People v. Pinkett ( 2023 )

2023 IL 127223IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 127223)
THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
MICHAEL B. PINKETT, Appellee.
Opinion filed June 2, 2023.
JUSTICE O’BRIEN delivered the judgment of the court, with opinion.
Chief Justice Theis and Justices Neville, Overstreet, Cunningham, and
Rochford concurred in the judgment and opinion.
Justice Holder White took no part in the decision.
OPINION
¶1 Defendant Michael B. Pinkett was detained in a Walmart bathroom, was
ordered to accompany a sheriff’s deputy to the front of the store, and complied with
the deputy’s orders to “not make a scene.” At Pinkett’s subsequent trial on criminal
and motor vehicle violations, the State commented on defendant’s silence in its
opening statement, defendant sought a mistrial, and the Pike County circuit court
denied his motion. Defendant was found guilty, and he appealed, arguing, in part,
that the circuit court should have granted his motion for a mistrial. The appellate
court agreed that defendant was entitled to a mistrial, finding that the circuit court
erred in denying defendant’s motion for a mistrial and reversed and remanded. 2021
IL App (4th) 190172-U. We affirm the judgment of the appellate court.
¶2 BACKGROUND
¶3 Defendant was charged with aggravated fleeing or attempting to elude a peace
officer (625 ILCS 5/11-204.1(a)(1) (West 2016)), resulting from a June 2017
incident where he failed to stop his motorcycle in response to police sirens and
lights and traveled more than 21 miles per hour over the speed limit. Additional
charges of speeding 1 (id. § 11-601(b)) and failure to use a turn signal (id. § 11-
804(d)) were added in July 2018.
¶4 At a preliminary hearing, Pike County Sheriff’s Department deputy sheriff Brad
Wassell testified to his 13-mile pursuit of three motorcycles at a high rate of speed
in June 2017. On cross-examination, Wassell said he could not recall if defendant’s
motorcycle lacked rearview mirrors but, if defendant could not see behind him and
did not turn around, it is possible defendant did not know Wassell was in pursuit.
Wassell stated, if defendant was wearing earplugs, “[y]eah. I can see where that
could have been difficult[ ]” to hear the siren, above the noise of the motorcycles
and the wind. At the end of the hearing, the circuit court found probable cause
existed.
¶5 A jury trial took place. Evidence presented at the trial established that defendant
was ultimately arrested inside a Walmart based on his alleged act of fleeing and
eluding a peace officer. Prior to opening statements, the trial court informed the
jury that “[n]either opening statements nor closing arguments are evidence. And
any statement or argument made by the attorneys which is not based on the
evidence should be disregarded.” In its opening statement, the State said that the
arresting officers would “both testify in spite of the fact that they tried to arrest him
1
Defendant did not challenge the speeding conviction on appeal, the appellate court did not
discuss it, and it is not an issue before this court.
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there at Walmart without making a scene since it’s in the middle of the store, at no
point did he ever ask in any way the reason why he was being detained.” Defense
counsel objected, a sidebar took place, and defense counsel moved for a mistrial,
arguing that it was improper to comment on defendant’s right to remain silent. The
State disagreed, arguing that a defendant’s postarrest, pre-Miranda silence (see
Miranda v. Arizona, 384 U.S. 436 (1966)) is not constitutionally protected, citing
People v. Givens, 135 Ill. App. 3d 810 (1985). Applying Givens, the trial court
denied the mistrial motion.
¶6 Wassell testified he was on duty on June 10 in uniform in an unmarked sheriff’s
department vehicle. While on patrol traveling westbound outside of Pittsfield, he
noticed three motorcycles riding eastbound in a triangular formation. The
motorcycle at the front was a “crotch-rocket” style sport motorcycle, while the other
two looked like Harley-Davidson models. The motorcycles appeared to be
speeding. He activated his radar gun, which was calibrated and in working order,
and clocked the motorcycles at 78 miles per hour (mph) in a 55-mph speed zone.
He pulled onto the shoulder and activated the vehicle’s lights, which included visor
lights, a Wig-Wag system which alternates the headlights, side warning lights in
the headlights, and blue and red lights in the grille.
¶7 After the motorcycles drove past him without stopping, he did a U-turn and
began to pursue them. The motorcycles reduced their speed to 60 or 65 mph but did
not stop. He turned on his siren and continued pursuit from approximately 200 feet
behind them. They all arrived at a four-way stop in the town of Atlas, where Wassell
pulled within 10 or 15 feet of the motorcycles and turned off his siren. He observed
that the front motorcyclist wore a helmet and a large black knife sheathed at his
waist. The motorcycle lacked rearview mirrors and had a piece of plastic dragging
from its undercarriage and a darkened license plate. The passenger on one of the
other motorcycles looked back at Wassell, who gestured for the motorcycle to pull
over. It did not. All three motorcycles stopped before proceeding through the
intersection. Wassell continued to pursue the motorcycles from 100 to 300 feet
behind them.
¶8 As the pursuit neared Pittsfield, Wassell noticed Pittsfield police officer Lisa
Hobbs sitting in her squad car in a commercial driveway off the side of the road.
After they passed Hobbs, who had activated her emergency lights as the
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motorcycles neared her location, the motorcycles disengaged from the triangle
formation into a single file, sped up, and passed an SUV. At that point, Wassell was
traveling at 90 mph in a 45-mph zone. He fell behind the motorcycles and lost sight
of two of the motorcyclists, including defendant. He pursued the third motorcycle
and ultimately arrested the driver at a gas station in Pittsfield where the motorcyclist
had stopped.
¶9 Wassell identified, and the jury viewed, still pictures from Hobbs’s squad car
camera as the SUV and motorcycles passed her, Wassell’s interview of defendant,
and surveillance footage videos from Pike Feed and Walmart. He identified the
three motorcycles and Hobbs passing Pike Feed in its video. In the Walmart video,
he identified a motorcycle pulling into the lot and two motorcycles being pursued
by two squad cars driving by on the road in front of the store. He also identified
still photographs of the motorcycles shown in the Walmart video and pictures he
had taken of two of the motorcycles, including defendant’s.
¶ 10 On cross-examination, Wassell said defendant told him he did not see the
deputy’s lights because he was looking down when he initially passed Wassell. The
motorcyclists did not split up or take other evasive actions. He followed the SUV
for approximately a mile during the pursuit before it pulled off the road. Wassell
acknowledged that defendant’s motorcycle did not have rearview mirrors, he did
not see defendant turn around at any time, defendant was wearing a helmet, and the
motorcycles were louder than smaller motorcycles. He also stated that, if defendant
was wearing a face mask that covered his ears, with the wind and motorcycle noise,
it would be difficult to hear the siren.
¶ 11 Hobbs, who worked part-time as a Pittsfield police officer, testified. She was
also a part-time officer for the Pleasant Hill Police Department and a full-time
officer for the Pike County Sheriff’s Department. She heard Wassell’s request for
assistance and positioned her car in the driveway of an implement dealership
located on the road the motorcycles were travelling. Her squad car was
perpendicular to the roadway. When she heard Wassell’s siren, she turned on her
MARS lights, which activated her dashboard camera. The video showed the
motorcyclists driving by less than a minute later with Wassell a few seconds behind
them. She joined the pursuit, and the video showed her squad car following Wassell
into Pittsfield and into the gas station where he arrested one of the motorcyclists.
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¶ 12 Hobbs was then dispatched to Walmart. On her way to the store, she stopped to
pick up from the roadway a small leather item, which remained unidentified. When
she arrived at Walmart, she noted a black motorcycle in the parking lot and found
a black face mask on the ground. She waited while Sergeant Matt Frazier entered
the store. On cross-examination, she examined a photograph of defendant entering
Walmart, acknowledged there was an item hanging around defendant’s neck but
said she could not tell if it was earplugs or otherwise identify it.
¶ 13 Frank Smith testified. He was in the Walmart parking lot in Pittsfield with his
family when defendant pulled in on his motorcycle and startled him. He estimated
defendant’s speed to be between 40 and 45 mph. The defendant drove around to
the back of the store near the loading dock. Smith then heard sirens and “loud pipes
going by” and saw two motorcycles drive by with two squad cars in pursuit. The
other motorcycle emerged from behind the store and parked by the pallets of mulch.
The driver entered the store carrying a shirt or jacket. Smith called his friend who
was an Illinois State Police (ISP) officer and told him about the motorcyclist.
¶ 14 Smith said another motorcycle with a female passenger also pulled into the
Walmart parking lot and went around the back of the building before backing into
a spot next to the parking spot from which he was in the process of backing out.
The passenger dismounted the motorcycle and began to walk toward the store
entrance when she then turned around and remounted the motorcycle, which then
left the parking lot. Smith further testified that he instructed his wife to place their
child in the car so they could leave because he was fearful an incident might occur.
However, he did not leave but pulled his vehicle into a corner of the parking lot to
observe. He identified the motorcycles from the Walmart surveillance videos.
Smith was excused as a witness but recalled the following morning to identify the
defendant based on his encounter with him at Walmart. On cross-examination,
Smith explained he was never interviewed by any law enforcement in connection
with the case. He also said he saw defendant on the courthouse steps the prior day
and recognized him from the Walmart parking lot.
¶ 15 Brian Douglas, an ISP officer, testified that Smith called him at home and
informed him that the motorcyclist the police were chasing had parked his
motorcycle by the mulch in the Walmart parking lot. He relayed the information to
the dispatcher. On cross-examination, Douglas said Smith did not give a description
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of the defendant or the motorcycle when he called but merely indicated they were
at Walmart.
¶ 16 Matt Frazier, a sergeant with the Pike County Sheriff’s Department, testified.
He was Wassell’s supervisor. Wassell called him and said he was in pursuit of three
motorcyclists. Frazier was off duty and in a T-shirt and shorts when Wassell called
him. He left home in anticipation of further police activity, saw one of the
motorcycles pull into the gas station in Pittsfield, and followed him. He was then
notified another one of the motorcyclists had entered the Pittsfield Walmart. Frazier
responded to the Walmart parking lot, found the motorcycle by the mulch, and
blocked it with his vehicle. He lacked handcuffs, a weapon, or any identification.
He entered the store along with Paul Petty, the Pike County sheriff, who was also
in plainclothes. Petty stayed at the front of the store, and employees directed Frazier
to the men’s bathroom in the back of the store.
¶ 17 Frazier found defendant at the sink in “biker attire” with a large knife at his side
and said, “Hey, what’s up?” Defendant appeared “somewhat nervous.” As
defendant left the bathroom, Frazier followed him, identified himself as a deputy
sheriff, and said not to “make a scene.” He explained: “at that time I just grabbed
that knife from the sheaf [sic] that was on his side and pulled it out and I said, ‘We
need to walk out the store without making a scene,’ and he did it with no problem.”
Frazier said that “[a]t some point” defendant told him why he was in Walmart,
which was to buy zip ties “for something that had came off his motorcycle.”
¶ 18 The following exchange took place:
“[STATE]: You talked about walking in from the bathroom to the front. Did
he at that point, when you had detained him, ask why he was being detained?
[FRAZIER]: No, not like somebody going to your side and grabbing—in
plain clothes grabbing a knife off your waistband and anything. He didn’t act
like I was doing anything out of line whatsoever which to me is odd.”
Frazier said defendant made several comments, including asking how defendant
could be certain Frazier was a peace officer and requesting identification. Frazier
handcuffed defendant at the store’s front doors with handcuffs he obtained from
Petty. Defendant directed Frazier to the knife sheath, worried that the unsheathed
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knife would cut someone. Defendant also told Petty to take his motorcycle to the
police station so it would not be towed. At some point, defendant told Frazier he
was at Walmart to buy zip ties to fix something on his bike and that he was not
running from the police.
¶ 19 On cross-examination, defense counsel elicited testimony that defendant was
an ideal arrestee because he complied with Frazier’s orders to not make a scene and
to keep his mouth shut. He agreed defendant had a right to remain silent and
exercised his right by remaining silent. He did not infer any guilt from defendant’s
silence. Counsel also asked Frazier about an object around defendant’s neck that
was visible on the pictures showing him entering the store. According to Frazier,
the object looked like earplugs or headphones. He admitted it was not unusual for
someone to be washing their hands at the bathroom sink and the knife was not
illegal. It was also not illegal for defendant to be in the store to purchase zip ties.
¶ 20 Petty, the Pike County sheriff and coroner, testified. He heard the radio reports
about the pursuit and knew that a high-volume area was a good place to hide, so he
headed to Walmart, checking the alleys along the route. He suspected the defendant
was “generally trying to blend [in].” He met Frazier and Hobbs in the Walmart
parking lot. Petty was wearing shorts or sweatpants and a T-shirt. After defendant
was arrested, he drove defendant’s motorcycle to the police garage with defendant’s
permission. It had a plastic piece dragging under it, which Petty had to pull up and
hold. On cross-examination, Petty described defendant as cooperative, keeping his
mouth shut as directed, and following the deputies’ directions.
¶ 21 The State rested and the defense moved for a directed verdict, which the circuit
court denied. The defense recalled Wassell and asked him, if defendant was
wearing earplugs, his ears were covered with his face mask, the bikes were loud,
and it was windy, whether it could be hard to hear the siren. Wassell responded that
he could see it would be more difficult but that he was not the best person to answer
the question. He acknowledged he answered the same question, “Yeah, it would be
difficult,” at the preliminary hearing. The State conducted redirect examination,
and Wassell said his answer was the same; it could be difficult to hear.
¶ 22 The defense rested and renewed its motion for a directed verdict, which the
court denied. Closing arguments took place. In its closing argument, the State said:
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“[Defendant] doesn’t ask why he’s being detained. [Defense counsel] made
a lot of arguments about [defendant] has a right to remain silent. Certainly,
[defendant] has the right to remain silent, but, again, you just have to ask
yourself what would a normal person who, if it’s his argument ‘it wasn’t me, I
had nothing to do with this,’ what would that normal person do when someone
comes up to you in the bathroom of Walmart, plain clothes—now, [Frazier]
does say I’m a deputy sheriff—takes your knife and detains you? Don’t you
think a normal person would say what’s this all about, why, why are you
detaining me, what’s going on? Just, that would be a normal response.
Again, [defendant] has the right to say nothing. But you have to ask yourself
what would a normal person who had—if that’s his argument—nothing to do
with this, what would that normal person have said when they’re suddenly
detained in the bathroom of Walmart? If it’s [defendant’s] argument that he had
nothing to do with it, surely you would ask what’s going on.”
¶ 23 The jury found defendant guilty of aggravated fleeing or attempting to elude a
peace officer (625 ILCS 5/11-204.1(a)(1) (West 2016)) and speeding (id. § 11-
601(b)) and not guilty of failure to use a turn signal (id. § 11-804(d)). The circuit
court sentenced defendant to a two-year term of imprisonment.
¶ 24 Defendant appealed, and the appellate court reversed and remanded, finding
that the circuit court erred when it denied defendant’s motion for a mistrial. 2021
IL App (4th) 190172-U. The court held that, under Illinois evidentiary rules,
evidence of the defendant’s silence during and after an arrest is only admissible for
impeachment purposes whether the silence occurs before or after Miranda
warnings are given, that evidence of silence is not relevant to the question of guilt,
that the State erred in eliciting evidence about defendant’s silence, and that the error
was not harmless. The dissent would have found that the error was harmless
because there was overwhelming evidence of defendant’s guilt. The appellate court
did not reach the issue of prosecutorial misconduct based on the State’s eliciting
testimony regarding defendant’s silence and commenting on it in closing argument.
The State appealed, and this court granted its petition for leave to appeal. Ill. S. Ct.
R. 315 (eff. Oct. 1, 2020).
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¶ 25 ANALYSIS
¶ 26 The issue for our resolution concerns the State’s comments on defendant’s
silence in its opening statement. On appeal, the State argues the circuit court
properly denied defendant’s motion for a mistrial based on its comments in the
State’s opening statement and, if the court erred in denying the motion, the error
was harmless. The State further argues that defendant’s claim the State committed
prosecutorial misconduct by eliciting testimony regarding his postarrest silence in
its case-in-chief and by commenting on it in its closing argument is forfeited and
does not constitute plain error. Like the appellate court, we do not reach the issue
of prosecutorial misconduct. We find that the circuit court should have granted a
mistrial, its error was not harmless, and the issue is dispositive.
¶ 27 As a preliminary matter, the parties do not dispute that defendant was under
arrest when he was confronted by law enforcement, and there is no challenge before
this court regarding his arrest. See People v. Boston, 2018 IL App (1st) 140369,
¶ 87 (“ ‘An arrest occurs when a person’s freedom of movement is restrained by
physical force or a show of authority.’ ” (quoting People v. Surles, 2011 IL App
(1st) 100068, ¶ 23)). We further note that both parties presented constitutional
arguments concerning defendant’s right to remain silent in addition to relying on
Illinois evidentiary law. We determine that the Illinois Rules of Evidence provide
an adequate framework to decide the issue before us, and we thus determine it on
the basis of Illinois evidentiary law. See People v. Lee, 214 Ill. 2d 476, 482 (2005)
(courts should avoid constitutional issues where nonconstitutional basis for
resolution exists).
¶ 28 Illinois Rule of Evidence 401 (eff. Jan. 1, 2011) defines “ ‘[r]elevant
evidence’ ” as “evidence having any tendency to make the existence of any fact that
is of consequence to the determination of the action more probable or less probable
than it would be without the evidence.” Illinois Rule of Evidence 402 (eff. Jan. 1,
2011) provides that only relevant evidence is admissible. Illinois Rule of Evidence
403 (eff. Jan. 1, 2011) instructs that relevant evidence “may be excluded if its
probative value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by considerations of undue delay,
waste of time, or needless presentation of cumulative evidence.”
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¶ 29 The State argues that its comments in its opening statement were not prohibited
and a mistrial was not warranted. The State submits that, because of the unique
circumstances of this case, defendant’s silence was probative of consciousness of
guilt and its probative value outweighed any possible prejudice from admission of
the evidence under the balancing test set forth in Illinois Rule of Evidence 403 (eff.
Jan. 1, 2011). Defendant maintains that the State violated his right to remain silent
under Illinois evidentiary law, that postarrest, pre-Miranda silence is only
admissible for impeachment purposes under Illinois’s evidentiary framework, and
that his silence was neither material nor relevant to his guilt. Defendant maintains
that Rule of Evidence 401 provides a sufficient ground by itself to find the State’s
comments improper, that this court does not need to use Rule of Evidence 403, and
that a mistrial was necessitated under Rule of Evidence 401.
¶ 30 We thus begin by examining Illinois Rule of Evidence 401 (eff. Jan. 1, 2011),
which defines relevant evidence as “evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.” “Probability is
tested in the light of logic, experience, and accepted assumption as to human
behavior.” People v. Patterson, 192 Ill. 2d 93, 115 (2000). Every piece of evidence
must meet the threshold requirement of relevance. People v. Dabbs, 239 Ill. 2d 277,
289 (2010). Relevant evidence may be excluded where its probative value is
outweighed by prejudice to the defendant. Swift v. Schleicher, 2017 IL App (2d)
170218, ¶ 78.
¶ 31 Under Illinois’s evidentiary law, “[e]vidence of the defendant’s postarrest
silence is considered neither material nor relevant to proving or disproving the
charged offense.” People v. Sanchez, 392 Ill. App. 3d 1084, 1096 (2009). Sanchez
is based on a line of cases beginning with People v. Rothe, 358 Ill. 52 (1934). In
Rothe, this court determined that the admission of evidence that the defendant
refused to make a statement at the police station was improper. Id. at 57. “In this
refusal they were within their rights, and the fact that they refused to make a
statement had no tendency to either prove or disprove the charge against them.” Id.The court found the evidence “neither material nor relevant” and held it should have
been excluded as prejudicial. Id. In People v. Lewerenz, 24 Ill. 2d 295, 299 (1962),
this court again found that admission of evidence that “at the time of his arrest
defendant had refused to make a statement on advice of counsel” was “prejudicial
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error.” Relying on Rothe, the court determined the evidence to be neither material
nor relevant. Id.¶ 32 Both Rothe and Lewerenz predate Miranda and are not based on its principles.
Rather, both cases are founded on this state’s recognition, as depicted in its rules
and common law, that a defendant’s silence in the face of adversarial interactions
with law enforcement is not material or relevant to his guilt. In People v. Clark, 335
Ill. App. 3d 758, 763 (2002) (quoting People v. McMullin, 138 Ill. App. 3d 872,
876 (1985)), a post-Miranda case, the appellate court, relying on Rothe and
Lewerenz, found that evidence of a defendant’s postarrest silence is considered
“ ‘neither material nor relevant’ ” to proving or disproving the charged offense.
Although in that case the defendant was improperly impeached with evidence of
his postarrest silence, the court found it impermissible to use the defendant’s
postarrest silence against him, whether the silence occurred before or after the
defendant was Mirandized. Id. The court discussed that the prohibition was based
on Illinois evidentiary law and not federal constitutional principles. Id. In Sanchez,
the court similarly found that a defendant cannot be impeached with his postarrest
silence, whether the silence occurred before or after the defendant was provided
Miranda warnings, because the evidence was not material or relevant to the
defendant’s guilt. Sanchez, 392 Ill. App. 3d at 1096 (citing Clark, 335 Ill. App. 3d
at 763).
¶ 33 In light of Illinois evidentiary law, we consider whether the circuit court erred
in denying defendant’s motion for a mistrial. A mistrial is proper “only if there is
an occurrence of such character and magnitude as to deprive a party of a fair trial
and that party demonstrates actual prejudice.” People v. Soto, 2022 IL App (1st)
201208, ¶ 153. Where a motion for a mistrial has been denied, in addition to
establishing prejudice, an appellant must also demonstrate that admonishments and
curative instructions from the circuit court could not remedy the damage from the
improper comments. People v. Middleton, 2018 IL App (1st) 152040, ¶ 29. The
circuit court’s denial of a motion for mistrial will not be reversed unless it was an
abuse of discretion. People v. Bishop, 218 Ill. 2d 232, 251 (2006).
¶ 34 In denying defendant’s mistrial motion, the court relied on Givens, where the
court analyzed whether the State’s use of defendant’s postarrest silence violated his
rights against self-incrimination and his due process rights under the Illinois and
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United States Constitutions. Givens, 135 Ill. App. 3d at 820. The Givens court did
not consider the issue under the Illinois Rules of Evidence and is distinguished on
that basis. We do, however, find its reasoning helpful. Looking to Doyle v. Ohio,
426 U.S. 610, 617-18 (1976), the Givens court discussed that pre-Miranda silence
is “ ‘insolubly ambiguous’ ”; that is, it is unknown whether a defendant’s silence is
“nothing more than the exercise of the defendant’s rights.” Givens, 135 Ill. App. 3d
at 820 (quoting Doyle, 426 U.S. at 617).
¶ 35 In its opening statement, the State commented that the officer wanted to arrest
defendant “at Walmart without making a scene since it’s in the middle of the store,
[and] at no point did he ever ask in any way the reason why he was being detained.”
We consider defendant’s silence to be “insolubly ambiguous,” as he was ordered
by Frazier to keep his mouth shut and not make a scene. Thus, whether his silence
demonstrated an exercise of his rights or compliance with Frazier’s orders is
unknown but immaterial to the question of his guilt. Rather than acknowledge
defendant’s compliance with Frazier’s orders, the State attempted to equate his
silence with consciousness of guilt. However, under Illinois evidentiary law,
defendant’s silence was neither material nor relevant to the question of his guilt.
¶ 36 The appellate majority followed Illinois evidentiary law and found that it
prohibited impeachment of a defendant with his postarrest silence whether the
silence occurred before or after defendant was given Miranda warnings. 2021 IL
App (4th) 190172-U, ¶ 53. Following the case law, the majority stated that
“ ‘[e]vidence of the defendant’s [postarrest] silence is considered neither material
[n]or relevant to proving or disproving the charged offense.’ ” Id. (quoting Sanchez,
392 Ill. App. 3d at 1096). The appellate court concluded that the circuit court abused
its discretion in denying defendant’s motion for a mistrial. Id. ¶ 54. It also
determined that evidence regarding defendant’s postarrest silence was improperly
allowed and the State erred in commenting on it in opening statements, eliciting
Frazier’s testimony regarding it, and commenting on it during closing arguments.
Id. We agree.
¶ 37 Contrary to the State’s argument that the prosecutor’s comments were proper
under Illinois evidentiary rules, defendant’s silence was not evidence of
consciousness of guilt. This is especially true under the circumstances here, where
Frazier ordered defendant to remain silent and not make a scene. The State used
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defendant’s silence to lead the jury to decide that, because an innocent person
would have made an outcry upon being accosted by an unidentified person in plain
clothes, defendant was not an innocent person. Equating his silence with guilt
prejudiced him in that the improper comments suggested that defendant remained
silent not because he was ordered to do so by Frazier but as a tacit admission that
he committed the crimes for which Frazier was arresting him. Under the tacit
admission rule, “[i]t must affirmatively appear that the defendant knew he was
being asked about the crime for which he is on trial, for it is the assumption that
one similarly situated would ordinarily deny the imputation of guilt which renders
admissible defendant’s failure to do so.” People v. Aughinbaugh, 36 Ill. 2d 320,
323 (1967). The rule has no application under the instant facts, where defendant
was not informed of the charges against him at the time of his arrest. In addition,
although the circuit court admonished the jury before opening statements that they
did not constitute evidence, we do not consider that general admonishment
sufficient to remedy the damage from the State’s improper commentary on
defendant’s silence. At the time the comments were made, the circuit court did not
give a curative instruction. We find the State’s comments in its opening statement
violated defendant’s right to remain silent and denied him a fair trial. The circuit
court should have granted his request for a mistrial.
¶ 38 The State submits that, if the circuit court erred in denying defendant’s mistrial
motion, the error was harmless error in light of the overwhelming evidence against
defendant, as the jury would not have acquitted defendant if the error had not
occurred. The State further submits that any prejudice to defendant was mitigated
by defense counsel’s cross-examination of Frazier and its closing argument where
it emphasized defendant had a right to remain silent.
¶ 39 An “evidentiary error is harmless ‘where there is no reasonable probability that
the jury would have acquitted the defendant absent the’ error.” (Emphasis in
original.) In re E.H., 224 Ill. 2d 172, 180 (2006) (quoting People v. Nevitt, 135 Ill.
2d 423, 447 (1990)). To prove defendant guilty of aggravated fleeing or attempting
to elude a peace officer, the State had to establish that (1) a police officer in uniform
indicated with hand, voice, siren, or lights that defendant should stop; (2) defendant
willfully did not stop; and (3) while failing to stop, defendant drove at least 21 mph
over the speed limit. 625 ILCS 5/11-204, 11-204.1(a)(1) (West 2016).
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¶ 40 We thus consider whether there was any reasonable probability the jury would
have acquitted defendant absent the State’s error in its opening statement. To
determine whether the error here was harmless, the appellate court, while
distinguishing Doyle procedurally, used the factors it introduced to determine
whether the error was harmless. 2021 IL App (4th) 190172-U, ¶ 58. The Doyle
factors are
“ ‘(1) the party who elicited the testimony about the defendant’s silence; (2) the
intensity and frequency of the references to the defendant’s silence; (3) the use
that the prosecution made of the defendant’s silence; (4) the trial court’s
opportunity to grant a mistrial motion or to give a curative jury instruction; and
(5) the quantum of other evidence proving the defendant’s guilt.’ ” Id. ¶ 57
(quoting People v. Dameron, 196 Ill. 2d 156, 164 (2001)).
Applying the Doyle factors, the majority found that the State did not carry its burden
to prove the State’s error was harmless. We agree.
¶ 41 The first factor concerns which party elicited the improper evidence. It was the
State in its opening statement that referred to defendant’s silence. The State’s
comments suggested that, had defendant been innocent, he would have verbally
reacted to Frazier’s actions. The reference inferred that defendant was anticipating
an imminent arrest and was not surprised when it occurred.
¶ 42 The second factor considers the reference’s intensity and frequency. Although
the reference was brief, it implicated defendant’s ability to obtain a fair trial.
Because the improper reference to defendant’s silence occurred during the State’s
opening, it flavored the entirety of the proceedings. Indeed, the State continued its
improper commentary on defendant’s silence in its case-in-chief and its closing
argument.
¶ 43 The third factor examines the State’s use of its reference to defendant’s silence,
which in this case was to present his silence as evidence of his guilt. The State
recharacterizes its references to defendant’s silence as drawing reasonable
inferences from the evidence. According to the State, it may properly comment on
the emotional tone of defendant’s comments, his facial expressions, and his
demeanor. See People v. Davis, 151 Ill. App. 3d 435, 441-42 (1986). The State’s
comments were not reflective of defendant’s emotional tone, facial expressions, or
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demeanor. The only testimony the State offered in this vein was Frazier’s
perception that defendant seemed nervous in the bathroom when Frazier initially
greeted him. The State used the improper opening comments to bolster its theory
that defendant’s silence equated to consciousness of guilt.
¶ 44 Regarding the fourth factor, the circuit court had an opportunity to grant a
mistrial but declined it, erroneously relying on Givens to do so because that case is
procedurally distinguishable where the defendant took the stand and opened
himself to impeachment. No curative instruction was provided after the State’s
comment on defendant’s silence.
¶ 45 The fifth and final factor considers the quantum of other evidence proving
defendant’s guilt. In this case, as discussed below, the evidence proving defendant’s
guilt was not overwhelming. Under the majority’s review of the evidence, it found
the State failed to present overwhelming evidence of defendant’s guilt and
determined that a reasonable person could conclude that defendant did not know he
was being pursued by police officers. 2021 IL App (4th) 190172-U, ¶ 67. The
evidence supports its finding.
¶ 46 Wassell first observed the motorcyclists heading in the opposite direction, and
he pulled off to the shoulder of the road and activated his emergency lights. The
squad car was an unmarked vehicle with its lights embedded in the headlights,
visors, and grille. His siren was not activated, but he turned it on after the
motorcycles failed to stop. Hobbs’s squad car was pulled off the road in the
driveway of an implement dealer and perpendicular to the roadway. She turned on
her lights and siren when she saw the vehicles approach but did not pull out into
the road until after they passed her. The testimony of Frazier and Hobbs, Hobbs’s
dash cam video, and the surveillance video from Pike Feed establish that defendant
was the lead motorcycle and the farthest away from the pursuing officers.
¶ 47 Smith testified the motorcycles he saw pass by on the road in front of Walmart
had “loud pipes.” Wassell testified the motorcycles were noisier than smaller
motorcycles, that defendant’s motorcycle lacked rearview mirrors, and that
defendant was wearing a helmet and never turned around when Wassell was behind
him. There is evidence defendant was wearing earplugs. Frazier and Hobbs testified
that the still photographs of defendant entering the Walmart showed something
hanging around his neck. Hobbs acknowledged she could see something around
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defendant’s neck but could not identify it. Frazier admitted the item around
defendant’s neck looked like earplugs or headphones. He admitted that, if defendant
was wearing earplugs, a helmet, and a face mask that covered his ears, along with
the sound of the wind and the motorcycles, it would be more difficult for defendant
to hear his siren. Wassell also admitted that defendant told him he did not see the
emergency lights on Wassell’s car, as defendant looked down when he passed
Wassell. There was no evidence defendant turned around and saw the squad cars.
Wassell testified that only the passenger on one of the other bikes looked back while
at the four-way stop. Wassell had turned off his siren at that point.
¶ 48 Defendant made a complete stop at a four-way stop despite the presence of
Wassell behind him. The State surmises that defendant came to a complete stop at
the four-way stop to avoid being hit going through the intersection. However,
Wassell did not testify any other vehicles were present at or near the four-way stop.
Wassell testified the only other vehicles he observed during the pursuit were
Hobbs’s squad car and the silver SUV, which did not initially pull over despite
Wassell pursuing it for at least a mile with his vehicles lights and siren activated.
¶ 49 The State offered no proof that defendant or the other motorcyclists engaged in
elusive behavior. The motorcyclists did not split up or turn around and go the
opposite direction Wassell was travelling. They did not turn down any side roads
to hide. As Petty testified, once in Pittsfield, there were alleys in which defendant
could have attempted to hide. Instead, he parked his motorcycle in the Walmart
parking lot and entered the store carrying his motorcycle attire. Defendant did not
hide either his motorcycle or himself at Walmart, and his claim that he needed zip
ties was supported by the fact that something was dragging from his motorcycle.
Frazier and Petty all testified that something was dragging beneath defendant’s
motorcycle. Defendant’s and the other motorcyclist’s routes around the back of the
Walmart before parking could be attributed to safety concerns, and the State’s
theory they were trying to hide from law enforcement is negated by the fact both
motorcyclists eventually parked in the lot in the front of the store.
¶ 50 Like the appellate court, we do not find that the State presented overwhelming
evidence of defendant’s guilt to support a conclusion the circuit court’s failure to
grant a mistrial was harmless error. Wassell initiated the pursuit on defendant in an
unmarked vehicle that was not equipped with a standard light bar on its roof. He
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was positioned on the shoulder of the opposite side of the roadway from which
defendant was traveling. Defendant said he looked down when he passed Wassell’s
vehicle and did not see the emergency lights. He was in the front of the motorcycle
formation, his motorcycle lacked rearview mirrors, and arguably he could not hear
the sirens. Although Wassell also signaled to pull over while at the Atlas four-way
stop, there was no evidence defendant was aware of Wassell’s signal. Defendant
fully stopped at the intersection, another indicator that he did not willfully fail to
stop. In our view, the evidence to support the willfulness component of the eluding
statute was susceptible to differing conclusions.
¶ 51 Because the evidence against defendant was not overwhelming such that the
State’s improper references to defendant’s silence did not affect the verdict, we find
the circuit court’s error was not harmless. Application of the Doyle factors
establishes that the State elicited the improper comments and referred to
defendant’s silence as indicative of his guilt and as dispositive of whether he
committed the charged offenses, the circuit court declined its opportunity to grant
a mistrial, and the evidence presented by the State against defendant was not
overwhelming. The State’s improper comments informed the jury that defendant
was silent not as an exercise of his right to remain silent or as compliance with
Frazier’s orders but because he was guilty. Through its comments on defendant’s
silence, the State presented its theory that a “normal” person would have cried out
and not remained silent had a stranger accosted him in the bathroom at Walmart.
By making these comments in its opening statement, the State implied to the jury
that defendant’s silence amounted to guilt. We find that the circuit court erred in
denying defendant’s motion for a mistrial and affirm the appellate court’s reversal
of the denial of defendant’s motion for a mistrial and its finding that the State
improperly commented on defendant’s postarrest silence.
¶ 52 CONCLUSION
¶ 53 Accordingly, for the foregoing reasons, we affirm the judgment of the appellate
court, which reversed the judgment of the circuit court and remanded for a new
trial.
¶ 54 Appellate court judgment affirmed.
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¶ 55 Circuit court judgment reversed.
¶ 56 Cause remanded.
¶ 57 JUSTICE HOLDER WHITE took no part in the consideration or decision of
this case.
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