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People v. Sebby

Supreme Court of Illinois

June 2, 2017


          JUSTICE THEIS delivered the judgment of the court, with opinion. Justices Thomas, Kilbride, and Garman concurred in the judgment and opinion.


          THEIS JUSTICE.

         ¶ 1 Defendant, Montana Sebby, was convicted by a jury of resisting a peace officer, a Class 4 felony (720 ILCS 5/31-1(a-7) (West 2010)), and sentenced by the trial court to two years' imprisonment. On appeal, the defendant argued that the trial court committed error in admonishing prospective jurors pursuant to Illinois Supreme Court Rule 431(b) (eff. May 1, 2007) and that, despite his failure to object to that error, he was entitled to a new trial because the evidence was closely balanced. A majority of the appellate court disagreed with the defendant and affirmed his conviction and sentence. 2015 IL App (3d) 130214.

         ¶ 2 For the reasons that follow, we reverse and remand for further proceedings.

         ¶ 3 BACKGROUND

         ¶ 4 In 2011, Bonnie and Howard Sebby lived on a farm in rural La Salle County near Utica. The Sebbys had four children: the defendant; his older brother, Oakland Sebby; and his younger twin sisters, Casey and Elizabeth Sebby. Casey and Elizabeth died in a car accident on September 23, 2011, and on October 18 the trial court entered an order granting temporary physical custody of Casey's daughter, L.S., to her biological father. The order directed law enforcement officials to assist the father in obtaining L.S. from "whoever had physical custody of the child."

         ¶ 5 The La Salle County sheriff's office believed that L.S. was staying with the Sebbys, and they visited the farm with the custody order three times. The first time was October 21. The second time was October 26 at 5:30 p.m., when Investigator Jason Martin attempted unsuccessfully to serve the order on Bonnie. Around 12 hours later, on October 27, three uniformed deputies-Joshua McGrath, Jason Mohr, and Jarred Arthur-arrived at the farm around 6 a.m. The defendant, who did not live with his parents but had spent the night at their house, came to the door and spoke with the deputies. What happened next is in dispute. What is not in dispute is that the defendant ended the encounter in custody, charged with resisting a peace officer.

         ¶ 6 The case proceeded to a jury trial. The La Salle County circuit court [1] admonished the jury pool as to the so-called Zehr principles (see People v. Zehr, 103 Ill.2d 472 (1984)), enumerated in Rule 431(b):

"The most important law on a criminal case is the defendant[, ] who you will meet in a moment[, ] is presumed innocent. The presumption of innocence exists throughout the trial. The defendant doesn't have to prove anything. The defendant doesn't have to testify. The defendant doesn't have to present evidence, and the defendant, if he does not, and you cannot and you must not hold that against him or assume anything by that. The State is obligated by law to prove the defendant guilty beyond a reasonable doubt."

         ¶ 7 The trial court questioned potential jurors in panels of six. During the questioning of the first panel, the court talked to a potential juror about the Zehr principles:

"Q. First of all, you need to understand the presumption of innocence.
A. Understood.
Q. But what if the defendant denies that but you have to understand that may be a story told, and it may be you having to decide whether it's a story told and credibility. I can't say that may not be the story. I may have to say that's what somebody says, but the defendant by the way who's presumed innocent doesn't have to testify, and if he doesn't, you must not hold that against him. Would that affect your decision?
A. Not if there's no evidence pointing to that fact.
Q. Okay. Good. That's what I'm looking for. That was a very good answer because that was the answer in this case. Now, going back to all six of you, the defendant is presumed innocent, and that presumption of innocence exists throughout the trial. The defendant does not have to prove anything. He doesn't have to testify. He doesn't have to present evidence, and if he does not, then you must not hold it against him. It's the State's burden to prove the defendant guilty beyond a reasonable doubt, and I need to go through each of you with that."

         ¶ 8 The trial court then individually asked the remaining members of the panel whether any of them "[h]ad any problems" with those principles, while interweaving questions about whether there was anything that would prevent them from being fair and impartial in evaluating the evidence. The trial court specifically repeated its question with respect to the presumption of innocence to two potential jurors because they indicated that they might be biased. Using similar phrasing, the trial court spoke to each panel of prospective jurors about the Zehr principles. The trial court again asked the individual jurors of each panel whether they "[h]ad any problems" with or "believe[d] in" those principles, as well as whether anything would prevent them from being fair and impartial.

         ¶ 9 Following opening statements, the State called its first witness, Deputy McGrath. McGrath testified that on October 27, 2011, he went with Deputies Mohr and Arthur to serve the court order at the Sebby residence. After he knocked on the door for several minutes, a woman answered the door. McGrath asked the woman if she lived there, and she said no. He then asked to speak to someone who did live there, and the woman said that "nobody else was home." McGrath explained that "it was imperative that we made [sic] contact with a resident of the house and the child and that to prevent anybody from getting in any further trouble or any trouble whatsoever it would be best to cooperate and explain to us how we can make contact with the home owner or resident of the house."

         ¶ 10 According to McGrath, the defendant then came to the door. Mohr handed a copy of the court order to the defendant, and the deputies again explained why the police were at the house. McGrath testified that the defendant was "basically uncooperative and upset that we were there." When the deputies asked where the child was, the defendant told them that she was "on vacation with Bonnie and he didn't know where or how to get a hold of them." The conversation between McGrath and the defendant occurred just outside the house. The defendant became

"more and more agitated about what was going on. He handed the court order back to Deputy Mohr saying this is not a search warrant which we never said it was and then he reached over and poked me in the shoulder as he was yelling for us to get out of the-poked me in the shoulder area as he was yelling for us to leave his property."

         ¶ 11 McGrath advised the defendant that he was under arrest for battery of a peace officer. McGrath reached for the defendant's wrist, but the defendant "pulled away and resisted arrest at that time." McGrath and Mohr then "attempted to gain control of [the defendant] as he was basically thrashing his body about trying to get away and resist arrest." The deputies then assisted the defendant to the gravel driveway in an effort to gain control over him. They repeatedly told him to stop resisting and to put his hands behind his back because he was under arrest. Eventually, the deputies handcuffed the defendant and placed him in the backseat of Mohr's squad car. At that point, McGrath noticed that Mohr "had some scratch marks on his hands, on both hands and wrist area of his right hand, " as well as some scratches on the back of his left hand. McGrath testified that the scratches were "not bad" but were "definitely open scrapes and cuts."

         ¶ 12 At that point, Oakland Sebby came to the door of the house. McGrath explained why the police were there and asked if they could enter the house to "check" for the girl. Oakland refused. The deputies then took the defendant to the La Salle County jail, where he was given Miranda warnings. McGrath asked the defendant "why he poked me the way he did[, ] he stated that he was just getting ready to tell us we could go in and check the house for [L.S.] and then when I explained to him [']you were just seconds before yelling at us to leave your property when you reached over and poked me, ['] he did not want to talk any further."

         ¶ 13 On cross-examination, McGrath did not recall whether he stuck his foot in the door when the woman answered his knocking, but he admitted that the deputies did not have permission to enter the house. McGrath testified that after he was told by the woman and the defendant that the girl was not there, he remained at the house "[b]ecause I had reason to believe they were not telling the truth." McGrath elaborated:

"[W]hen I answered [sic] the door the first time somebody comes to the door and turns off the light and doesn't open the door. I knock on the door again and a female answers and says she's the only one there. Nobody else is there and then all of a sudden [the defendant] shows up at the door a few moments later and then a few moments after that Oakland shows up at the door so obviously I had been lied to already during that time."

         ¶ 14 McGrath stated that the woman did not lie about the fact that Bonnie Sebby was not at the house: "I was not lied to, but I was not allowed in the house either." McGrath reiterated that the deputies remained at the house, even after being told to leave by the defendant, because they believed that the woman had lied to them and they "had a responsibility to make every attempt to get that court order served."

         ¶ 15 McGrath denied that the defendant merely brushed him: "He poked me as he was yelling profanities at us to get off of his property." McGrath explained that "[d]ue to [the defendant's] resistance we attempted to gain control of him standing up. That wasn't happening. We took him-Deputy Mohr was the one that had more of a hold on him. We then placed him to the ground, assisted him to the ground." When asked whether he could state how Mohr was injured, McGrath testified, "[The defendant] resisted when I told him he was arrested for poking me in the shoulder so if he would have cuffed up at that point in time, we never would have had to go to the ground in the first place so I believe the responsibility remains with him." McGrath added: "Deputy Mohr was injured while we were trying to gain control of [the defendant] while we were on the ground." McGrath admitted, however, that he did "not know exactly at what point and time" Mohr's injuries occurred. McGrath concluded that the defendant's "moving and rolling around on the ground was to prevent us from taking him into custody."

         ¶ 16 On redirect examination, McGrath testified that the defendant

"pulled away from us, when he pulled away from me initially when I told him he was under arrest for poking me in the shoulder, he pulled away and headed towards I guess towards Deputy Mohr, and when we were trying to get him to the ground it was basically him still attempting to get away from us."

         McGrath asserted that "the fact of [the defendant's] level of resistance" took the deputies to the ground. The deputies and the defendant "rolled around in different positions for a few moments before we were able to get him to his stomach and try to get his hands behind his back."

         ¶ 17 Deputy Mohr testified that he rode in a squad car to the house with McGrath. When they arrived to serve the court order, they "attempted to make contact with someone knocking on the door several times" over 5 to 10 minutes. According to Mohr, "[t]here was a light on inside of the house, " but "[s]omeone had turned it off while we were standing outside knocking." A woman finally came to the door. When the deputies asked to speak to a home owner, the woman "said there was no one else home but her."

         ¶ 18 The defendant then came to the door. Mohr and McGrath tried to explain the court order, and Mohr gave a copy of it to the defendant. The defendant gave it back to Mohr. Mohr testified that the defendant was "somewhat hostile" and "a little upset that we were out there in the morning." Mohr added that the defendant told the deputies "[t]o get off the property and that the paper that I gave him wasn't a search warrant." The defendant then poked McGrath "in the left shoulder, chest area." McGrath advised the defendant that he was under arrest and "attempted to gain control of his arm to place them behind his back." The defendant resisted by "pulling away" and "lurching around, " so Mohr helped McGrath. Mohr recalled that the defendant was shirtless. They took him to the ground in a "somewhat controlled" fall, which ended with all three men in the gravel driveway. A struggle ensued for 20 seconds, in which the defendant tried to pull his hands under his body. The defendant "had landed like on his chest or his side and was just told to put his hands behind his back. He didn't comply. He just continued to put his hands away from us. Eventually we were able to gain control and get his arms behind him and handcuff him." Mohr's hands were between the defendant and the gravel driveway. Mohr had to "get under there and get a hold of him and pull his hands out from under him and get them back behind his back." Mohr later noticed scrapes on his hands and wrists from the gravel.

         ¶ 19 On cross-examination, Mohr conceded that he may have been handed a shirt for the defendant after he was in the squad car. Mohr denied that McGrath kicked at the door. He merely "knocked at a reasonable level so it could be heard." He also denied that he was agitated, and he did not recall using profanities or threatening to pull the defendant's mother from the house by her hair. Mohr could not say "100 percent" that the scrapes came from the gravel but added "that was the only place I was other than standing was in the gravel." He did not believe that McGrath or Arthur could have grabbed his arm and caused the scrapes, but he again could not say "100 percent." Mohr testified that he and McGrath were an arm's length from the defendant when he stepped forward and poked McGrath in the chest. Mohr admitted that the incident report did not state that the defendant stepped forward.

         ¶ 20 Deputy Arthur testified that he arrived at the house shortly after McGrath and Mohr. Arthur's version of events was succinct: "We attempted to serve the paper. [The defendant] poked Deputy McGrath." According to Arthur, the defendant was "hostile verbally and would not accept the paper." The defendant was wearing shorts, but no shirt. After he poked McGrath, McGrath tried to place him in handcuffs: "[H]e resisted, and he was taken to the ground." Arthur restrained the defendant's feet, while McGrath and Mohr got his arms "out from underneath him." Arthur noticed Mohr had several scratches on his hands.

         ¶ 21 On cross-examination, Arthur testified that McGrath and Mohr were two feet from the defendant when they spoke to him. Arthur agreed that distance was "[p]retty close quarters" and "crowded" but stated that the defendant stepped toward McGrath, even though that fact did not appear in the incident report. Arthur was "off to the side" and remembered seeing "some sort of contact" between the defendant and McGrath. Arthur added that the deputies were asked to leave the property "[o]nce or twice" but did not do so because they had "a responsibility to attempt to locate that child." He denied that McGrath and Mohr used profanity.

         ¶ 22 The trial court denied the defendant's motion for a directed verdict, and defense counsel called Angela Dankenbring as a witness. Dankenbring testified that she was a family friend who had previously dated Oakland. Dankenbring went to the house on the night before the incident and encountered Howard but no one else. Dankenbring spent the night there, sleeping on a couch in the living room. At 6 the next morning, she "woke up to very loud pounding on the door." The door was shaking, and she was afraid it would break. She thought Howard was knocking at the door because he had forgotten his keys. When she opened the door, she saw a deputy sheriff.

         ¶ 23 The deputy asked if Bonnie was at the house. Dankenbring said that she was not but she did not know where she was. Dankenbring also said that she did not know if anyone else was at the house. The deputy asked her for identification and "shoved his foot in the door and wouldn't let me shut the door." According to Dankenbring, the deputy was "very belligerent" and "hostile, " "yelling" that he would arrest her for obstructing justice and that she just needed to cooperate. Over the course of 5 to 10 minutes, Dankenbring and the deputy spoke: "We just kept going back and forth because he wanted to search the house, and I said it wasn't my house. I don't feel like I can give you permission to search it. It's not my home, and we just kept doing that." As the deputy became more agitated, the defendant came upstairs.

         ¶ 24 Dankenbring testified that the defendant stepped outside the house to talk to the deputies. She ran for a sweatshirt and shoes, returned to the door, and stood behind the defendant. The deputy to whom Dankenbring had spoken was a foot away from the defendant, and the other two deputies "kind of kept their distance" several feet away. Dankenbring described their conversation:

"[The defendant] said that his mother wasn't home and then they were asking about [L.S.] He said that she was with [her] grandmother on vacation. He didn't know where they were. They asked him to try to contact his mother. He was like she's not going to answer at [6] o'clock. He'd ask them to please leave because he had already told them she was out of town and she wasn't there, and he asked them repeatedly to please leave."

         Dankenbring said that the defendant was "loud" but not "physical or anything." He was "loudly saying [']I'm tired of this. You need to please leave my family alone. It's 6:00 a.m. My daughter's sleeping. Leave.['] " The deputies did not leave because they wanted L.S. and Bonnie. According to Dankenbring, they were "agitated" and "very hostile, " swearing at the defendant and "calling him names." She was "very shocked."

         ¶ 25 Dankenbring did not see any contact. The defendant was "talking with his hands, and like he was [']you need to leave. You need to leave (indicating), ['] and the one officer yelled assault, and I was genuinely surprised because I didn't see where that had happened." After that, the defendant threw his hands into the air and said "I'm cool" and "I'm calm." The other two deputies then "ran up and grabbed each arm, and they played tug of war with [the defendant] until he was on the ground face down in the gravel." From Dankenbring's perspective, the defendant was not struggling but rather "moving a lot" because the deputies "were not clear on who was doing what." The defendant "looked like a puppet being held between two people."

         ¶ 26 On cross-examination, Dankenbring testified that the deputies were pulling the defendant's arms: "They had his arms behind his back. He was laying on the ground, and they were just moving his arms-he was moving because they were-they didn't know what they were-it seemed to me like they didn't know what they were doing. They were wrestling his arms trying to get them in position and that made him move." She agreed that the deputies took the defendant to the ground but disagreed that they needed to get his arms out in order to handcuff him. Dankenbring stated that "[t]hey had his arms the whole time, " and that "[t]hey each grabbed an arm and then they ended up moving away from the house, and he ended up on his stomach." She admitted that she couldn't recall "exactly every move that was made." According to Dankenbring, the defendant used profanity when telling the deputies to leave the property, but "the officer had been using swear words before he had."

         ¶ 27 On redirect examination, Dankenbring reiterated that, from her perspective, "it looked like [the deputies] were caught-like they were moving [the defendant] more than he was moving. It didn't appear to me that he was resisting or anything. It was just awkward, very awkward."

         ¶ 28 Oakland testified that on the morning of the incident, he took a shower and turned off the kitchen light on his way downstairs to get dressed. He heard "some loud banging on the door, not banging but like trying to beat it down." He proceeded downstairs to get dressed and answer the door when it opened. He heard Dankenbring's voice and continued dressing. He went back upstairs and saw the defendant outside and Dankenbring behind him.

         ¶ 29 According to Oakland, the conversation between the defendant and the deputies was "[o]bscenely loud" with "[a] lot of F bombs" from McGrath. At first, the defendant was "calm and collective [sic], " but Oakland stated, "the more belligerent this guy got, the more stern my brother got asking the police officer to leave the property." Oakland testified that he did not see the defendant make contact with anyone and that the defendant had not touched anybody before the deputies grabbed him. When asked again if there was any contact between the defendant and McGrath, Oakland said, "Prior to being apprehended, no." Oakland added, "At the point of Officer McGrath screaming assault that [the defendant] had F'ed up and he was going to jail, the other two officers had grabbed each arm and started playing a tug of war with him[, ] walking him away from the house and trying to take him to the ground." Oakland later provided more details: "When [McGrath] said [']you're under arrest, you F'ed up, ['] [the defendant] threw his hands up and said [']I'm cool. I'm cool.['] That's when the officers grabbed each arm and started toying with him." Oakland declined to call the defendant's conduct resisting but instead "trying to protect yourself from hitting gravel."

         ¶ 30 Samantha Russell, the defendant's girlfriend, testified that she and defendant were downstairs in the house asleep with their daughter on the morning of the incident. Around 6:15 a.m. there was "pounding" at the door, so Russell woke up the defendant to "go and see who's knocking" because two officers had visited the house the previous day looking for L.S. and Bonnie. The defendant went upstairs. Five minutes later, Russell went upstairs to check on him. He was in handcuffs. Following the defendant's release from jail, Russell took photos of "scrapes" on his arms and back.

         ¶ 31 The defendant then testified on his own behalf. He stated that, before the morning of the incident, he had already talked to the police twice about L.S. The girl had seemed depressed after her mother's death, so her grandmother Bonnie had taken her to visit family in the South. The defendant was unsure where and had no way to contact his mother. He did not live with his parents, but he was staying there to help feed livestock while his father was at work and his mother was away.

         ¶ 32 On October 27, the defendant went to the door wearing only "sweat pants, no socks, no shoes." He recounted the beginning of his interaction with the deputies:

"I seen [Dankenbring] go to shut the door and put her shoes on and then the door springs back open. I look down in the crack of the door and the officer has his foot in the door so I open the door. I go to step out, and I shut the door, and he says [']you're Montana, right, ['] and that was the first thing he says to me. [']You're Montana, right, ['] like he was expecting me to be there or I'm the one he wanted to talk to. [']Yes, I'm Montana['] and then every word out of Mohr's mouth was just [']we know your mom's here. You're an F'ing liar. If we have to we'll drag her out by her hair, and she'll never see her grandchild again.['] They said [']this is a serious matter. If we have to we'll get a warrant in five minutes and we'll be back.['] I said [']hold on. You guys need to calm down. You guys are acting like we have your kid here, you know.['] "

         ¶ 33 According to the defendant, Mohr had the court order in his hand, and he was cussing and yelling. The defendant looked at the order, realized that it was not a search warrant, and handed it back to Mohr. He asserted that he "tried to be as calm as possible and just everything was I was a liar." The defendant described "everything" as "just so irate and just unprofessional." He asked the officers to leave "literally about every 45 seconds." He called them "ridiculous" and added:

"I don't have to take this stuff. It's [6] o'clock in the morning. I'm going to go inside. If you guys have a warrant, go get your warrant and come in. We'll be here all day. If that's what it takes, I'll just sit here and wait for you guys to come back with a warrant, and you guys can search the house and find out I'm not lying, that I am telling the truth."

         ¶ 34 The defendant further testified that he told the deputies his daughter and his brother's daughter were sleeping inside the house. He also told them, "If one of you would like to come in to the house to make sure [Bonnie and L.S.] are not here, by all means." The defendant said that Arthur insisted that all three deputies would have to go together. The defendant looked at the deputies when "all of a sudden I'm being grabbed, you know, and it's like [']what's going on, ['] you know. I mean I'm being called a dumb mother F'er, and [']you messed up big time.['] " The defendant denied that he made any contact with McGrath; the defendant was "shocked" when McGrath grabbed him.

         ¶ 35 The defendant was "pulled off" the doorstep, and the deputies "swung" him into the gravel, where he lost his balance. He testified that he landed on his face. According to the defendant, the deputies were yelling at him, ordering him to quit resisting and put his hands behind his back. The defendant responded, "You guys have both my arms. If you want them behind my back, put them behind my back." The defendant was just "trying not to get hurt on [the] gravel." He denied that he did anything to resist: "[A]s far as squirming, no, I don't believe I was squirming."

         ¶ 36 On cross-examination, the defendant repeated that Mohr called him a "F'ing liar, " insisting that Bonnie was at the house. The defendant agreed that the deputies arrived at the house and started a fight with him for no reason. He also agreed that the deputies dragged him "limp like a rag doll not fighting back for at least 30 feet" through the gravel.

         ¶ 37 At the close of the defendant's case, the parties entered a stipulation. The parties agreed that if La Salle County sheriff's office Investigator Jason Martin had been called as a witness, he would have testified that he attempted to serve the court order on October 26, 2012, the day before the incident that resulted in the defendant's arrest. Martin also would have testified that he spoke to the defendant at his parent's house ...

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