandez testified that, at a certain meeting, Angel Luciano issued the order regarding Arce, and defendant volunteered to carry out the attack. Alejandro Ramos testified that a meeting (possibly the same meeting that Hernandez testified about; possibly another meeting near in time to the one Hernandez testified about) took place at Queen Mari's house. At the time of the meeting, Queen Mari was a female associate of the gang. Carlos Escalante testified that, just after the shooting, he observed defendant with a gun, and defendant told him that he shot Arce through the basement window of the Arce home. Physical evidence indicated that Arce had been shot in his basement through a basement window. ¶ 6 Based on this evidence, defendant was convicted of the murder of Arce. Defendant was then sentenced to a 38-year term of imprisonment. Defendant raised a direct appeal to this court in Luciano I. In that appeal, defendant challenged the sufficiency of the evidence, complaining (1) that the former gang members who testified for the State gave fatally inconsistent stories; (2) that the State's key witnesses were improperly housed together in jail awaiting their testimony, and that Escalante lied about it to the jury, and the prosecutor did not correct Escalante's false testimony; (3) that Escalante should have been impeached by a prior felony conviction; (4) and that testimony of the police gang expert was redundant and excessively prejudicial, outweighing its probative value. We rejected defendant's arguments on appeal and affirmed his conviction. ¶ 7 Following his unsuccessful appeal, on October 21, 2010, defendant filed a pro se postconviction petition raising seven issues. Defendant's claims included, pertinently, purportedly newly discovered evidence that Queen Mari had sold her house and moved out of it some two months before the date of the purported meeting at which defendant volunteered to carry out the Arce shooting. According to defendant, this proved that Ramos, Hernandez, and Escalante provided false testimony concerning defendant's activities. Defendant also argued that the prosecutor misled the grand jury by providing it with false testimony about the purported meeting at Queen Mari's house. Defendant additionally argued that trial and appellate counsel were ineffective for failing to object to the trial court's interrogation of the potential jurors regarding the Zehr principles codified in Rule 431(b), trial counsel was ineffective for failing to learn earlier that Queen Mari had sold her house two months before the purported meeting, and appellate counsel was ineffective for failing to raise these issues in the direct appeal. ¶ 8 Defendant attached several affidavits to his petition. In defendant's own affidavit, he averred that the information presented in the petition was true and correct. Defendant included an affidavit from Nancy Luciano that explained how she learned, in June 2010, that Queen Mari had sold her house in April 1989. An affidavit from Maribel Rodriguez (Queen Mari herself) averred that she had sold her house in April 1989, had vacated the premises, and did not have access to the property at the time of the purported meeting in June 1989. Melicio and Rita Zamora provided affidavits averring that, in April 1989, they purchased the property from Maribel Rodriguez and did not allow or know of any Latin King gang activity at the property, including at the time of the purported meeting. Additionally, defendant included excerpts from the transcripts of the voir dire of the jury and from the transcripts of the grand jury testimony of Ramos and Hernandez. ¶ 9 On January 19, 2011, the trial court summarily dismissed defendant's postconviction petition. Defendant timely appeals.
¶ 10 II. ANALYSIS
¶ 11 On appeal, defendant contends that the trial court erred in summarily dismissing his postconviction petition because he adequately stated the gist of a claim of constitutional dimension. Specifically, defendant contends that both trial and appellate counsel provided ineffective assistance where the sale of Queen Mari's home was not discovered in time to raise it at trial or direct appeal, and where neither counsel raised the issue of Rule 431(b) violations by the trial court in conducting the voir dire of the prospective jurors. ¶ 12 As an initial matter, we note that, inadvertently, defendant's motion for leave to file his reply brief instanter has remained unresolved. We grant the motion and will consider defendant's reply brief.
¶ 13 A. Standard of Review
¶ 14 We begin by addressing the standards governing postconviction petitions and particularly those surrounding the first-stage disposition of a postconviction petition. The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2010)) provides a convicted defendant a method to assert that his or her conviction resulted through the substantial denial of his or her rights under either or both the United States Constitution and the Illinois Constitution. People v. Petrenko, 237 Ill. 2d 490, 495-96 (2010). To initiate proceedings under the Act, a defendant must file a petition in the circuit court in which the original criminal proceeding took place. People v. Hodges, 234 Ill. 2d 1, 9 (2009). The defendant's petition must, among other things, set forth how his constitutional rights were violated, but the defendant need only present a limited amount of detail owing to the fact that most petitions are drafted by defendants with little legal knowledge or training. Id. This is a low standard, and is characterized as requiring only the gist of a constitutional claim, meaning that the defendant need only allege enough facts to make out a claim that is arguably constitutional in order to pass muster in the first-stage proceedings under the Act. Id. Despite the low threshold, a defendant must attach affidavits, records, or other evidence supporting the allegations in order to show that the claims made in the petition are capable of independent or objective corroboration. Id. at 10. ¶ 15 In non-death-penalty cases, a postconviction proceeding has three stages. Id. In the first stage, the trial court, without input from the parties, determines the viability of the petition, and if it determines the petition to be frivolous or patently without merit, it shall dismiss the petition by written order. Id. If the petition survives the first stage, it advances to the second stage, where counsel may be appointed for an indigent defendant, and where the State is allowed to answer the petition or to file a motion to dismiss it. Id. at 10-11. If the defendant makes a substantial showing of a constitutional violation during the second stage, and the petition survives any motion to dismiss, the matter will proceed to the third and final stage, in which an evidentiary hearing is held on the petition. Id. at 11 n.3. ¶ 16 Returning to the first stage, the trial court must determine whether the petition is frivolous or patently without merit, and if it determines the petition to be so, the trial court will summarily dismiss the petition. Petrenko, 237 Ill. 2d at 496. A petition is frivolous or patently without merit only if it has no arguable basis either in law or in fact. Id. This means that a petition has no arguable basis in law if it is based on an indisputably meritless legal theory (e.g., one that is completely contradicted by the record), and a petition has no arguable basis in fact if it is based on a fanciful factual allegation (e.g., one that is clearly baseless, fantastic, or delusional). Id. The trial court's summary dismissal of a postconviction petition presents a legal question that we review de novo. Id. ¶ 17 The first-stage standards discussed above are also applicable to a postconviction claim alleging ineffective assistance of counsel. Generally, a claim of ineffective assistance of counsel is governed by the familiar Strickland standard: in order to show ineffective assistance, a defendant must show both that counsel's performance was deficient (i.e., objectively unreasonable under prevailing professional standards) and that the deficient performance prejudiced the defendant (i.e., there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different). Id. at 496-97 (citing Strickland v. Washington, 466 U.S. 668 (1984)). The Strickland standard applies equally to claims of ineffectiveness against appellate counsel, requiring the defendant to show that appellate counsel's performance was deficient and that, but for the appellate counsel's errors, there is a reasonable probability that the appeal would have been successful. Id. at 497. Thus, under first-stage consideration pursuant to the Act, a petition alleging ineffective assistance may not be summarily dismissed if it presents an arguable issue that counsel's (trial or appellate) performance fell below an objective standard of reasonableness, and it presents an arguable issue that defendant was prejudiced. Id.; People v. Hansen, 2011 IL App (2d) 081226, ¶ 21. ¶ 18 Defendant disagrees with our development of the standards surrounding the consideration and review of a postconviction petition alleging ineffective assistance. Defendant contends that, because he need only present the gist of a constitutional claim during the first stage, and because the Strickland standard applies only after counsel has been appointed and the third stage has been reached, some lower (and unspecified) standard must be applicable to the first-stage review of an ineffective assistance claim. We reject defendant's assertion. Our supreme court, in both Hodges, 234 Ill. 2d at 17, and Petrenko, 237 Ill. 2d at 497, applied the Strickland standard to the first-stage review of a postconviction claim of ineffective assistance. Further, this court, in Hansen, 2011 IL App (2d) 081226, ¶ 21, acknowledged that the Strickland standard "govern[s] whether a petition states the gist of a claim of ineffective assistance of counsel." We note that defendant expressly disputes the standard we have elucidated from Hodges, Petrenko, and Hansen, quoting from People v. Ligon, 239 Ill. 2d 94, 117 (2010), for the proposition that, in order to pass the first-stage review of a postconviction petition, a "defendant merely had to allege his ineffective assistance claims in his postconviction petition to receive the appointment of counsel." Troublesome for defendant are the facts that the quoted passage is taken out of context, and the actual context to which the passage refers is whether the defendant is entitled to the appointment of counsel where the appellate court, because the issue of ineffectiveness was dehors the record, expressly relegated the issue of ineffectiveness to postconviction review. Ligon does not represent a new standard of review, rather, it represents a unique situation that does not consider the issue of what standard to apply to first-stage consideration of a postconviction claim. We also note that defendant appears to retrench his view of the applicable standard of review in his reply brief, but he nevertheless maintains that Strickland does not apply with full force to the review of his claim. In other words, even as defendant retrenches, he repudiates that retrenchment. Defendant's view of the standards of considering and reviewing his ineffective-assistance claim is demonstrably incorrect.
¶ 19 B. The Meeting at Queen Mari's House
¶ 20 Turning to the substance of his claims, defendant first contends that his claim of ineffective counsel stems from the evidence that Queen Mari sold her house about two months before the meeting(s) that Hernandez and Ramos testified about. According to defendant, this evidence would have impeached both Ramos and Hernandez (and the other State witnesses), undermined their credibility, and potentially changed the outcome of the trial due to the closeness of the evidence. Specifically, defendant argues that trial counsel deficiently performed his duties by not discovering that Queen Mari's house had been sold and she had moved out of it in April 1989, before the purported gang meeting and before the June 1989 shooting of Arce. Defendant also argues that he suffered prejudice because, had the evidence been available, it would have impeached the State's witnesses, especially Ramos and Hernandez, and, given the weakness of the testimony of the State's witnesses and the conflict between their testimonies, it could have resulted in a not guilty verdict. Defendant also argues that appellate counsel was ineffective for not discovering and advancing this argument on the direct appeal. We disagree. ¶ 21 Far from being central to the viability of the State's case at trial, the testimony about locating the meeting at Queen Mari's house is only collateral. A collateral issue is one that is not relevant to a material issue in the case. People v. Santos, 211 Ill. 2d 395, 405 (2004). In order to determine whether an issue is collateral, the court must determine whether the matter could be introduced for any purpose other than to contradict. Id. In Santos, the court explained that the victim's statement to medical personnel that she engaged in sexual relations with another was wholly unrelated to the central issue of the case, namely, whether the defendant reasonably believed that she was of age. Id. Applying this reasoning to the case at hand, we see that the issue sought to be raised, whether a meeting could have taken place at Queen Mari's house (the one she sold in April 1989), is unrelated to the issue of whether defendant shot and caused the death of Arce. The issue of whether a meeting or meetings occurred is separate and distinct from the issue of where the meeting occurred. Under Santos, then, the issue of where the meeting occurred is collateral to the underlying trial, because it could be raised only to contradict the testimony of Ramos and, inferentially, the other State witnesses. ¶ 22 We further note that, even if the issue were not collateral, it still does not prove nearly as forcefully as defendant claims that the State's witnesses were lying. Accepting that the evidence shows that it was impossible for a meeting to have taken place at Queen Mari's house, meaning the house that she owned then sold in April 1989, the testimony of the State's witnesses is still not necessarily contradicted in all aspects. Rodriguez's affidavit does not say that Latin King meetings were never held at the house she owned and sold in April 1989. Her affidavit also does not state to where she moved following the April 1989 sale of her house. While the meeting could not have occurred at the house she sold in April 1989, it still could have occurred at the residence she established after she sold the house in April 1989 and, thus, could still have been held at her "house," loosely stated. The affidavit does not foreclose this possibility. Thus, Ramos could be reporting accurately that a meeting was held at Queen Mari's "house," meaning the place at which she was residing in June 1989, but just not at the address of the house sold in April 1989, as he testified. Moreover, Hernandez apparently testified about a different meeting than Ramos, and the fact that Queen Mari's house was not a possible meeting site around the time of the shooting does not affect his testimony, as it already somewhat conflicted with Ramos's testimony. Nothing, therefore, changes with respect to Hernandez's testimony, even if the evidence somehow makes Ramos's testimony completely unworthy of belief. ¶ 23 In short, even if Queen Mari would have testified consistently with her affidavit, the evidence would still have been sufficient to convict defendant. Ramos and Hernandez apparently testified about two different meetings. Even without Ramos's testimony, Hernandez testified that, at a meeting the afternoon before the shooting, Angel Luciano issued the shoot-but-do-not-kill order against Arce, and defendant volunteered to undertake the shooting. Escalante testified that, very shortly after the shooting, defendant showed him the gun that defendant claimed was used in the shooting and explained to him that he shot Arce through the basement window of the Arce house. The physical evidence showed that Arce was shot through his basement window, and was otherwise consistent with Escalante's testimony. This evidence remains sufficient to find defendant guilty beyond a reasonable doubt. People v. Lloyd, 2013 IL 113510, ¶ 42 (the relevant inquiry is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the necessary elements of the crime beyond a reasonable doubt). Under the Strickland standard applied to a postconviction petition, because there is no arguable possibility that the outcome would have been different, defendant cannot make an arguable claim of prejudice at this stage in the proceeding. Petrenko, 237 Ill. 2d at 497. As an ineffective-assistance claim may be decided on the grounds of failure to show prejudice alone (People v. Munson, 171 Ill. 2d 158, 184-85 (1996)), and because defendant cannot show the requisite prejudice, his postconviction claim is untenable and was properly dismissed in the first stage as frivolous and patently without merit. ¶ 24 Defendant maintains that the evidence showed that Ramos and Hernandez were testifying about the same meeting. Defendant reasons that, because their accounts conflicted and because the evidence presented in the postconviction petition shows that Ramos's testimony was false or incorrect, this also means that Hernandez's testimony was similarly incorrect. This is not necessarily so because there was always inconsistency between Ramos's and Hernandez's testimonies, and the finder of fact would have been required to resolve the inconsistencies. Thus, even under defendant's view, that either (or both) Hernandez or Ramos was incorrect in testifying about the site of the meeting, the fact finder would have to resolve that inconsistency. If Ramos were shown conclusively to have been wrong about the site of the meeting, then it would not necessarily destroy Hernandez's credibility; rather, it might make the reconciliation of their testimonies easier as Ramos obviously was wrong about the location of the meeting. Defendant argues that, because Ramos was wrong about the location, because his and Hernandez's testimonies agree in other respects, and because Ramos's testimony is called into question by its errors, then, because Hernandez's testimony agrees with some of Ramos's now-incredible testimony, it too must be called into question by Ramos's errors. On the other hand, it is equally likely and arguable that, because Ramos's testimony agrees in parts with Hernandez's, it is redeemed by that agreement and the remaining testimony, apart from the location of the meeting, is rendered more credible as a result. In fact, in light of defendant's conviction, the finder of fact appears to have resolved the contradictions between Ramos's and Hernandez's testimonies by crediting those parts that agreed and accepting Hernandez's general version of the meeting. Discrediting Ramos about the location of the meeting would thus have no effect on the ultimate result given the credit apparently accorded to Hernandez's testimony. Even accepting defendant's starting point in his contention, we arrive at the same place: there is little likely effect to the admission of the affidavit, taking it as true, and determining its impact on the evidence. Accordingly, we reject defendant's argument regarding Queen Mari's house.
¶ 25 C. Rule 431(b) Violations
¶ 26 Next, defendant contends that trial and appellate counsel were ineffective for not challenging the trial court's voir dire of prospective jurors because the trial court failed to fully explain the Zehr principles to the prospective jurors and assure itself of their comprehension of and agreement with the principles. The Zehr principles (so called in reference to People v. Zehr, 103 Ill. 2d 472, 477 (1984) (enumerating four fundamental principles necessary to a fair trial that a prospective juror must understand and accept)) are codified in Illinois Supreme Court Rule 431(b) (eff. May 1, 2007). The trial court is required to ascertain whether each prospective juror understands and accepts each of the Zehr principles. See Ill. S. Ct. R. 431(b); Zehr, 103 Ill. 2d at 477. Defendant complains that the trial court's voir dire of the prospective jurors did not comport with the requirements of Rule 431(b) because the trial court failed to ensure that the prospective jurors both understood and accepted each of the Zehr principles. Defendant argues that the trial court's recitation of all of the principles together followed later by questioning the entire group whether any of them had a "quarrel" with the principle was insufficient. ¶ 27 During voir dire of the prospective jurors, the trial court stated:
"This is a criminal action, as compared to a civil action; and as many of you know, in a criminal action it's the State's Attorney's Office that is prosecuting a criminal statute. It's their obligation to prove the [d]efendant guilty beyond a reasonable doubt.¶ 28 Later in the voir dire, the trial court addressed the four principles directly to the prospective jurors:
***
As I indicated to you, the State does have the burden of proving the [d]efendant guilty beyond a reasonable doubt, and this burden remains with the State throughout the entire course of the trial.
The [d]efendant is presumed to be innocent of the charge against him. He's not required to testify, he's not required to present any evidence. If he chooses not to testify or chooses not to present evidence, that cannot in any way be used against him. And this presumption remains with the [d]efendant throughout the entire course of the trial and can only be overcome if you find, in your deliberations, that the [d]efendant is guilty beyond a reasonable doubt."
"THE COURT: We talked about the fact that the [d]efendant is innocent of the charges against him. That presumption of innocence remains with the [d]efendant throughout the entire course of the trial and can only be overcome if you find, in your¶ 29 Defendant argues that the trial court's handling of the Zehr principles was improper because it did not "separately ensure understanding and acceptance of each principle," but combined the principles and only asked the potential jurors if they had a "quarrel" with the combined and jumbled principles. According to defendant, the trial court is required to "provide each juror with an opportunity to respond to each specific Zehr principle, not to multiple principles of law as a whole," citing People v. Graham, 393 Ill. App. 3d 268 (2009), vacated, 239 Ill. 2d 565 (2011), and People v. Blair, 395 Ill. App. 3d 465 (2009), vacated, 239 Ill. 2d 558 (2011), in support. (Obviously, citing to a vacated case is ineffectual, and we will not consider either Graham, 393 Ill. App. 3d 268, or Blair, 395 Ill. App. 3d 465.) ¶ 30 We begin our consideration with the language of the rule itself:
deliberations, the State has proven the [d]efendant guilty beyond a reasonable doubt. Does anybody have any quarrel with that proposition? If so, would you please stand?
(No response)
THE COURT: Does anyone have any quarrel with the proposition that the Defendant does not have to testify, nor does he have to present evidence, and he has a right to rely on a presumption of innocence. Does anyone have any quarrel with that proposition? If so, would you please stand?
(No response)"
"The court shall ask each potential juror, individually or in a group, whether that juror understands and accepts the following principles: (1) that the defendant is presumed innocent of the charge(s) against him or her; (2) that before a defendant can be convicted the State must prove the defendant guilty beyond a reasonable doubt; (3) that the defendant is not¶ 31 In People v. Thompson, 238 Ill. 2d 598, 614 (2010), our supreme court discussed and interpreted Rule 431(b). The supreme court held that the language of Rule 431(b) was clear and unambiguous. Id. at 607. The supreme court reasoned that the rule required each juror be given an opportunity to express that he or she understood and accepted each of the principles expressed by the rule. Id. The court emphasized that the trial court could not just give a broad statement of the law and ask, generally, whether the jurors were willing to follow the law. Id. Instead, the court held that the trial court was to ask questions and solicit responses about each principle; the process was to be interrogatory rather than declaratory. Id. ¶ 32 In Thompson, the supreme court determined that the trial court altogether failed to ask the jurors about the third principle in the rule, whether they understood and accepted that a defendant was not required to present any evidence. Id. Additionally, the trial court did not ask the jurors whether they accepted the presumption of innocence even though it asked whether they understood that principle. Id. The supreme court determined that, based on these insufficiencies, the trial court had not complied with the requirements of Rule 431(b). Id. That, however, did not end the inquiry. The supreme court went on to consider the impact of the violation of Rule 431(b). Id. ¶ 33 First, the supreme court considered whether noncompliance with Rule 431(b) constituted structural error requiring automatic reversal. Id. at 608-11. The supreme court recognized that structural errors will occur only in a very limited class of cases, including those where there is: complete denial of counsel, trial before a biased judge, racial discrimination in the selection of a grand jury, denial of self-representation at trial, denial of a public trial, and a defective reasonable doubt instruction. Id. at 609. The court reasoned that, while there are overtones of jury bias occurring when the jury is inadequately apprised of the Zehr principles, the failure to comply with Rule 431(b) would not necessarily result in a biased jury. Id. at 610. In order to prevail on a structural error claim, the defendant would have to submit evidence of jury bias, and this was lacking in Thompson. Id. at 610-11. ¶ 34 The court next briefly considered whether the defendant preserved the error for its consideration. Id. at 611-12. It noted that, where a judge oversteps his or her authority in the presence of a jury, or when an objection would have fallen on deaf ears, the failure to strictly preserve error may be relaxed. Id. at 612. The court concluded that the defendant had not made a showing to support relaxing the rule of forfeiture. Id. ¶ 35 Next, the supreme court considered the issue under plain error. Id. at 613-15. The court noted that, for plain error to apply, there must first be error, and the matter may then be considered under two prongs: where the evidence was closely balanced, or where the error was so serious that it affected the fairness of the defendant's trial and challenged the integrity of the judicial process, irrespective of the closeness of the evidence. Id. at 613. The court then noted that the second prong seemed to be effectively equivalent with structural error; it had already performed the analysis and determined that the failure to comply with Rule 431(b) did not require automatic reversal. The court further noted that the defendant did not establish that the failure to inquire of the potential jurors under Rule 431(b) resulted in a biased jury, and it concluded that the defendant had not carried his burden of showing that the error implicated the fairness of his trial and challenged the integrity of the judicial process. Id. at 614-15. ¶ 36 Last the supreme court considered the creation of a bright-line rule requiring reversal when the trial court does not comply with Rule 431(b). Id. at 615-16. The supreme court concluded that most of the cases dealing with the failure to comply with Rule 431(b) had occurred shortly after the rule was amended, and that the problem of noncompliance would effectively resolve itself with time and the trial courts' growing familiarity with the rule and its requirements. Id. The court declined to impose a bright-line rule in its confidence that "trial courts will continue to take notice of this important rule and employ all necessary steps to ensure full compliance in every criminal case tried before a jury." Id. at 616. ¶ 37 Our takeaway from Thompson is, first, that the trial court shall conduct some form of question and answer with the prospective jurors regarding the Zehr principles. The trial court must not proceed via an admonition about what the law is and then a general question of whether the jurors are willing to follow the law. Id. at 607. ¶ 38 Second, even if the trial court did not observe the requirements of Rule 431(b), the reviewing court must consider whether any error is preserved, and, if it is not, whether the defendant is able to show plain error. Id. at 611-15. Thompson, however, arose from a direct appeal. Here, defendant is arguing that he received ineffective assistance of trial and appellate counsel for not objecting to the insufficient presentation of the Zehr principles during jury selection or not raising the issue on appeal. In order for his postconviction claim to survive the first stage, the defendant must present an arguable claim of ineffective assistance, meaning he must show that the attorney or attorneys arguably performed below an objective standard of reasonableness and that he was arguably prejudiced. The defendant must show both elements; if the defendant fails to show either element, then his claim will fail. Petrenko, 237 Ill. 2d at 497. Therefore, in order for his postconviction claim of a violation of Rule 431(b) to survive, defendant must demonstrate, among other things, that it is arguable that he was prejudiced, and this he cannot do. ¶ 39 Thompson considered and rejected the idea that a violation of Rule 431(b) is structural or otherwise should result in an automatic reversal. Id. at 611, 616. Defendant assigns error precisely because neither trial nor appellate counsel objected to the claimed Rule 431(b) violation, thereby preserving the issue. Because structural error is foreclosed, defendant would have to proceed under plain error because he alleges his attorneys were ineffective because they failed to preserve the claimed error about the Rule 431(b) violation. Under a plain error analysis, the defendant must first show the existence of error. We accept for purposes of argument that the trial court's voir dire of the prospective jurors violated Rule 431(b). In order to demonstrate plain error, then, defendant must show that the evidence was closely balanced, so an error could have tipped the outcome either way, or that the error was fundamental, or, essentially, structural, like a trial before a biased jury. Id. at 613. ¶ 40 Regarding the closeness of the evidence, defendant does not raise this precise issue. To do so, however, would be futile because we determined in Luciano I, Nos. 2-08-0589 & 2-08-0943 cons., slip op. at 53, that the evidence was not closely balanced: "we cannot say that the evidence was actually closely balanced because of the corroboration between the physical evidence and the testimony of the witnesses, the evidence and Escalante's drug dealing and other criminal history, along with defendant's admission to Hernandez that he shot Arce." Thus, defendant cannot show that the evidence was closely balanced, so he must proceed along the fundamental error line of inquiry under plain error. ¶ 41 This inquiry proceeds no better for defendant than the previous one. Defendant argues that the trial court's failure to properly implement the Rule 431(b) safeguards resulted in a biased jury. This argument is wholly conclusory. Defendant points to no evidence in the record to suggest that there was, in fact, jury bias arising from the violation of Rule 431(b) (or any other source, for that matter). According to defendant, the failure to properly institute the Rule 431(b) questioning of the jury leads to the inference that the jury was biased. This line of reasoning is directly refuted by Thompson, 238 Ill. 2d at 610-11 (a Rule 431(b) violation will not be deemed structural in the absence of evidence that the jury was actually biased). Further, the record shows that the jury was informed about the Zehr principles, asked if they had a "quarrel" with those principles, and was later admonished and properly instructed on the Zehr principles. See id. at 615 (under fundamental error prong of plain-error review, the fact that the prospective jurors were also properly admonished and instructed about the Zehr principles served to cure any issues caused by the improper Rule 431(b) questioning). Likewise here. The fact that the prospective jurors were correctly admonished and instructed about the Zehr principles eases and rebuts concerns that the improper Rule 431(b) questioning resulted in the seating of a biased jury. Defendant fails to carry his burden of persuasion on this point. ¶ 42 Because defendant cannot show that the Rule 431(b) questioning arguably resulted in plain error, he also cannot show that he was arguably prejudiced by counsel's representation. Because he cannot show the arguable existence of prejudice, he cannot prevail on his claim of ineffective assistance. Accordingly, we hold that the trial court properly summarily dismissed defendant's postconviction claim on this point as frivolous and patently without merit. ¶ 43 Defendant specifically argues that the trial court's method of Rule 431(b) questioning was improper. This argument speaks to the existence of error, and we conceded the existence of error for purposes of our plain-error analysis. Defendant does not go on to argue that the error resulted in prejudice under either of the plain-error prongs of analysis. ¶ 44 Defendant next argues that Zehr itself supports his claim of prejudice, because the Zehr principles were formulated to go "to the heart of a particular bias or prejudice which would deprive a defendant of his right to a fair and impartial jury." Zehr, 103 Ill. 2d at 477. Defendant does not, however, point to anything at all in the record that would suggest that his jury was biased. Further, defendant does not discuss the curative effect of the proper admonitions and instruction on the Zehr principles that were delivered to the jury during the course of the proceedings. See Thompson, 238 Ill. 2d at 615 (the fact that the prospective jurors were properly admonished and instructed about the Zehr principles served to cure any issues caused by the improper Rule 431(b) questioning). Accordingly, we reject defendant's contention about Zehr itself. ¶ 45 Last, defendant requests that we relax res judicata and consider his claims on the Rule 431(b) questioning due to the fact that he couches his assignments of error in terms of ineffective assistance. This is a legitimate request (see People v. Davis, 377 Ill. App. 3d 735, 745 (2007) (in considering a postconviction petition, res judicata and forfeiture/waiver are relaxed if the purported forfeiture was caused by, among other things, ineffective assistance of counsel)), and we have carefully considered defendant's claims on their merits. Effectively, then, we agree with defendant's position on this point, but, having considered the merits of defendant's claims, we find that they are unavailing.
required to offer any evidence on his or her own behalf; and (4) that the defendant's failure to testify cannot be held against him or her; however, no inquiry of a prospective juror shall be made into the defendant's failure to testify when the defendant objects.
The court's method of inquiry shall provide each juror an opportunity to respond to specific questions concerning the principles set out in this section." Ill. S. Ct. R. 431(b) (eff. May 1, 2007).
¶ 46 III. CONCLUSION
¶ 47 For the foregoing reasons, the judgment of the circuit court of Kane County is affirmed. ¶ 48 Affirmed.