                                         2019 IL App (3d) 160708

                                 Opinion filed June 18, 2019
     _____________________________________________________________________________

                                                 IN THE

                                   APPELLATE COURT OF ILLINOIS

                                            THIRD DISTRICT

                                                   2019

     THE PEOPLE OF THE STATE OF                       )      Appeal from the Circuit Court
     ILLINOIS,                                        )      of the 10th Judicial Circuit,
                                                      )      Peoria County, Illinois,
            Plaintiff-Appellee,                       )
                                                      )      Appeal No. 3-16-0708
            v.                                        )      Circuit No. 16-CF-395
                                                      )
     SHAWN MICHAEL TAYLOR,                            )      Honorable
                                                      )      John P. Vespa,
            Defendant-Appellant.                      )      Judge, Presiding.
     _____________________________________________________________________________

           JUSTICE WRIGHT delivered the judgment of the court, with opinion.
           Justices McDade and O’Brien concurred in the judgment and opinion.
     _____________________________________________________________________________

                                                OPINION

¶1          Defendant, Shawn Michael Taylor, challenges his conviction for attempted residential

     burglary and requests a new trial. On appeal, he argues that an officer’s reference to reading his

     Miranda rights (see Miranda v. Arizona, 384 U.S. 436 (1966)) violated defendant’s fifth

     amendment rights, as well as Illinois’s prohibition on postarrest silence. He also argues that the

     State, in closing arguments, improperly shifted the burden of proof. We affirm.

¶2                                          I. BACKGROUND

¶3          The State charged defendant via indictment with attempted residential burglary (720

     ILCS 5/8-4(a), 19-3 (West 2016)). The indictment alleged that defendant removed glass from a
     window and cut the screen on a door to the home of Linda and Charles Kuhn, with the intent to

     unlawfully enter and commit a theft therein. Defendant’s jury trial commenced on August 23,

     2016.

¶4           At trial, Charles Kuhn testified that he was 71 years old. In the early morning hours on

     May 26, 2016, he and his wife were asleep. He was awoken around midnight when he heard a

     loud sound, “like a loud bang or *** something hitting the house.” This sound was followed by

     “heavy pounding [or] heavy kicking” on the house. He testified that this banging sound recurred

     at least 10 times. Charles looked outside and saw two individuals leaving his backyard. Charles

     testified he did not go back to sleep. Around 1 a.m., he heard more noise coming from the

     backyard. He looked out and saw two people standing near the corner of his deck. He called 911.

¶5           When officers arrived, Charles inspected the perimeter of his house with them. They

     discovered that the screens on a back door and an adjacent laundry room door had been cut. They

     also discovered that panes of glass had been pried from a window and were lying broken on the

     ground. Some motion-activated floodlights on the exterior of the house had been unscrewed.

¶6           Brian Richards of the Peoria Police Department testified that he and Officer Dave

     Buchanan arrived on the scene and proceeded separately on foot. Richards heard Buchanan yell

     that he was pursuing two people running southbound. Richards proceeded to the south of the

     Kuhn residence and saw a male running and wearing a dark hooded sweatshirt and khaki pants.

     Richards testified that he had come into contact with defendant later that night, and that he was

     wearing clothing similar to the person he had observed running away from him.

¶7           On cross-examination, defense counsel engaged in the following colloquy with Richards:

                           “Q. Now, you stated that you had occasion to meet with [defendant] later.

                    When was that?



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                            A. When he was brought to Teton and University in a squad car.

                            Q. About what time would that have been?

                            A. Probably 1:10 approximately.

                            Q. Okay. So not long after you got there?

                            A. Correct.

                            Q. And how close were you to [defendant]?

                            A. Feet.

                            Q. Feet? What was the nature—feet. Okay. Well, like 10 feet, 5 feet, 6

                    feet?

                            A. 5 feet approximately. I stood on the outside of the squad car. He was on

                    the inside. I leaned in to talk to him to read him his Miranda rights. He—”

¶8          Defense counsel cut Richards off and asked the court to approach the bench. The

     attorneys joined the court in chambers. Defense counsel asked for a mistrial based upon

     Richards’s reference to the Miranda warning. The court agreed that Richards’s comment was

     unresponsive to counsel’s question and that counsel therefore did not invite the comment.

     However, the court denied the motion for mistrial, pointing out that Richards’s mention of

     Miranda could not “possibly reflect negatively on the Defendant.”

¶9          The court then considered what it would convey to the jury upon returning to the

     courtroom. It concluded: “I think if I go in there now and instruct them to disregard as being

     non-responsive, I do more harm than good.” The court asked defense counsel if he agreed with

     that course of action, and counsel replied that he did. After returning to the courtroom, the court

     told the jury only that the attorneys “went into my chambers for a couple of minutes, and that

     issue has been resolved.”


                                                    -3-
¶ 10          The State offered testimony from a number of other officers who confirmed that

       defendant was detained in the vicinity of the Kuhn residence. The evidence established that

       defendant was sweating and out of breath and wearing clothes matching the description provided

       by Richards. A pair of scissors was discovered in defendant’s pocket. A thumbprint subsequently

       retrieved from the removed glass was found to be a match to defendant.

¶ 11          Defendant testified in his own defense. He testified he had been drinking alcohol for most

       of the day. That evening, an acquaintance named Dre told him that a person named Swag had

       “put their hands on” defendant’s former girlfriend. Defendant testified that this angered him,

       explaining: “I have over 20 sisters, sir, and I’m like the only boy, so it’s like putting your hands

       on my sister, and it just made me mad.” Dre then showed defendant where Swag lived. The

       house that Dre identified as Swag’s was actually the Kuhns’ house.

¶ 12          Defendant banged on the back door because he wanted Swag to come out so they could

       fight. When no one answered the door, defendant and Dre walked 10 to 15 minutes back to

       where they had previously been. After drinking more alcohol, defendant, Dre, and a third person

       returned to the house. Defendant denied having a pair of scissors. He eventually cut a screen and

       removed a window pane, both in an attempt to draw Swag outside. Defendant testified that he

       never attempted or intended to enter the house.

¶ 13          The case proceeded to closing arguments following defendant’s testimony. At the

       commencement of its rebuttal argument, the State declared:

                      “Good grief. Ladies and gentlemen, we ask you to do a lot of stuff. We ask you to

                      pay attention. We ask you to listen to the evidence. We asked you to follow the

                      rules. We ask you to be here at a certain time and get stuck in that room. What we

                      don’t ask you is to leave your common sense at the door of that jury room. We



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                      don’t ask you to leave your common sense out here when you go back in there to

                      deliberate. And when you use your common sense and you think about these

                      things, it’s pretty clear how ridiculous this whole Swag story is. And believe me, I

                      could go on and on and on about how ridiculous that is, but that wouldn’t get us

                      anywhere, because I have a feeling that you’ve already come to that conclusion

                      about how ridiculous that is, but the Defendant needs you to believe that story.

                      The State needs to prove this case beyond a reasonable doubt.”

       Defense counsel objected, arguing the State had improperly shifted the burden of proof to

       defendant. The court denied the objection.

¶ 14          The jury found defendant guilty. Defendant filed a motion for new trial in which he cited

       Richards’s testimony and the State’s closing argument as grounds for a new trial. The court

       denied the motion and later sentenced defendant to a term of 11 years’ imprisonment.

¶ 15                                            II. ANALYSIS

¶ 16          On appeal, defendant argues he is entitled to a new trial on two grounds. First, he

       contends that a prosecution witness’s nonresponsive reference to defendant’s Miranda rights

       during cross-examination violated his fifth amendment right to remain silent and Illinois’s

       prohibition on evidence of postarrest silence. Defendant also argues the State’s rebuttal argument

       improperly shifted the burden of proof to defendant. We address each argument in turn.

¶ 17                                        A. Miranda Testimony

¶ 18          In Doyle v. Ohio, 426 U.S. 610, 618 (1976), the United States Supreme Court held that “it

       would be fundamentally unfair and a deprivation of due process to allow the arrested person’s

       silence to be used to impeach an explanation subsequently offered at trial.” In that case, the

       prosecutor had attempted to cast doubt on defendant’s version of events by asking why, if



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       defendant had an innocent explanation for his conduct, he did not immediately relay it to the

       police. Id. at 613-14. The Court reasoned that allowing the State to attack a defendant’s

       testimony on those grounds would be, essentially, to punish defendant for the exercise of his

       right to remain silent. Id. at 618. The Court concluded: “[W]hile it is true that the Miranda

       warnings contain no express assurance that silence will carry no penalty, such assurance is

       implicit to any person who receives the warnings.” Id. The Supreme Court would subsequently

       make clear that the Doyle rule only applied to a defendant’s silence after Miranda warnings had

       been issued. Fletcher v. Weir, 455 U.S. 603, 607 (1982).

¶ 19          Notably, in Illinois, impeachment via evidence of postarrest silence is inadmissible as a

       matter of evidentiary law. People v. Clark, 335 Ill. App. 3d 758, 762 (2002). This doctrine is

       premised upon the notion that “such evidence is neither material nor relevant, having no

       tendency to prove or disprove the charge against a defendant.” People v. McMullin, 138 Ill. App.

       3d 872, 876 (1985). The Illinois rule predates Miranda, and thus applies regardless of the

       delivery of Miranda warnings. Id. (“[I]t 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.”).

¶ 20          The Doyle rule has been applied even where impeachment is not at issue. In People v.

       Herrett, 137 Ill. 2d 195, 213 (1990), during closing argument, the State asked the jury to

       consider why, if defendant was innocent, he did not explain as much to the police upon his arrest.

       Our supreme court held that those improper “remarks invited the jury to view the defendant’s

       post-arrest silence as a tacit admission of guilt,” and thus ran afoul of the fifth amendment and

       the Doyle rule. Id.




                                                     -6-
¶ 21          In the instant case, defense counsel asked Richards, during cross-examination, to explain

       the distance separating the officer and defendant at a certain point in time. As a preface to his

       response, Richards explained that he “leaned in to talk to [defendant] to read him his Miranda

       rights.” Defense counsel truncated the officer’s answer, suspending cross-examination for a

       moment as both parties approached the bench. The court denied defense counsel’s request for a

       mistrial due to the officer’s nonresponsive answer.

¶ 22          Now, on appeal, defendant contends that the mere mention of Miranda runs afoul of

       Doyle and the Illinois rule prohibiting evidence of postarrest silence. He argues:

                      “The Miranda warning testimony undermined [defendant’s] credibility because it

                      led the jury to consider whether [defendant] gave the same explanation to police

                      that he testified to at trial. In the absence of any such evidence, the jury was left to

                      speculate why no post-Miranda explanation statement was made. Absent any

                      explanation, the jury was led to conclude that [defendant] did not give the police

                      the same explanation, did not speak with investigators, and was therefore guilty.”

¶ 23          This argument is unavailing. We are aware of no cases that support defendant’s assertion

       that the mere mention of Miranda warnings is a violation of a defendant’s constitutional rights

       requiring a new trial. The touchstone of the Doyle rule is not the delivery of the Miranda

       warnings or even a defendant’s postarrest or postwarning silence. Rather, that doctrine concerns

       the State’s utilization of such evidence at trial. After all, the Doyle court held explicitly that it

       would be unconstitutional to allow postarrest silence “to be used to impeach an explanation

       subsequently offered at trial.” (Emphasis added.) Doyle, 426 U.S. at 618. The language

       employed by our supreme court in this context is similarly instructive. In Herrett, 137 Ill. 2d at

       213, the court noted that the State’s closing argument “invited the jury to view the defendant’s



                                                       -7-
       post-arrest silence as a tacit admission of guilt.” (Emphasis added.) The same is no less true in

       regard to the Illinois evidentiary rule. McMullin, 138 Ill. App. 3d at 876 (referring to “the silence

       sought to be utilized”).

¶ 24          Significantly, Richards did not complete his answer on cross-examination and the jury

       did not learn whether Richards actually recited the Miranda warnings while leaning into the

       vehicle. Most importantly, there was absolutely no testimony from Richards, nor argument by

       the State, regarding defendant’s silence following the administration of the Miranda warnings.

       Simply put, there was no direct or inferential evidence of defendant’s silence presented to this

       jury for consideration. This element of utilization of defendant’s silence by the prosecution,

       following Miranda or placement under arrest, is absent. Instead, the testimony consisted of a

       single reference to Miranda warnings without a comment on whether the warnings were

       effectuated or whether silence followed defendant’s arrest.

¶ 25          Next, we address defendant’s assertion that the short sidebar with the trial judge in this

       case “highlighted and thus intensified by the subsequent break in testimony.” Defendant claims

       that after the chambers conference the jury may have considered the “seemingly unresolved

       objection.” With respect to the “seemingly unresolved objection,” the record makes quite clear

       that the circuit court considered the appropriate course of action and concluded that addressing

       the Miranda comment any further in front of the jury would only serve to highlight it more.

       Further, it was undoubtedly proper for the objection to be heard outside the presence of the jury.

       It is unclear what other method defendant would suggest. Not only did defense counsel fail to

       request a curative instruction, he affirmatively concurred with the court’s decision to not give

       one.




                                                       -8-
¶ 26          We recognize that a modern jury is likely to have at least a passing familiarity with the

       term “Miranda warnings” from popular media. Based on contemporary culture, the common

       misconception of the public is that Miranda warnings must be immediately recited by the

       arresting officer, in Dragnet fashion, following every arrest. The mere mention of the concept of

       Miranda warnings in this record did not give rise to any inference or otherwise imply defendant

       was silent following the Miranda warnings the officer may have recited and therefore does not

       amount to automatic reversible error, constitutional or otherwise.

¶ 27                                          B. Closing Arguments

¶ 28          Defendant next argues the prosecutor’s closing argument improperly shifted the burden

       of proof from the State to defendant by stating, “[D]efendant needs you to believe that story.”

       The State contends the prosecutor’s comment, when considered in context, was proper and did

       not shift the burden of proof. Alternatively, the State argues that the error, if any, attributable to

       this single statement was harmless.

¶ 29                                          1. Standard of Review

¶ 30          The parties dispute the standard of review. The State relies on the abuse of discretion

       standard used by our supreme court when reviewing the propriety of the State’s closing

       arguments in People v. Simms, 192 Ill. 2d 348, 397 (2000). In contrast, the defense urges this

       court to apply a de novo standard of review pursuant to our supreme court’s decision in People v.

       Wheeler, 226 Ill. 2d 92, 121 (2007). Recognizing our supreme court has applied two different

       standards of review when evaluating closing arguments in criminal cases, other courts have

       observed that the language in Wheeler seems to conflict with past precedent when the court

       scrutinized errors attributed to the prosecutor’s closing argument. People v. Robinson, 391 Ill.

       App. 3d 822, 839-40 (2009); People v. Legore, 2013 IL App (2d) 111038, ¶ 48. We disagree.



                                                       -9-
¶ 31          Respectfully, we conclude that our supreme court has consistently followed a two-step

       process for preserved error when determining (1) whether the prosecutor’s closing argument was

       improper and (2) whether the improper commentary by the State unfairly prejudiced defendant’s

       right to have a fair trial. This two-step analysis begins by first using an abuse of discretion

       standard determining whether prosecutorial error is present in the record. This standard gives

       deference to the trial court’s ruling. An example of the first step of a closing argument analysis

       can be seen in People v. Blue, 189 Ill. 2d 99 (2000). In Blue, the court observed that “ ‘the trial

       court’s determination of the propriety of the remarks will not be disturbed absent a clear abuse of

       discretion.’ ” Id. at 128 (quoting People v. Byron, 164 Ill. 2d 279, 295 (1995)); see also Simms,

       192 Ill. 2d at 397. If prosecutorial error is present in the State’s summation, the reviewing court

       moves on to the second step of the analysis.

¶ 32          The second step of a closing argument analysis applies a de novo standard of review to

       decide whether the prosecutorial error contained in the closing arguments created substantial

       prejudice to defendant, rendering defendant’s trial unfair. An example of this second step of the

       analysis can be seen in Wheeler, 226 Ill. 2d at 121. In Wheeler, the court observed that:

       “Whether statements made by a prosecutor at closing argument were so egregious that they

       warrant a new trial is a legal issue this court reviews de novo.” (Emphasis added.) Id.

¶ 33          A brief summary of the unique record in Wheeler may be helpful at this juncture. In

       Wheeler, defense counsel made multiple objections during the State’s closing arguments. On

       appeal, Wheeler identified 27 prosecutorial errors in the State’s closing argument. Id. at 109-13.

       Some, but not all, of the defense’s objections were sustained by the circuit court. Id. Some, but

       not all, of the overruled defense’s objections were preserved for review.




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¶ 34          In Wheeler, our supreme court carefully emphasized that it would only consider

       preserved errors when deciding whether prejudice arose from the prosecutor’s summation. Id. at

       122. Similarly, in the case at bar, we are considering preserved error alone.

¶ 35          In Wheeler, the appellate prosecutor was confronted with a pattern of prosecutorial

       conduct that would be difficult to defend. Consequently, the appellate prosecutor did not defend

       the State’s closing argument as proper, unlike this appeal. The appellate prosecutor in Wheeler

       argued “that the portions of the prosecutor’s closing argument that were preserved for review,

       even if viewed as improper, were not so egregious that they created an unfair trial or were a

       material factor in the verdict.” (Emphasis added.) Id. at 127. In other words, the appellate

       prosecutor asked the supreme court to find that the preserved errors attributable to improper

       summation by the State were harmless and did not detract from the fairness of the trial. The first

       step of the closing argument became a mere formality because the State adopted a view based on

       presumptive prosecutorial misconduct that existed in the record.

¶ 36          Due to this approach by the appellate prosecutor in Wheeler, our supreme court had no

       reason to dwell on the first step in the two-step analysis. We also note that in Wheeler, the trial

       court sustained some, but not all, of the defense’s objections to the prosecutor’s closing remarks,

       thereby deciding some of the remarks were improper.

¶ 37          Therefore, unlike the case at bar, the Wheeler court necessarily focused almost

       exclusively on the second step, namely, the determination of substantial prejudice. This focus on

       the second step of the analysis, the question of prejudice, is clearly reflected in the following

       statement by the Wheeler court regarding the standard of review: “Whether statements made by a

       prosecutor at closing argument were so egregious that they warrant a new trial is a legal issue

       this court reviews de novo.” (Emphasis added.) Id. at 121.



                                                      - 11 -
¶ 38          Simply stated, the purported conflict in our supreme court’s approach to the standard of

       review in Wheeler, Blue, and Simms seems unfounded. Instead, Wheeler involved a different

       standard of review because Wheeler addressed the second step of a closing argument analysis,

       while Blue and Simms addressed the first step of a two-step analysis. In People v. Cook, 2018 IL

       App (1st) 142134, at least one reviewing court reached the same conclusion that we reach today.

       In Cook, the court stated,

              “Whereas a reviewing court applies an abuse of discretion analysis to determinations

              about the propriety of a prosecutor’s remarks during argument [citations], a court reviews

              de novo the legal issue of whether a prosecutor’s misconduct, like improper remarks

              during argument, was so egregious that it warrants a new trial [citation]. Our supreme

              court has not created any conflict about the appropriate standard of review to be applied

              to these two different issues.” Id. ¶ 64.

       We mirror the conclusion of the court in Cook. Our supreme court has not created any conflict

       regarding the appropriate standard of review in the two-step analysis involved in reviewing

       preserved error in the State’s closing arguments.

¶ 39          Accordingly, in this case we will first apply an abuse of discretion standard, as suggested

       by the State in this appeal, when determining whether a singular statement in the prosecutor’s

       closing argument was proper or improper.

¶ 40                           2. First Step—Propriety of Prosecutor’s Remarks

¶ 41          On appeal, defendant challenges the court’s decision to overrule defense counsel’s

       objection to the following statement by the prosecutor: “[T]he Defendant needs you to believe

       that story.” The State maintains that our court must consider the comment in full context. The




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       claims the State’s comment should be viewed as a couplet: “Defendant needs you to believe that

       story. The State needs to prove this case beyond a reasonable doubt.”

¶ 42             Obviously, the propriety of these two sentences in the State’s closing argument turns on

       the emphasis of the prosecutor’s voice when articulating the word “needs” in each sentence.

       Moreover, the context of the first statement may also depend on how quickly the second

       statement followed and reminded the jury of the State’s high burden of proof.

¶ 43             By overruling defendant’s objection to this singular isolated comment, the trial court

       found the State’s summation did not shift the burden of proof and was proper argument. It is well

       established that the trial court is in the best position to evaluate the propriety of closing

       arguments in the context of a particular trial. See People v. Hudson, 157 Ill. 2d 401, 441 (1993).

       Granting deference to the circuit court’s first-person observations, we conclude that the trial

       court’s decision to overrule the defense objection was not arbitrary, fanciful, or unreasonable.

       See People v. Donoho, 204 Ill. 2d 159, 182 (2003) (defining abuse of discretion standard).

¶ 44             Since we have concluded the prosecutor’s statement at issue did not constitute error, the

       second step, de novo review, is not required because the prosecutor’s closing argument was

       proper.

¶ 45                                            III. CONCLUSION

¶ 46             The judgment of the circuit court of Peoria County is affirmed.

¶ 47             Affirmed.




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