                            ILLINOIS OFFICIAL REPORTS
                                          Appellate Court




                           People v. Quinonez, 2011 IL App (1st) 092333




Appellate Court             THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v.
Caption                     DENY QUINONEZ, Defendant-Appellee.



District & No.              First District, Fifth Division
                            Docket No. 1-09-2333


Filed                       September 2, 2011
Rehearing denied            December 22, 2011
Held                        Defendant’s conviction for unlawful possession of cocaine was reversed
(Note: This syllabus        and the cause was remanded for a new trial where the State improperly
constitutes no part of      cross-examined him about his postarrest silence by asking him about his
the opinion of the court    failure to tell the police that a man who was standing near him at the time
but has been prepared       attempted to put drugs in defendant’s hand and in his pocket, especially
by the Reporter of          when defendant’s explanation of the presence of the cocaine the police
Decisions for the           seized was intrinsic to his defense and the error was compounded by the
convenience of the          comments made in the State’s closing argument.
reader.)


Decision Under              Appeal from the Circuit Court of Cook County, No. 07-CR-2767; the
Review                      Hon. John T. Doody, Jr., Judge, presiding.



Judgment                    Reversed and remanded.
Counsel on                 Michael J. Pelletier, Alan D. Goldberg, and Brian E. Koch, all of State
Appeal                     Appellate Defender’s Office, of Chicago, for appellant.

                           Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, Rimas
                           F. Cernius, and Michele I. Lavin, Assistant State’s Attorneys, of counsel),
                           for the People.


Panel                      JUSTICE J. GORDON delivered the judgment of the court, with opinion.
                           Justices Howse and Epstein concurred in the judgment and opinion.




                                            OPINION

¶1          Following a jury trial, defendant Deny Quinonez was found guilty of possession of less
        than 15 grams of cocaine and sentenced to 30 months of probation. On appeal, defendant
        contends that his conviction should be reversed and his cause remanded for a new trial
        because the State improperly cross-examined defendant about his postarrest silence, and
        because the trial court failed to strictly comply with the admonition requirement of Illinois
        Supreme Court Rule 431(b) (eff. May 1, 2007). For the reasons discussed below, we reverse
        and remand.

¶2                                         BACKGROUND
¶3          Defendant was charged with possession of more than 1 but less than 15 grams of cocaine
        with intent to deliver in connection with an incident which took place on December 14, 2006,
        on the north side of Chicago. Defendant filed a motion to quash his arrest and suppress
        evidence, which the trial court denied and his case proceeded to a jury trial.
¶4          As voir dire began, the trial judge addressed the entire venire and explained the
        following:
                “[Defendant], as is the case with all persons charged with crimes, is presumed to be
            innocent of the charge that brings him here before you. This presumption is with him
            now at the beginning of the trial and remains with him throughout the course of the trial
            and into your deliberations unless and until you individually and collectively are
            convinced beyond a reasonable doubt that the Defendant is guilty. It is absolutely
            essential as this jury is selected that each of you understand and embrace these
            fundamental principles, that is that all persons charged with a crime are presumed to be
            innocent and that it is the burden of the State, who brought this charge, to prove the
            Defendant guilty beyond a reasonable doubt.
                The Defendant has no obligation to testify in his own behalf or to present any

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         evidence in his defense. The fact that the Defendant does not testify must not be
         considered buy [sic] you in any way in arriving at your verdict. However, should the
         Defendant elect to testify or present evidence in his behalf, you are to consider that
         evidence in the same manner and by the same standards as evidence presented by the
         State. There is no burden upon the Defendant to prove his innocence. It is the State’s
         burden to prove the Defendant guilty beyond a reasonable doubt.”
¶5       After the venire was sworn in, the judge asked the first panel of 28 prospective jurors the
     following questions:
             “A Defendant in a criminal case is presumed to be innocent until a jury determines
         after deliberation that the Defendant is guilty beyond a reasonable doubt. Does anyone
         have a problem with this rule of law?
             The State has the burden of proving the Defendant guilty beyond a reasonable doubt.
         Does anyone disagree with this rule of law?
             A Defendant does not have to present any evidence at all and may rely upon the
         presumption of innocence. Does anyone disagree with this rule of law?
             A Defendant does not have to testify. Would anyone hold the fact that a Defendant
         did not testify at trial against the Defendant?”
¶6       None of the 28 prospective jurors answered affirmatively to any of those questions. Eight
     jurors were chosen from that first panel. The trial court then called 22 other prospective
     jurors and asked them those very same questions. Again, none of the prospective jurors from
     the second panel answered affirmatively to any of those questions, and the remaining jurors
     were selected from that panel. After the jury was selected, the court heard motions in limine
     and the State then began its case-in-chief.
¶7       The State first called Chicago police officer David Phelan, who testified that at about 9
     p.m. in the evening in question, he was on patrol with his partner, Officer Pearson. The
     officers were driving south on Sheffield Avenue and turned right onto School Street, when
     they drove past defendant and another man arguing near the intersection of the two streets.
¶8       The officers exited the vehicle in an area well-lit by streetlights, and as Officer Phelan
     approached defendant and the other man, he observed defendant, who was three to five feet
     away from the officer, drop a clear plastic bag on the ground. According to the officer,
     defendant dropped the bag between himself and Officer Phelan, who immediately recovered
     the bag and found that it contained six smaller plastic bags with suspected cocaine inside.
     Officer Phelan stated that after he recovered the bag, he “immediately placed [defendant] in
     custody,” and after performing a custodial search, the officer found in defendant’s jacket
     pocket another plastic bag, which contained seven smaller clear plastic bags of suspected
     cocaine. After defendant was arrested, the officers transported him to the police station,
     where Officer Phelan inventoried the items recovered from defendant.
¶9       On cross-examination, defense counsel asked Officer Phelan at what time “this alleged
     occurrence” happened, which the officer replied that it was 8:55 p.m. When asked at what
     time he placed defendant under arrest, the officer replied that it also happened at 8:55 p.m.
     The officer then acknowledged that the arrest was “pretty immediate.” Officer Phelan did not
     see the other man on the scene drop anything, nor did he recover anything from that man.

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¶ 10       The State then called Officer Pearson, who testified that he conducted a pat-down search
       of the man who had been arguing with defendant but did not recover anything from him.
       Officer Pearson was not asked on direct examination whether he observed defendant drop
       anything or whether he saw Officer Phelan recover a bag from defendant’s jacket. However,
       although he was not cross-examined with regard to his knowledge of the origin of the plastic
       bags, the officer attested that he recognized the two bags, for which he generated reports, as
       the bag recovered from the ground and the bag recovered from defendant’s jacket.
¶ 11       Next, the State called David Boler, a forensic scientist for the Illinois State Police crime
       laboratory, who testified that the substance contained in the plastic bags that were recovered
       from the ground and from defendant’s jacket tested positive for cocaine. After the State
       rested, the defense made a motion for directed verdict, which the trial court denied.
¶ 12       Defendant testified on his own behalf. He stated that in the evening in question, he had
       plans to meet with his landlady at a restaurant near Clark and Sheffield. When he arrived,
       defendant realized that he did not have his wallet, so he left the restaurant to get his wallet
       from his car, which was parked on Sheffield Avenue.
¶ 13       Defendant stated that as he walked down Sheffield, he was approached by a strange man,
       whom he described as African-American, in his thirties, dirty and disheveled. According to
       defendant, that man initially asked him for spare change, and after defendant told him that
       he did not have any, the man grabbed defendant’s arm and kept walking alongside him.
       Defendant testified that he turned left on School Street, which was not where he had parked
       his car, because he did not want that man to know where his car was parked. After defendant
       reached the elevated tracks above School Street, he turned around and began walking toward
       Sheffield. According to defendant, the man was touching defendant’s jacket. Defendant
       stated that he did not push or yell at the man or call out for help because he did not feel
       threatened by the man, who was only bothering him. Defendant denied that he and the man
       were arguing at any point.
¶ 14       As defendant approached the intersection of Sheffield and School Street, he heard a car
       screeching, then saw an unmarked car parked next to him. Defendant stated that there were
       no lights above the area where he was standing. Two police officers exited the car and
       approached defendant and the other man with flashlights. One of the officers grabbed the
       other man and took him to the trunk of the car, while the other officer grabbed defendant and
       placed him by a fence. Defendant testified that the officers handcuffed both men, and he
       denied that he either dropped a bag on the ground or that he had the seven plastic bags of
       cocaine in his pocket. According to defendant, the incident involving the police officers
       happened fast and they put defendant in a police car within 10 seconds of handcuffing him.
¶ 15       On cross-examination, defendant acknowledged that he had previously testified, at a
       hearing on his motion to quash his arrest and suppress evidence, that the man who followed
       him had also tried to sell him drugs. Defendant then explained that he did not know whether
       the man was trying to sell him drugs, but he stated that the man told him “I have something
       good for you,” and “I got a good deal.” Defendant further stated that he did not know
       whether the man had gone into his pockets or put anything in his jacket while he walked
       alongside defendant. He acknowledged that at the hearing, he had testified that the man had


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       been trying to put bags with some kind of substance into defendant’s hands and pockets
       while the man followed defendant. Defendant explained, however, that at the time of trial,
       he could no longer recall whether the man had, in fact, tried to put bags in his hands and
       pockets. When asked about the point in time when the man tried to put something in his
       pocket, defendant stated that he tried it twice, once on Sheffield and once on School Street,
       but defendant could not feel whether he actually had managed to put anything in his jacket
       pocket. Additionally, defendant stated that the man put some kind of package in defendant’s
       hand, and defendant gave it back to him.
¶ 16       Continuing to cross-examine, the State asked defendant, “At the point the police arrive
       on the scene and they stop you and they stop this individual, this strange man, you don’t tell
       the police what just happened to you from the time you got out of the restaurant until they
       got on the scene, do you?” Defendant answered “no.” Defense counsel objected to the State’s
       question on the grounds that it was “post-arrest,” and the trial court overruled the objection.
       The State then asked defendant, “The police get on the scene, you’ve encountered a strange
       man, you say the strange man is putting a chunky substance in your hand and in your pocket,
       you don’t tell them, do you?” Defendant again answered “no.” Defense counsel objected
       again and asked for a sidebar. The trial court sustained the objection “as to what [the State]
       just asked, the chunky substance,” and denied the sidebar. The State then asked defendant,
       again, whether he told the police that the man had put something in his hand or pocket,
       which defendant, again, answered negatively. Defendant acknowledged that the police
       officers recovered a package from the right outer pocket of his jacket, but he stated that he
       did not know what it was.
¶ 17       Sylvia Szafran, defendant’s landlady, corroborated defendant’s testimony. Szafran
       testified that she followed defendant after he left the restaurant, and when she was about 40
       feet behind defendant, she saw a man grab him under his arm and walk with him. She stated
       that defendant tried to release himself from the other man, who continued to hold him. On
       direct examination, Szafran stated that she did not call 911 because she did not think that
       defendant was in any danger, but she further testified that she did not call out to defendant
       because she was “terrified” and did not know what to do. She later stated, on cross-
       examination, that she had heard a rumor that defendant “likes boys,” and she continued to
       follow defendant to find out if that man was his date.
¶ 18       Szafran further stated that when defendant turned left onto School Street, she stopped at
       the corner across the street from the two men. She then saw a car drive up to defendant and
       the other man and saw a police officer grab defendant while the other grabbed the other man.
       According to Szafran, the officers let the other man go a few minutes later, while defendant
       was handcuffed and placed in a car. She later testified, on cross-examination, that she did not
       know that defendant was arrested until two or three o’clock the next morning.
¶ 19       Further, Szafran testified that she did not see defendant or the other man drop anything.
       She further noted that she could observe the incident from her vantage point because there
       was a light at the corner. Szafran stated, on cross-examination, that she never went up to the
       police officers to tell them what she saw the other man do because it happened quickly, and
       she thought that “maybe it was dating.” Additionally, Szafran acknowledged that she did not
       go to the police station to tell them what happened.

                                                -5-
¶ 20       During the State’s rebuttal at closing arguments, the State noted:
               “Officers came into contact with an individual. They stopped the individual, ladies
           and gentlemen. They stopped the individual along with the defendant.
               Perfect timing to tell someone that someone planted something in my jacket. Perfect
           timing to tell the officers, who serve and protect, hey, this guy’s been harassing me, this
           guy’s been pestering me, this guy’s planting drugs on me. ***
               None of that was done when the officers had the second individual there. Why?
           Because the second individual didn’t do that. He didn’t plant drugs on the defendant.”
¶ 21       The jury subsequently found the defendant guilty of the lesser included offense of
       possession of a controlled substance, less than 15 grams of cocaine. On March 4, 2009,
       defendant filed a posttrial motion in which defendant claimed, inter alia, that he was denied
       due process and equal protection of the laws. On May 20, 2009, he filed a supplemental
       motion for a new trial in which he argued, inter alia, that his constitutional right against self-
       incrimination was violated when the State was allowed to ask defendant, at trial, whether he
       told the police that the other man at the scene had tried to put drugs in defendant’s hand and
       pockets. The trial court denied the motion and ruled that the State’s questions at trial referred
       to defendant’s actions prior to his arrest and were, therefore, proper. The trial court then
       sentenced defendant to 30 months of probation.

¶ 22                                          ANALYSIS
¶ 23                    A. The State’s Use of Defendant’s Postarrest Silence
¶ 24       On appeal from the trial court’s judgment, defendant first contends that his conviction
       should be reversed and his cause remanded for a new trial because the State improperly
       cross-examined him about his postarrest silence by asking him whether he told the police
       officers that the man standing near him had tried to put drugs in his hand and pocket. He
       further maintains that the error was not harmless because the State’s improper impeachment
       of defendant with his postarrest silence undermined his credibility where the outcome of the
       case depended on whether the jury believed defendant’s testimony or that of the officers who
       testified for the State. Additionally, defendant contends that the prejudice resulting from that
       error was compounded when the State referred to defendant’s postarrest silence during
       closing arguments.
¶ 25       We initially note, and the parties agree, that the federal constitution does not purport to
       prohibit the use of pre-Miranda silence, including silence following a defendant’s arrest but
       before receiving Miranda warnings. Admittedly, the United States Supreme Court held in
       Doyle v. Ohio, 426 U.S. 610, 617-20 (1976), that it was a violation of the due process clause
       of the fourteenth amendment for the State to impeach a defendant using evidence that
       defendant was silent following his arrest, after he was advised of his Miranda rights. The
       Court reasoned that since the Miranda warnings carry the implicit assurance that his silence
       will carry no penalty, it would be fundamentally unfair to allow a defendant’s post-Miranda
       silence to impeach his trial testimony. Doyle, 426 U.S. at 612, 618. However, the Supreme
       Court later held that the prohibition applies only to a defendant’s silence after being advised
       of his Miranda rights. Fletcher v. Weir, 455 U.S. 603, 607 (1982) (per curiam). In doing so,

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       it found that states were free to formulate their own rules with respect to defendant’s silence
       before arrest (Jenkins v. Anderson, 447 U.S. 231, 238 (1980)), as well as after arrest but
       before receiving Miranda warnings (Fletcher, 455 U.S. at 607).
¶ 26        In this case, since there is no evidence in the record that defendant received his Miranda
       warnings during the incident in question, both parties agree that federal constitutional law
       prohibiting the State from impeaching defendant by referring to his silence after the police
       officers arrived is not invoked. However, that is not dispositive of defendant’s argument
       because, apart from any constitutional concerns, Illinois evidence law prohibits impeachment
       of a criminal “defendant with his or her postarrest silence, regardless of whether the silence
       occurred before or after the defendant was given Miranda warnings.” People v. Clark, 335
       Ill. App. 3d 758, 762-63, 781 N.E.2d 1126, 1129-30 (2002). The Illinois principle that
       prohibits impeachment of a defendant with his postarrest, pre-Miranda silence is based on
       our supreme court’s decisions in People v. Lewerenz, 24 Ill. 2d 295, 299, 181 N.E.2d 99, 103
       (1962), and People v. Rothe, 358 Ill. 52, 57, 192 N.E. 777, 779 (1934). See, e.g., Clark, 335
       Ill. App. 3d at 763, 781 N.E.2d at 1129. Our supreme court held that “an accused is within
       his rights when he refuses to make a statement [at the time of his arrest], and the fact that he
       exercised such right has no tendency to prove or disprove the charge against him, thus
       making evidence of his refusal neither material or relevant to the issue being tried.”
       Lewerenz, 24 Ill. 2d at 299, 181 N.E.2d at 101 (citing Rothe, 358 Ill. at 57, 192 N.E. at 779).
       Since both decisions predate Miranda v. Arizona, 384 U.S. 436 (1966), the prohibition which
       they set forth under Illinois evidence law does not depend on whether defendant’s postarrest
       silence occurred before or after he was advised of his Miranda rights. Clark, 335 Ill. App.
       3d at 762-63, 781 N.E.2d at 1129 (quoting People v. McMullin, 138 Ill. App. 3d 872, 876-77,
       486 N.E.2d 412, 415 (1985)). The language of relevancy and materiality utilized by our
       supreme court in Lewerenz and Rothe indicates that the Illinois rule which prohibits
       impeachment with defendant’s postarrest silence is based on evidentiary principles, rather
       than constitutional law. Id. Therefore, the rule is unaltered by federal constitutional cases
       which found that the use of a defendant’s postarrest, pre-Miranda silence does not violate
       due process. Id.; see Fletcher, 455 U.S. at 607; see also People v. Homes, 274 Ill. App. 3d
       612, 619-20, 654 N.E.2d 662, 668-69 (1995) (acknowledging where the State introduces
       evidence of a defendant’s postarrest, pre-Miranda silence is not a constitutional violation,
       but it is prohibited by the Illinois rule); cf. People v. Givens, 135 Ill. App. 3d 810, 823-24,
       482 N.E.2d 211, 220-21 (1985) (finding that the use of a defendant’s postarrest, pre-Miranda
       silence does not violate due process, but not addressing the issue of whether it violates any
       other evidentiary principles).
¶ 27        Thus, the Illinois evidentiary rule generally prohibits impeachment of a criminal
       defendant with his postarrest silence, regardless of whether it occurred before or after he was
       given Miranda warnings, because under those circumstances, that silence is not considered
       relevant or material. Clark, 335 Ill. App. 3d at 763, 781 N.E.2d at 1129. However, courts
       have held that there are two exceptions to the general rule, where that postarrest silence will
       be considered relevant. McMullin, 138 Ill. App. 3d at 877, 486 N.E.2d at 416. Pursuant to
       those exceptions, a defendant’s postarrest silence may be used to impeach his trial testimony:
       (1) when defendant testifies at trial that he made an exculpatory statement to the police at the

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       time of his arrest; and (2) when he makes a postarrest statement that is inconsistent with his
       exculpatory trial testimony. People v. Simmons, 293 Ill. App. 3d 806, 811, 689 N.E.2d 418,
       422 (1998); see also McMullin, 138 Ill. App. 3d at 877, 486 N.E.2d at 416. However, in
       contrast to a defendant’s postarrest silence, his silence prior to arrest may properly be used
       by the State to impeach his trial testimony under Illinois law. People v. Graves, 142 Ill. App.
       3d 885, 889-90, 492 N.E.2d 517, 521 (1986).
¶ 28        Here, defendant argues that when the State questioned him at trial as to whether he told
       the police officers about the other man’s actions, thus referred to the period after his arrest
       because the officers arrested defendant almost immediately after they arrived on the scene.
       Thus, defendant contends that the State attempted to use his postarrest silence,
       notwithstanding the evidentiary prohibition against such use, as enunciated in Lewerenz and
       Rothe. Defendant further contends that the State’s questions do not fall within either of the
       exceptions to the prohibition against the use of his postarrest silence for impeachment
       because there is no evidence that defendant made any statements to the police at the time of
       his arrest that were inconsistent with his trial testimony, and because defendant did not testify
       that he made an exculpatory statement to the police when they arrested him.
¶ 29        The State responds that its questions did not violate the prohibition because they referred
       to defendant’s silence prior to his arrest. According to the State, its questions referred only
       to defendant’s failure to flag the police for help before the officers stopped and to ask them
       for help once they approached defendant and the other man on the street. Alternatively, the
       State contends that even if its questions referred to defendant’s postarrest silence, they would
       fall under an exception to the evidentiary rule because, contrary to defendant’s assertion, his
       silence at the time of his arrest is manifestly inconsistent to defendant’s testimony at trial,
       because if that man had, in fact, been harassing defendant, he would have told that to the
       officers when they arrived at the scene. In a related argument, the State contends that its
       questions and comments did not refer to defendant’s silence, but only to his actions in failing
       to ask the police for help under circumstances where a reasonable person would have asked
       for assistance.
¶ 30        We first address the issue of whether the State’s questions referred to defendant’s
       postarrest silence or merely his silence prior to arrest. This court has held that, for the
       purposes of the constitutional prohibition against introduction of a defendant’s postarrest,
       post-Miranda silence, a defendant is deemed arrested when he is restrained by police officers
       and placed in a squad car. People v. Adams, 102 Ill. App. 3d 1129, 1132, 430 N.E.2d 267,
       271 (1981). In that case, the court found that although defendant was not formally charged
       with a crime until later that night at the police station, the prohibition became operative when
       defendant was restrained at the scene, placed in a squad car and advised of her Miranda
       rights. Adams, 102 Ill. App. 3d at 1132, 430 N.E.2d at 271 (citing People v. Creach, 79 Ill.
       2d 96, 100-01, 402 N.E.2d 228, 230 (1980), and People v. Wipfler, 68 Ill. 2d 158, 166, 368
       N.E.2d 870, 873 (1977)). In doing so, the court relied on Creach, in which our supreme court
       found that the defendant was effectively arrested when an officer frisked him and told him
       that he would have to go to the police station, where, according to the officer’s own
       testimony, he took defendant into custody in that encounter and he was not free to leave.
       Creach, 79 Ill. 2d at 100-01, 402 N.E.2d at 230; see also Simmons, 293 Ill. App. 3d at 808-

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       12, 689 N.E.2d at 420-23 (finding that the State referred to defendant’s postarrest silence
       when the prosecutor asked defendant whether he denied owning the gun found in his seat
       after he was pulled out of the vehicle and handcuffed); cf. Graves, 142 Ill. App. 3d at 888-90,
       492 N.E.2d at 520-21 (finding that the State’s questions properly referred only to defendant’s
       prearrest silence where the prosecutor asked whether he contacted the police to tell them
       about his exercise of self-defense three to four days before he surrendered himself to the
       police).
¶ 31       In this case, as previously noted, the State specifically asked defendant on cross-
       examination, “At the point the police arrive on scene and they stop you and they stop this
       individual, *** you don’t tell the police what just happened to you from the time you got out
       of the restaurant until they got on the scene, do you?” (Emphasis added.) Defendant
       answered that he did not, and the State then asked, “The police get on the scene, you’ve
       encountered a strange man, you say the strange man is putting a chunky substance in your
       hand and in your pocket, you don’t tell them, do you?” Defendant, again, answered that he
       did not, and the State, again, asked defendant whether he told the officers that the man had
       put something in his pocket, which defendant again said that he did not.
¶ 32       Additionally, Officer Phelan’s testimony indicates that he was still approaching
       defendant from no more than five feet away when defendant dropped a bag, which the officer
       immediately recovered. Further, the officer stated that he saw that the bag contained smaller
       bags of suspected cocaine, and he “immediately placed [defendant] in custody.” According
       to the officer, both the “occurrence” and defendant’s arrest took place at 8:55 p.m. that
       evening, and he acknowledged that the arrest was “pretty immediate.” Thus, Officer Phelan’s
       testimony indicates that when he put defendant on the fence and handcuffed him, he was, in
       fact, arresting him (Adams, 102 Ill. App. 3d at 1132, 430 N.E.2d at 271) and that such arrest
       was the only time he “stopped” defendant. Further, defendant testified that after the officers
       exited their car, one of them grabbed defendant, put him against a fence and handcuffed him.
       He stated that once the officers came up to him, everything happened fast. Consequently,
       defendant’s testimony appears to indicate that his arrest was instantaneous in that there was
       no delay between the time he was stopped and the time he was arrested. Defendant stated that
       when he was first approached by an officer, he was almost immediately placed on the fence
       and handcuffed, which, according to Officer Phelan, was an arrest. Therefore, when the State
       asked defendant about what he told the officers when they “stopped” him, it appears to refer
       to the point in time when Officer Phelan put defendant on the fence and handcuffed him,
       effectively arresting him. Even if there was a short period between the time the officers first
       exited the car and approached defendant and the time Officer Phelan stopped him, the State’s
       question appears to refer specifically to defendant’s silence after he was stopped, which,
       according to the officer’s testimony, was the time of his arrest.
¶ 33       Furthermore, none of the State’s questions with regard to whether defendant informed
       the police officers that the other man had been harassing him were limited in their scope
       solely to the short interval between the time the officers arrived and the time that they
       stopped defendant. Since the testimony of both Officer Phelan and defendant indicates that
       the arrest occurred almost immediately after the officers arrived on the scene, we conclude
       that those questions were made in reference to defendant’s silence after his arrest.

                                                -9-
       Accordingly, the State’s questions and comment on rebuttal did, in fact, pertain to his
       postarrest silence and were, therefore, improper.
¶ 34        We now turn to the State’s contention that those questions were proper because they fall
       within one of the two exceptions referred to earlier, under which postarrest silence would be
       admissible, namely: (1) where defendant falsely testifies at trial that he made the same
       exculpatory statement to the police at the time of his arrest; and (2) where he makes a
       postarrest, pretrial statement that is manifestly inconsistent with his trial testimony. The State
       contends that defendant’s failure to tell the police officers what the other man had done falls
       within the second exception, in that his silence was inconsistent with his exculpatory
       testimony at trial. In that regard, we also address the State’s related contention in which it
       characterizes defendant’s failure to ask for help as an act, instead of silence, and argues that
       since its questions and comments refer only to defendant’s actions, the prohibition against
       the use of postarrest silence is inapplicable. The State maintains, in support of both
       arguments, that if the other man had, in fact, been harassing defendant and trying to put
       objects in defendant’s hand and pocket, defendant would have asked the police for help. Both
       contentions lack merit.
¶ 35        As noted above, the Illinois evidentiary rule allows the State to use a defendant’s
       postarrest failure to tell police his exculpatory story when the defendant makes statements
       after arrest that are manifestly inconsistent with his trial testimony. McMullin, 138 Ill. App.
       3d at 877, 486 N.E.2d at 416. Accordingly, where a defendant makes no statements to the
       police before trial, there is no such manifest inconsistency between his trial testimony and
       any statements made before trial. People v. Moody, 199 Ill. App. 3d 455, 465, 557 N.E.2d
       335, 342 (1990). In Moody, 199 Ill. App. 3d at 465, 557 N.E.2d at 342, where defendant
       refused to answer any of the police officer’s questions, and testified for the first time at trial
       that a third party had threatened the victim’s life, the court held that the State improperly
       commented on his postarrest silence because it had no statements “ ‘manifestly
       inconsistent’ ” with defendant’s exculpatory testimony that could be used for impeachment.
¶ 36        Similarly, in Homes, 274 Ill. App. 3d at 616-20, 654 N.E.2d at 666-69, defendant’s
       juvenile brother was silent during a police interrogation after his own arrest and later testified
       at trial that it was him, and not defendant, who committed the shooting in question. The court
       held that his silence was not sufficiently inconsistent with his trial testimony to fall within
       the exception to the evidentiary rule against the use of postarrest silence for impeachment.
       Homes, 274 Ill. App. 3d at 620-21, 654 N.E.2d at 668-69. In doing so, the court noted that
       the silence of an accused after arrest is so ambiguous that it lacks the requisite inconsistency
       with his exculpatory trial testimony, and there were many reasons why defendant’s brother
       would not tell the police that defendant was not involved in the crime, such as reliance on
       his constitutional privileges. Id. The court further noted that while it is appropriate for the
       State to cross-examine a defendant’s alibi witnesses, who were not themselves arrested, with
       regard to their failure to come forward before trial, that principle does not apply to the use
       of a witness’s postarrest silence for impeachment. Id. at 620. Thus, unlike a defendant’s
       postarrest statements, his failure to speak after arrest, whether it is characterized as silence
       or as a failure to act, is not sufficiently inconsistent with that defendant’s exculpatory
       testimony to be properly used for his impeachment.

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¶ 37       In this case, as in Moody, there is nothing in the record to indicate, nor do the parties
       contend, that defendant made any statements to the police officers at any time before trial,
       and the State merely contends that defendant’s failure to ask for help is, in and of itself,
       inconsistent with his trial testimony. However, defendant testified that he did not ask for help
       because he did not feel threatened by the other man, that he did not know whether the man
       had managed to put anything in his pocket, and that when Officer Phelan took something
       from defendant’s pocket, defendant did not know what that was. Therefore, whether
       defendant’s failure to ask the officers for help is characterized as silence or failure to act, as
       in Homes, it is too ambiguous to be properly used against him for impeachment purposes.
       Similarly to the defendant in Homes, there were several reasons why defendant in this case
       would choose not to ask the police for help, including possible reliance on his constitutional
       rights. In addition, since defendant did not make any statements to the police at the time of
       his arrest, there were no manifestly inconsistent pretrial statements that the State could have
       properly used for impeachment purposes. Additionally, with respect to the attempt to
       impeach defendant’s failure to ask for help, we note that since nothing indicates that
       defendant testified at trial that at the time of his arrest, he told the police officers that the man
       had tried to put something in his hand and jacket, we conclude that the State’s questions do
       not fall under any exception to the Illinois rule and were, therefore, improper.
¶ 38       The State’s attempt to distinguish this case from Homes, 274 Ill. App. 3d at 616-20, 654
       N.E.2d at 666-69, is misplaced. Admittedly, the statement that the witness in Homes failed
       to give the police after his own arrest would have exculpated that witness’s brother and not
       himself, while defendant in this case failed to tell the police facts that would have exculpated
       his own crime, namely, why there was a bag of cocaine in his pocket. However, if anything,
       as shall be postulated in our discussion of Conley, that distinction would have indicated a
       more relaxed rule in Homes, where the witness was a third party, while in this case the
       witness was defendant himself. Consequently, the prohibition against postarrest silence
       proffered in Homes would, a fortiori, be applicable here.
¶ 39       Furthermore, the State’s reliance on People v. Conley, 187 Ill. App. 3d 234, 244, 543
       N.E.2d 138, 145 (1989), also lacks merit. In that case, where the court held that a witness’s
       failure to speak is admissible to discredit his testimony under circumstances where a
       reasonable person would have spoken up, the witnesses in question were not themselves
       criminal defendants. Conley, 187 Ill. App. 3d at 238, 543 N.E.2d at 140-41. In contrast,
       defendant in this case was impeached with his silence after his own arrest, and the principle
       that applies to the impeachment of other witnesses with their failure to speak is inapplicable
       to a defendant’s postarrest silence. Homes, 274 Ill. App. 3d at 620, 654 N.E.2d at 668-69;
       see also People v. Long, 316 Ill. App. 3d 919, 930-31, 738 N.E.2d 216, 224 (2000) (in the
       context of post-Miranda silence, the principle that allows the impeachment of witnesses with
       their failure to speak does not apply to criminal defendants).
¶ 40       We recognize that although the State’s questions and remarks made during rebuttal were
       improper, the judgment will not be reversed if the error was harmless, namely, it did not
       cause prejudice to defendant. People v. Johnson, 208 Ill. 2d 53, 115, 803 N.E.2d 405, 440-41
       (2003). Thus, defendant’s conviction may be affirmed if the reviewing court determines, after
       examining the record, that the error was harmless beyond a reasonable doubt. People v.

                                                  -11-
       Arman, 131 Ill. 2d 115, 127, 545 N.E.2d 658, 664 (1989). Defendant contends that the error
       was not harmless because the evidence presented at trial was close and that the verdict
       depended on the credibility of the State and the defense witnesses, who offered different
       versions of the events. According to defendant, the State’s improper questions undermined
       defendant’s credibility, which was a central issue in this case, and the error was compounded
       by the State’s comments during closing argument that once the police stopped defendant, it
       was the “perfect timing” to tell them that the other man had planted something in his jacket,
       and that the reason why defendant did not say anything was because the other man had not,
       in fact, placed anything on him. The State, on the other hand, posits that any possible error
       would have been harmless because it contends that the evidence of defendant’s guilt
       presented at trial was overwhelming. The State maintains that defendant’s testimony that the
       other man placed drugs in defendant’s hand and pocket was not believable and that the
       officers’ testimony, combined with the drugs found in front of defendant and in his pockets,
       would have been sufficient to convict defendant in the absence of the State’s improper
       questions and comments on rebuttal. We agree with the defendant. See Moody, 199 Ill. App.
       3d at 465, 557 N.E.2d at 342; McMullin, 138 Ill. App. 3d at 873-77; see also People v.
       Naylor, 229 Ill. 2d 584, 606-10, 898 N.E.2d 653, 667-70 (2008).
¶ 41       In Moody, 199 Ill. App. 3d at 465, 557 N.E.2d at 342, the court found that where a
       defendant’s own explanation of the events was of significant import to his defense, improper
       comments with regard to his postarrest silence were not harmless error. In that case, the State
       presented testimony from a police officer and defendant’s cousin that defendant admitted to
       shooting the victim, and evidence that defendant had gun residue in his hands shortly after
       the shooting. Moody, 199 Ill. App. 3d at 458-61, 557 N.E.2d at 337-39. As previously noted,
       defendant’s defense included his own testimony of his whereabouts at the time of the crime,
       that a third party had threatened the victim’s life and that he did not admit to shooting the
       victim. Moody, 199 Ill. App. 3d at 458-61, 557 N.E.2d at 337-39. The court held that the
       State’s references to defendant’s postarrest silence were not harmless because they seriously
       damaged his credibility and undermined his alibi, which were critical to his defense. Moody,
       199 Ill. App. 3d at 465, 557 N.E.2d at 342; accord McMullin, 138 Ill. App. 3d at 873-77, 486
       N.E.2d at 414-15 (improper references to defendant’s postarrest silence were not harmless
       where the verdict depended on whether the jury believed defendant’s testimony that he was
       unaware that the co-defendants were committing burglary); see also Naylor, 229 Ill. 2d at
       606-10, 898 N.E.2d at 667-70 (evidence was closely balanced where police officers testified
       that they purchased drugs from defendant and a third officer arrested defendant, and
       defendant’s testimony that he was arrested in a drug raid was consistent with the officers’
       testimony).
¶ 42       In this case, the State presented Officer Phelan’s testimony that he observed defendant
       drop a package on the ground from three to five feet, and that a custodial search revealed that
       he had another bag of cocaine in his jacket pocket. There was no testimony forthcoming from
       Officer Pearson that he observed defendant drop a bag on the ground or that he saw Officer
       Phelan recover anything from defendant’s pocket. Further, Officer Phelan acknowledged that
       there was another individual next to defendant at the time of the incident. Defendant testified
       that the man standing near him had been following him, may have been trying to sell him

                                                -12-
       drugs, and tried to put objects in defendant’s hand and jacket pocket. While defendant denied
       having dropped a bag on the ground, he testified that he gave back the object that the man
       tried to put in his hand. Szafran, whose relationship to defendant was described only as that
       of being his landlady, corroborated defendant’s testimony, stating that she was an observer
       and that she saw that man follow defendant in the manner that defendant described, and did
       not see defendant drop anything on the ground. Defendant’s explanation of how the drugs
       were in his jacket and denial that he dropped the bag were intrinsic to his defense.
       Accordingly, the improper use of defendant’s postarrest silence to impeach him cannot be
       deemed to have been harmless.

¶ 43        B. The Trial Court’s Compliance With Illinois Supreme Court Rule 431(b)
¶ 44        We next address defendant’s contention that the trial court violated Illinois Supreme
       Court Rule 431(b) for failing to ask the prospective jurors whether they understood the
       principles enumerated in the rule. As previously discussed, the trial court, in giving its
       admonitions, first explained to the prospective jurors that defendant is presumed innocent
       and asked whether anyone “ha[d] a problem” with that principle, then stated that the State
       has the burden of proving defendant guilty beyond a reasonable doubt and asked if anyone
       “disagreed” with that rule. The trial court then explained that the defendant does not have to
       present any evidence and again asked if anyone “disagreed” with that rule. Finally, the court
       stated that defendant does not have to testify and asked whether anyone would hold it against
       defendant if he did not testify. Defendant now maintains that when the trial judge made the
       admonitions to the prospective jurors, he ascertained only that the venire members accepted
       the principles, but failed to question them on whether they understood those principles.
¶ 45        The State responds that defendant has forfeited this issue by failing to object at trial and
       to raise the issue in a written posttrial motion as required to preserve an issue for review.
       People v. Piatkowski, 225 Ill. 2d 551, 564, 870 N.E.2d 403, 409 (2007). Defendant
       acknowledges those omissions but contends that the forfeiture rule should not be applied to
       this case because if counsel were required to object to a violation of Rule 431(b) to preserve
       the error, that would be inconsistent with the purpose of the rule, as amended, which requires
       the trial court to question the venire sua sponte on the four enumerated principles.
       Alternatively, defendant contends that the issue should be reviewed under both prongs of the
       plain error rule.
¶ 46        Since we now remand this case to the trial court by reason of the erroneous admission
       of defendant’s postarrest silence, we find that there is no necessity to proceed with a plain
       error analysis to determine whether the trial court’s handling of the Rule 431(b) admonitions
       is reviewable under the plain error doctrine. However, regardless of its current reviewability
       under the plain error doctrine, it may be useful to discuss whether the trial court’s handling
       of those admonitions was erroneous, since the trial court may well revisit those admonitions
       on retrial upon remand. Thus, we review de novo the issue of the trial court’s compliance
       with Rule 431(b). People v. Thompson, 238 Ill. 2d 598, 606, 939 N.E.2d 403, 409 (2010).
¶ 47        The rule requires the trial court to ask each prospective juror, individually or in a group,
       whether he or she understands and accepts that (1) defendant is presumed innocent of the


                                                 -13-
       charge against him; (2) before defendant can be convicted, the State must prove him guilty
       beyond a reasonable doubt; (3) defendant is not required to offer any evidence on his behalf;
       and (4) defendant’s failure to testify cannot be held against him. Ill. S. Ct. R. 431(b) (eff.
       May 1, 2007). As our supreme court recently noted, the rule mandates a “specific question
       and response process,” in which the jurors, either individually or in a group, are asked
       whether they understand and accept the enumerated principles. People v. Thompson, 238 Ill.
       2d 598, 607, 939 N.E.2d 403, 409-10 (2010).
¶ 48       Defendant does not dispute that the trial court addressed each of the four principles or
       that the court ascertained whether the prospective jurors accepted the principles. Rather, he
       contends that the trial court failed to ascertain whether they understood those principles
       because it did not use the word “understand” but, instead, asked the jurors whether they “had
       a problem” with the first princple, if they “disagreed” with the second and third, and whether
       they would hold defendant’s failure to testify against him. For the following reasons, we find
       that the court’s questioning was in compliance with Rule 431(b).
¶ 49       This court has held that Rule 431(b) does not dictate a particular methodology for
       establishing the prospective jurors’ understanding or acceptance of those principles. People
       v. Strickland, 399 Ill. App. 3d 590, 603-04, 926 N.E.2d 744, 756 (2010); People v. Ingram,
       409 Ill. App. 3d 1, 12, 946 N.E.2d 1058, 1068-79 (2011). In doing so, we have noted that
       there is no requirement that the specific language of the rule be used. Strickland, 399 Ill.
       App. 3d at 604, 926 N.E.2d at 756. For example, in Ingram, 409 Ill. App. 3d at 12, 946
       N.E.2d at 1068-79, this court held that the trial court met the requirements of Rule 431(b)
       where it admonished the potential jurors of the four principles, then asked them whether they
       had any “ ‘difficulty or quarrel’ ” with each of the four principles. Similarly, in Strickland,
       399 Ill. App. 3d at 603-04, 926 N.E.2d at 756, this court found compliance where the court
       asked the venire whether each juror would hold defendant’s decision against him if he
       decided not to testify.
¶ 50       In this case, there is no substantive difference from Ingram and Strickland, since the
       court in this case asked the venire members if they “had a problem” with the presumption
       that defendant is innocent, if they “disagreed” with the State’s burden of proving defendant
       guilty, and if they would hold defendant’s failure to testify “against” him. Although the court
       did not use the precise language of Rule 431(b), the words that it did use clearly indicated
       to the prospective jurors that the court was asking them, not only whether they accepted the
       principles enumerated in the rule, but also whether they understood them. As a result, we
       find no error.
¶ 51       For the foregoing reasons, we reverse the judgment of the circuit court of Cook County
       and remand this cause for a new trial.

¶ 52      Reversed and remanded.




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