Appeal from the Circuit Court of Cook County. No. 99 CR 9785. Honorable Stanley J. Sacks, Judge Presiding.
The opinion of the court was delivered by: Justice Reid.
Released for publication.
Following a jury trial, the defendant, Dion Wallace, was found guilty of aggravated possession of a stolen motor vehicle pursuant to section 4-103.2(7)(A) of the Illinois Vehicle Code (625 ILCS 5/4-103.2(7)(A)(West 1998)) and was sentenced to eight years' imprisonment. On appeal, Wallace argues the trial court erred when it: (1) allowed the State to impeach defense witness Michael Hayes with his prior silence, (2) restricted his cross-examination of Officer Creel, (3) denied him a fair trial as a result of prosecutorial comments made during closing argument, (4) failed to order a substance abuse evaluation pursuant to the Treatment Alternatives for Special Clients (TASC) before sentencing him to eight years' imprisonment, (5) sentenced him under the mandatory Class X sentencing provision of section 5-5-3(c)(8) of the Unified Code of Corrections (730 ILCS 5/5-5-3(c)(8) (West 1998)), which he asserts is unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), and (6) ruled on his pro se motion for a reduction in sentence without the presence of his attorney. On January 18, 2002, this court filed its opinion, which affirmed the trial court. Defendant filed a timely petition for rehearing alleging defendant was entitled to an examination for substance abuse treatment and for consideration for rehabilitation treatment. We have granted said petition for rehearing and withdrawn our prior opinion. For the reasons that follow, we now affirm the defendant's conviction, vacate the sentence and remand this matter for resentencing.
At trial, Yvora Eberhardt testified that when she returned home from work on February 17, 1999, she discovered that her apartment had been burglarized. Her home had been ransacked and she immediately noticed that her stereo, video cassette recorder, compact discs and clothing were missing. She reported the incident to the police.
On March 11, 1999, Eberhardt parked her 1993 Chevrolet Lumina in a residential parking lot in the rear of her apartment building. The following morning, Eberhardt discovered that her car had been stolen.
Eberhardt testified that she kept a spare set of keys to the Lumina in her home. The spare set of keys also contained a spare "cutoff switch key," which disarmed the "cutoff switch," which was an anti-theft device located on the dashboard of the car. After the Lumina was stolen, Eberhardt realized for the first time that the spare set of keys was missing from her home.
Chicago police officer Jeffrey Creel testified that on March 16, 1999, while on patrol with his partner, Officer John Campbell, he observed a Chevrolet Lumina make a right-hand turn without using its turning signal. Campbell ran the vehicle's license plate number through the police computer system and learned that the car was stolen. The officers proceeded to follow the Lumina and after some time activated their vehicle's emergency lights and sirens to alert the driver to pull over.
The driver responded by accelerating and initiating a chase. The officers pursued the Lumina until it crashed into a fence a short while later. After crashing the car, Wallace exited the vehicle and ran. The officers exited their vehicle and caught Wallace after pursuing him on foot. Creel stated that the Lumina did not exhibit any of the outward signs of a stolen vehicle, such as a peeled steering column, broken windows or punched locks.
Creel testified that after he advised Wallace of his Miranda rights, he asked Wallace why he fled. Creel testified that Wallace said "he took off because he knew the car was stolen." Creel later learned that Wallace had an outstanding warrant from traffic court seeking his arrest.
Creel testified that at no point did he ask Wallace to sign a written admission. Wallace's admission was never audio taped or videotaped. Creel testified that because possession of a stolen motor vehicle is a high-volume case, the officers were not required to make taped copies of Wallace's admission.
Eberhardt testified that on March 16, 1999, she was contacted by the police and informed that her car had been recovered. She went to the police pound to reclaim her vehicle. There, she found the missing set of spare keys to the Lumina in the ignition of the vehicle, and the "cutoff switch key" was in the "cutoff switch," which was located on the dashboard.
Eberhardt testified that she had never seen or met Wallace before. She stated that she never gave Wallace permission to use her car and never gave him the keys to her car.
Michael Hayes, a witness for the defense, testified that he and Wallace were friends who had known each other for 10 years and saw each other almost every day. Hayes testified that on March 12, 1999, Wallace rented the Lumina from a man named Mike. Hayes did not know Mike's last name or address. Hayes stated that Wallace agreed to rent the car from Mike for the weekend for $60. Hayes testified that Mike had keys to the Lumina and that there was no visible damage to the car when Wallace accepted the vehicle. Hayes said that Wallace paid for the car with cash. No written rental agreement was generated, and Wallace did not receive an insurance card or any other documents for the Lumina. Hayes received $10 because he served as the middleman for the transaction.
On September 28, 1999, the jury returned a guilty verdict. On October 29, 1999, Wallace filed a motion for a new trial, which was denied. The trial court sentenced Wallace to serve eight years' imprisonment on October 29, 1999. On December 3, 1999, Wallace filed a pro se motion for a reduction of sentence, which was denied on December 9, 1999. Wallace filed a timely notice of appeal on January 4, 2000.
Wallace contends the trial court erred when it allowed the State to impeach defense witness Michael Hayes with his prior silence. Specifically, Wallace argues that it was improper for the State to impeach Hayes with his failure to inform the authorities that Wallace had rented the Lumina.
The State argues the issue is waived because Wallace failed to raise the issue in his post-trial motion for a new trial. Wallace maintains, however, that the plain error rule applies because the evidence was closely balanced, citing Supreme Court Rule 615(a) (134 Ill. 2d R. 615(a)) and People v. Mullen, 141 Ill. 2d 394, 401 (1990), in support of his contention.
Ordinarily, a defendant must object to an error at trial and include the objection in a post-trial motion in order to preserve the issue for review on appeal. People v. Enoch, 122 Ill. 2d 176, 186 (1988). However, the plain error rule may be invoked in criminal cases when a defendant has not properly preserved an error for review, where the evidence is closely balanced, or where the error adversely affected the defendant's right to a fair trial. Mullen, 141 Ill. 2d at 401-02; People v. Carlson, 79 Ill. 2d 564, 576-77 (1980).
"The main purpose of the plain error rule, if the evidence is closely balanced, is to protect against the 'possibility that an innocent person may have been convicted due to some error which is obvious from the record, but not properly preserved' for appellate review. [Citation.] In cases where the evidence is closely balanced, the probability that a defendant's conviction was caused by even a minor trial error is greatly enhanced. Therefore, in those cases, the court will invoke the plain error rule so that it can determine whether an error, which was not objected to at trial and in post-trial motions, raises doubt as to the validity of the jury's verdict." Mullen, 141 Ill. 2d at 402, quoting Carlson, 79 Ill. 2d at 576.
Generally, silence has no probative value and testimony regarding a witness' silence must be excluded unless the failure to state a fact was "definitely and manifestly inconsistent" with the witness' trial testimony. People v. McMullin, 138 Ill. App. 3d 872, 877 (1985). A witness can be impeached with prior silence where it is shown that the witness had the opportunity to make an exculpatory statement and, under the circumstances, a person normally would have made the statement. People v. Berry, 264 Ill. App. 3d 773, 779 (1994); People v. Conley, 187 Ill. App. 3d 234, 244 (1989).
"[W]here a witness is a friend of the accused, and has had knowledge of the friend's arrest before trial, evidence of the witness' failure to give exculpatory information to the authorities is admissible to impeach an exculpatory story offered for the first time at trial. However, where the witness has not had sufficient notice, there must be evidence of other circumstances under which a reasonable person would have given exculpatory information to the authorities." Conley, 187 Ill. App. 3d at 245.
At trial, Hayes testified that Wallace rented the Lumina from Mike on March 12, 1999. Wallace was subsequently arrested on March 16, 1999. Hayes learned of Wallace's arrest a few weeks later, when Wallace's lawyers found him on the street and informed him that Wallace had been arrested for driving a stolen Lumina. Hayes informed Wallace's lawyers of the rental agreement between Wallace and Mike, but Hayes never contacted the authorities.
The State argues that it satisfied the required evidentiary foundation to impeach Hayes and cites Berry in support of its position. Berry is distinguishable.
In Berry, the defendant was convicted of armed robbery and was sentenced to 10 years' imprisonment. On appeal, the defendant argued that the State improperly impeached his alibi witnesses with evidence of their failure to come forward and notify the authorities of the alibi.
The defendant allegedly robbed a Baskin Robbins. The owner, who was working at the store at the time of the robbery, identified the defendant in a lineup. The defendant's girlfriend and another woman testified that they were with the defendant at a party on the night of the robbery but both failed to alert the authorities of the defendant's alibi until months after the robbery occurred.
The Berry court held that the State satisfied the required evidentiary foundation to impeach the defendant's alibi witnesses. The court wrote, "[d]ue to the intimate relationship between defendant and [his girlfriend] and the fact that she knew months before trial of defendant's alibi yet failed to bring this fact to the attention of the police, no foundational problem exists that would have precluded her impeachment on these grounds." Berry, 264 Ill. App. 3d at 779.
Here, it is true that Hayes failed to inform the authorities of the exculpatory information that he possessed before the beginning of trial. However, Hayes did not sit idle as the witnesses in Berry did. Unlike the witnesses in Berry, Hayes did not wait before disclosing the exculpatory information. Hayes testified that he informed Wallace's attorneys of the exculpatory information that he possessed when he was informed that Wallace had been arrested.
Wallace's attorneys were officers of the court who had a duty to inform the State of all potential defense witnesses. On August 6, 1999, the defense filed an amended answer to the People's motion for pretrial discovery, where it listed Hayes as a potential witness at trial. The State failed to interview Hayes.
In People v. Watson, 94 Ill. App. 3d 550 (1981), the defendant was convicted of burglary, kidnaping, unlawful restraint and rape. The defendant allegedly kidnaped the victim and forced her into a car, where he raped her. The defendant's alibi witness testified that she and the defendant were dining together when the crime occurred and that she did not become aware until some time later that the defendant had been charged with a crime that allegedly occurred while they were together.
The court held that it was improper for the prosecutor to argue that because the defendant's alibi witness did not inform the State of the alibi, the alibi witness was not credible. Watson, 94 Ill. App. 3d at 557. The court found that there was no showing that the witness had an opportunity to inform the State of the alibi in circumstances where a reasonable person would have stepped forward. The court held that there was no foundation for impeachment of the alibi witness. Watson, 94 Ill. App. 3d at 558.
In this case, we believe that there was no showing that Hayes had an opportunity to inform the State of Wallace's alibi in circumstances where a reasonable person would have stepped forward. Hayes was first informed of Wallace's arrest by Wallace's attorney. At that point Hayes gave the attorney the exculpatory information he possessed. We do not believe that a reasonable person would then have also called the authorities. Under these circumstances, where Hayes was already in contact with defense lawyers, a reasonable person would not be required to seek out the State and share this information with the State as well.
The State asserts that the plain error doctrine does not apply because the evidence was not closely balanced. We agree.
In this case, the evidence showed that the defendant led police on a high-speed chase in an attempt to evade arrest. After crashing the stolen Lumina, Wallace fled from the officers on foot. Once apprehended, Wallace admitted to the arresting officer that he ran because he knew the car was stolen.
In contrast, the evidence presented by Wallace was very weak. Wallace relies primarily on the car rental evidence. However, Hayes was a friend of the defendant, and the jury was free to disbelieve his testimony. Hayes testified that Wallace did not know the car was stolen because Wallace rented the vehicle from a man named Mike. Hayes allegedly made it possible for Wallace to rent the vehicle from Mike, yet implausibly, Hayes testified that he did not know Mike's last name or Mike's address, and no rental agreement was generated as a result of the arrangement.
We agree with the State, therefore, that the evidence was not closely balanced, and thus we will not ...