People v. Pinkett

2021 IL App (4th) 190172-U

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL B. PINKETT, Defendant-Appellant.

NO. 4-19-0172

APPELLATE COURT OF ILLINOIS FOURTH DISTRICT

April 14, 2021

NOTICE

This Order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from Circuit Court of Pike County

No. 17CF84

Honorable Jerry J. Hooker, Judge Presiding.

JUSTICE HOLDER WHITE delivered the judgment of the court.

Presiding Justice Knecht concurred in the judgment.

Justice Turner dissented.

ORDER

¶ 1 Held: The appellate court reversed and remanded with directions, concluding the trial court erred in denying defendant's motion for a mistrial and the error was not harmless.

¶ 2 After a July 2018 trial, a jury found defendant, Michael B. Pinkett, guilty of aggravated fleeing or attempting to elude a peace officer, a Class 4 felony (625 ILCS 5/11-204.1(a)(1) (West 2016)) and speeding (625 ILCS 5/11-601(b) (West 2016)). The jury acquitted defendant of failure to use a turn signal (625 ILCS 5/11-804(d) (West 2016)). In September 2018, the trial court sentenced defendant to two years' imprisonment.

¶ 3 Defendant appeals, arguing (1) the trial court erred in denying defendant's motion for a mistrial or, in the alternative, defense counsel provided ineffective assistance of counsel by failing to distinguish the State's case law in regard to defendant's postarrest silence, (2) the State committed prosecutorial misconduct violating defendant's right to remain silent, and (3) defense counsel provided ineffective assistance of counsel by failing to object to the State's pattern of prosecutorial misconduct. We reverse and remand with directions.

¶ 4 I. BACKGROUND

¶ 5 In July 2017, the State charged defendant with aggravated fleeing or attempting to elude a peace officer, a Class 4 felony (625 ILCS 5/11-204.1(a)(1) (West 2016)). The charge stemmed from a June 10, 2017, incident where "defendant, after being given a visual and/or audible signal to stop by a Peace Officer, failed to stop his vehicle and traveled at a speed at least 21 miles per hour over the legal speed limit[.]" Police subsequently arrested defendant in a Walmart bathroom. In July 2018, the State also charged defendant with speeding (625 ILCS 5/11-601(b) (West 2016)) and failure to use a turn signal (625 ILCS 5/11-804(d) (West 2016)).

¶ 6 A. Defendant's July 2018 Jury Trial

¶ 7 Below, we summarize the relevant testimony elicited during defendant's July 2018 jury trial.

¶ 8 1. Opening Statements

¶ 9 Before proceeding to opening statements, the trial court informed the jury that "[n]either opening statements nor closing arguments are evidence, and any statement or argument made by the attorneys, which is not based on the evidence, should be disregarded."

¶ 10 During opening statements, the State informed the jury "[the arresting police officers will] both testify in spite of the fact that they tried to arrest [defendant] there at the Walmart without making a scene since it's in the middle of the store, at no point did he ever ask in any way the reason why he was being detained." Defense counsel objected, and the trial court excused the jury to hear the parties' arguments. Defense counsel made a motion for a mistrial,arguing that when the prosecutor stated defendant did not say anything or ask why he was being arrested this was an improper comment on defendant's exercise of his constitutional right to remain silent.

¶ 11 The prosecutor indicated he researched the issue prior to trial and stated as follows:

"In Illinois Practice Volume 5 Criminal Practice and Procedure, on comment about prosecutor on defendant's pre-arrest silence, 16.24, it says, the United States Supreme Court has held Fletcher v. Weir[, 455 U.S. 603 (1982),] that the use of [postarrest] silence does not violate the defendant's right to silence.

The basis for the ruling is that because the Miranda [v. Arizona, 384 U.S. 436 (1966)] warnings have not yet been given. The State gives no assurances to the defendant that his silence would not be used against him, and thus, creates a sense of reliance on the statement by the defendant. The State of Illinois follows this decision. The citation is People v. Givens, 482 N.E.2d 211 [(1985)]. It's a 1985 Fourth District case and it's still the law."

¶ 12 Defense counsel responded that Givens was distinguishable because defendant was clearly in custody and counsel reiterated that the State's comments violated defendant's right to remain silent. The trial court stated it understood the parties' positions and knew the Givens case. Finding Givens applied, the court denied defense counsel's motion for a mistrial and overruled defense counsel's objection.

¶ 13 2. Deputy Brad Wassell

¶ 14 Brad Wassell, a Pike County sheriff's deputy, testified that on June 10, 2017, around 6 p.m., he observed three motorcycles driving above the speed limit of 55 miles per hour on U.S. 54 in Pike County, Illinois, a two-lane road. Deputy Wassell activated his radar unit and clocked one of the motorcycles traveling at 78 miles per hour in a 55 miles per hour speed limit zone. Deputy Wassell described the motorcycles as driving in a triangle-type formation.

¶ 15 As the motorcycles traveled toward him, Deputy Wassell pulled over to the side of the road in his unmarked police vehicle and activated his emergency lights. After the motorcycles continued to travel past him, Deputy Wassell made a U-turn to follow the motorcycles. Once Deputy Wassell caught up with the motorcycles, he estimated the motorcycles continued to travel between 60-65 miles per hour. At that point, Deputy Wassell activated his emergency siren.

¶ 16 Eventually the motorcycles reached the four-way intersection of U.S. 54 and Illinois 96, and the motorcycles made complete stops at the stop sign. Deputy Wassell deactivated his emergency siren at the four-way intersection. Deputy Wassell, about 10 feet behind the motorcycles, described the front motorcycle as "a Ninja crotch-rocket-style motorcycle." Deputy Wassell also observed the individual driving the Ninja motorcycle wore a "large black knife on his belt that was in a sheath." Deputy Wassell testified the driver of the Ninja motorcycle wore a helmet. Deputy Wassell also testified that when the motorcycles stopped at the intersection, the motorcyclist in the back turned around and made eye contact with him and he motioned for the motorcyclist to stop.

¶ 17 After making complete stops, the motorcycles proceeded through the intersection. As a result, Deputy Wassell reactivated his emergency siren and requested assistance. DeputyWassell testified the motorcycles maintained "a 60-mile-an-hour pace." Deputy Wassell continued following the motorcycles from about 200 to 300 feet behind. Deputy Wassell observed a piece of plastic dragged from the bottom of the Ninja motorcycle, the license plate was "blacker" than the others, possibly from dirt or grime, and the motorcycle did not have rearview mirrors. Deputy Wassell testified the motorcyclist on the Ninja-style bike never turned around and looked at him.

¶ 18 After the motorcycles passed through the intersection of U.S. 54 and State Highway 106, Deputy Wassell observed Officer Lisa Hobbs ahead. Before the motorcycles and Deputy Wassell reached Officer Hobbs, she activated her lights. At that point, the motorcycles began traveling in a single-line formation. The motorcycles continued driving and encountered a silver SUV traveling in the right-hand lane. The motorcycles followed the SUV for a mile before they increased their speed to 90 miles per hour to pass the silver SUV. Deputy Wassell testified that when the motorcycles increased their speed to 90 miles per hour, they were in a 45-miles per hour speed zone. Deputy Wassell also passed the silver SUV and continued to follow the motorcycles. Deputy Wassell testified that as he followed the motorcycles into Pittsfield, Illinois, he lost sight of the first two motorcycles, one being the Ninja motorcycle. Deputy Wassell continued following the third motorcycle to an Ayerco Convenience Center where he arrested the driver, Mikhail Williams. Deputy Wassell then transported Williams to the Pike County jail.

¶ 19 Later that evening, Deputy Wassell interviewed defendant at the Pike County Sheriff's Department. Deputy Wassell read defendant his constitutional rights and defendant waived his rights and agreed to speak with Deputy Wassell. When Deputy Wassell asked defendant if he noticed emergency lights while he drove his motorcycle, defendant alleged he didnot see any emergency lights while driving his motorcycle. The trial court allowed excerpts of the video recorded interview to be admitted during Deputy Wassell's testimony.

¶ 20 Deputy Wassell also observed photographs of defendant entering Walmart. On cross-examination, defense counsel asked Deputy Wassell if the photographs showed defendant wearing earplugs around his neck as he walked into Walmart. Deputy Wassell responded, "I don't know if they are earplugs." Defense counsel also asked Deputy Wassell, "if, in fact, a person on one of those motorcycles was wearing something covering his ears, and also had plugs in his ears, the combination of the loud noise of the motorcycle and the plugged ears and the wind, do you believe or would you concede that that person might not be able to hear your siren?" Deputy Wassell responded, "As I previously testified, I could see where it would be more difficult, but again, I don't think I'm the best person to answer that question, sir."

¶ 21 3. Officer Lisa Hobbs

¶ 22 Lisa Hobbs, a part-time Pittsfield police officer, testified that on June 10, 2017, she "heard radio traffic from Deputy Wassell that he was following three motorcycles that were refusing to stop, so I positioned myself." Officer Hobbs positioned herself perpendicular to U.S. 54 on the south side of the roadway, facing north "just a few" feet from the eastbound lane of...