People v. Clark, 3-01-0669.

• Decision Date: 09 December 2002
• Docket Number: No. 3-01-0669.,3-01-0669.
• Citation: 269 Ill.Dec. 936,335 Ill. App.3d 758,781 N.E.2d 1126
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. George L. CLARK, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

781 N.E.2d 1126

335 Ill. App.3d 758

269 Ill.Dec. 936

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. George L. CLARK, Defendant-Appellant.

No. 3-01-0669.

Appellate Court of Illinois, Third District.

December 9, 2002.

Kerry J. Bryson, Office of the State Appellate Defender, Ottawa, for George L. Clark.

John X. Breslin, Deputy Director, State's Attorneys Appellate Prosecutor, Ottawa, Edward Danner, Fulton County State's Attorney, Lewistown, Judith Z. Kelly, State's Attorneys Appellate Prosecutor, Ottawa, for the People.

Justice GROMETER delivered the opinion of the court:

Following a jury trial in the circuit court of Fulton County, defendant, George L. Clark, was convicted of one count of armed robbery (720 ILCS 5/18-2 (West 2000)) and one count of home invasion (720 ILCS 5/12-11 (West 2000)). Defendant now appeals, alleging three errors. First, he contends that it was error for the State to impeach him with his postarrest silence. Second, he asserts that the State's closing argument was unfairly prejudicial. Third, defendant argues that he is entitled to an additional day of credit for time spent in custody prior to trial. We agree with defendant's first two contentions; hence, we reverse and remand this cause for a new trial. Since we are reversing, the third issue raised by defendant, as it pertains to sentencing, is moot. Before turning to the merits of defendant's arguments, we note that the first two errors defendant asserts have not been properly preserved for appellate review. Defendant claims that the evidence at his trial was closely balanced and asks that we review both claims as plain error. See People v. Austin, 328 Ill.App.3d 798, 807, 262 Ill.Dec. 973, 767 N.E.2d 433 (2002); 134 Ill.2d R. 615(a). In the instant case, the evidence was closely balanced.

The evidence against defendant was as follows: (1) the victim identified her attacker as a white male in his forties of about defendant's build; (2) defendant owned a pair of sneakers like those described by the victim; (3) defendant had access to a knife similar to that described by the victim, although her description was incomplete; (4) defendant owned two snap-brim hats, one black and one tan, and the victim described her attacker as wearing a dark, beret-type hat, although she stated at another time it was brown or grey; both hats arguably fit within her two descriptions, and the presence of at least one of them in defendant's home was necessarily coincidental; and (5) one of defendant's fingerprints was recovered from the back of one of the victim's jewelry boxes.

In his defense, defendant presented three alibi witnesses. Their testimony was incomplete; however, their unwillingness to testify to anything more specific speaks to their credibility, as does the fact that none of them were close friends of defendant. Essentially, their testimony, accepted as true, would not conclusively establish that defendant did not commit the robbery; however, it did make this proposition more likely. Regarding the fingerprint, defendant stated that he had previously entered the victim's home, months earlier when he was living across the street from her, looking for money. The victim testified that she was a fastidious cleaner. The print, however, was found on the back of the jewelry box. It is conceivable that she could have missed it, and her cleaning would explain the absence of other prints.

In short, defendant's conviction necessarily involved the rejection of his alibi and his explanation of how his fingerprint got into the victim's house. Thus, issues of credibility abounded in the trial below. Accordingly, we conclude that the evidence in this case was sufficiently close to warrant the application of the plain-error doctrine (see People v. Aguirre, 291 Ill.App.3d 1028, 1035, 226 Ill.Dec. 169, 684 N.E.2d 1372 (1997)), and we will review defendant's two claims of error.

Defendant first claims that it was error for the State to impeach him with his postarrest silence. At trial, the following colloquy ensued between defendant and the State:

"Q. Okay[.] Now, you say you got arrested on August 17th; correct?

A. Correct.

Q. Did you ask anyone why?

A. Yes.

Q. What did they tell you?

A. They told me I was being arrested for armed robbery, home invasion.

Q. Did you ask them when?

A. No.

Q. Any reason why?

A. I figured they would tell me when they were ready for me to know.

Q. Okay. Did you tell them they were wrong?

A. No, I didn't tell them they were wrong.

Q. Why not?

A. Well, it's been my experience as best, [sic] little talking I do with the police, the better off I will be. So I didn't talk to them at all."

Defendant asserts that this questioning amounted to error sufficient to warrant a new trial.

Initially, we note that federal constitutional law provides no basis for the relief defendant seeks. In Doyle v. Ohio, 426 U.S. 610, 619, 96 S.Ct. 2240, 2245, 49 L.Ed.2d 91, 98 (1976), the Supreme Court held that it was a violation of the due process clause of the fourteenth amendment (U.S. Const., amend.XIV) for the State to use a defendant's postarrest, post-Miranda silence for impeachment purposes. Reasoning that the Miranda warnings carry the implicit assurance that silence will carry no penalty, the Court found that it would be fundamentally unfair to allow a defendant's silence to be used to impeach a defendant's trial testimony. Doyle, 426 U.S. at 618, 96 S.Ct. at 2245, 49 L.Ed.2d at 98. However, in Fletcher v. Weir, 455 U.S. 603, 607, 102 S.Ct. 1309, 1312, 71 L.Ed.2d 490, 494 (1982), the Supreme Court made clear that this prohibition applies only to a defendant's silence occurring after the Miranda warnings have been given. Regarding the admissibility of postarrest, pre-Miranda silence, the Court left it to the states to fashion their own rules. Fletcher, 455 U.S. at 607, 102 S.Ct. at 1312, 71 L.Ed.2d at 494.

Some states prohibit impeachment by postarrest silence as a matter of state constitutional law. See, e.g., Nelson v. State, 691 P.2d 1056, 1059-60 (Alaska App. 1984)

; State v. Davis, 38 Wash.App. 600, 605-06, 686 P.2d 1143, 1145-46 (1984). In Illinois, we exclude such evidence as a matter of Illinois evidentiary law. See, e.g., People v. Strong, 215 Ill.App.3d 484, 488, 158 Ill.Dec. 878, 574 N.E.2d 1271 (1991); People v. Savory, 105 Ill.App.3d 1023, 1031-32, 61 Ill.Dec. 737, 435 N.E.2d 226 (1982). In People v. McMullin, 138 Ill.App.3d 872, 876-77, 93 Ill.Dec. 311, 486 N.E.2d 412 (1985), the court made the following observation:

"The Illinois Supreme Court has held that evidence of a defendant's post-arrest silence is inadmissible because such evidence is neither material nor relevant, having no tendency to prove or disprove the charge against a defendant. (People v. Lewerenz (1962), 24 Ill.2d 295, 299 ; People v. Rothe (1934), 358 Ill. 52, 57 .) From the language used by the court in these cases, the language of `materiality' and `relevancy', it is apparent they are based on general evidentiary principles. (People v. Savory (1982), 105 Ill.App.3d 1023, 1031 , 435 N.E.2d 226, 232) Because these decisions predate Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, and in view of their rationale, it is also apparent that the rule they set forth does not depend upon whether the silence sought to be utilized occurred before or after a defendant was given Miranda warnings. (People v. Savory (1982), 105 Ill.App.3d 1023, 1031-1032 , 435 N.E.2d 226, 233; cf. Jenkins v. Anderson (1980), 447 U.S. 231, 239, 100 S.Ct. 2124, 2129, 65 L.Ed.2d 86, 95

(Federal constitutional rule that a defendant's post-arrest silence is inadmissible applies only after defendant has been given Miranda warnings).) Because the rule of Rothe and Lewerenz is rooted in Illinois evidentiary law, it is unaltered by the Federal constitutional case law with respect to the use of Miranda-warning-induced silence. (Fletcher v. Weir (1982), 455 U.S. 603, 607, 102 S.Ct. 1309, 1312, 71 L.Ed.2d 490, 494 (in the absence of assurances such as those in the Miranda warnings, `[a] State is entitled * * * to leave to the judge and jury under its own rules of evidence the resolution of the extent to which postarrest silence may be deemed to impeach a criminal defendant's own testimony').) Rothe and Lewerenz have never been overruled by our supreme court, so we are bound to follow the rule they set forth."

In light of these authorities, it is clear that, under Illinois evidentiary law, it is impermissible to impeach a defendant with his or her postarrest silence, regardless of whether the silence occurred before or after the defendant was given Miranda warnings.

In the present case, the information solicited by the State regarding defendant's postarrest silence was inadmissible. That the record contains no indication that defendant was given Miranda warnings prior to the time referred to in the State's questioning is irrelevant under the law of this state. Accordingly, we conclude that this questioning by the State constituted error.

In its brief, the State relies on People v. Aquino, 239 Ill.App.3d 12, 178 Ill.Dec. 890, 605 N.E.2d 684 (1992). Aquino analyzed the defendant's failure to give an exculpatory story prior to trial as a potential Doyle violation. Aquino, 239 Ill.App.3d at 15-18, 178 Ill.Dec. 890, 605 N.E.2d 684. Aquino did not consider the issue under principles of Illinois evidentiary law. Accordingly, Aquino provides no guidance here.

Defendant also contends that the State's closing argument was unfairly prejudicial. Defendant cites numerous examples of what he characterizes as attempts to inflame the passions of the jury. He also points out portions of the argument that, he contends, were not supported by the evidence adduced at trial. It is true that counsel have wide latitude in making their closing arguments. People v. Cisewski, 118 Ill.2d 163, 175, 113 Ill.Dec. 58, 514 N.E.2d 970 (1987). However, remarks must be confined to the facts...