People v. Sebby

• Decision Date: 27 April 2015
• Docket Number: No. 3–13–0214.,3–13–0214.
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Montana SEBBY, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

32 N.E.3d 689

The PEOPLE of the State of Illinois, Plaintiff–Appellee
v.
Montana SEBBY, Defendant–Appellant.

No. 3–13–0214.

Appellate Court of Illinois, Third District.

April 27, 2015.
Rehearing Denied May 20, 2015.

32 N.E.3d 691

Editha Rosario-Moore (argued), of State Appellate Defender's Office, of Ottawa, for appellant.

Brian Towne, State's Attorney, of Ottawa (Richard T. Leonard (argued), of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

OPINION

Justice SCHMIDT delivered the judgment of the court, with opinion.

¶ 1 A La Salle County jury convicted defendant Montana Sebby of resisting a peace officer, a Class 4 felony (720 ILCS 5/31–1(a–7) (West 2010)). The trial court sentenced defendant to two years' imprisonment with one year of mandatory supervised release.

¶ 2 Defendant appeals, claiming: (1) that the trial court committed plain error by failing to properly ask prospective jurors if they understood and accepted the four Zehr (People v. Zehr, 103 Ill.2d 472, 83 Ill.Dec. 128, 469 N.E.2d 1062 (1984) ) principles codified by Illinois Supreme Court Rule 431(b) (eff. May 1, 2007); and (2) that he is entitled to a new trial based upon the State's improper comments during cross-examination and closing arguments on defendant's invocation of his right to terminate police interrogation and his postarrest silence.

¶ 3 We affirm.

¶ 4 BACKGROUND

¶ 5 The State charged defendant by information with resisting a peace officer, a Class 4 felony (720 ILCS 5/31–1(a–7) (West 2010)). The charging information alleged that defendant knowingly resisted Deputy Jason Mohr during the authorized act of arrest when he pulled away from and physically struggled with the deputy, and that defendant's acts were the proximate cause of injury to Mohr. At defendant's arraignment, he pled not guilty and demanded a jury trial.

¶ 6 I. Voir Dire

¶ 7 The case proceeded to jury trial on January 28 and 29, 2011. During voir dire, the trial court admonished the jury pool of the four principles of law enumerated in Illinois Supreme Court Rule 431(b) (eff. May 1, 2007) as follows:

“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

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that. The State is obligated by law to prove the defendant guilty beyond a reasonable doubt.”

¶ 8 The trial court then proceeded to question potential jurors in panels of six. During the questioning of the first panel, the court engaged in the following colloquy with a potential juror regarding bias:

“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 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.”

¶ 9 The trial court then individually asked the remaining members of the panel whether any of them “[h]ad any problems” with the principles of law, while interweaving questions about whether there was anything that would prevent them from being fair and impartial jurors. 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.

¶ 10 Using much the same phrasing as above, the trial court proceeded to announce the four principles of law to each panel of prospective jurors. The trial court, again, asked the individual jurors of each panel whether they “[h]ad any problems” with those principles, while continuing to interweave questions about whether anything would prevent them from being fair and impartial jurors. The trial court varied the phrasing of the question to “do you believe in those principles of law?”

¶ 11 II. Trial

¶ 12 Following opening statements, the State called Deputy Joshua McGrath. McGrath testified that he and the other deputies went to the Sebby family home to serve a court order for custody of a minor child, L.S. Defendant informed the deputies that the child was with her grandmother, Bonnie Sebby, and he did not know how to contact them. McGrath and the other officers handed the custody order to defendant to read. Defendant handed it back to Deputy Mohr, yelled for them to leave, and then poked McGrath in the shoulder with his finger. McGrath advised defendant he was under arrest for battery of a police officer. When McGrath tried to grab defendant's wrist, defendant pulled away; the deputies took him to the ground to get control of him. After the deputies handcuffed defendant, McGrath noticed scratches on Mohr's hand and wrist. The prosecutor inquired of McGrath what he “did” with defendant following the arrest, and if McGrath “attempt[ed] to interview him” at the jail. McGrath responded:

“At the jail we did read him his Miranda warning and tried to talk to him

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about what happened. When I asked him 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. He revoked [sic ] his right to not talk further.”

¶ 13 On cross-examination, McGrath did not recall whether he stuck his foot in the door to prevent the woman who first answered the door from closing it. He also testified that he did “not know exactly at what point and time” Mohr's injuries occurred. McGrath could not recall defendant's position on the ground, but stated there was some “rolling around.”

¶ 14 Deputy Jason Mohr testified that defendant poked McGrath and resisted both officers when they attempted to arrest him. Mohr and McGrath tried to control defendant by grabbing his arms and taking him to the ground. Mohr had scrapes from the gravel on his hand and wrist. On cross-examination, Mohr denied that he was agitated, used profanities, or threatened to pull defendant's mother from the house by her hair. Mohr admitted that he could not say 100% what caused his scrapes. Mohr also testified that defendant stepped forward off the front step in order to poke McGrath. He admitted that the detail about defendant stepping forward was not written in the incident report, despite the fact that officers are trained to write important details in their reports.

¶ 15 The State called Deputy Jarred Arthur, who testified that defendant was verbally hostile, poked McGrath, and resisted when McGrath attempted to arrest him. McGrath and Mohr took defendant to the ground while Arthur held his feet to prevent him from kicking anyone. After the takedown, defendant was shirtless and mostly on his stomach, although Arthur could not recall his exact position. On cross-examination, Arthur testified that defendant stepped forward to poke McGrath. He also admitted that detail was missing from McGrath's report.

¶ 16 Following the close of the State's case-in-chief, defense counsel unsuccessfully moved for a directed verdict.

¶ 17 The defense first called Angela Dankenbring. Dankenbring testified that she was a family friend who had previously dated defendant's brother, Oakland Sebby. On the morning of the incident, Dankenbring testified that she answered the door and told the deputies that Bonnie Sebby was not home and she was not sure if anyone else was home. When she tried to close the door to put on her shoes, one deputy stuck his foot in the door, yelled at her, and told her he would arrest her for obstructing justice. An argument ensued when officers wanted to search the house and Dankenbring told them she did not have permission to allow them to do so. Defendant then came to the door and shut it behind him while he spoke with the deputies. After putting on a sweatshirt and shoes, Dankenbring returned and allegedly witnessed the following...