Appeal from the Circuit Court of Cook County, Illinois. No. 07 CR 2767 Honorable John T. Doody, Jr., Judge Presiding.
The opinion of the court was delivered by: Justice Joseph Gordon
JUSTICE JOSEPH GORDON delivered the judgment of the court, with opinion.
Justices Howse and Epstein concurred in the judgment and opinion.
¶ 1 Following a jury trial, defendant Deny Quinonez was found guilty of possession of less than 15 grams of cocaine and sentenced to 30 months of probation. On appeal, defendant contends that his conviction should be reversed and his cause remanded for a new trial because the State improperly cross-examined defendant about his post-arrest silence, and because the trial court failed to strictly comply with the admonition requirement of Illinois Supreme Court Rule 431(b) (eff. May 1, 2007). For the reasons discussed below, we reverse and remand.
¶ 3 Defendant was charged with possession of more than 1but less than 15 grams of cocaine with intent to deliver in connection with an incident which took place on December 14, 2006, on the north side of Chicago. Defendant filed a motion to quash his arrest and suppress evidence, which the trial court denied and his case proceeded to a jury trial.
¶ 4 As voir dire began, the trial judge addressed the entire venire and explained the following:
"[Defendant], as is the case with all persons charged with crimes, is presumed to be innocent of the charge that brings him here before you. This presumption is with him now at the beginning of the trial and remains with him throughout the course of the trial and into your deliberations unless and until you individually and collectively are convinced beyond a reasonable doubt that the Defendant is guilty. It is absolutely essential as this jury is selected that each of you understand and embrace these fundamental principles, that is that all persons charged with a crime are presumed to be innocent and that it is the burden of the State, who brought this charge, to prove the Defendant guilty beyond a reasonable doubt.
The Defendant has no obligation to testify in his own behalf or to present any evidence in his defense. The fact that the Defendant does not testify must not be considered buy [sic] you in any way in arriving at your verdict. However, should the Defendant elect to testify or present evidence in his behalf, you are to consider that evidence in the same manner and by the same standards as evidence presented by the State. There is no burden upon the Defendant to prove his innocence. It is the State's burden to prove the Defendant guilty beyond a reasonable doubt."
¶ 5 After the venire was sworn in, the judge asked the first panel of 28 prospective jurors the following questions:
"A Defendant in a criminal case is presumed to be innocent until a jury determines after deliberation that the Defendant is guilty beyond a reasonable doubt. Does anyone have a problem with this rule of law?
The State has the burden of proving the Defendant guilty beyond a reasonable doubt. Does anyone disagree with this rule of law?
A Defendant does not have to present any evidence at all and may rely upon the presumption of innocence. Does anyone disagree with this rule of law?
A Defendant does not have to testify. Would anyone hold the fact that a Defendant did not testify at trial against the Defendant?"
¶ 6 None of the 28 prospective jurors answered affirmatively to any of those questions. Eight jurors were chosen from that first panel. The trial court then called 22 other prospective jurors and asked them those very same questions. Again, none of the prospective jurors from the second panel answered affirmatively to any of those questions, and the remaining jurors were selected from that panel. After the jury was selected, the court heard motions in limine and the State then began its case-in-chief.
¶ 7 The State first called Chicago police officer David Phelan, who testified that at about 9 p.m. in the evening in question, he was on patrol with his partner, Officer Pearson. The officers were driving south on Sheffield Avenue and turned right onto School Street, when they drove past defendant and another man arguing near the intersection of the two streets.
¶ 8 The officers exited the vehicle in an area well-lit by streetlights, and as Officer Phelan approached defendant and the other man, he observed defendant, who was three to five feet away from the officer, drop a clear plastic bag on the ground. According to the officer, defendant dropped the bag between himself and Officer Phelan, who immediately recovered the bag and found that it contained six smaller plastic bags with suspected cocaine inside. Officer Phelan stated that after he recovered the bag, he "immediately placed [defendant] in custody," and after performing a custodial search, the officer found in defendant's jacket pocket another plastic bag, which contained seven smaller clear plastic bags of suspect cocaine. After defendant was arrested, the officers transported him to the police station, where Officer Phelan inventoried the items recovered from defendant.
¶ 9 On cross-examination, defense counsel asked Officer Phelan at what time "this alleged occurrence" happened, which the officer replied that it was 8:55 p.m. When asked at what time he placed defendant under arrest, the officer replied that it also happened at 8:55 p.m. The officer then acknowledged that the arrest was "pretty immediate." Officer Phelan did ...