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People v. Pacheco

Court of Appeals of Illinois, Third District

July 23, 2019

JAMES A. PACHECO, Defendant-Appellant.

          Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois, Circuit No. 12-CF-1799 Honorable Carla Alessio-Policandriotes, Judge, Presiding.

          Attorneys for Appellant: James E. Chadd, Peter A. Carusona, and Emily A. Koza, of State Appellate Defender's Office, of Ottawa, for appellant.

          Attorneys for Appellee: James Glasgow, State's Attorney, of Joliet (Patrick Delfino, David J. Robinson, and Luke McNeill, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

          JUSTICE McDADE delivered the judgment of the court. Justice Wright, specially concurring, with opinion. Presiding Justice Schmidt dissented, with opinion.


          McDADE JUSTICE

         ¶ 1 Defendant, James A. Pacheco, pled guilty to criminal damage to property. Following a jury trial, defendant was convicted of aggravated assault, aggravated fleeing or attempting to elude a peace officer, and driving under the influence of alcohol (DUI). On appeal, defendant argues (1) the trial court erred in replaying video and audio recordings in the courtroom in the presence of the parties and trial judge rather than in the jury room during jury deliberations, (2) the trial court violated defendant's right to confrontation by limiting his cross-examination of a police officer, (3) the trial court abused its discretion in granting the State's motion in limine to bar defense counsel from questioning two police officers about their failure to write police reports, (4) the State engaged in prosecutorial misconduct during closing argument, and (5) defendant is entitled to monetary credit for time spent in presentence custody in the amount of $1410. We reverse defendant's convictions and remand the matter for a new trial.

         ¶ 2 I. BACKGROUND

         ¶ 3 The State charged defendant with aggravated assault (720 ILCS 5/12-2(b) (4)(i), (c)(8) (West 2012)) in that he operated a motor vehicle in a manner which placed Adam Stapleton in reasonable apprehension of being struck by the vehicle. The State also charged defendant with attempted aggravated battery (id. §§ 8-4(a), 12-3.05(d)(4) (i)) in that he attempted to make physical contact of an insulting or provoking nature with Stapleton by driving a vehicle toward Stapleton. The indictment alleged defendant knew Stapleton to be a police officer engaged in the performance of his official duties during these offenses.

         ¶ 4 The State also charged defendant with aggravated fleeing or attempting to elude a peace officer (625 ILCS 5/11-204.1(a)(4) (West 2012)), criminal damage to property (720 ILCS 5/21-1(a)(1) (West 2012)), and two counts of DUI (625 ILCS 5/11-501(a)(1), (a)(2) (West 2012)).

         ¶ 5 Defendant filed a motion to suppress evidence, which the court ultimately denied. At the hearing on the motion to suppress, Stapleton testified that he did not write a police report in connection with the instant case. Stapleton stated: "It was explained to me the only thing that I was to do with anything with the case was to give a statement, a video and audiotaped statement, after the incident." Stapleton said that it was customary for officers to write police reports unless there was an officer-involved shooting, which occurred in this case. Defense counsel asked Stapleton why that situation was different. Stapleton replied: "Because of the protection by our union, legal protection, things of that nature." Stapleton said he believed it was also the police department's policy. Officer Eric Zettergren also testified that he did not write a police report. Zettergren explained: "I believe it is the department's policy that if you're involved in an incident like this you just give a statement." Defense counsel asked Zettergren if he was ordered by his supervisor not to write a report. Zettergren replied: "I don't know if I'm specifically ordered not to, but that's just the way it has been done."

         ¶ 6 The State filed a motion in limine to bar defendant from eliciting any testimony or evidence regarding the absence of police reports written by Stapleton and Zettergren. The motion alleged that the police department's regulations prohibited Stapleton and Zettergren from writing reports involving the incident because Stapleton discharged a firearm during the incident.

         ¶ 7 At a hearing on the motion in limine, the State noted that Stapleton and Zettergren testified at the suppression hearing that they had been prohibited from writing reports because Stapleton had discharged a firearm. Defendant argued that he should be permitted to cross-examine Stapleton and Zettergren about their failure to write police reports. Defense counsel argued that the police department policy manual was "ambiguous as to whether a police officer should make a report." Defense counsel read a portion of the policy manual stating that an officer who discharges a firearm was to write a report unless physically unable. Defense counsel noted that another section of the manual said that the watch commander would designate a second officer other than the officer involved in the incident to complete a report.

         ¶ 8 The court granted the motion in limine. The court reasoned that if it was the police department's policy to preclude officers from writing reports in the event of a shooting, then the officers had no discretion as to whether they wrote reports. The court found that absent any discretion on the part of the officer, failing to write a report in this situation was not a bad act and did not indicate that the officer was biased. The court stated that the officers were not in a position to interpret the written regulations presented by defense counsel and stated that an officer probably would not even know that the document existed. The court indicated that it would reconsider its ruling if the parties could provide evidence that the officers were not told they could not write police reports. The court suggested that the parties call a police official and ask about the situation. Neither party made any further representations to the court on the matter.

         ¶ 9 Defendant pled guilty to criminal damage to property. The matter proceeded to a jury trial on the remaining charges.

         ¶ 10 At the trial, Ralph Gallup; his son, Jonathan Gallup; and their neighbor, Reginald Phillips, testified that they heard the sound of glass breaking at approximately 2:20 a.m. on July 30, 2012. They observed a black car in the alley behind their residences and saw that defendant was driving the car. Jonathan saw that the windows of Ralph's truck were broken. Jonathan or Ralph called the police. Defendant drove his car to the end of the alley, which was a dead end. Ralph drove his truck into the middle of the alley to prevent defendant from leaving. Defendant exited his vehicle and looked around for a few minutes. Defendant then reentered his vehicle and drove through a yard onto Union Street.

         ¶ 11 Stapleton testified that he was working with Zettergren at approximately 2:20 a.m. on the day of the incident. Stapleton was driving the squad car. They received a report of criminal damage to property committed by a white male driving a black Nissan. While the officers were driving to the scene of the complaint, they encountered a black Nissan that matched the description from the complaint. It was later determined that defendant was driving the vehicle. Stapleton activated his overhead lights and followed the vehicle.

         ¶ 12 Defendant stopped his vehicle after Stapleton activated his overhead lights. The officers exited their squad car, and defendant drove away. The officers returned to the squad car and began pursuing defendant. Stapleton activated his siren and used the squad car's public address system numerous times to tell defendant to stop his vehicle. Defendant continued driving at a high rate of speed and committed several traffic violations. The officers continued to follow defendant.

         ¶ 13 Eventually, the roadway was blocked by a train near the Filtration Group, and defendant was unable to continue. Stapleton drove his squad car so that it was parallel with defendant's stopped vehicle. Stapleton believed that defendant had given up running from the officers. He exited his squad car and told defendant to stop his car. Defendant said "what the f*** did you pull me over for" and that he did not do anything. Stapleton was standing at the back corner of the driver's side of his squad car. Zettergren also exited the squad car, and Stapleton lost sight of him.

         ¶ 14 Defendant began backing up his vehicle. Stapleton repeatedly told defendant to stop his vehicle. Defendant's vehicle stopped and then started to roll forward as if defendant had taken his foot off the brake. Defendant's vehicle then turned toward Stapleton and began to accelerate. Stapleton backed up and repeatedly ordered defendant to stop the vehicle. Defendant's vehicle continued to accelerate toward Stapleton. Stapleton did not believe he had time to move out of the way and was afraid that he was going to be killed. Stapleton discharged his firearm in the direction of defendant and fired seven rounds. Stapleton knew he was standing in front of defendant's vehicle when he discharged his firearm, but he did not remember if he was positioned in the center or to the left of the vehicle. After Stapleton discharged his firearm, he was able to move out of the way of defendant's vehicle. Defendant then fled the scene at a much higher rate of speed than when he accelerated toward Stapleton. Stapleton and Zettergren reentered the squad car and continued pursuing defendant.

         ¶ 15 The State introduced an audio recording of the encounter captured by surveillance equipment at the Filtration Group into evidence and played it for the jury. A voice could be heard yelling, "I didn't do anything." Another voice repeated "stop the car" several times. Seven gunshots could then be heard. The gunshots began approximately one second after the voice said "stop the car" for the last time. After that, a vehicle could be heard accelerating. Then, sirens and the sound of another vehicle accelerating could be heard. Defendant introduced a second audio recording of the incident into evidence, which captured the same events as the first recording.

         ¶ 16 The State also introduced a video recording of the encounter into evidence, which was also captured by surveillance equipment at the Filtration Group. The State played the video recording for the jury. The video recording contained some audio, but it was not as clear as the separate audio recordings. The image was grainy. In the video recording, a parked semitruck could be seen. A dark-colored vehicle drove past the semitruck. A squad car with its sirens and lights activated followed closely behind the dark-colored car. The two vehicles drove off the screen, and voices could be heard. Seven gunshots could then be heard in rapid succession. While the gunshots could be heard, the dark-colored vehicle drove back onto the screen and an individual could be seen running in front of the dark-colored vehicle. This individual was close to the dark-colored vehicle when he first appeared on the screen. The individual ran away from the vehicle. The gunshots began when the vehicle was off the screen and continued as the vehicle drove into the view of the camera. The vehicle drove away. Approximately 15 to 20 seconds later, the squad car followed. Stapleton testified that he was the individual running in the video.

         ¶ 17 The State asked Stapleton if he discharged his firearm while taking cover behind the trunk of his squad car, and Stapleton said no. Stapleton said that he was not standing close to his squad car when he discharged his firearm. Stapleton testified that he was standing in front of defendant's vehicle the entire time he discharged his firearm.

         ¶ 18 During cross-examination, defense counsel asked Stapleton: "Now, what caused you to fire is *** there was a sudden turn in the vehicle towards you and it accelerated at a high rate of speed. It was at that point in time you feared for your safety and fired your firearm, is that correct?" Stapleton replied, "I didn't say a high rate of speed. I said the vehicle had accelerated towards me." Defense counsel asked Stapleton if he was aiming for defendant when he was discharging his firearm at the vehicle. Stapleton said yes. Defense counsel asked Stapleton if he was trying to kill or wound defendant, and Stapleton said no. Stapleton said, "I was firing the rounds to stop the threat that was coming at me." Defense counsel asked, "If you are firing the weapon to stop the car, what did you hope would happen by firing the weapon that would cause the car to stop?" Stapleton replied, "That it would either change directions or stop." Stapleton acknowledged that if he had shot defendant in the head, defendant could have become unconscious and unable to control the vehicle.

         ¶ 19 Stapleton testified that he and Zettergren pursued defendant after the shooting. Initially, there were two other squad cars in front of them, but Stapleton passed them so that he would lead the pursuit. Stapleton testified that defendant drove through a red light and failed to stop at a stop sign while driving through a residential area. At one point, Stapleton was driving 80 miles per hour in pursuit of defendant. Eventually, defendant struck a traffic signal pole and stopped. Stapleton exited his squad car.

         ¶ 20 Stapleton told defendant to open the door of his vehicle, but defendant did not comply. Stapleton wanted to remove defendant from the vehicle as quickly as possible so that he could not harm anyone else. Defendant's vehicle was still running after it crashed. Stapleton broke the window of defendant's vehicle and opened the door. Stapleton twice told defendant to exit the vehicle, but he refused. Stapleton twice tried to pull defendant out of the vehicle, but defendant resisted. Defendant was bleeding and said he had been shot. Stapleton deployed his taser, and the officers were able to remove defendant from the vehicle. Defendant was lying on the ground, but he was still fighting with the officers. Defendant refused to put his arms behind his back so the officers could place him in handcuffs. Defendant pulled his arms away from the officers. Stapleton activated his taser a second time. Other officers then gave defendant medical attention.

         ¶ 21 In the middle of defense counsel's cross-examination of Stapleton, the parties had a discussion outside the presence of the jury. Defense counsel stated that he planned to ask Stapleton whether he would lose his job if he improperly used deadly force. Defense counsel argued that Stapleton's potential fear of losing his job could provide a motive to testify falsely. The State argued that it would be improper for defense counsel to argue that Stapleton had "motive to testify falsely out of a desire or motivation to protect his job." The court agreed, reasoning that, pursuant to the holding in People v. Adams, 2012 IL 111168," [y]ou cannot tie perjury or sworn testimony to employment in a criminal case."[1]

         ¶ 22 Zettergren testified that he and Stapleton pursued defendant's vehicle until it stopped where the train was blocking the road. Zettergren exited the squad car and went to the front passenger side of the squad car. Defendant began backing up his vehicle. Zettergren and Stapleton yelled at defendant to stop his vehicle. Defendant continued to back up his vehicle. Defendant then stopped his vehicle as it was directly facing Zettergren. The vehicle rolled forward and increased in speed. Zettergren did not know whether defendant had only removed his foot from the brake or whether defendant's foot was on the gas pedal. Defendant turned the vehicle to the left toward the rear of the squad car, away from Zettergren.

         ¶ 23 Zettergren vaguely knew Stapleton's location at that time. He could hear Stapleton's voice moving from the front of the squad car to the back. Stapleton was giving defendant commands to stop the vehicle. Zettergren saw defendant's vehicle accelerate. Zettergren stated that there was a visible and audible increase in the speed of defendant's vehicle. Stapleton gave more commands. Zettergren then heard shots being fired. He could not see Stapleton at that point. He then saw defendant's vehicle flee the area.

         ¶ 24 Michael McAbee, a semitruck driver, testified that he and his son, Jamie Kirk, were sleeping on bunks in McAbee's semitruck in the early morning hours on the date of the incident. The truck was parked at the Filtration Group. They were waiting for the plant to open to drop off their freight. At approximately 2:45 a.m., McAbee heard sirens, which woke him up. He saw a black car drive up to train tracks where a train was parked. A squad car then passed his truck and stopped. The black car could not get around the train, and it turned around slowly, "like an old person." When the black car turned around, the squad car pulled up at an angle to it. Two police officers exited the squad car. The officers yelled at the driver of the black car several times, telling him to stop his vehicle. The black car was facing the squad car at a 30-degree angle. One of the officers walked to the front of the squad car, and the other officer went to the back.

         ¶ 25 The black car backed up and then started driving back in the direction from which it had come. The police officers were still yelling at the driver of the black car. They told him to "stop the f'ing car or they gonna shoot." At one point, the driver of the black car yelled at the officers to get out of his way. The driver did not otherwise respond to the officers. One officer drew his gun and yelled at the driver to stop the vehicle. McAbee could see the officer "a little bit" at that point. The black car did not stop. Rather, "he acted as an old person; drove easy." McAbee heard gunshots and covered his face. After the gunshots stopped, McAbee lay down for a few minutes. When he looked up, both vehicles were gone.

         ¶ 26 Kirk testified that he was 19 years old. In the early morning hours on the date of the incident, Kirk was sleeping on the top bunk of McAbee's semitruck. He heard McAbee exclaim, and he woke up. He saw a black car in front of the semitruck and a squad car to the left of the truck. A train was blocking the road. The black car was facing away from the train toward the squad car. Kirk saw one police officer standing by the squad car on the driver's side near the trunk. The officer told the man driving the black car "to stop the car or he'd effing shoot." The officer was holding a gun. The State asked Kirk if he could hear the individual in the black car say anything. Kirk replied: "If I'm not mistaken, I heard him say to the cop to get the-out of his way, F-word." Kirk testified that he saw the officer point his gun at the black car. The black car remained stationary and did not move until after the officer fired his gun. Kirk stated that it was possible that the black car was moving so slowly that he could not tell if it was moving. Kirk believed the officer fired six shots. The black car then drove away slowly.

         ¶ 27 A firefighter paramedic testified that he responded to the scene of defendant's motor vehicle collision. The paramedic transported defendant to the hospital in an ambulance. A phlebotomist testified that she drew defendant's blood when he was taken to the hospital. The phlebotomist took the blood to the hospital's laboratory for testing. The tests showed that defendant's blood alcohol content was 0.183.

         ¶ 28 Police officer Chris Delaney testified that he was a crime scene technician. Delaney photographed defendant's vehicle after the incident. The photographs showed that there were six bullet holes in defendant's windshield and one bullet hole on the hood of the vehicle. Delaney had placed wooden rods through a few of the bullet holes. In three of the photographs, the wooden rod appeared to be entering a bullet hole on the hood of the vehicle from the front. In one photograph, the wooden rod appeared to be entering the same bullet hole from the side. Delaney stated that he did not move the rod. Rather, the photographs looked different because they were taken from different vantage points. Delaney stated that the purpose of the wooden rods was to "show perspective of the holes." The rods did not represent an exact trajectory of the bullets. Rather, it was "a guess as to where the bullet may have entered and its possible path." Delaney was not a shooting reconstructionist.

         ¶ 29 The State rested. Defense counsel asked the court to revisit its ruling on the issue of whether defense counsel could question Stapleton as to whether he believed the shooting could have a potential negative impact on his employment. Defense counsel stated that he wanted to recall Stapleton as a witness and ask this question. Defense counsel argued that he would be asking Stapleton if his actions on the day of the incident gave him a reason to lie, which was "just good 'ol fashion cross examination." Defense counsel argued that the instant case was distinguishable from Adams. The court upheld its ruling that it would not allow such questioning or argument.

         ¶ 30 Police officer Christopher D'Arcy testified that he pursued defendant's vehicle from the time of the shooting to the time the vehicle crashed into a traffic signal pole. D'Arcy's maximum speed during the pursuit was 55 miles per hour. D'Arcy saw defendant's vehicle crash. D'Arcy exited his squad car and stood 10 to 15 feet away from the scene of the crash with his canine. Other officers commanded defendant to exit the vehicle, but defendant did not comply. D'Arcy could not recall if defendant's vehicle was running but stated that it appeared to be inoperable. D'Arcy saw Stapleton deploy his taser. D'Arcy stated that defendant's failure to comply with the officers' verbal commands was the only behavior that required the use of the taser. After Stapleton deployed his taser, defendant exited the vehicle. Defendant displayed no unusual physical behavior that would require additional tasing.

         ¶ 31 During closing argument, defense counsel argued that the evidence did not establish that defendant made a blatant attempt to hit Stapleton with his vehicle after an audible and visual acceleration of defendant's vehicle. Defense counsel argued that although Stapleton testified that he was in front of defendant's vehicle when he discharged his firearm, the photographs of defendant's vehicle showed that the bullets entered from the side. Defense counsel pointed out several instances where he believed Stapleton's testimony was contradicted by the testimony of other witnesses, particularly Officer D'Arcy. Defense counsel stated:

"Ladies and gentlemen, I think the whole case boils down to credibility, credibility and an understanding of human nature. If you believe that Officer Stapleton was out of control that day, do not believe him. If you believe the officers are not consistent with each other, do not find [defendant] guilty. If you think Officer Stapleton was purposely abuseful, don't believe a word out of his mouth. If you think he was exaggerating here in Court, be offended, and then don't believe him. If you think he was acting to protect his own interests, don't believe him. If you think he lied when he said all the shots came from the front, don't believe him.
And, ladies and gentlemen, if you don't believe him, if you don't believe the officers, some of the officers in this case, there is not proof beyond a reasonable doubt."

         ¶ 32 The State argued that Stapleton's testimony was credible. The State contended that Stapleton's actions on the day of the incident were motivated by a desire to do his job and to protect the community from defendant's actions.

         ¶ 33 During jury deliberations, the jury asked to have the video and audio recordings from the security cameras at the Filtration Group replayed. The jury also asked if there was any way to view the video recording in slow motion. The court asked the parties if they objected to replaying the recordings for the jury. The State said no. Defense counsel indicated that he did not object as long as the defense's audio recording was played along with the State's audio and video recordings. The court stated that it appeared that the jury was asking for all three recordings to be played. The State indicated that it was not possible to play the video recording in slow motion. The following exchange occurred between the court and the parties:

"THE COURT: *** All right. What happens now since this is-we do not have the equipment in a jury room, we do not have equipment in here to bring it in. The jury has to come out into this courtroom and view what is on each of those video and audios from the filtration group. We know which three we are talking about, correct?
THE COURT: No disagreement what we are ...

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