People v. Sebby

Decision Date02 June 2017
Docket NumberDocket No. 119445
Citation89 N.E.3d 675,2017 IL 119445
Parties The PEOPLE of the State of Illinois, Appellee, v. Montana SEBBY, Appellant.
CourtIllinois Supreme Court

2017 IL 119445
89 N.E.3d 675

The PEOPLE of the State of Illinois, Appellee,
Montana SEBBY, Appellant.

Docket No. 119445

Supreme Court of Illinois.

Opinion filed June 2, 2017.

89 N.E.3d 677

Michael J. Pelletier, State Appellate Defender, Peter A. Carusona, Deputy Defender, and Editha Rosario-Moore, Assistant Appellate Defender, of Ottawa, for appellant.

Lisa Madigan, Attorney General, of Springfield (Carolyn E. Shapiro, Solicitor General, and Michael M. Glick and John R. Schleppenbach, Assistant Attorneys General, of Chicago, of counsel), for the People.

JUSTICE THEIS delivered the judgment of the court, with opinion.

¶ 1 Defendant, Montana Sebby, was convicted by a jury of resisting a peace officer, a Class 4 felony ( 720 ILCS 5/31–1(a–7) (West 2010)), and sentenced by the trial court to two years' imprisonment. On appeal, the defendant argued that the trial court committed error in admonishing prospective jurors pursuant to Illinois Supreme Court Rule 431(b) (eff. May 1, 2007) and that, despite his failure to object to that error, he was entitled to a new trial because the evidence was closely balanced. A majority of the appellate court disagreed with the defendant and affirmed his conviction and sentence. 2015 IL App (3d) 130214, 392 Ill.Dec. 381, 32 N.E.3d 689.

89 N.E.3d 678

¶ 2 For the reasons that follow, we reverse and remand for further proceedings.


¶ 4 In 2011, Bonnie and Howard Sebby lived on a farm in rural La Salle County near Utica. The Sebbys had four children: the defendant; his older brother, Oakland Sebby; and his younger twin sisters, Casey and Elizabeth Sebby. Casey and Elizabeth died in a car accident on September 23, 2011, and on October 18 the trial court entered an order granting temporary physical custody of Casey's daughter, L.S., to her biological father. The order directed law enforcement officials to assist the father in obtaining L.S. from "whoever had physical custody of the child."

¶ 5 The La Salle County sheriff's office believed that L.S. was staying with the Sebbys, and they visited the farm with the custody order three times. The first time was October 21. The second time was October 26 at 5:30 p.m., when Investigator Jason Martin attempted unsuccessfully to serve the order on Bonnie. Around 12 hours later, on October 27, three uniformed deputies—Joshua McGrath, Jason Mohr, and Jarred Arthur—arrived at the farm around 6 a.m. The defendant, who did not live with his parents but had spent the night at their house, came to the door and spoke with the deputies. What happened next is in dispute. What is not in dispute is that the defendant ended the encounter in custody, charged with resisting a peace officer.

¶ 6 The case proceeded to a jury trial. The La Salle County circuit court1 admonished the jury pool as to the so-called Zehr principles (see People v. Zehr , 103 Ill.2d 472, 83 Ill.Dec. 128, 469 N.E.2d 1062 (1984) ), enumerated in Rule 431(b) :

"The most important law on a criminal case is the defendant[,] who you will meet in a moment[,] is presumed innocent. The presumption of innocence exists throughout the trial. The defendant doesn't have to prove anything. The defendant doesn't have to testify. The defendant doesn't have to present evidence, and the defendant, if he does not, and you cannot and you must not hold that against him or assume anything by that. The State is obligated by law to prove the defendant guilty beyond a reasonable doubt."

¶ 7 The trial court questioned potential jurors in panels of six. During the questioning of the first panel, the court talked to a potential juror about the Zehr principles:

"Q. First of all, you need to understand the presumption of innocence.

A. Understood.

Q. But what if the defendant denies that but you have to understand that may be a story told, and it may be you having to decide whether it's a story told and credibility. I can't say that may not be the story. I may have to say that's what somebody says, but the defendant by the way who's presumed innocent doesn't have to testify, and if he doesn't, you must not hold that against him. Would that affect your decision?

A. Not if there's no evidence pointing to that fact.

Q. Okay. Good. That's what I'm looking for. That was a very good answer because that was the answer in this case. Now, going back to all six of you, the defendant is presumed innocent, and
89 N.E.3d 679
that presumption of innocence exists throughout the trial. The defendant does not have to prove anything. He doesn't have to testify. He doesn't have to present evidence, and if he does not, then you must not hold it against him. It's the State's burden to prove the defendant guilty beyond a reasonable doubt, and I need to go through each of you with that."

¶ 8 The trial court then individually asked the remaining members of the panel whether any of them "[h]ad any problems" with those principles, while interweaving questions about whether there was anything that would prevent them from being fair and impartial in evaluating the evidence. The trial court specifically repeated its question with respect to the presumption of innocence to two potential jurors because they indicated that they might be biased. Using similar phrasing, the trial court spoke to each panel of prospective jurors about the Zehr principles. The trial court again asked the individual jurors of each panel whether they "[h]ad any problems" with or "believe[d] in" those principles, as well as whether anything would prevent them from being fair and impartial.

¶ 9 Following opening statements, the State called its first witness, Deputy McGrath. McGrath testified that on October 27, 2011, he went with Deputies Mohr and Arthur to serve the court order at the Sebby residence. After he knocked on the door for several minutes, a woman answered the door. McGrath asked the woman if she lived there, and she said no. He then asked to speak to someone who did live there, and the woman said that "nobody else was home." McGrath explained that "it was imperative that we made [sic ] contact with a resident of the house and the child and that to prevent anybody from getting in any further trouble or any trouble whatsoever it would be best to cooperate and explain to us how we can make contact with the home owner or resident of the house."

¶ 10 According to McGrath, the defendant then came to the door. Mohr handed a copy of the court order to the defendant, and the deputies again explained why the police were at the house. McGrath testified that the defendant was "basically uncooperative and upset that we were there." When the deputies asked where the child was, the defendant told them that she was "on vacation with Bonnie and he didn't know where or how to get a hold of them." The conversation between McGrath and the defendant occurred just outside the house. The defendant became

"more and more agitated about what was going on. He handed the court order back to Deputy Mohr saying this is not a search warrant which we never said it was and then he reached over and poked me in the shoulder as he was yelling for us to get out of the—poked me in the shoulder area as he was yelling for us to leave his property."

¶ 11 McGrath advised the defendant that he was under arrest for battery of a peace officer. McGrath reached for the defendant's wrist, but the defendant "pulled away and resisted arrest at that time." McGrath and Mohr then "attempted to gain control of [the defendant] as he was basically thrashing his body about trying to get away and resist arrest." The deputies then assisted the defendant to the gravel driveway in an effort to gain control over him. They repeatedly told him to stop resisting and to put his hands behind his back because he was under arrest. Eventually, the deputies handcuffed the defendant and placed him in the backseat of Mohr's squad car. At that point, McGrath noticed that Mohr "had some scratch marks on his hands, on both hands and wrist area of his

89 N.E.3d 680

right hand," as well as some scratches on the back of his left hand. McGrath testified that the scratches were "not bad" but were "definitely open scrapes and cuts."

¶ 12 At that point, Oakland Sebby came to the door of the house. McGrath explained why the police were there and asked if they could enter the house to "check" for the girl. Oakland refused. The deputies then took the defendant to the La Salle County jail, where he was given Miranda warnings. McGrath asked the defendant "why he poked me the way he did[,] he stated that he was just getting ready to tell us we could go in and check the house for [L.S.] and then when I explained to him [‘]you were just seconds before yelling at us to leave your property when you reached over and poked me,[’] he did not want to talk any further."

¶ 13 On cross-examination, McGrath did not recall whether he stuck his foot in the door when the woman answered his knocking, but he admitted that the deputies did not have permission to enter the house. McGrath testified that after he was told by the woman and the defendant that the girl was not there, he remained at the house "[b]ecause I had reason to believe they were not telling the truth." McGrath elaborated:

"[W]hen I answered [sic ] the door the first time somebody comes to the door and turns off the light and doesn't open the door. I knock on the door again and a female answers and says she's the only one there. Nobody else is there and then all of a sudden [the defendant] shows up at the door a few moments later and then a few moments after that Oakland shows up at the door so obviously I had been lied to already during that time."

¶ 14 McGrath stated that the woman did not lie about the fact that Bonnie Sebby was not at the house: "I was not lied to, but I was not allowed in the house either." McGrath reiterated that the deputies remained at the house, even after being told to leave by the defendant, because they believed that the woman had lied to them and they "had a...

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