{ "id": 5798752, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL R. BARNES, Defendant-Appellant", "name_abbreviation": "People v. Barnes", "decision_date": "1991-09-24", "docket_number": "No. 4\u201490\u20140881", "first_page": "278", "last_page": "283", "citations": [ { "type": "official", "cite": "219 Ill. App. 3d 278" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "447 U.S. 231", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6183056 ], "weight": 3, "pin_cites": [ { "page": "240" }, { "page": "96" }, { "page": "2130" } ], "opinion_index": 0, "case_paths": [ "/us/447/0231-01" ] }, { "cite": "386 N.E.2d 272", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "74 Ill. 2d 444", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2994926 ], "opinion_index": 0, "case_paths": [ "/ill-2d/74/0444-01" ] }, { "cite": "296 N.E.2d 856", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "858" } ], "opinion_index": 0 }, { "cite": "54 Ill. 2d 280", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2933485 ], "pin_cites": [ { "page": "282-83" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/54/0280-01" ] }, { "cite": "109 S. Ct. 274", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "102 L. Ed. 2d 263", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "488 U.S. 917", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1493216, 1494881, 1494338, 1494992, 1495413, 1495158 ], "opinion_index": 0, "case_paths": [ "/us/488/0917-01", "/us/488/0917-03", "/us/488/0917-06", "/us/488/0917-05", "/us/488/0917-04", "/us/488/0917-02" ] }, { "cite": "522 N.E.2d 1124", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1988, "pin_cites": [ { "page": "1130" } ], "opinion_index": 0 }, { "cite": "122 Ill. 2d 176", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5550081 ], "year": 1988, "pin_cites": [ { "page": "186" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/122/0176-01" ] }, { "cite": "426 U.S. 610", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6181032 ], "weight": 6, "pin_cites": [ { "page": "617" }, { "page": "97" }, { "page": "2244" } ], "opinion_index": 0, "case_paths": [ "/us/426/0610-01" ] }, { "cite": "435 N.E.2d 831", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "837" } ], "opinion_index": 1 }, { "cite": "106 Ill. App. 3d 250", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3031656 ], "pin_cites": [ { "page": "258" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/106/0250-01" ] } ], "analysis": { "cardinality": 618, "char_count": 12105, "ocr_confidence": 0.782, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.17046650210108774 }, "sha256": "c18ac1cf9e7f5a3907f7cdf0d55185f37f359c4153d39020ef10e065e0af5391", "simhash": "1:ed529a4c31cfbb12", "word_count": 2029 }, "last_updated": "2023-07-14T21:35:35.632923+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL R. BARNES, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE GREEN\ndelivered the opinion of the court:\nFollowing a jury trial in the circuit court of Adams County defendant Michael Barnes was found guilty of aggravated battery under section 12 \u2014 4(b)(8) of the Illinois Criminal Code of 1961 (Code) (Ill. Rev. Stat. 1989, ch. 38, par. 12 \u2014 4(b)(8)), and was sentenced to a four-year term of imprisonment. Defendant appeals, contending reversible error was committed at trial when the prosecutor elicited testimony of (1) his post-arrest silence, and (2) his response to police questioning following his arrest and Miranda warnings. Defendant also claims the court erred by ordering him to pay an amount of restitution based exclusively on information in the presentence report, despite his objection that the amount was inaccurate. We reverse and remand for a new trial.\nThe dispositive issue here is whether the prosecutor elicited testimony at trial that defendant remained silent after his arrest and after he had been given the Miranda warnings in violation of the holding in Doyle v. Ohio (1976), 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240. In Doyle, the United States Supreme Court held that due process precludes the State from using a defendant\u2019s post-arrest silence following the Miranda warnings to impeach his exculpatory story told for the first time at trial. The Supreme Court reasoned that post-arrest silence after a defendant receives the Miranda warnings is \u201cinsolubly ambiguous\u201d because that defendant\u2019s failure to speak may be nothing more than an exercise of his Miranda rights. Doyle, 426 U.S. at 617, 49 L. Ed. 2d at 97, 96 S. Ct. at 2244.\nInitially, the State claims defendant has waived any claim of error because defense counsel failed to object at trial and in a post-trial motion to the testimony of which he now complains. Ordinarily, if the defense fails to make a timely objection at trial and in a post-trial motion, any claim of error is waived. (People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1130, cert. denied (1988), 488 U.S. 917, 102 L. Ed. 2d 263, 109 S. Ct. 274.) However, Supreme Court Rule 615(a) (134 Ill. 2d R. 615(a)) provides an exception if there has been plain error. The doctrine of plain error may be invoked in criminal cases where the evidence is closely balanced or where the error was of such magnitude that the accused was denied a fair trial. People v. Pickett (1973), 54 Ill. 2d 280, 282-83, 296 N.E.2d 856, 858.\nIn People v. Green (1979), 74 Ill. 2d 444, 386 N.E.2d 272, the Illinois Supreme Court held that, there, even though that defense counsel failed to timely object at trial and in a post-trial motion, fundamental fairness required review of that defendant\u2019s allegation that the prosecutor elicited evidence of his post-arrest silence to impeach him at trial. That court concluded that despite the existence of what would otherwise be plain error, the error was harmless beyond a reasonable doubt because of the overwhelming proof of the guilt of the accused. Here, because the evidence at trial was closely balanced and defendant\u2019s credibility was crucial, we will review defendant\u2019s contention of error under the doctrine of plain error.\nThe offense charged against defendant arose when he and the complainant, Terry Jones, engaged in a fistfight outside a tavern in a city parking lot. The primary factual issue at trial was whether defendant initiated the fight, or was acting in self-defense when he struck the complainant. The complainant testified at trial that as he was standing outside a tavern in a city parking lot he observed defendant driving in a \u201chot-rodding\u201d manner and he yelled to defendant, \"Go for it.\u201d In response, defendant yelled, \"your mama.\u201d Defendant then parked his car in the city parking lot and he and a companion approached complainant and they exchanged more angry words. Complainant testified that defendant struck him unexpectedly, knocking him to the ground. A subsequent struggle ensued and complainant wrote down defendant\u2019s license-plate number and contacted the police.\nPaul Holtschlag witnessed part of the incident and testified that when he first arrived at the scene he observed complainant on the ground and defendant standing close to him. He then tried to intervene, and defendant struck him, knocking him to the ground. Holtschlag testified he never saw which party initiated the fight. In addition, Cathy Martin, a Quincy police officer, testified that on the evening of the incident complainant came to the Quincy police headquarters appearing as if he had been in a fight, reported being hit by another person, and \u201cgave her information\u201d concerning a license-plate number. She then checked the computer records of the Secretary of State and discovered the license plate belonged to a car registered to defendant. Martin also testified that the place where the fight was alleged to have taken place was public property, establishing the aggravating factor under section 12 \u2014 4(b)(8) of the Code.\nFor the defense, Kenneth Gilker, defendant\u2019s companion on the night of the incident, testified that just prior to the incident defendant pulled his car into the city parking lot because of car trouble when complainant then yelled something to them. Gilker and defendant proceeded to walk through the parking lot and complainant mumbled something like \u201cYour mama\u201d to defendant, who had asked, \"What\u2019s up?\u201d After complainant repeated the remark, defendant walked toward him and asked, \u201cWhat did you say?\u201d and complainant struck defendant. Gilker testified defendant struck complainant back and knocked him to the ground.\nDefendant testified to the same events as Gilker, and essentially claimed he struck complainant in self-defense. On cross-examination, the following colloquy took place between the prosecutor and defendant:\n\u201cQ. [Prosecutor:] Mr. Barnes, what time was it when you called the police department about this battery that you were the victim of?\nA. [Defendant:] I\u2019m sorry?\nQ. What time was it when you called the police department about being hit in the parking lot by Mr. Jones?\nA. I didn\u2019t call no law. That\u2019s useless that\u2019s \u2014 .\u201d\nDefendant contends this portion of his cross-examination was an improper use of his post-arrest silence. However, the questions involved refer to defendant\u2019s failure to report to the police, before his later arrest, that he had been attacked and acted in self-defense, as he claimed at trial. The fact that he did not report such an attack was probative as to whether his trial testimony was accurate. Jenkins v. Anderson (1980), 447 U.S. 231, 240, 65 L. Ed. 2d 86, 96, 100 S. Ct. 2124, 2130.\nLater, during the cross-examination of defendant, the following further colloquy occurred:\n\u201cQ. [Prosecutor:] Do you remember when you talked to Officer Cathy Martin about a week after the incident?\nA. [Defendant:] Yes.\nQ. And do you remember Officer Martin asking you if you remember being on the City Market parking lot on June 16 and being in a fight at that time?\nA. I\u2019m not familiar with our conversation. I refused to go into detail about my case with her because she was the arresting officer.\nQ. Do you remember saying to her, T don\u2019t remember\u2019?\nA. No. I don\u2019t remember saying, T don\u2019t remember.\u2019\nQ. Did you say something otherwise to her when she talked to you?\nA. I said I\u2019m not going to talk to you, point-blank, you know.\nAnd she said \u2018We have nothing to talk about.\u2019\nQ. But you didn\u2019t say anything to her about the statement, \u2018Your mama,\u2019 or anything like that that night, did you?\nA. I didn\u2019t \u2014 . I didn\u2019t talk to the lady.\u201d\nThe line of questioning which ultimately resulted in a Doyle violation began with the foregoing. Then Officer Martin was called in rebuttal. The prosecutor\u2019s questions to her were apparently designed to respond to defendant\u2019s testimony on cross-examination when he stated that he could not remember whether he told Officer Martin, at the time of his arrest, that he did not remember whether he was in a fight in a city parking lot on the night in question. The questions she was asked and her answers were as follows:\n\u201cQ. [Prosecutor:] Did you advise the defendant of his rights, commonly called his Miranda rights, prior to talking to him?\nA. [Officer Martin:] Yes, sir, I did.\nQ. That\u2019s the right to remain silent ***?\nA. Yes.\nQ. Did you question the Defendant concerning the incident at the City Market parking lot that we\u2019ve testified to here today already?\nA. Yes, sir.\nQ. And what was your first question to [defendant] regarding that incident?\nA. I asked him if he remembered being involved in the fight on that day and time in the city parking lot.\nQ. What was his first response to your question?\nA. T do not remember, and I do not wish to talk about it.\u2019\nQ. After he made the statement that he didn\u2019t wish to talk about it, you acknowledged his right to remain silent, and you didn\u2019t question him any further?\nA. No, sir, I did not.\u201d\nThus, when the prosecutor cross-examined defendant in regard to a statement concerning his lack of remembrance about the fight, the prosecutor did so in the face of his own witness\u2019 statement that in the same breath he informed her he did not want to talk. The defendant maintains this, of itself, was enough to create plain error. We need not decide that because, with Officer Martin\u2019s testimony, the State put before the jury testimony that Miranda warnings were given defendant and he then stated he would not talk. Even if testimony that defendant had stated he could not remember the fight was properly presented, the testimony that he stated he would not talk was a direct Doyle violation requiring grant of a new trial.\nWe need not consider defendant\u2019s contentions concerning sentence. We reverse the conviction and sentence and remand for a new trial.\nReversed and remanded.\nKNECHT, J., concurs.", "type": "majority", "author": "JUSTICE GREEN" }, { "text": "JUSTICE STEIGMANN,\ndissenting:\nWhile I agree that error occurred in this case, I do not agree that it constitutes plain error, requiring us to reverse even though defendant made no objection at trial. In my opinion, this case is not close to the key authority cited in the majority opinion for concluding that plain error occurred. The behavior of the prosecutor in the present case is not nearly as egregious as that of the prosecutor in Green. In addition, only part of the prosecutor\u2019s questioning was improper. Specifically, when the prosecutor asked the police officer what defendant first said to her regarding if he remembered being involved in the fight in question, she answered: \u201c T do not remember, and I do not wish to talk about it.\u2019 \u201d That she testified defendant said \u201c T do not remember\u2019 \u201d is clearly admissible; that she testified that defendant then also said \u201c T do not wish to talk about it\u2019 \u201d is not admissible and, if defendant had made a timely objection, that testimony should have been stricken and the jury instructed to disregard it.\nLikewise, the prosecutor on cross-examination of defendant could properly ask him if he remembered saying to the police officer, \u201cI don\u2019t remember [about the fight].\u201d The other two questions the prosecutor asked were improper because they refer to statements that the defendant did not make after he indicated he did not want to speak further with the officer; still, the earlier statements were admissible.\nThe plain error rule should be applied only when the error is so prejudicial that real justice has been denied or the verdict of the jury may have resulted from such error. (See People v. Kincy (1982), 106 Ill. App. 3d 250, 258, 435 N.E.2d 831, 837.) The facts of the present case do not meet these standards, and I respectfully dissent.", "type": "dissent", "author": "JUSTICE STEIGMANN," } ], "attorneys": [ "Daniel D. Yuhas and Lawrence J. Essig, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.", "Scott H. Walden, State\u2019s Attorney, of Quincy (Kenneth R. Boyle, Robert J. Biderman, and David E. Mannchen, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL R. BARNES, Defendant-Appellant.\nFourth District\nNo. 4\u201490\u20140881\nOpinion filed September 24, 1991.\nSTEIGMANN, J., dissenting.\nDaniel D. Yuhas and Lawrence J. Essig, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.\nScott H. Walden, State\u2019s Attorney, of Quincy (Kenneth R. Boyle, Robert J. Biderman, and David E. Mannchen, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0278-01", "first_page_order": 300, "last_page_order": 305 }