                               No. 2--06--0683      Filed: 7-25-08
______________________________________________________________________________

                                                IN THE

                                APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE                ) Appeal from the Circuit Court
OF ILLINOIS,                           ) of Winnebago County.
                                       )
      Plaintiff-Appellee,              )
                                       )
v.                                     ) No. 05--CF--2843
                                       )
ERNEST D. KING,                        ) Honorable
                                       ) Steven G. Vecchio,
      Defendant-Appellant.             ) Judge, Presiding.
______________________________________________________________________________

        JUSTICE O'MALLEY delivered the opinion of the court:

        Defendant Ernest King appeals from his convictions of two counts of robbery (720 ILCS

5/18--1 (West 2004)), one count of aggravated battery (720 ILCS 5/12--3 (West 2004)), and one

count of residential burglary (720 ILCS 5/19--3 (West 2004)) against three different victims. On

appeal, defendant argues that the trial court erred in refusing to try his offenses separately, that the

State improperly elicited testimony regarding his decision to invoke his constitutional right to silence

in the face of police questioning, and that the trial court erred in ruling that three of his four 10-year

sentences should run consecutively. For the reasons that follow, we affirm.

        Officer Richard DeVlieger of the Rockford police department was the first witness for the

State at defendant's April 19 and April 20, 2006, jury trial. He testified that, at approximately 9:45

p.m. on May 11, 2005, he traveled to a residence near West Riverside and Rockton Avenue to

respond to a security alarm that had been triggered. When DeVlieger arrived, he saw Sharon
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Provenzano, who had "some scratches" on her hand and was "shaken, upset." Prior to the incident

that led to her injuries, she had seen a silver sedan in the area. She gave DeVlieger a description of

the suspect in connection with the incident.

       Sharon Provenzano testified that, on the night of May 11, 2005, she arrived home between

9:30 and 9:45 p.m. After she pulled her car into her garage, she heard her house alarm, so she took

her cellular telephone and her purse out of her car and attempted to contact her alarm company to

insure that police were coming to investigate the problem. As she was dialing, she saw a "lighter

colored" car pass her house, turn around, and come back towards her house. Before she could finish

dialing, "all of a sudden someone came around the side *** of [her] house *** and threw [her] to

the ground." Her assailant took her purse and telephone as she was being knocked down. When

shown her telephone records, Provenzano did not recognize any of the telephone numbers that were

called shortly after her telephone was taken. Those telephone calls included one call placed at 9:52

p.m. to a number later associated with a girl named Ashley Smart.

       Officer Eric McLain testified that he was dispatched to a residence "about eight blocks to the

north of the intersection of Kilburn and Auburn Street" at 10:32 p.m. on May 31, 2005. At the

residence, he spoke with Datie Parker, who had a slight injury on her arm and was "upset." She gave

McLain a description of a man who had taken her purse.

       Datie Parker testified that, on the night of May 31, 2005, she returned home between 9:30

and 10:30 p.m. After she parked her car, she got out and opened the door to the backseat in order

to retrieve some items she had placed there. As she opened the door, she "felt a tug" on her purse.

Her assailant "pulled [her purse] to the point of bruising [her]," until it fell to the ground and he

picked it up. Parker's cellular telephone was in her purse, and she testified that she did not recognize



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the numbers (or associated names) of people called with her telephone after her purse was stolen.

Those calls included a call at 10:17 p.m. to a telephone number later associated with Ashley Smart.

       Officer Jonathan Deutsch of the Rockford police department testified that he was dispatched

to a location near Church and Halsted streets in Rockford at approximately 11:25 p.m. on June 3,

2005, to respond to an " 'in progress' call of a home invasion." When he arrived, he spoke with

Kathleen Appino, who furnished a description of the intruder.

       Kathleen Appino testified that, just after she and her husband arrived home at approximately

11 p.m. on June 3, 2005, she looked out the door of their house and saw a "strange car" parked across

the street. She then heard a "movement" coming from behind her, and, when she turned around, an

intruder attacked her. They struggled until Appino's husband heard them from inside the home and

rushed out to the garage; at that point, the assailant fled to a white vehicle, which drove away.

Appino and her husband then noticed that her purse, as well as some other personal items, were

missing. Appino testified that she did not make any of the calls that were made after the incident

via the couple's cellular telephone. The calls that were placed via her telephone included a call

placed at 11:24 p.m. to a number later associated with a girl named LaCreacia Simmons. Some time

after her attack, police showed Appino a photographic lineup, and she narrowed the lineup down to

two pictures before settling on a picture of defendant and indicating that she was "[p]retty sure," but

"not a hundred percent" certain, that the picture depicted her attacker.

       Detective Jason Bailey testified that he was assigned to investigate the above robberies, and

he obtained the phone records for the cellular telephones of the victims. When he reviewed the

phone records, he saw that there were four telephone numbers that had been dialed "frequently

through *** all three phone records." He then interviewed the people to whom the calls had been



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placed, and the information he gained led him to defendant. Bailey brought defendant to the police

station for an interview, and, after defendant waived his right to remain silent pursuant to Miranda

v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966), Bailey and another detective

began asking defendant questions. Defendant initially denied any knowledge of the robberies, but,

when confronted with the telephone evidence police had amassed, defendant eventually told Bailey,

" 'So I had the phones. That doesn't mean I robbed anybody.' " Bailey described what happened at

that point in the interview:

       "I asked him *** to explain to me how he got the phones ***. And he sat silent. I offered

       him the opportunity to explain *** who else would have been making these phone calls.

       And he sat silent. Through a little further questioning he eventually asked that we end the

       interview which we did."

       Ashley Smart, whose telephone number matched a number called from all three victims'

telephones after the phones were stolen, testified that defendant had called her "[t]hree or four times"

"[a]t night." She further testified that she did not know any of the victims. Caralyn Simmons

testified that defendant called her "[a] couple times a day" in May and June 2005, and the telephone

number for her house at that time matched one of the telephone numbers called using the victims'

telephones. On cross-examination, she indicated that defendant would call her from his own

telephone. LaCreacia Simmons testified that defendant called her during the relevant time period

from two different telephones, and her telephone number also matched one of the frequently dialed

numbers Bailey identified during his testimony. Tikila Jackson, who also had a telephone number

that matched one of the frequently called numbers, testified that defendant called her "[e]very day"




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during the relevant time period. Jackson recalled that defendant called her from "[a] lot" of different

phone numbers.

       Detective Randy Berke testified that he worked with Bailey in investigating the above crimes,

and he said that they compared the victims' telephone bills because "there were similarities in the

crimes" so they "wanted to see if there were any similar phone numbers that were called." He

testified that he and Bailey discovered several telephone numbers that were called using all three

stolen phones. He agreed that those numbers included ones for Jackson, Simmons, and Smart.

       After Berke's testimony, both sides rested their cases and submitted closing arguments to the

jury. The jury found defendant guilty on all four charged counts.

       At defendant's sentencing hearing, neither side presented any testimony. Defendant's

presentence report indicated that he was 22 years old and had prior arrests for resisting a peace

officer, criminal trespass to a vehicle, unlawful use of weapons, and burglary, along with several

traffic infractions. Defendant also had a juvenile record that included adjudications for battery and

burglary. Defendant had been unemployed since February 2005. The presentence report also

contained victim impact statements.

       In imposing sentence, the trial court indicated that it was "fully in agreement with the State

in terms of the seriousness of" defendant's crimes and criminal history and that it was "convinced

that *** it [was] necessary *** to impose consecutive sentences to protect the public from further

criminal conduct." The court went on to explain its assessment that defendant had "learned nothing"

from his prior misconduct and "expressed no remorse" for his conduct, and the court emphasized the

negative effect of defendant's actions on his victims. The court then sentenced defendant to 10 years'

imprisonment for each of his four crimes, with the sentences for the two counts pertaining to



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Provenzano to run concurrently and the other two sentences to run consecutively, for a total of 30

years' imprisonment. Defendant timely appeals.

        Defendant first argues that the trial court committed reversible error by allowing all four of

the above charges to be joined in a single trial. The issue of joinder was raised in the trial court, and

defense counsel argued that the incidents were discrete and could not be considered part of the same

transaction and that the joinder of all of the charges against defendant would be unduly prejudicial

(there were seven counts pending against defendant from six different complainants). The State

agreed to separate the four counts discussed herein from the remaining counts, but it opposed further

severance, on the grounds that the crimes were all part of the same transaction and that the evidence

would be admissible as other-crimes evidence of modus operandi even in separate trials, so that any

prejudice caused to defendant by the joinder of the present four counts would be greatly diminished.

The trial court ruled as follows:

        "[I]f this case went to trial, would I allow proof of other crimes in at the trial[?] And--and

        with respect to [the four counts discussed herein] it certainly appears on the initial review of

        the documents before [the court] that the answer would be yes because there is a--there

        certainly are similarities in the *** age of the victims, the locations of the victims, *** the

        common method of operation, the same modus operandi basically. So *** the Court ***

        would allow in evidence of those other crimes."

        Defendant's first argument on appeal is that the trial court erred in joining the charges against

him. However, we need not reach the issue, because we agree with the State that, even if joinder was

improper here, any error was harmless, because evidence of all three of defendant's alleged attacks

would have been admissible as other-crimes evidence in each trial if the charges against defendant



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had been severed. Indeed, "where *** 'other crimes' evidence is properly admissible, the potential

prejudice to a defendant of having the jury decide two separate charges is greatly diminished because

the jury is going to be receiving evidence about both charges anyway." (Emphasis omitted.) People

v. Trail, 197 Ill. App. 3d 742, 746 (1990). The trial court in its ruling appears to have adopted this

line of reasoning. The question becomes, then, whether the other-crimes evidence here would have

been admissible in each of defendant's three trials had the charges against him been separated.

       Because " 'the law distrusts the inference that because a man has committed other crimes he

is more likely to have committed the current crime' " (People v. Cruz, 162 Ill. 2d 314, 348 (1994),

quoting People v. Lehman, 5 Ill. 2d 337, 342 (1955)), evidence of other crimes is not admissible

unless it is relevant for some purpose other than to show the defendant's propensity to commit crimes

(Cruz, 162 Ill. 2d at 348). However, such evidence is admissible "where relevant to prove modus

operandi, intent, identity, motive or absence of mistake" or even "if it is relevant for any purpose

other than to show the propensity to commit crime." People v. Illgen, 145 Ill. 2d 353, 364-65 (1991).

When evidence of other crimes is offered, the trial court must weigh its probative value against its

improper prejudicial effect and may exclude the evidence if the prejudicial effect substantially

outweighs its probative value. Illgen, 145 Ill. 2d at 365. A trial court's decision that the probative

value of other-crimes evidence outweighs its improper prejudicial effect will not be reversed on

appeal absent an abuse of discretion. See People v. Wilson, 214 Ill. 2d 127, 141 (2005) ("the trial

court did not abuse its discretion in determining that the probative value of the [other-crimes

evidence] outweighed any undue prejudice to defendant").

       The State appears to premise its argument on this point on the idea that the evidence of

defendant's other crimes was admissible to establish modus operandi. Though the supreme court has



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indicated that other-crimes evidence offered for some purpose other than to establish propensity is

generally admissible where it bears "some threshold similarity" to the crime charged, it has held that,

"[i]n cases where evidence of other crimes is offered *** to establish modus operandi ***, a 'high

degree of identity' between the facts of [the crimes] has been required." Cruz, 162 Ill. 2d at 349,

quoting Illgen, 145 Ill. 2d at 373. This higher standard for modus operandi evidence is required

"because modus operandi refers to a pattern of criminal behavior so distinctive that separate crimes

are recognized as the handiwork of the same wrongdoer." Cruz, 162 Ill. 2d at 349; see also People

v. Willer, 281 Ill. App. 3d 939, 954 (1996) (modus operandi refers to cases in which "both crimes

share peculiar and distinctive features not shared by most offenses of the same type and which,

therefore, earmark the offenses as one person's handiwork").

       Defendant urges that the facts underlying the alleged crimes here fail to establish modus

operandi under the stringent test articulated by our supreme court. We agree with defendant that the

State's reliance on the time between the offenses is inapposite, because it has no bearing on modus

operandi. We further agree with defendant that some of the circumstances of these crimes are

virtually indistinguishable from most any mugging or robbery. However, we disagree with defendant

that there are no distinctive elements among the crimes to establish modus operandi. In each of these

cases, the perpetrator lay in wait at or near a female victim's home as she arrived home at night, and

he attacked the victim either in her garage or in another parking area adjacent or nearly adjacent to

her home. Within minutes of each attack, a call was placed using the victim's cellular telephone to

one of two girls. (The evidence indicated that the attack on Provenzano took place around 9:30 or

9:45 p.m., and Ashley Smart was called on her telephone at 9:52 p.m. Likewise, the attack on Parker

occurred between 9:30 and 10:30 p.m., and Smart was called at 10:17 p.m. Finally, the attack on



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Appino occurred at approximately 11 p.m., and a call was placed to LaCreacia Simmons at 11:24

p.m.) Other calls were also later placed via each victim's telephone, and Smart and Simmons were

called using all three telephones. These peculiar similarities provide the type of criminal fingerprint

that readily identifies these crimes with defendant. In fact, as Detectives Bailey and Berke testified,

the similar phone calls were the identifying link police used to establish defendant as a suspect in

these crimes in the first place. (We note tangentially that, since the common phone calls were used

to identify defendant as the perpetrator, at least some evidence of each robbery would have been

admissible on that ground if the trials had been severed. See People v. Novak, 94 Ill. App. 3d 1024,

1028-29 (1981) (officer allowed to testify that defendant had been arrested for another crime

admissible in his murder trial where police identified him as a murder suspect after noticing

bloodstains on his pants after he was arrested).) These telephone calls provide the high degree of

unusual similarity among the crimes necessary to establish modus operandi.

       Defendant further argues that, even if some other-crimes evidence was admissible to show

modus operandi, the trial court's decision to allow the State to introduce its whole case on all four

counts (as well as to call upon the jury to decide all four counts), as opposed to only the evidence

necessary to show modus operandi, caused him undue prejudice. We disagree that the evidence

adduced unjustifiably exceeded the scope needed to demonstrate modus operandi. In order to be put

in context and made relevant to the idea that the calls were part of a common method of operation,

the evidence of the telephone calls needed to be connected to preceding robberies. In concert with

the victims' testimony regarding the attacks, the phone call evidence tended to show that defendant

operated by stealing telephones and then immediately calling one of two girls. Thus, at least some




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evidence of each underlying crime was required to demonstrate the relevance of the phone records

as modus operandi evidence.

        Defendant argues that, even if some evidence was required, allowing each victim to testify

in full regarding her attack was excessive. However, our review of the record convinces us that the

victims' testimony was purely factual and relatively brief. Aside from Provenzano's testimony,

adduced by the defense in an attempt to impeach her recollection, that she was upset immediately

after she was attacked, the victims' testimony lacked any explicit reference to the emotional effect

of the attacks on the victims. Given the appreciable discretion afforded the trial court in this type

of situation, we cannot say that the record discloses sufficient grounds for overturning the trial court's

implicit determination that the value of the other-crimes evidence here was not outweighed by the

undue prejudice the evidence may have caused.

        Defendant further argues that Appino's testimony was unfairly prejudicial because she was

shown a photo lineup and gave a tentative identification of defendant, while the other victims were

unable to identify defendant. Thus, according to defendant, the joinder of all four counts allowed

the State to use Appino's testimony "to compensate for weaknesses in its case inasmuch as

Provenzano and Parker were unable to identify their attackers." However, Appino's identification

testimony was highly qualified--she testified that she chose one photograph out of several shown to

her but was not "a hundred percent sure" or was "[p]retty sure, not a hundred percent." In contrast,

the telephone records, when combined with the testimony that defendant called the girls who

received the calls from the victims' phones, provided very strong identifying information that would

have been admissible in each trial even if these charges were severed. Based on the strength of the

telephone evidence as identifying evidence, we cannot agree with defendant that the State used



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Appino's testimony to compensate for a weakness in its case, nor can we agree that Appino's

identification was unduly prejudicial to defendant on the charges unrelated to Appino. Again, we

will not disturb the trial court's application of discretion under these circumstances. Accordingly,

we reject defendant's argument that his conviction must be reversed and the charges against him

separately retried due to misjoinder.

       Defendant's second argument on appeal is that the State improperly elicited testimony that

he remained silent during police questioning and thus violated the protections announced in Doyle

v. Ohio, 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240 (1976). In Doyle, the prosecution presented

testimony that the defendants had failed to offer exculpatory information to police just after being

arrested. The Supreme Court reasoned that "[s]ilence in the wake of [Miranda] warnings may be

nothing more than the arrestee's exercise of *** Miranda rights" and, thus, "every post-arrest silence

is insolubly ambiguous." Doyle, 426 U.S. at 617, 49 L. Ed. 2d at 97, 96 S. Ct. at 2244. Since "it

would be fundamentally unfair *** to allow the arrested person's silence to be used to impeach an

explanation subsequently offered at trial" after the implicit assurance from Miranda warnings that

silence will carry no penalty (Doyle, 426 U.S. at 618, 49 L. Ed. 2d at 98, 96 S. Ct. at 2245), the

Supreme Court held that "the use for impeachment purposes of [an arrestee's] silence, at the time of

arrest and after receiving Miranda warnings, violate[s] the Due Process Clause of the Fourteenth

Amendment" (Doyle, 426 U.S. at 619, 49 L. Ed. 2d at 98, 96 S. Ct. at 2245). Defendant argues that

here, just as in Doyle, the State improperly elicited evidence of his silence in response to questioning

after defendant had been given Miranda warnings. We disagree.

       Defendant's argument is squarely foreclosed by our supreme court's decision in People v.

Patterson, 217 Ill. 2d 407 (2005). There, the defendant was advised of his Miranda rights and agreed



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to speak with police, but, during the subsequent interview, he declined to answer three of the officers'

questions. Patterson, 217 Ill. 2d at 444. The State presented testimony regarding the defendant's

silence in response to some of the police questioning, and, on appeal, the defendant argued that the

State's actions violated Doyle. Patterson, 217 Ill. 2d at 444. The supreme court refuted the argument

in short order:

                  "Doyle applies only when a defendant invokes his right to remain silent. [Citation.]

       Here, defendant waived his right to remain silent and answered most of the officers'

       questions. Once the right to remain silent has been waived, it can be invoked only by a

       defendant's positive assertion that he wants to remain silent. [Citation.] Defendant did not

       tell the detectives that he wanted to remain silent. The Doyle rule, therefore, does not apply

       in this instance. [Citation.]" Patterson, 217 Ill. 2d at 445.

Likewise here, the State's eliciting testimony regarding defendant's silence in response to some of

the questions asked during the interview, after defendant expressly waived his right to remain silent,

cannot equate to a Doyle violation.

       Indeed, the rationale behind the rule in Doyle is that it would be incongruous to penalize a

defendant for invoking his right to silence in response to warnings informing him of his right to

silence. Thus, the thrust of the rule in Doyle is that a defendant should not be penalized for his

silence where Miranda warnings induced it. Cf. Anderson v. Charles, 447 U.S. 404, 408, 65 L. Ed.

2d 222, 226, 100 S. Ct. 2180, 2182 (1980) (no Doyle violation where questioning made "no unfair

use of silence, because a defendant who voluntarily speaks after receiving Miranda warnings has not

been induced to remain silent"); Jenkins v. Anderson, 447 U.S. 231, 241, 65 L. Ed. 2d 86, 96, 100

S. Ct. 2124, 2130 (1980) (no Doyle violation, because "no governmental action induced petitioner



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to remain silent before arrest"). Here, defendant's silence was not induced by Miranda warnings but,

rather, was induced by a difficult question he received some time after expressly waiving his

Miranda rights. Thus, the rationale underlying Doyle does not extend to these circumstances.

        Defendant further argues that his mid-interview silence should be construed as a belated

invocation of his right to remain silent or as an expression of his intent to curtail the interview.

Again, we disagree. Silence alone by definition cannot suffice as the type of "positive assertion"

(Patterson, 217 Ill. 2d at 445) of the right to remain silent that is necessary to invoke the right once

it has been expressly waived. This is especially true here, where, after defendant's silence, the

interview continued for even more questioning before defendant affirmatively stated that he no

longer wished to speak with police.

        In urging that his silence was sufficient to unambiguously invoke his right to stop the

interview, defendant relies on our supreme court's decision in People v. Nielson, 187 Ill. 2d 271

(1999). However, the case is readily distinguishable. In Nielson, the defendant agreed to waive his

Miranda rights and speak with police, but, as the interview began, he "became increasingly agitated,

until finally he placed his hands over his ears, looked up at the ceiling, and began repeating, 'nah nah

nah nah nah' " before "[standing] up and announc[ing] that he was leaving." Nielson, 187 Ill. 2d at

284. The supreme court held that the defendant had clearly indicated his desire to cut off

questioning. Nielson, 187 Ill. 2d at 287. The defendant's conduct, which the supreme court noted

actually forced the interview to be terminated (Nielson, 187 Ill. 2d at 287), was a forceful, if petulant,

positive assertion of the desire to terminate the interview. His covering his ears rendered it

impossible for him to hear any questions, his chanting made it impossible for him to answer any

questions, and his looking away made it impossible for him to see his questioners. Further, his



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standing up and announcing that he was leaving not only physically removed him from his

questioners but also was unmistakably inconsistent with a desire to remain under questioning. Thus,

the defendant in Nielson invoked his right to terminate the interview by making further questioning

impossible and clearly, affirmatively expressing his intent to stop the interview.

       Here, on the other hand, defendant sat silent in response to some questions but made no

positive assertions of his desire to stop questioning until later in his interview. Nor did defendant

take any actions that rendered further discussion impossible, as did the defendant in Nielson. In fact,

Bailey's testimony indicated that the interview continued for some time after defendant's silence in

response to certain questions. Defendant's selective silence here, without more, contrasts sharply

with the forceful termination of the interview effected by the defendant in Nielson. Defendant's

silence actually contrasts even with his own affirmative termination of the interview some time later.

In short, Nielson is no aid to defendant.

       At oral argument, defendant offered a different interpretation of Bailey's testimony that, after

defendant responded to a difficult question with silence, there was "further questioning" before

defendant explicitly invoked Miranda. He argued that the testimony indicated that defendant was

silent throughout the remainder of the interview, because Bailey stated only that there was further

questioning, and not that defendant offered further answers in response. Based on this interpretation,

defendant argued that his later assertion of his right to remain silent should be deemed retroactive

to the moment he fell silent. We decline to adopt defendant's reasoning, for two reasons.

       First, we disagree with the inference defendant draws from Bailey's testimony. The most

ready implication from Bailey's statement that, "[t]hrough a little further questioning he eventually




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asked that we end the interview," is that the interview continued, with defendant providing answers,

for some time before defendant invoked Miranda.

       Second, and more fundamentally, even if we were to share defendant's interpretation of

Bailey's testimony, we would reject defendant's argument that his later explicit invocation of his right

to silence should apply retroactively to the moment he stopped talking. As noted above, "[o]nce the

right to remain silent has been waived, it can be invoked only by a defendant's positive assertion that

he wants to remain silent." Patterson, 217 Ill. 2d at 445. "To avoid difficulties of proof and to

provide guidance to officers conducting interrogations," the question of whether a defendant has

effectively asserted his Miranda rights is "an objective inquiry." Davis v. United States, 512 U.S.

452, 458-59, 129 L. Ed. 2d 362, 371, 114 S. Ct. 2350, 2355 (1994). This approach stands to reason,

because a test that ignores the perspective of a reasonable police officer in the same situation would

not coincide with Miranda's purpose of curtailing unduly coercive police interrogation and would

provide no standards for police to follow. Cf. Davis, 512 U.S. at 460, 169 L. Ed. 2d at 372, 114 S.

Ct. at 2355-56, quoting Michigan v. Mosley, 423 U.S. 96, 102, 46 L. Ed. 2d 313, 320, 96 S. Ct. 321,

326 (1975) ("But when the officers conducting the questioning reasonably do not know whether or

not the suspect wants a lawyer, a rule requiring the immediate cessation of questioning 'would

transform the Miranda safeguards into wholly irrational obstacles to legitimate police investigative

activity,' [citation] because it would needlessly prevent the police from questioning a suspect in the

absence of counsel even if the suspect did not wish to have a lawyer present"). Defendant's rule, that

a clear invocation of Miranda should be applied retroactively to previous interrogation, would cause

the exclusion of evidence adduced in a manner police could not have reasonably known was

unconstitutional. Thus, defendant's rule would expand the reach of Miranda beyond its purpose.



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(Or, it would expand beyond Miranda the exclusionary mechanism used to enforce Miranda (see

Davis, 512 U.S. at 461, 169 L. Ed. 2d at 372, 114 S. Ct. at 2356 ("the courts ensure compliance with

the Miranda requirements through the exclusionary rule")).) We cannot adopt such a rule.

       Defendant's position is essentially that we can now see in hindsight that, since defendant

stopped answering questions and later explicitly invoked Miranda, he had no desire to answer any

police questions from the moment he fell silent onward. Even though defendant's silence would

appear different in hindsight and when paired with his subsequent invocation of Miranda, we must

note that what we can see in hindsight is irrelevant to the question of what police could reasonably

determine as the relevant questioning transpired. When defendant was silent in the face of police

questioning, but before defendant explicitly invoked his right to silence, police lacked the type of

emphatic assertion of defendant's Miranda rights that would put them on notice that questioning

should stop. Accordingly, we reject defendant's argument that the State's eliciting testimony

regarding his selective silence in response to police questioning constituted a Doyle violation.

       Defendant's final argument on appeal is that the trial court erred in imposing consecutive

sentences for three of his offenses. In cases in which consecutive sentences are not mandatory (see

730 ILCS 5/5--8--4(a) (West 2004)), "[c]onsecutive sentences should be imposed sparingly." People

v. O'Neal, 125 Ill. 2d 291, 298 (1988). Section 5--8--4(b) of the Unified Code of Corrections

provides as follows:

               "Except in cases where consecutive sentences are mandated, the court shall impose

       concurrent sentences unless, having regard to the nature and circumstances of the offense and

       the history and character of the defendant, it is of the opinion that consecutive sentences are




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        required to protect the public from further criminal conduct by the defendant, the basis for

        which the court shall set forth in the record." 730 ILCS 5/5--8--4(b) (West 2004).

Because the trial court is in the best position to consider a defendant's credibility, demeanor, general

moral character, mentality, social environment, and habits, the trial court's decision to impose

consecutive, rather than concurrent, sentences for multiple crimes will not be reversed on appeal

absent an abuse of discretion. O'Neal, 125 Ill. 2d at 297-98.

        As noted above, the trial court based its decision to impose consecutive sentences on the

seriousness of defendant's crimes and criminal history, its belief that consecutive sentences were

necessary to protect the public, and its observation that defendant had neither learned from nor

shown remorse for his actions.

        Defendant notes at least two factors that he believes militate against the trial court's decision

to impose consecutive sentences for his crimes. First, defendant notes that his "criminal past did not

involve a history of violent offenses." Though defendant is technically correct that his criminal past

included no violent offenses, we note that defendant's juvenile record includes an adjudication for

battery. See People v. Taylor, 221 Ill. 2d 157, 165-67 (2006) (juvenile adjudications are not

criminal). Thus, defendant did have a history of violence to go with his history of consistent

recidivism.

        Second, defendant urges that the only injuries involved here were a result of the victims

falling or "being knocked to the ground," not a result of defendant's assaulting them with "intent to

cause injury." However, though there was no direct evidence that defendant's primary intent was to

harm the victims here, there was evidence that he struggled with Appino and threw Provenzano to

the ground. Parker also suffered injuries to her arm as a direct result of defendant's forcefully seizing



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No. 2--06--0683


her purse. Thus, there was evidence that the current crimes involved physical violence, even if

violence itself was not defendant's objective. These factors, along with the trial court's observations

regarding defendant's demeanor, supply ample support for the trial court's decision to impose

consecutive sentences for three of defendant's four convictions.

       For the reasons given, we affirm the judgment of the circuit court of Winnebago County.

       Affirmed.

       HUTCHINSON and GROMETER, JJ., concur.




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