                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                           People v. Miller, 2013 IL App (1st) 110879




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



District & No.             First District, Sixth Division
                           Docket No. 1-11-0879


Filed                      June 28, 2013


Held                       A new trial was awarded to defendant in a prosecution for aggravated
(Note: This syllabus       possession of a stolen motor vehicle where the trial court committed plain
constitutes no part of     error in stating that the “owner” of the car had testified that the steering
the opinion of the court   column had been peeled and in excluding as inadmissible hearsay her
but has been prepared      testimony that the vehicle had been sold, since the record showed no such
by the Reporter of         testimony and the testimony about the sale was only offered to show the
Decisions for the          witness’s state of mind; furthermore, the errors prejudiced defendant, the
convenience of the         evidence was close and was not inconsistent with defendant’s claim that
reader.)
                           he was a bona fide purchaser of the vehicle, and defense counsel was
                           ineffective in failing to seek the suppression of an inculpatory statement
                           defendant made without Miranda warnings.


Decision Under             Appeal from the Circuit Court of Cook County, No. 06-C-661233; the
Review                     Hon. Frank Zelezinski, Judge, presiding.



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

                            Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, Mary
                            P. Needham, and Brooke N. Schneider, Assistant State’s Attorneys, of
                            counsel), for the People.


Panel                       JUSTICE GORDON delivered the judgment of the court, with opinion.
                            Justice Hall concurred in the judgment and opinion.
                            Presiding Justice Lampkin dissented, with opinion.



                                              OPINION

¶1          Following a bench trial, defendant Rodney Miller was convicted and sentenced to 19
        years in the Illinois Department of Corrections for aggravated possession of a stolen motor
        vehicle that was inoperable and left parked on the streets of Chicago. At trial, the vehicle
        owner’s husband testified that defendant operated a towing and repair service and that the
        husband sold the 14-year-old inoperable vehicle for $40 to one of defendant’s employees for
        scrap.
¶2          On this direct appeal, defendant argues: (1) that the trial court erred when it relied on its
        incorrect recollection of witness testimony and when it excluded certain testimony as
        inadmissible hearsay; (2) that his trial counsel was ineffective for not attempting to suppress
        defendant’s inculpatory statement made in the presence of a police officer prior to receiving
        Miranda warnings; and (3) that the trial court denied defendant his constitutional right to
        represent himself at sentencing. In response, the State claims: (1) that defendant failed to
        preserve these issues, which are forfeited, and failed to show that they rise to the level of
        plain error; (2) that defendant’s trial counsel was not ineffective because his performance
        was reasonable and defendant has not shown that he suffered prejudice; and (3) that the trial
        court properly revoked defendant’s right to proceed pro se when he engaged in obstructionist
        conduct prior to sentencing. For the following reasons, we reverse and remand.

¶3                                        BACKGROUND
¶4         At trial, the State’s evidence established that Sabrina Wright owned an Oldsmobile
        Cutlass, which was parked on the street in front of her house on 103rd Place in Chicago. The
        vehicle had been parked there for several weeks and was inoperable. On November 20, 2006,
        Wright observed that the vehicle was missing and called the police. Shortly thereafter, police




                                                  -2
                                                   2-
       officer DeYoung1 of the South Holland police department observed an Oldsmobile Cutlass
       commit a traffic violation on 162nd Street in South Holland and attempted to stop the
       vehicle, which eluded him. The vehicle crossed over into oncoming traffic and collided with
       a pickup truck. DeYoung arrived at the crash scene and observed defendant exit the
       passenger side of the vehicle and fall down as he attempted to flee.
¶5         After the State rested, the defense called two witnesses: Wright’s husband, Ronald
       Abrams; and defendant’s employee, Everett Myrick. Both witnesses testified that, a few days
       before, Myrick had paid Abrams $40 to $50 in cash to purchase the vehicle for scrap. After
       the junk sale, Myrick later returned with defendant and they towed the vehicle to an
       automobile mechanic, who repaired the vehicle. After closing arguments, the trial court
       found defendant guilty and sentenced him to 19 years in the Illinois Department of
       Corrections.

¶6                                     I. Motion to Suppress
¶7          During a pretrial proceeding, defendant attempted to file several pro se motions, but the
       trial court advised that he must file motions through his counsel. The assistant public
       defender then reviewed defendant’s motions and advised the trial court that she would not
       adopt several of defendant’s motions; however, she would proceed on his motion to suppress
       an inculpatory statement. Defendant later hired a private attorney, Anderson J. Ward, and
       neither the assistant public defender nor Ward presented the claims in defendant’s pro se
       motion to suppress.

¶8                                          II. Trial
¶9         Defendant requested a bench trial, which began on July 28, 2009. At trial, the State
       presented three witnesses: Sabrina Wright, the owner of the vehicle; Kevin Mulhall, who was
       injured in the automobile collision with defendant; and Detective DeYoung, the arresting
       officer. The defense called two witnesses: Wright’s husband, Ronald Abrams; and Everett
       Myrick, who worked for defendant’s towing company and who claimed he purchased the
       vehicle from Abrams for defendant.

¶ 10                              A. Sabrina Wright’s Testimony
¶ 11        Sabrina Wright testified that, in October 2004, she purchased a green 1993 Oldsmobile
       Cutlass, which she registered in her name, and that she was the only person on the vehicle’s
       title. On November 19, 2006, the vehicle was in disrepair and had not been running for
       several weeks; however, there was no physical damage to the vehicle. When asked
       specifically if there was any damage to the steering column when she owned it, Wright
       stated: “When I bought it from the lady, it was problems with it. So but as far as it seemed
       to be okay for me to ride in.” Wright observed the vehicle parked in front of her house on
       103rd Place on the evening of November 19, 2006. As she left to take a bus to work the next


              1
               The record does not disclose Officer DeYoung’s first name.

                                                -3
                                                 3-
       morning at 7:30 a.m., she observed the vehicle missing. Soon afterward, she called the
       Chicago police department and provided a description of the vehicle and its license plate
       number. Some time after the police recovered the vehicle, Wright observed that it was
       “trashed” and “tore up.” She testified that she did not know defendant and that she never
       gave him, or anyone else, permission to operate the vehicle on November 20, 2006, and that
       she never gave anyone permission to sell the vehicle on her behalf.
¶ 12       On cross-examination, Wright admitted that she did not observe the vehicle being stolen
       and that she later learned that the vehicle had been sold. The State then objected to the
       question and answer on hearsay grounds, and the trial court sustained the objection.
       Specifically, she was asked and answered as follows:
               “WARD: And, in fact, without commenting or saying anything about what people
           may have said to you, you came to learn later that the vehicle had actually been sold?
               WRIGHT: Yes.”
       The trial court’s ruling is at issue on this appeal.

¶ 13                                B. Kevin Mulhall’s Testimony
¶ 14        Kevin Mulhall testified that, on the morning of November 20, 2006, he was driving in
       South Holland, Illinois, with a friend in his friend’s Dodge Ram truck. As he was driving
       south on State Street, he came to a stop at the intersection at 168th Street. He then pulled into
       the intersection to make a left-hand turn and collided with a green or blue Oldsmobile
       Cutlass that was traveling west in the eastbound lane of traffic. Upon impact, the driver-side
       door to the truck collapsed and Mulhall’s head struck the driver-side window. After the
       collision, he observed a police vehicle arrive at the intersection and a black male who
       attempted to exit the wrecked Cutlass but fell down in the street. The police officer then
       approached the Cutlass with a drawn gun, and Mulhall ducked in his seat. He next observed
       a fire fighter approach the truck and ask if he was okay. Mulhall did not witness the suspect’s
       arrest and was not asked to identify defendant in court.

¶ 15                            C. Detective DeYoung’s Testimony
¶ 16       Detective DeYoung testified that he is a police detective for the South Holland police
       department. At 8:15 a.m. on November 20, 2006, he was monitoring the traffic on 162nd
       Street while parked in the NB Financial Bank’s parking lot in a marked police vehicle in full
       uniform. While there, he observed a vehicle “violate the median” by driving down the center
       median lane instead of waiting for backed-up traffic to move. DeYoung then drove out of the
       parking lot and followed the vehicle as it turned onto South Park Avenue. The vehicle turned
       west onto 168th Street, and DeYoung activated his emergency lights and siren to pull the
       vehicle over, but the driver sped up. DeYoung accelerated to 48 miles per hour, which was
       more than twice the posted speed limit of 20 miles per hour, but he still could not catch up
       to the vehicle. The vehicle did not slow down or stop as it approached the stop sign at the
       four-way intersection at State Street. The vehicle drove around a semi-tractor trailer truck
       that was stopped at the intersection and crossed into the wrong lane of traffic. It then collided


                                                 -4
                                                  4-
       with a Dodge Ram truck that was making a left-hand turn. DeYoung was two or three blocks
       behind the vehicle when he observed the collision. As he arrived at the intersection, the
       driver of the vehicle, who DeYoung identified in court as defendant, exited through the
       passenger side of the vehicle and attempted to flee, but he fell in the street. Defendant was
       yelling in pain due to his injuries. DeYoung approached defendant with his gun drawn and
       placed him in custody. DeYoung then asked defendant why he was fleeing and whether he
       was fleeing because the vehicle was stolen, and defendant answered yes.
¶ 17       DeYoung testified that the vehicle was an Oldsmobile Cutlass, and that the lock on the
       driver-side door was punched out and the steering column was peeled. At 8:17 a.m., he
       contacted “E-Com,” which ran the vehicle’s identification number, and learned that the
       Cutlass had been reported stolen. He did not take photographs of the peeled steering column,
       and he did not indicate in his police report or in an Illinois Department of Transportation
       report that the steering column was peeled or that the lock on the driver-side door was
       punched out.
¶ 18       DeYoung testified that a dashboard camera in his police vehicle recorded the pursuit. The
       State recorded the videotape onto a DVD and included it in People’s Exhibit No. 2. The
       DVD was played for the court, without audio,2 and a copy of the DVD was provided to the
       appellate court.3 The video shows that DeYoung activated his sirens and attempted to stop
       an Oldsmobile Cutlass, but the vehicle evaded him at a high rate of speed before colliding
       with a Dodge Ram truck. Seconds after the collision, defendant fell to the ground next to the
       passenger-side door, and DeYoung approached him with his gun drawn. Later on, DeYoung
       entered the vehicle from the passenger-side door and inspected the area around the vehicle’s
       steering wheel. However, the video does not reveal what DeYoung observed.
¶ 19       After DeYoung’s testimony, the trial court admitted the recording from DeYoung’s
       dashboard camera and the certified vehicle information for the 1993 Oldsmobile Cutlass into
       evidence without objection. However, the certified vehicle information does not appear in
       the appellate record.
¶ 20       The State then rested, and the trial court denied defendant’s motion for a directed finding.

¶ 21                                D. Ronald Abrams’ Testimony
¶ 22       The defense then called two witnesses. The first defense witness, Ronald Abrams,
       testified that he is married to Sabrina Wright, and that they both owned a blue4 19925 Cutlass


               2
                   The video was later played with audio in the defense’s case.
               3
                   The State made a motion to supplement the record, which we granted.
               4
                 Wright had testified that she was never really sure what the color of the vehicle was, but
       that she thought it was green. Mulhall had testified that it was green or blue.
               5
                The vehicle information admitted into evidence and Wright’s testimony both indicate that
       the vehicle’s manufacture year was 1993. However, Abrams testified that it was a 1992 model.

                                                     -5
                                                      5-
       Sierra. In 2000,6 Abrams purchased the vehicle from a neighbor as a gift for his wife. The
       vehicle’s title and registration were in Wright’s name, and she kept possession of the keys.
       In November 2006, the vehicle had not been running for a month or two, and it had a couple
       of flat tires and was “kind of beat up.” The steering column was not peeled, but there was
       some front-end damage, though Abrams was not sure if this was from the collision on
       November 20, or from a different accident prior to that day. Abrams had received a notice
       from the city of Chicago that the vehicle would be cited if it was not moved.
¶ 23       Abrams testified that he sold the vehicle for $40 to Joe, a man that Abrams had known
       for several years. Although Abrams did not provide Joe’s last name, he testified that Joe lives
       in the neighborhood and drives a tow truck that says “Joe’s Towing” on the side.7 Abrams
       did not observe Joe in the courtroom and he testified that Joe was not defendant, whom he
       had met earlier in a lawyer’s office. The vehicle was parked in front of Abrams’ home during
       the morning of the sale, but was moved afterwards. The transaction was a handshake deal
       and did not include a bill of sale, nor did Abrams or his wife transfer or sign over the title to
       Joe. Abrams told “quite a few people” that he sold the vehicle, but he did not tell his wife.
       When his wife told him that the vehicle was gone, he did not tell her that he sold it, nor did
       he tell her when she called the police to report it missing. When the police called his house
       and told him that the vehicle had been stolen, he did not tell them that he had sold it. Abrams
       could not recall the exact date that he sold the vehicle, but he knew that the sale occurred a
       few days before the police called his home. Abrams did not remove the vehicle’s license
       plates before it was taken away.
¶ 24       On cross-examination, Abrams testified that he had been convicted of several crimes in
       the past, including retail theft.

¶ 25                               E. Everett Myrick’s Testimony
¶ 26       The second defense witness, Everett Myrick, testified that he had once operated a towing
       business, which he named “Joe’s Towing” because people had a hard time remembering the
       name Everett and instead called him Joe. By November 20, 2006, Myrick worked for
       “Miller’s Towing,” a towing and scrapping company owned by defendant. Myrick towed
       vehicles for defendant and acted as a middleman in deals with people who wanted to sell
       their old vehicles. Myrick received a commission each time he brought defendant a customer
       or a vehicle. Myrick has known Abrams for over 20 years and calls him by the nickname
       “Ponytail.”
¶ 27       Myrick testified that, in November 2006, he observed an Oldsmobile parked in front of
       Abrams’ home that had not been moved for several weeks. Myrick met with Abrams, who



               6
                Although Abrams testified that he had purchased the vehicle in 2000, Wright had testified
       that she had purchased the vehicle in 2004.
               7
                   Everett Myrick, defendant’s second witness, would testify next that he was “Joe.”


                                                    -6
                                                     6-
       then agreed to sell him the vehicle for $508 in cash. Myrick purchased the vehicle as a third
       party for defendant, and he did not provide Abrams with a bill of sale. Myrick did not receive
       the title or keys to the vehicle because Abrams told him that he had misplaced them. Myrick
       returned later with defendant and used defendant’s tow truck to tow the vehicle to an
       automobile mechanic on 99th Street in Chicago. The steering column was not peeled when
       he towed the vehicle. Defendant paid for the repairs. The vehicle remained in the mechanic’s
       shop for three days after it was towed. Myrick did not inform the police of the sale after he
       learned defendant had been arrested for stealing the vehicle.
¶ 28       After Myrick’s testimony, the defense replayed the videotape from DeYoung’s police
       vehicle, this time with audio. The copy of the video provided in the appellate record contains
       audio; however, the sound frequently mutes and some of the dialogue is indecipherable.
       Despite the poor clarity, DeYoung can be heard asking defendant, who was lying on the
       ground and in the process of being handcuffed, “What did you do? What are you running
       for?” There is no audible response except for defendant yelling in pain about a broken leg.
       At no point during the video is defendant heard receiving his Miranda warnings from
       DeYoung or any other officer.
¶ 29       Defendant exercised his constitutional right not to testify, and rested. During closing
       arguments, the defense argued that the State failed to prove that the vehicle was stolen and
       that the evidence showed that defendant purchased the vehicle from Abrams. Additionally,
       the defense argued DeYoung’s testimony concerning the peeled steering column was
       impeached by the fact that he did not mention it in either report he filed regarding the
       incident. The defense further argued that the video recorded by DeYoung’s dashboard
       camera did not support his testimony because defendant could be heard yelling in pain from
       his injuries, but the video did not show that defendant admitted to stealing the vehicle.
¶ 30       In its closing, the State claimed that it had proved defendant guilty beyond a reasonable
       doubt and that Abrams and Myrick lied about the vehicle sale because they were friends with
       defendant.9 Also, the State argued, incorrectly, that Wright testified that she observed that
       the steering column had been damaged after the police recovered the vehicle, which indicated
       that the vehicle was stolen and not sold.
¶ 31       Following closing arguments, the trial court found that DeYoung’s testimony concerning
       the steering column was corroborated by Wright because she “did, in fact, indicate[ ] that the
       steering column was peeled.” As noted, the trial court was incorrect in recalling Wright’s
       testimony because she never testified the steering column was peeled. Wright’s testimony
       was the only evidence that the trial court specified when it resolved credibility
       determinations in favor of the State. The trial court then found defendant guilty of aggravated
       possession of a stolen motor vehicle.
¶ 32       Even though the defense did not object at trial to the prosecutor’s characterization of


               8
                   Abrams had testified that he sold the vehicle for $40.
               9
                 There was no testimony that they were friends with defendant, but counsel did not object
       to this argument and it is not a ground that defendant argues in this appeal.

                                                     -7
                                                      7-
       Wright’s testimony during the State’s closing, defendant claims on appeal that the trial
       court’s reliance on the prosecutor’s incorrect remark was plain error.
¶ 33       After hearing factors in aggravation and mitigation, the trial court sentenced defendant
       to 19 years in the Illinois Department of Corrections, with credit for 1,093 days served prior
       to sentencing. Defendant filed a motion to reconsider the sentence, which was denied.
       Defendant now appeals.

¶ 34                                          ANALYSIS
¶ 35        On appeal, defendant claims: (1) that the trial court committed plain error when it relied
       on an incorrect recollection of Wright’s testimony and when it excluded a portion of
       Wright’s testimony as inadmissible hearsay; (2) that his trial counsel was ineffective for
       failing to move to suppress defendant’s inculpatory statement made in the presence of
       Officer DeYoung without receiving Miranda warnings; and (3) that the trial court denied
       defendant his constitutional right to represent himself at sentencing. In response, the State
       claims: (1) that defendant did not preserve these issues and that they do not rise to the level
       of plain error; (2) that defendant’s trial counsel was not ineffective because his performance
       was reasonable and defendant has not shown that he suffered prejudice; and (3) that the trial
       court properly revoked defendant’s right to proceed pro se when he engaged in obstructionist
       conduct prior to sentencing.

¶ 36                                     I. Plain Error Review
¶ 37        Defendant’s first claim is that the trial court committed plain error when it relied on an
       incorrect recollection of Wright’s testimony and when it excluded a portion of Wright’s
       testimony as inadmissible hearsay.
¶ 38        The State argues that defendant has forfeited the errors related to Wright’s testimony by
       failing to object to them at trial. Defendant acknowledges that he did not object to these two
       errors at trial but argues they may still be reviewed under the plain error doctrine. Ill. S. Ct.
       R. 615(a).
¶ 39        To preserve an alleged error for review, a defendant must both specifically object at trial
       and raise the specific issue again in a posttrial motion. People v. Enoch, 122 Ill. 2d 176, 186
       (1988). The challenge is considered waived on appeal if a defendant fails to satisfy either
       prong of this test. Enoch, 122 Ill. 2d at 186. “[T]he plain-error doctrine allows a reviewing
       court to consider unpreserved error when (1) a clear or obvious error occurred and the
       evidence is so closely balanced that the error alone threatened to tip the scales of justice
       against the defendant, regardless of the seriousness of the error, or (2) a clear or obvious error
       occurred and that error is so serious that it affected the fairness of the defendant’s trial and
       challenged the integrity of the judicial process, regardless of the closeness of the evidence.”
       People v. Piatkowski, 225 Ill. 2d 551, 565 (2007). In a plain error analysis, “it is the
       defendant who bears the burden of persuasion.” People v. Woods, 214 Ill. 2d 455, 471
       (2005). However, in order to find plain error, we must first find that the trial court committed
       some error. Piatkowski, 225 Ill. 2d at 565 (“the first step is to determine whether error
       occurred”).

                                                  -8
                                                   8-
¶ 40       We will first consider whether defendant’s claims constitute errors, and then we will
       determine whether the cumulative effect of these errors rises to the level of plain error.
       People v. Cox, 377 Ill. App. 3d 690, 704-05 (2007) (a reviewing court should consider the
       errors’ cumulative effect).

¶ 41                             A. Incorrect Recollection of Evidence
¶ 42       Defendant claims that the trial court erred when it relied on a mischaracterization of
       Wright’s testimony, and the State concedes that the trial court misspoke when it stated that
       Wright testified that the steering column was peeled. Whether Wright testified that the
       steering column is peeled is a purely factual determination, and we review the trial court’s
       statement for clear error. Piatkowski, 225 Ill. 2d at 565.
¶ 43       During closing arguments, the State argued that Wright observed that the vehicle’s
       steering column had been peeled, which indicated that the vehicle had been stolen. The trial
       court relied on this statement when it found defendant guilty of possession of a stolen motor
       vehicle:
           “Defense makes note that the steering column to the car was not peeled, which is a
           characteristic of a stolen motor vehicle. Hence, the officer, although he testified to it, did
           not put it in his police report. However, Ms. Wright did, in fact, indicate that the steering
           column was peeled.”
¶ 44       A careful review of the appellate record reveals that Wright did not testify that the
       vehicle’s steering column was damaged. On direct examination, the State asked her if there
       were any damage to the steering column prior to November 20, 2006, and she answered:
       “When I bought it from the lady, it was problems with it. So but as far as it seemed to be
       okay for me to ride in.” When asked about the condition of the vehicle after defendant’s
       collision with Mulhall, Wright testified only that it was “tore up” and “trashed,” but made
       no reference to the steering column. Based on this testimony, we find that the trial court erred
       when it stated that Wright testified that the steering column was peeled.

¶ 45                            B. Exclusion of Wright’s Testimony
¶ 46       Defendant next claims that the trial court incorrectly sustained the State’s objection to
       the defense’s question concerning whether Wright later learned that the vehicle had been
       sold. Defendant argues that this line of questioning was not hearsay because it was not
       offered as proof that Abrams sold the vehicle but, rather, to show Wright’s state of mind. In
       the alternative, defendant claims that, even if the statement was hearsay, it was still
       admissible to rehabilitate Abrams’ credibility. The State responds: (1) that the defense’s
       question called for inadmissible hearsay because it sought to prove that the vehicle was
       actually sold, and (2) that, since Abrams had not yet testified, the statement was inadmissible
       because it was not intended to corroborate his testimony. We find that the trial court erred
       when, on hearsay grounds, it sustained an objection to whether Wright believed her vehicle
       had been sold because the question did not call for hearsay, only for Wright’s state of mind.
¶ 47       The rule against hearsay generally prevents the introduction at trial of out-of-court


                                                  -9
                                                   9-
       statements offered to prove the truth of the matter asserted. People v. Evans, 373 Ill. App.
       3d 948, 964 (2007). Unless the statement “ ‘falls within an exception to the hearsay rule,’ ”
       this type of evidence “ ‘is generally inadmissible due to its lack of reliability’ ” and the
       inability of the opposing party to confront the declarant. People v. Caffey, 205 Ill. 2d 52, 88
       (2001) (quoting People v. Olinger, 176 Ill. 2d 326, 357 (1997)).
¶ 48       In the instant case, the trial court disallowed Wright’s response to the following question:
                “WARD: And, in fact, without commenting or saying anything about what people
           may have said to you, you came to learn later that the vehicle had actually been sold?
                WRIGHT: Yes.”
       However, this question did not call for a response where the basis of Wright’s knowledge
       must have originated from an out-of-court statement. The trial record does not indicate how
       Wright came to know that the vehicle was sold.
¶ 49       Also, even if Wright had learned of the sale through an out-of-court statement, the line
       of questioning was still proper because it intended to show Wright’s state of mind, and not
       to prove the truth of the matter asserted. A statement offered for some reason other than “the
       truth of the matter asserted” does not violate the rule against hearsay. Evans, 373 Ill. App.
       3d at 964. For example, “[a] statement that is offered to prove that a listener had notice of
       the information contained therein, rather than to prove the truth of the matter asserted, is not
       hearsay.” People v. Shoultz, 289 Ill. App. 3d 392, 395-96 (1997). Here, Wright’s state of
       mind or knowledge that the vehicle had actually been sold is central to the crime for which
       defendant was charged. In order for defendant to be found guilty of possession of a stolen
       motor vehicle, the State must prove: (1) that defendant was the driver or operator of a
       vehicle, (2) that he was not entitled to possession of that vehicle, and (3) that he knew the
       vehicle was stolen or converted. 625 ILCS 5/4-103.2(a)(7)(A) (West 2006). Wright’s belief
       that her vehicle was sold rebuts the inference that the car was stolen or that defendant had
       knowledge of the theft.
¶ 50       On direct examination, the State elicited testimony from Wright to show that the vehicle
       was stolen. Wright testified that she owned the vehicle, that only her name was on the title,
       that only she had keys, that she did not give anyone permission to sell the vehicle, and that
       she had not given anyone permission to operate the vehicle on the day she observed it was
       missing. The State relied on these inferences to prove that the vehicle was actually stolen.
       However, Wright’s testimony did not provide direct evidence that either she or defendant
       knew that the vehicle was stolen, and the State’s case relied on an inference from Wright’s
       testimony to prove this fact. On cross-examination, the defense attempted to rebut this
       inference that the vehicle was stolen, and Wright testified that she had not actually observed
       someone steal the vehicle. The defense then attempted to show that, not only did Wright not
       observe a theft, but also she learned that the vehicle had actually been sold. Thus, the trial
       court should have permitted the defense to rebut that inference by showing that Wright had
       knowledge that the vehicle was not actually stolen because that was the key element at issue
       in defendant’s prosecution.
¶ 51       We find that the trial court committed clear error when it excluded Wright’s testimony
       on hearsay grounds because the line of questioning did not call for a hearsay answer.

                                                -1
                                                 10-
¶ 52                                 C. Errors’ Cumulative Effect
¶ 53        Defendant claims that the trial court committed plain error and that his conviction should
       be reversed and remanded for a new trial. Defendant argues the evidence in this case is close
       and that the two errors taken together tipped the scales of justice against him. The State
       claims that the trial court did not commit plain error because the evidence against defendant
       was so overwhelming that he would have been convicted notwithstanding. For the foregoing
       reasons, we find that defendant’s conviction must be reversed.
¶ 54        A trial court’s clear or obvious error rises to the level of plain error when “the evidence
       is so closely balanced that the error alone threatened to tip the scales of justice against the
       defendant, regardless of the seriousness of the error.” Piatkowski, 225 Ill. 2d at 565. When
       the trial court has erred in multiple instances, a reviewing court should consider the errors’
       cumulative effect on whether the errors denied defendant a fair trial. People v. Sullivan, 48
       Ill. App. 3d 787, 793-94 (1977); Cox, 377 Ill. App. 3d at 704-05.
¶ 55        Taken together, the effect of the trial court’s errors prejudiced defendant because the
       evidence at trial was closely balanced. The central issue in this case was whether the vehicle
       was stolen or whether defendant was a bona fide purchaser. As stated, for defendant to be
       convicted of possession of a stolen motor vehicle, the State must prove that the vehicle was
       stolen and that defendant knew that the vehicle was stolen. 625 ILCS 5/4-103.2(a)(7) (West
       2006). Whether defendant had knowledge “may be established by proof of circumstances that
       would cause a reasonable man to believe that the property [was] stolen.” People v. Kaye, 264
       Ill. App. 3d 369, 383 (1994). However, an inference of guilt arising from stolen property may
       be rebutted by defendant’s reasonable explanation. People v. Mijoskov, 140 Ill. App. 3d 473,
       488 (1986).
¶ 56        In the case at bar, defendant rebutted the State’s inference that he knew that the vehicle
       was stolen by calling witnesses who testified that an employee of defendant had actually
       purchased the vehicle a few days before Wright observed that it was missing. Myrick
       testified that he worked for defendant’s towing company and that he acted as a “middle man”
       on behalf of defendant when he purchased the vehicle from the owner’s husband, who lived
       in the same house in front of which the vehicle was parked. Defendant’s version of events
       is bolstered by the fact that Wright testified that the vehicle was in disrepair. Under the
       State’s theory, defendant stole the disabled vehicle off the street and was observed driving
       it just hours later at speeds in excess of 70 miles per hour. It is reasonable to believe that
       defendant first towed the vehicle and took it to an automobile mechanic, where it was
       repaired over the course of a few days before defendant drove the vehicle. Defendant’s
       explanation is a reasonable one, and a person in his position would not have believed that the
       vehicle was stolen. Mijoskov, 140 Ill. App. 3d at 488.
¶ 57        In response, the State cites our court’s holding in People v. Abdullah, 220 Ill. App. 3d
       687, 690 (1991), which stated that it may be inferred that a person exercising exclusive
       unexplained possession over a stolen or converted vehicle has knowledge that such vehicle
       is stolen or converted, regardless of whether the date on which such vehicle was stolen is
       recent or remote. However, the key phrase here is that the exclusive possession must be


                                                -1
                                                 11-
       unexplained. Here, defendant provided a reasonable explanation for how he came into
       possession of the vehicle, so the mere fact that he was driving the vehicle cannot be taken
       as an inference that he knew that the vehicle was stolen. Mijoskov, 140 Ill. App. 3d at 488.
¶ 58        The State claims that the evidence in this case boiled down to a determination of
       credibility and that the trial court determined credibility in the State’s favor. Our supreme
       court has held that the evidence at trial is closely balanced when the key issue involves “a
       contest of credibility” between witnesses with no extrinsic evidence presented to corroborate
       or contradict either version of events. People v. Naylor, 229 Ill. 2d 584, 606-07 (2008). Here,
       the trial court’s determination of guilt was dependent on which witnesses were most credible,
       because the trial court excluded certain extrinsic evidence used to corroborate the key facts
       of the case. Since the competing issues of credibility were close, defendant was prejudiced
       when the trial court made an error of fact in its credibility determination.
¶ 59        In arguing that the evidence is not close, the State points to Wright’s testimony that she
       owned the vehicle, that the vehicle was registered in her name only, that only she had the
       keys, and that she never gave anyone permission to operate or sell the vehicle. However,
       these facts are not inconsistent with defendant’s explanation that he purchased the vehicle
       from Wright’s husband. For the defendant to be found guilty, the State must prove that the
       vehicle was actually stolen and that defendant knew it to be stolen. 625 ILCS 5/4-103.2(a)(7)
       (West 2006). Wright may have learned at some point that her husband sold the vehicle, and
       it would be reasonable for a buyer in defendant’s position to believe that Wright’s husband
       had the authority to sell it.
¶ 60        The State also points to the fact that Myrick did not receive the title or keys to the
       vehicle, that the locks were punched out, and that defendant attempted to elude the police.
       These facts are also not inconsistent with the defense’s version of the events. For one, the
       fact that Myrick did not receive the title or keys to the vehicle is not inconsistent with the
       defense’s statement of the facts. Defendant purchased the vehicle as junk, which does not
       carry the same requirements for transfer of title and keys as is required for the sale of a
       functioning automobile. 625 ILCS 5/3-117.1 (West 2006). Thus, it was not unusual that the
       title was not delivered at the time of the transaction, and a buyer in defendant’s position
       would be under the impression that he legally purchased the vehicle from someone who had
       authority to sell it. Furthermore, Myrick’s testimony that he did not receive the keys at the
       time of the sale is not incredible because he purchased the vehicle for scrap, and Abrams
       knew that Myrick drove a tow truck and would be able to tow the vehicle off the street since
       it was inoperable.
¶ 61        Secondly, the fact that the locks were tampered with is not inconsistent with defendant’s
       claim that he was a bona fide purchaser. Since Myrick testified that he did not receive the
       keys at the time of the transaction, it follows that defendant needed to punch out the locks
       to enter the vehicle when he decided to tow it away.
¶ 62        Third, the State argues that defendant’s flight is evidence of his consciousness of guilt.
       People v. Lewis, 165 Ill. 2d 305, 349 (1995). However, Officer DeYoung initially pursued
       defendant because of a traffic violation. While it was improper for defendant to flee, we
       cannot presume that defendant attempted to elude the police because his vehicle was stolen,


                                                -1
                                                 12-
       rather than because he had committed a serious moving violation. Further, we cannot
       consider Officer DeYoung’s testimony that defendant admitted that he fled because the
       vehicle was stolen. DeYoung elicited the statement when he interrogated defendant in
       custody without reciting Miranda warnings, and, for reasons which we will discuss later, we
       find that counsel was ineffective for failing to present defendant’s pro se motion to suppress
       that statement.
¶ 63       Finally, the State claims that the defense’s witnesses were incredible because of various
       weaknesses in their testimony, such as a discrepancy in the sale price, the vehicle’s model
       year, and when the vehicle was purchased; that Abrams initially did not tell his wife that he
       had sold the vehicle; and that Myrick and Abrams had known each other for over 20 years.
       However, all of these inconsistencies are collateral factors not dispositive of defendant’s
       version of the events. The fact that Abrams did not initially tell his wife of the sale is
       troublesome, and Myrick and Abrams’ relationship gives some credence to the State’s
       position that the story of a sale was created as a defense after defendant was charged.
¶ 64       Because the evidence in this case was close, the trial court’s incorrect recollection of
       Wright’s testimony and its exclusion of a portion of Wright’s testimony on hearsay grounds
       prejudiced its determination of credibility. At trial, the defense impeached DeYoung’s
       credibility when it elicited testimony that he did not take any photographs of the steering
       column and that he did not mention this fact in the reports he prepared concerning the
       incident. The trial court’s statements show that it rejected this attack on DeYoung’s
       credibility because it believed that Wright corroborated his testimony regarding the steering
       column. In fact, Wright’s testimony was the only evidence that the trial court pointed out
       when it made a determination of credibility. The trial court’s statements show that this error
       could have reasonably played an inappropriate role in the trial court’s decision on credibility.
¶ 65       Furthermore, the trial court erred when it sustained an objection to the defense’s question
       to Wright concerning her knowledge of the vehicle’s sale, which went straight to the heart
       of the issue of whether defendant was a bona fide purchaser of the vehicle. Had Wright’s
       testimony that she learned that the vehicle had actually been sold been considered, the
       defense’s statement of the facts becomes more persuasive because a State witness would then
       have corroborated the defense’s version of the events. Since the evidence in this case was
       close, the trial court’s exclusion of Wright’s testimony alone was enough to tip the scales of
       justice against defendant. Piatkowski, 225 Ill. 2d at 565. Taken together, all of these factors
       had the combined effect of denying defendant a fair trial. Sullivan, 48 Ill. App. 3d at 793-94.
¶ 66       The trial court’s combined errors rose to the level of plain error, and defendant’s
       conviction is reversed and the cause is remanded for a new trial.

¶ 67                       II. Ineffective Assistance of Counsel Claim
¶ 68       Defendant next claims that his trial counsel was ineffective for failing to move to
       suppress defendant’s inculpatory statement made in the presence of a police officer without
       receiving Miranda warnings. The State responds that defendant’s trial counsel was not
       ineffective because his performance was reasonable and that defendant has not shown that
       he suffered prejudice.

                                                -1
                                                 13-
¶ 69        A claim of ineffective assistance of counsel is judged according to the two-prong,
       performance-prejudice test established in Strickland v. Washington, 466 U.S. 668 (1984).
       People v. Albanese, 104 Ill. 2d 504, 526 (1984); People v. Boyd, 363 Ill. App. 3d 1027, 1034
       (2006). “To obtain relief under Strickland, a defendant must prove [(1)] that defense
       counsel’s performance fell below an objective standard of reasonableness and [(2)] that this
       substandard performance caused prejudice by creating a reasonable probability that, but for
       counsel’s errors, the trial result would have been different.” Boyd, 363 Ill. App. 3d at 1034
       (citing Strickland, 466 U.S. at 687-88). A defendant must satisfy both prongs of the
       Strickland test to prevail on a claim of ineffective assistance of counsel. People v. Flores,
       153 Ill. 2d 264, 283 (1992).

¶ 70                                   A. Failure to Suppress
¶ 71       Defendant claims that his trial counsel’s performance fell below an objective standard
       of reasonableness when he failed to follow through on defendant’s pro se motion to suppress,
       which defendant’s prior counsel had reviewed and found had merit. In response, the State
       argues that trial counsel’s decision not to proceed on the motion was proper because it
       constituted trial strategy.
¶ 72       To be reasonably effective, criminal defense attorneys must raise constitutional violations
       when constitutional rights have been violated and move to suppress damning evidence
       produced in violation of constitutional guarantees. People v. Brown, 358 Ill. App. 3d 580,
       593-94 (2005). Trial counsel enjoys the strong presumption that his decision whether to bring
       a motion to suppress evidence is trial strategy and that his failure to move to exclude
       evidence was proper. People v. Spann, 332 Ill. App. 3d 425, 432 (2002). “To overcome that
       presumption, the defendant must demonstrate [(1)] a reasonable probability that the motion
       would have been granted and [(2)] that the outcome of the trial would have been different.”
       Spann, 332 Ill. App. 3d at 432-33 (citing People v. Rodriguez, 312 Ill. App. 3d 920, 925
       (2000)). “Reasonable probability” is defined as a probability sufficient to undermine
       confidence in the outcome. Strickland, 466 U.S. at 694.

¶ 73               1. Reasonable Probability That Motion Would Be Granted
¶ 74       Defendant has rebutted the presumption that counsel’s decision not to file a motion to
       suppress was proper. First, there is a more than reasonable probability that defendant’s
       motion would have been granted because defendant’s admission was the product of a
       custodial interrogation in the absence of receiving Miranda warnings. “Custodial
       interrogation occurs when questioning is initiated by law enforcement officers after a person
       has been taken into custody or otherwise deprived of freedom of action in a significant way.”
       People v. Briseno, 343 Ill. App. 3d 953, 957 (2003) (citing Berkemer v. McCarty, 468 U.S.
       420, 423 (1984)). In Miranda v. Arizona, 384 U.S. 436, 478 (1966), the United States
       Supreme Court found that an individual’s privilege against self-incrimination is jeopardized
       when he is taken into custody or otherwise deprived of his freedom and is subjected to
       questioning. To protect the suspect’s privileges, he must be warned prior to any questioning
       that “he has the right to remain silent, that anything he says can be used against him in a

                                                -1
                                                 14-
       court of law, that he has the right to the presence of an attorney, and that if he cannot afford
       an attorney one will be appointed for him prior to any questioning if he so desires.” Miranda,
       384 U.S. at 478-79. “The prosecution may not use statements, whether exculpatory or
       inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates
       the use of procedural safeguards effective to secure the privilege against self-incrimination.”
       People v. Calderon, 101 Ill. App. 3d 469, 477 (1981).
¶ 75        In the instant case, DeYoung testified that when he attempted to stop defendant for a
       moving violation, defendant sped up to a high rate of speed and eventually collided with
       another motor vehicle. After the crash, defendant exited his vehicle and attempted to flee,
       but fell to the ground as DeYoung approached him with his gun drawn. DeYoung testified
       that, at that point, he “placed [defendant] into custody” and he “asked [defendant] why he
       was fleeing and *** if the car was stolen due to the fact that he was fleeing and [defendant]
       said yes.” Defendant’s statement was not spontaneous and was instead the product of an
       interrogation while he was in the officer’s custody. Further, DeYoung did not testify that he
       gave defendant Miranda warnings prior to questioning him or at any time.
¶ 76        Since there is no evidence that defendant received Miranda warnings, and the statement
       was made as a result of a custodial interrogation, there was a reasonable probability that the
       trial court would have granted defendant’s motion to suppress.

¶ 77                2. Reasonable Probability of a Different Outcome at Trial
¶ 78       Furthermore, there was a reasonable probability that the outcome at trial would have been
       different. As stated, the evidence in this case was close, and the trial court’s finding of guilt
       came down to a credibility determination concerning whether defendant actually knew that
       the vehicle was stolen. Although Wright testified that she did not give anyone permission to
       drive the vehicle, her husband testified that he sold it for scrap to defendant’s employee.
       Without defendant’s statement, the evidence at trial merely shows that Wright did not give
       anyone permission to drive her vehicle and that defendant was driving it, which are facts that
       are not inconsistent with defendant’s explanation that defendant’s employee purchased the
       vehicle for defendant from Wright’s husband. In fact, defendant’s statement was the only
       direct evidence that he knew that the vehicle was stolen, and its inclusion at trial was vital
       to proving a key element of the crime with which defendant was charged.
¶ 79       Also, suppressing the statement would have called much of DeYoung’s testimony into
       question. “A true understanding of the tainted evidence’s value, and why it might well have
       had a profound effect on the outcome of this case, requires a look at how [the witness’s]
       testimony was vulnerable to attack, absent the illegally obtained corroboration.” People v.
       Brown, 358 Ill. App. 3d 580, 599 (2005). Here, DeYoung’s testimony would have been more
       vulnerable to impeachment–namely, his testimony that the steering column was peeled,
       which was not corroborated by any evidence at trial other than defendant’s admission that
       the vehicle was stolen. Thus, there was a reasonable probability that the outcome at trial
       would have been different if the statement was quashed and the credibility determinations
       were made based on the trial court’s proper recollection of the evidence and the inclusion of
       Wright’s testimony concerning when she found out the vehicle was sold.


                                                 -1
                                                  15-
¶ 80        In sum, defendant has overcome the presumption that his failure to move to suppress was
       trial strategy by showing a reasonable probability both that the motion would have been
       granted and the outcome of the trial would have been different. Spann, 332 Ill. App. 3d at
       432-33. Thus, counsel’s failure to proceed with defendant’s pro se motion fell below an
       objective standard of reasonableness and prejudiced defendant, denying him a fair trial as we
       will now explain.

¶ 81                                   B. Prejudice to Defendant
¶ 82        With regard to the second prong, defendant claims that he suffered prejudice when his
       trial counsel failed to suppress the inculpatory statement. As discussed above, the evidence
       in this case was closely balanced, and defendant’s statement that he stole the vehicle was a
       key piece of the State’s proof that he knew that he was in possession of a stolen motor
       vehicle. “A confession is the most powerful piece of evidence the State can offer, and its
       effect *** is incalculable.” People v. Fillyaw, 409 Ill. App. 3d 302, 316 (2011) (finding that
       the improper admission of defendant’s confession satisfied the prejudice prong of the
       Strickland test). Given the weight that defendant’s statement carried, defendant was
       prejudiced by its admission at trial.
¶ 83        The State claims that trial counsel’s decision not to present defendant’s motion to
       suppress was proper and that the totality of counsel’s performance was competent, though
       not perfect. In support, the State cites our holding in People v. Diaz, 377 Ill. App. 3d 339,
       347-48 (2007), in which we found that the defendant’s counsel in a driving while under the
       influence of liquor case was not ineffective for failing to present a motion to suppress the
       defendant’s statement that he had consumed two beers prior to driving his vehicle. In Diaz,
       we found that counsel’s decision to allow the statement constituted legitimate trial strategy
       because he argued that consuming only two beers was insufficient to impair the defendant’s
       ability to drive. Diaz, 377 Ill. App. 3d at 348. Further, we found that, even if the defendant’s
       statement was suppressed, there was other substantial evidence to convict him, including his
       refusal to take a Breathalyzer test and the officer’s testimony that the defendant’s behavior
       indicated that he was driving under the influence. Diaz, 377 Ill. App. 3d at 348.
¶ 84        However, Diaz is distinguishable from the case at bar because, here, defendant rebutted
       the presumption that his counsel’s decision not to attempt to suppress the statement
       constituted trial strategy, and the evidence was not so overwhelming that defendant would
       have been found guilty had his statement been suppressed. First, counsel’s performance here
       in totality is below the objective standard for criminal defense lawyers because she failed to
       move to suppress a vital piece of evidence that incriminated defendant that should have been
       suppressed. A counsel’s failure to suppress damning evidence procured in violation of
       defendant’s constitutional guarantees constitutes ineffective assistance of counsel, even if
       counsel performs competently in other areas. Brown, 358 Ill. App. 3d at 593-94. Even if
       defense counsel vigorously tests the State’s evidence at trial, prejudice can be found where
       a motion to suppress “would have been defense counsel’s strongest, and most likely wisest,
       course of action.” People v. Little, 322 Ill. App. 3d 607, 613 (2001). Unlike Diaz, the State
       does not offer any explanation for how defendant’s statement could have been part of a


                                                -1
                                                 16-
       legitimate trial strategy. Since that statement was the product of a custodial interrogation
       without the proper procedural safeguards, counsel’s failure to move to suppress the statement
       was unreasonable and defendant was prejudiced by its admission at trial.
¶ 85        Second, Diaz is distinguishable because the evidence in this case is not so overwhelming
       that defendant would have been found guilty even if his statement had been suppressed. The
       evidence in the instant case is close, and the trial court determined his guilt based on an
       assessment of the witnesses’ credibility and his admission to the police. The key issue in the
       case was whether defendant actually knew that the vehicle was stolen, or whether he was a
       bona fide purchaser. Defendant’s statement to the police was critical to the trial court’s
       finding of guilt because it was the only direct evidence concerning defendant’s knowledge
       of the vehicle’s ownership. “[P]rejudice may be found even when the chance that minimally
       competent counsel would have won acquittal is significantly less than 50 percent.” (Internal
       quotation marks omitted.) People v. McCarter, 385 Ill. App. 3d 919, 935 (2008). Given the
       significance of defendant’s statement to the State’s case against defendant, the outcome at
       trial was prejudiced by the admission of defendant’s statement made without Miranda
       warnings at trial.
¶ 86        Since we are reversing defendant’s conviction, we need not address defendant’s claims
       concerning sentencing, where he received 19 years for the theft of an inoperable vehicle
       worth $40.
¶ 87        As a final matter, we note that the evidence at trial was not so lacking that a retrial of
       defendant would violate his constitutional right against double jeopardy. “ ‘The Double
       Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another
       opportunity to supply evidence which it failed to muster in the first proceeding.’ ” People v.
       Taylor, 76 Ill. 2d 289, 309 (1979) (quoting Burks v. United States, 437 U.S. 1, 11 (1978)).
       The evidence in this case was sufficient to support defendant’s conviction; however, in
       removing the risk of double jeopardy, we have only considered the sufficiency of the
       evidence at the original trial and make no finding as to defendant’s guilt or innocence on
       retrial. People v. Shulz, 154 Ill. App. 3d 358, 374 (1987); Taylor, 76 Ill. 2d at 309.

¶ 88                                      CONCLUSION
¶ 89        For the foregoing reasons, we reverse defendant’s conviction and remand for a new trial.
       The trial court committed plain error when it relied on its incorrect recollection of Wright’s
       testimony and when it excluded a portion of her testimony as inadmissible hearsay when it
       was not. Further, defendant’s counsel was ineffective for failing to move to suppress
       defendant’s inculpatory statement, made during the course of a custodial interrogation
       without receiving Miranda warnings. For these reasons, we reverse and remand for a new
       trial.

¶ 90      Reversed and remanded.




                                                -1
                                                 17-
¶ 91       PRESIDING JUSTICE LAMPKIN, dissenting.
¶ 92       I respectfully dissent and would affirm defendant’s conviction. I do not agree with the
       majority’s conclusions that the trial court committed plain error concerning Wright’s
       testimony, that the alleged errors played an inappropriate role in the trial court’s decision on
       credibility, that the evidence in this case was close, and that defendant was denied effective
       assistance of counsel when counsel did not move to suppress defendant’s alleged statement
       to Detective DeYoung. Contrary to the majority’s statement in paragraph 86, defendant has
       not raised a claim concerning sentencing. Rather, defendant argues that he was denied his
       right to self-representation when the trial court appointed counsel for the sentencing phase
       of the trial after initially allowing defendant to proceed pro se. I conclude that defendant’s
       sixth amendment right to self-representation was not violated.

¶ 93                                       I. Plain Error
¶ 94       There was no plain error in either the trial court’s comment after closing argument about
       Wright’s testimony concerning the condition of the steering column, or in the trial court’s
       ruling that a portion of her testimony was inadmissible hearsay.

¶ 95              A. The Trial Judge’s Characterization of Wright’s Testimony
¶ 96       Defendant argues the trial court’s incorrect recollection of Wright’s testimony regarding
       the condition of the steering column was critical to its finding of guilt and thus constituted
       a plain and obvious error. I do not agree.
¶ 97       According to the record, this bench trial commenced on July 28, 2009, and the State
       presented the testimony of its three witnesses on that date. Wright testified that her car had
       been parked “right directly in front of [her] house.” Although it had not “been running for
       quite a few weeks,” there was no damage to the car. Wright seemed confused when the State
       asked her if she knew what the steering column of her car looks like. She said that, although
       there were some problems with the car when she bought it, it seemed to be okay for her to
       ride in and she used her key in the ignition whenever she started her car. After she reported
       her car missing to the police, she saw her vehicle again and described it as trashed and torn
       up. She remarked that a very long time has passed since she last saw the vehicle.
¶ 98       Multiple continuances were granted before the defense completed the presentation of its
       case. Abrams did not testify until September 1, 2009, and Myrick testified on December 29,
       2009. The defense rested on February 11, 2010, and closing argument commenced.
¶ 99       The State argued that it had met its burden to prove that defendant knew the car was
       stolen because he fled the police after a mere traffic violation, sped recklessly, drove in the
       lane for oncoming traffic, and stopped only when he collided with another vehicle and could
       go no further. Furthermore, Detective DeYoung had no reason to lie, whereas Abrams, a
       convicted felon, and Myrick, a friend of defendant and his parents for many years, were lying
       to help defendant escape his responsibility. Moreover, Wright testified that she saw her car
       the night before it was stolen, and defendant was found driving it the next morning without
       keys and with a peeled steering column. According to the State, Wright said that:


                                                -1
                                                 18-
             “when she got her car back, it was completely damaged and the steering column was
             damaged. She told you when she had it, she could always use her keys and never had a
             problem using her keys to start the vehicle.”
        The defense made no objection to the State’s characterization of Wright’s testimony.
¶ 100        During its ruling, the trial court stated that it had reviewed its notes and all the evidence
        over the course of this drawn-out bench trial. The trial court noted that only Wright held title
        to the car, which was involved in a police chase and serious accident when defendant was
        arrested. Although the defense argued that defendant obtained possession of the car after
        Abrams sold it as junk to Myrick without the title, Wright indicated that she never sold her
        car. The trial court acknowledged that the defense argued the steering column was not peeled
        because Detective DeYoung did not write that observation in his police report. Then the trial
        court stated:
             “However, Ms. Wright did, in fact indicate that the steering column was peeled. It is
             contradicted by the defense side as to her testimony as well.
                 I have reviewed all of the evidence on each side and weighed them in this case. The
             Court does resolve the credibility aspects in favor of the prosecution. And as a result,
             there is a finding of guilty of the charge.”
¶ 101        Contrary to defendant’s argument on appeal, the trial court did not state that Wright
        testified that the steering column was peeled. Rather, the trial court stated that her testimony
        “indicate[d] that the steering column was peeled.” I do not find this characterization of
        Wright’s testimony to be inaccurate. Moreover, it was reasonable to infer that Wright’s
        description of her car as torn up included the condition of her steering column because the
        evidence established that defendant had been driving the car without any keys. Furthermore,
        the trial court was well aware that the defense disputed the fact that the steering column was
        peeled where the defense argued that no such detail appeared in the police report or was
        photographed.
¶ 102        Finally, Wright’s testimony about the condition of her car after the incident was not,
        contrary to defendant’s assertion on appeal, “critical” to the trial court’s finding of guilt. The
        trial court considered all the evidence, which established that Wright never gave anyone
        permission to sell or take her vehicle; she was the registered owner of the car; the car was
        not junk even though it was not running; defendant was driving the vehicle without any keys
        or title and the driver’s door lock was punched out; defendant sped away from Detective
        DeYoung and drove into the lane for oncoming traffic in an attempt to elude him when
        Detective DeYoung tried to pull defendant over for a mere traffic violation; defendant
        attempted to flee from the vehicle after the collision but was stopped by his injury; and
        Myrick, who purported to work with defendant by buying and disposing of old cars,
        conceded that he never obtained any title, keys, or receipt from Abrams for the purported sale
        of Wright’s car.
¶ 103        Contrary to defendant’s argument on appeal, the evidence here was not closely balanced
        and the testimony of Abrams and Myrick was not credible. For example, Abrams, a
        convicted felon, acknowledged that he knew his wife had reported the car as stolen to the
        police and the police had called their house and informed them that the stolen car had been

                                                  -1
                                                   19-
      in an accident. Nevertheless, Abrams did not tell his wife or the police that he had sold the
      car. Although Abrams claimed that he sold Wright’s car because it was a piece of junk and
      had been damaged in an accident, the videotape showed that the car was not a piece of junk
      before the collision.
¶ 104     Furthermore, Abrams and Myrick were severely tripped up by the details of their version
      of the alleged car sale. Specifically, Abrams claimed that he sold the car to Myrick, a
      mechanic Abrams had known in the neighborhood for a couple of years as “Joe.” Abrams
      testified that Myrick drove a tow truck with a sign advertising Joe’s towing. However, when
      Myrick testified months later, he acknowledged that, at the time of the alleged sale, he no
      longer had his own towing business, his own truck had quit on him before the incident, and
      he was using defendant’s tow truck, which clearly advertised Miller’s towing service.
      Furthermore, Myrick knew in November 2006 that defendant had been in a pretty bad
      accident and was arrested, but Myrick did not tell the police at that time that defendant had
      not stolen the car. Although this case against defendant had been pending for three years,
      Myrick did not tell anyone, other than defense counsel, about the purported car sale.
¶ 105     In addition, the defense claimed that Wright’s inoperable car was towed from the front
      of her home a few days before the police chase and repaired at some garage, but no receipts
      or testimony from any mechanic ever corroborated that claim.
¶ 106     The trier of fact is free to accept or reject as much or as little of a witness’s testimony as
      it pleases (People v. Logan, 352 Ill. App. 3d 73, 81 (2004)), and the inconsistencies and
      contradictions in the testimony of Abrams and Myrick rendered their accounts beyond belief.
      It was just not believable that individuals involved in the legitimate business of buying used
      cars would consent to a sale without any proof of ownership, transfer of title, bill of sale, or
      turnover of car keys. In contrast, Detective DeYoung’s testimony that the steering wheel was
      stripped was supported by the evidence that defendant was driving Wright’s car, which had
      just been reported as stolen that morning, without any keys and with the driver’s door lock
      punched out. Even assuming, arguendo, some error concerning the trial court’s
      understanding of Wright’s testimony about the steering column, I cannot conclude that any
      such error constituted plain error because the evidence in this case was not close. See People
      v. Adams, 2012 IL 111168, ¶ 22 (in determining whether the closely balanced prong of the
      plain error test has been met, a reviewing court must make a “commonsense assessment” of
      the evidence within the context of the circumstances of the individual case).

¶ 107                          B. Inadmissible Hearsay Testimony
¶ 108     Defendant also claims the trial court committed plain and obvious error when it sustained
      the State’s hearsay objection to defense counsel’s question to Wright that: “in fact, without
      commenting or saying anything about what people may have said to you, you came to learn
      later that the vehicle had actually been sold?” At trial, defense counsel made no offer of
      proof or further argument concerning this excluded testimony.
¶ 109     The admission of evidence lies within the discretion of the trial court, and the trial court’s
      decision whether to admit evidence is reviewed for an abuse of discretion. People v. Becker,
      239 Ill. 2d 215, 234 (2010). “ ‘Hearsay evidence is an out-of-court statement offered to prove

                                                 -2
                                                  20-
        the truth of the matter asserted, and it is generally inadmissible due to its lack of reliability
        unless it falls within an exception to the hearsay rule.’ ” People v. Caffey, 205 Ill. 2d 52, 88
        (2001) (quoting People v. Olinger, 176 Ill. 2d 326, 357 (1997)). Here, the defense clearly
        sought to introduce the statements that someone made to Wright for the truth of the matter
        asserted and to support the defense theory that Wright’s car was not stolen. This was
        improper hearsay, and the trial court rightfully excluded it.
¶ 110        Defendant argues that the evidence was an exception to the hearsay rule because it was
        elicited to establish Wright’s state of mind. I disagree. “Statements that indicate the
        declarant’s state of mind are admissible as exceptions to the hearsay rule when the declarant
        is unavailable to testify, there is a reasonable probability that the proffered hearsay statements
        are truthful, and the statements are relevant to a material issue in the case.” Caffey, 205 Ill.
        2d at 91. Here, both Wright and Abrams, the supposed declarant, were available to testify.
        Furthermore, Abrams’ alleged statement would not be admissible to show Wright’s state of
        mind because she was not the declarant. In addition, the evidence, as discussed above,
        establishes that there was not a reasonable probability that Abrams’ out-of-court statement
        was truthful. Without even an offer of proof, the record does not disclose any reason to
        regard Abrams’ supposed declaration as inherently reliable. Notably, when Abrams testified,
        he never said when he told Wright that he sold her car or even that he ever told her.
        Moreover, the excluded testimony was not relevant where Wright clearly testified that she
        was the sole owner of the car and never gave anyone permission to sell or take her car.
¶ 111        I also disagree with defendant’s assertion that the excluded testimony was admissible to
        rehabilitate or corroborate Abrams’ testimony. Abrams testified after Wright, and he was not
        disclosed in defendant’s answer to discovery. Accordingly, the State could not have known
        what his testimony would be and did not argue or suggest that he recently fabricated his
        testimony at the time Wright testified. Consequently, there is no merit to defendant’s claim
        that he should have been permitted to preemptively elicit a prior consistent statement to
        bolster Abrams’ testimony through Wright before Abrams even testified.
¶ 112        Defendant argues that the excluded testimony was admissible because the State placed
        Abrams’ credibility at issue during the State’s closing argument. Defendant asserts that if
        Wright’s excluded testimony was premature to corroborate Abrams, then trial counsel could
        have recalled Wright in the defense’s case-in-chief to rebut the insinuation that Abrams had
        fabricated his trial testimony. Defendant, however, did not present this issue in a posttrial
        motion, and, as discussed above, has failed to meet his burden under the plain error standard.
        In addition, as discussed below, defendant also had failed to meet his burden to demonstrate
        ineffective assistance of counsel.
¶ 113        Finally, even if the trial court’s ruling was error, it had no effect on the outcome. See id.
        at 92 (“Error in the exclusion of hearsay testimony is harmless where the excluded evidence
        is merely cumulative of other evidence presented by the parties.”). The evidence defendant
        sought to elicit from Wright–that someone had sold the car–was presented by Abrams and
        Myrick. Thus, the trial court heard the evidence that defendant wished to elicit but
        nevertheless found him guilty. As discussed above, defendant has not met his burden of
        demonstrating that the evidence was so close that the alleged errors severely threatened to
        tip the scales of justice against him or lead to the conviction of an innocent person.

                                                  -2
                                                   21-
¶ 114                              II. Ineffective Assistance of Counsel
¶ 115        Defendant argues his counsel was deficient for failing to move to suppress defendant’s
        statement to Detective DeYoung. Specifically, Detective DeYoung testified that when he
        confronted defendant outside the crashed car, DeYoung asked defendant why he fled and if
        the car was stolen. According to DeYoung, defendant answered, “Yes.”
¶ 116        According to the record, defendant was not given his Miranda warnings before he was
        asked any such questions and gave that alleged answer. The videotape of this incident did not
        pick up any audible response by defendant to DeYoung’s questions. Moreover, at that point
        in the recording, defendant, who was lying on the ground, was outside the view of the
        camera. Specifically, the videotape showed defendant move away from Wright’s car and then
        fall to the ground. DeYoung, with his gun drawn, approached defendant, spoke to him, and
        ordered him to roll over. Defendant complained about his injury, and DeYoung seemed to
        use his leg to get defendant to roll over before DeYoung handcuffed him. DeYoung then
        checked on the occupants of the truck defendant collided with, and other officers and
        paramedics arrived at the scene. The officers tried to establish defendant’s identity and the
        ownership of the vehicle. DeYoung and other officers went in Wright’s car, looked in the
        glove compartment, and looked at the steering wheel area of the dashboard. When the State
        played the videotape in its case-in-chief, the sound was off and only a portion of the
        videotape was played. The defense, however, replayed the videotape for the judge with the
        sound on.
¶ 117        I cannot find that defendant has met his burden to demonstrate ineffective assistance of
        counsel under the Strickland standard. The record establishes that counsel’s performance was
        not deficient and defendant cannot demonstrate any prejudice ensued from counsel’s decision
        not to move to suppress defendant’s statement.
¶ 118        First, defendant does not demonstrate that counsel was deficient for not moving to
        suppress defendant’s statement. Because the videotape did not record any inculpatory
        response by defendant to DeYoung’s questions, suppression of the statement was not clearly
        defendant’s strongest strategy where the defense could use the videotape to argue that no
        inculpatory statement was ever made. Scrutiny of counsel’s performance is highly
        deferential, and the reviewing court examines the totality of counsel’s conduct, not isolated
        incidents. Strickland, 466 U.S. at 689. There is a strong presumption that counsel’s conduct
        falls within the wide range of reasonable professional assistance. Id. Only the most egregious
        tactical or strategic blunders bring counsel’s representation below Strickland’s standard of
        objective reasonableness. People v. Reid, 179 Ill. 2d 297, 310 (1997). “ ‘Mistakes in trial
        strategy or tactics or in judgment do not of themselves render the representation incompetent
        ***.’ ” People v. Hillenbrand, 121 Ill. 2d 537, 548 (1988) (quoting People v. Stewart, 104
        Ill. 2d 463, 492 (1984)). The record here establishes that counsel provided a vigorous and
        capable defense.
¶ 119        According to the record, defendant complained to the trial court about the performance
        of his second appointed counsel and wanted to raise several matters in a pro se motion.
        Appointed counsel explained that several issues defendant sought to raise were irrelevant or


                                                -2
                                                 22-
        lacked merit, but she would raise his issue concerning the suppression of his statement in a
        motion that she would draft herself. Defendant, however, subsequently decided to represent
        himself, so the proceedings were delayed while he conducted his research. Eventually,
        defendant hired private counsel, and neither defendant nor private counsel filed a motion to
        suppress statements even though the bench trial did not start until seven months after private
        counsel had filed his appearance. These circumstances indicate that both defendant and
        private counsel were aware of the option to file a motion to suppress.
¶ 120        At the conclusion of the State’s case, counsel moved for an acquittal, arguing that the
        only evidence indicating that defendant knew the car was stolen was the peeled steering
        column, the punched door lock, and DeYoung’s testimony, three years after the event, that
        defendant said he just stole the car. Counsel argued, however, that DeYoung was impeached
        by the omission in his police report of any reference to a peeled steering column or punched
        lock. In addition, counsel argued that the videotape, when played with the sound on,
        established that “not only was there no such conversation between Deputy DeYoung and
        [defendant], what’s actually going on is the Detective is cursing him, kicking him.”
¶ 121        Later, in closing argument, defense counsel argued that defendant was not in possession
        of a stolen motor vehicle because Abrams sold Wright’s car for junk without telling her, the
        car was fixed and repaired, and the only other evidence to indicate that defendant might have
        known the car was stolen was the clearly fabricated testimony of Detective DeYoung.
        Specifically, counsel argued that the videotape impeached DeYoung’s testimony that
        defendant made an inculpatory statement and showed that DeYoung cursed the seriously
        injured defendant, kicked him, and hollered and pulled at him. Counsel added that
        DeYoung’s assertions about the peeled steering column and punched lock were refuted by
        the omission of those details from his police report. In addition, no photograph corroborated
        DeYoung’s testimony about the door lock and steering column.
¶ 122        The record indicates that counsel wanted the trial judge to hear, and not just watch, the
        videotape because counsel wanted to use the videotape to convince the judge that DeYoung
        had verbally and physically abused the injured defendant and lied about defendant making
        an inculpatory statement. This strategy was consistent with counsel’s strategic decision to
        forgo filing a motion to suppress the alleged inculpatory statement made by defendant. The
        decision to bring a motion to suppress is considered trial strategy, and trial counsel enjoys
        a strong presumption that failure to move to exclude evidence was proper. People v. Spann,
        332 Ill. App. 3d 425, 432 (2002).
¶ 123        Finally, even if defense counsel had proceeded with and succeeded on defendant’s
        motion, defendant has not demonstrated a reasonable probability that the outcome of the trial
        would have been different. See id. at 432-33. Defendant’s statement was not the only
        evidence offered by the State to suggest that he knew the car had been stolen at the time of
        his arrest. As discussed above, the evidence in this case was not close, and Abrams and
        Myrick were not credible witnesses. Furthermore, the State did not argue in closing argument
        that defendant had confessed to Detective DeYoung that the car was stolen; rather, the State
        argued that defendant’s attempt to flee showed his consciousness of guilt and the facts–no
        permission from the owner to sell or take her car, the condition of the car when it was
        recovered 45 minutes after it had been reported stolen (punched out driver’s door lock,

                                                -2
                                                 23-
      absence of any car keys, condition of the steering column), and no title transfer or bill of
      sale–established that defendant knew he was in possession of a stolen vehicle. There was
      simply too much evidence of guilt. See People v. Diaz, 377 Ill. App. 3d 339, 347-48 (2007)
      (trial counsel’s failure to move to suppress the statement taken in clear violation of the
      defendant’s right to remain silent, even though error, did not constitute ineffective assistance
      in light of the evidence of the defendant’s guilt).
¶ 124      Defendant’s statement was not the key piece of evidence against him, and he was not
      clearly prejudiced by counsel’s decision to forgo the motion to suppress. Detective
      DeYoung’s testimony was much more credible than Abram’s or Myrick’s testimony.
      Consequently, counsel chose to attack DeYoung’s credibility by showing the judge that
      DeYoung must have lied because the videotape did not record any inculpatory statement by
      defendant. Because defendant cannot meet the prejudice prong of the Strickland standard,
      his ineffective assistance of counsel claim should be rejected and his conviction affirmed.

¶ 125                             III. Right to Self-Representation
¶ 126      Defendant claims that the trial court violated his right to represent himself at sentencing.
      He claims that one “isolated incident” where he refused to appear in court did not constitute
      grounds for the trial court to terminate his pro se representation. Defendant’s argument lacks
      merit.
¶ 127      Although a criminal defendant generally has a constitutional right to represent himself
      if he makes an unequivocal request to do so, that right is not absolute and may be forfeited
      if the defendant engages in serious and obstructionist misconduct, or if he cannot make a
      knowing and intelligent waiver of counsel. People v. Rohlfs, 368 Ill. App. 3d 540, 544-45
      (2006). On review, the trial court’s decision on a defendant’s election to represent himself
      will be reversed only if the court abused its discretion. People v. Rasho, 398 Ill. App. 3d
      1035, 1041-42 (2010). Here, the trial court correctly terminated defendant’s self-
      representation because his conduct was serious and obstructionist and not merely an isolated
      incident.
¶ 128      Before trial, defendant was dissatisfied with appointed counsel, so the trial court
      permitted him to proceed pro se. After much delay, defendant reconsidered and counsel was
      appointed once again. Ultimately, defendant hired private counsel, and the trial commenced.
      After trial and prior to posttrial motions, defendant told the trial court, on July 23, 2010, that
      he again wanted to proceed pro se. The trial court again permitted defendant to represent
      himself. Thereafter, defendant requested and received multiple continuances and informed
      the court that he was trying to obtain evidence to support his theory that he was convicted
      in a “ghost case.” On October 1, 2010, defendant finally argued his motion for a new trial.
      The lengthy argument, which is set forth in 26 pages in the record, presented multiple issues,
      including errors in the charging document, violation of defendant’s Miranda rights,
      sufficiency of the evidence, ineffective trial counsel, violation of the discovery rules by the
      State, and improper admission of certain evidence. The trial court denied defendant’s motion
      and tried to proceed to sentencing, but defendant insisted on presenting another motion for
      a Krankel hearing. The trial court relented and the matter was continued.


                                                 -2
                                                  24-
¶ 129     On October 6, 2010, the case was called for the sentencing hearing but defendant was not
      present. He was in custody but refused to be brought to court. The trial court ordered that
      defendant be brought to the courtroom. However, a sheriff’s deputy later reported that
      defendant refused to obey the command to place his hands behind his back in order to be
      handcuffed and brought from the bullpen to court. When the deputy took defendant’s left
      hand to handcuff him, he fought with the deputies and refused to stand on his feet. Then,
      defendant claimed that his back gave out on him and he could not walk. The trial court
      appointed counsel to represent defendant and continued the cause so that a behavior clinical
      examination could be performed on defendant. On October 13, 2010, the trial court informed
      defendant that he would not be allowed to represent himself and that counsel was appointed
      to represent him. Defendant was subsequently found fit for trial and sentencing, but multiple
      continuances were granted so that appointed counsel could review the case, confer with
      defendant, or obtain additional information that defendant wanted to present.
¶ 130     At the sentencing hearing on February 25, 2011, defendant objected that his Krankel
      motion had not been heard, but appointed counsel stated that she had thoroughly investigated
      defendant’s Krankel claims, did not find any issues of merit, and notified defendant. She also
      stated that mitigation witnesses had appeared and were ready to testify. Defendant then
      objected stating that the trial court had forced appointed counsel to represent him. The trial
      court stated:
          “Exactly. Because you are incompetent and you are unable to represent yourself. And
          because of your actions, which I have dealt with throughout this whole proceeding in the
          many, many, many months previous to this, sir, we are done with it. I gave you all the
          rope you could have, sir, and you have used it up by your actions and what you have done
          in the past, sir. And I have a completed record throughout this matter here. And as of
          recently, I have given you the opportunity to represent yourself, but because of your
          actions of doing things, amongst other thing, having not come into the courtroom as well
          as acting up with the deputy sheriffs in which I was forced to have you examined again
          by the psychiatrist and the forensic institute.”
¶ 131     The trial court told defendant that he could be excused from the sentencing hearing if he
      wished and return for allocution. Defendant elected to leave the courtroom. After the
      presentation of mitigation evidence and argument, defendant returned to the courtroom and
      addressed the trial court. Based on defendant’s criminal background, he was subject to a
      mandatory Class X sentence of 6- to 30-years’ imprisonment for this Class 1 felony offense
      of aggravated possession of a motor vehicle. Furthermore, the retail theft charge he received
      while out on bond in this matter was an aggravating factor. The trial court sentenced
      defendant to a 19-year prison term.
¶ 132     The record rebuts defendant’s claim that the trial court violated his constitutional right
      to self-representation after merely an “isolated,” “one-time non-appearance in court.” The
      record in this case shows that defendant engaged in obstructionist conduct by filing ill-
      conceived motions and disregarding the trial court’s admonitions to talk with his attorney and
      to speak through his attorney. Defendant’s posttrial behavior attempted to obstruct the
      orderly progression of this cause through the sentencing phase, and the trial court properly
      terminated defendant’s self-representation due to his disruptive and defiant behavior and

                                               -2
                                                25-
delay tactics, which were depriving him of competent representation in a very serious
situation involving mandatory Class X sentencing. I cannot find that the trial court abused
its discretion in terminating defendant’s self-representation.




                                       -2
                                        26-
