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06/29/87 the People of the State of v. Michael T. Smith

June 29, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

MICHAEL T. SMITH, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

510 N.E.2d 515, 157 Ill. App. 3d 465, 109 Ill. Dec. 647 1987.IL.929

Appeal from the Circuit Court of Morgan County; the Hon. Richard J. Cadagin, Judge, presiding.

APPELLATE Judges:

JUSTICE McCULLOUGH delivered the opinion of the court. SPITZ, P.J., and GREEN, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCCULLOUGH

On May 7, 1986, the defendant, Michael Smith, was convicted of intimidation (Ill. Rev. Stat. 1985, ch. 38, par. 12-6(a)(1)) and unlawful restraint (Ill. Rev. Stat. 1985, ch. 38, par. 10-3(a)) following a jury trial. The defendant was acquitted of two counts of armed violence (Ill. Rev. Stat. 1985, ch. 38, par. 33A-2). The charges against the defendant arose subsequent to an incident which occurred on December 11, 1985, in the parking lot of the Regulator, a tavern in Jacksonville, Illinois. The defendant was sentenced to 30 months' probation and ordered to pay a $2,000 fine, restitution, and court costs. The defendant appeals his conviction.

The defendant claims that he was denied due process of law per Doyle v. Ohio (1976), 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240, where the prosecutor, at trial, made reference to his post-arrest silence. We affirm.

At trial, Alaina Turnbaugh, the victim, testified that on December 11, 1985, after work at approximately 11 p.m., she stopped at the Country Market to purchase cigarettes and then proceeded to the Regulator to meet some friends. Turnbaugh stated that she parked her car and then turned on the interior lights to check her makeup. While looking into the rearview mirror, Turnbaugh noticed a car parked behind her. Suddenly, her car door was yanked open and the defendant told Turnbaugh she was under arrest for drug trafficking. Turnbaugh claimed that the defendant pointed a gun at her head, grabbed her left arm, pulling her out of the car, and demanded that she accompany him.

When Turnbaugh asked the defendant for some identification, the defendant showed an ID card which Turnbaugh recognized as a Jacksonville Correctional Center ID. Turnbaugh then attempted to escape from the defendant, but the defendant slapped her and threatened to kill her while placing the gun in her mouth. During the struggle, two cars pulled into the parking lot. After the second car pulled in, Turnbaugh broke away from the defendant and ran into the Regulator. The police were immediately contacted.

The next morning, Turnbaugh was taken to the Jacksonville Correctional Center to view employee identification cards. After viewing all of the prison ID's, Turnbaugh identified the defendant as her attacker. Thereafter, a warrant was issued for the defendant's arrest and a search warrant was issued for defendant's home and automobile.

Office James Potter and Officer Richard Moss went to the Jacksonville Correctional Center to place the defendant under arrest. The defendant was placed under arrest, taken into custody, and given his Miranda warnings. As the officers escorted defendant to the squad car, Potter asked the defendant if he understood the charges. The defendant replied that "it was a situation that got out of hand." Potter then asked the defendant if he knew the girl, to which the defendant responded, "She was a girlfriend of Marty Savage, another guard."

After being informed of the search warrant, the defendant told the officers they would not find anything in his car, but surrendered the keys to his apartment, telling the officers where to find the gun and clothes he wore on the night of the incident.

At trial, the defendant testified that he knew Turnbaugh and when he saw her seated in her car with the lights on, he decided to play a practical joke on her. The defendant stated that he believed Turnbaugh was taking drugs. The defendant further testified that Turnbaugh lost her temper, had to be subdued, and slipped and fell as she exited her car. The defendant maintained that he was not armed, and that he never struck the girl. ...


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