Court of Appeals of Illinois, First District, Sixth Division
A new trial was awarded to defendant in a prosecution for aggravated possession of a stolen motor vehicle where the trial court committed plain error in stating that the “owner” of the car had testified that the steering column had been peeled and in excluding as inadmissible hearsay her testimony that the vehicle had been sold, since the record showed no such testimony and the testimony about the sale was only offered to show the witness’s state of mind; furthermore, the errors prejudiced defendant, the evidence was close and was not inconsistent with defendant’s claim that 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.
Appeal from the Circuit Court of Cook County, No. 06-C-661233; the Hon. Frank Zelezinski, Judge, presiding.
Michael J. Pelletier, Alan D. Goldberg, and Kathleen Hill, all of State 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.
¶ 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 officer DeYoung 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 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?
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 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,  and a copy of the DVD was provided to the appellate court. 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 blue 1992 Cutlass Sierra. In 2000,  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. 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 then agreed to sell him the vehicle for $50 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. 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 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 ...