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                                                                                                                               FIRST DIVISION
1-99-1974
29 September 2000

Defendant was charged with driving under the influence ofalcohol, resisting a peace officer, and two counts of battery toa peace officer. Defendant made a pretrial motion to quash herarrest which the trial court denied. The jury convicteddefendant of resisting a peace officer and acquitted her of onecount of battery to a peace officer. However, as the jury couldnot reach agreement on the other two charges, the trial courtdeclared a mistrial as to those counts. After retrial, the newjury convicted defendant of driving under the influence ofalcohol and acquitted her of the remaining count of battery to apeace officer.

The trial court then sentenced defendant to 60 days in theCook County jail for resisting a peace officer and to a one-yearconditional discharge and a $500 fine for driving under theinfluence. Defendant now appeals.

Initially, defendant contends that there was insufficientevidence to convict her of either resisting a peace officer ordriving under the influence. Defendant also argues that herconviction for resisting a peace officer must be reversedbecause: (1) the trial court sent a police report to the jurythat had not been admitted into evidence; (2) during voir direthe trial court erroneously denied a defense motion to strike oneprospective juror for cause and improperly granted a raciallymotivated peremptory strike by the State; (3) in questioning adefense witness before the jury, the trial court implied that itmight not be proper for that witness to testify; and (4) thetrial court improperly allowed the State to question defendantabout her pretrial silence.

BACKGROUND

Defendant Mary Long was charged with driving under theinfluence of alcohol, resisting a peace officer, and two countsof battery to a peace officer.

At the hearing on a motion to quash arrest, Forest Parkpolice officer Nicholas Petrovic testified that on the night ofDecember 14, 1998, he was on patrol in a marked police car. Petrovic, in training at the time, was accompanied by fieldtraining officer Steven Weiler. At around 2:10 a.m., a JeepCherokee with only one working headlight passed the officers. They started to follow the Jeep, which was driven by defendant. Petrovic and Weiler saw defendant depart at a high rate of speedfrom one intersection, fail to stop at a stop sign at anotherintersection, stop in the middle of another intersection andsqueal her tires as she went around a corner. Both officersthought that defendant was driving above the speed limit but didnot issue her a speeding citation. They did turn on the squadcar's emergency lights and sound the air horn. After a fewblocks, defendant pulled into an alley and stopped next to thebuilding where she lived.

Petrovic approached the Jeep and asked defendant for herlicense and proof of insurance. According to Petrovic, defendantresponded "Oh, what the fuck. Is that all you guys have to dotonight?" Petrovic observed that defendant's speech was slurred,she had bloodshot eyes and she smelled of alcohol. He askeddefendant if she was intoxicated. She did not respond, so heasked again. Defendant said "Fuck you" and drove slowly to hergarage entrance about 100 feet away. Officer Weiler followeddefendant on foot while Officer Petrovic followed in the policecruiser.

Officer Weiler testified that as he came up to the window,defendant was fumbling through the glove compartment. She hadturned up the volume of her radio so it was extremely loud anddid not turn it down until Weiler had asked her three times. Weiler testified that he could smell alcohol on her breath. Heasked if she had been drinking. Again defendant said "Fuck you." Weiler asked defendant to step out of the Jeep so he couldperform field sobriety tests. Defendant said "No fucking way"and activated her automatic garage door opener. Defendant thentried to put the Jeep in gear, without success. She then leanedover toward the floor. Officer Weiler reached in and took thekeys out of the ignition. Defendant, not realizing that Weilerhad done this, continued attempting to put the Jeep in gear. Weiler told her she was under arrest for driving under theinfluence of alcohol. Weiler opened the door and, when defendantagain refused to exit, tried to handcuff her. Defendantstruggled, scratched Weiler, and then fell out of the Jeep.

Officer Debra Taylor then arrived on the scene and tookdefendant to the station. At the station, defendant was placedin a holding cell. Weiler testified that while at the station,defendant refused to answer booking questions and continued toyell profanities. At one point he noticed that defendant'sblouse was ripped open. It was not ripped when they had put herin the holding cell. Weiler then called Taylor over to deal withdefendant. When Taylor attempted to remove defendant's belt asmandated by police procedure, defendant grabbed Taylor's hair. Weiler came over to assist Taylor and defendant kicked him in theshin. Weiler and Taylor had to carry defendant in order to gether back into the holding cell. Taylor testified at trial andher testimony concerning events at the station was substantiallythe same as Weiler's testimony.

Weiler further testified that Millaun Brown, defendant'sboyfriend and a Chicago police officer, called the station. Theofficers offered defendant the opportunity to talk with Brown onthe telephone, but she simply yelled something unintelligible andthrew the receiver. Later that morning Brown came to thestation. Brown was not allowed to see defendant at that time,however. Brown posted bond for defendant around noon. Duringthe hearing on the motion to quash, defendant took the stand butonly testified that both her headlights had been working on thenight of the incident.

The judge denied the motion to quash arrest.

At voir dire, the prosecution used a peremptory strike toremove an African-American woman. The defense objected, chargingthat this was a racially motivated strike in violation of Batsonv. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712(1986). As a race-neutral reason for its strike, the prosecutionnoted that the woman and her family had been the victims ofcrimes. While there were other crime victims on the panel, thiswoman was alone in expressing dissatisfaction with the way thepolice had handled her complaints. The judge accepted thisexplanation as nonpretextual.

Also during voir dire, the judge denied a defense motion tostrike a police officer from the panel for cause. The motion waspredicated on the fact that the officer was to be a witness in anunrelated trial where the charge was driving under the influenceof alcohol. The court found that the officer could be impartial.

At trial, defendant testified that she had been at the houseof a friend on the evening of December 14, 1998. She did notdrink anything there or on her way home. Defendant claimed thatshe did not violate any traffic laws on the way home and thatboth her headlights were working. As she was opening her garagedoor, Officer Weiler knocked on her window. He asked her if theJeep belonged to her and if she lived at that building. Weilerdid not ask her to submit to field sobriety tests. He asked herto show him her license and proof of insurance. As she waslooking for them in her purse, Weiler reached in and took thekeys from the ignition. She said "What the fuck are you doing?" Weiler then touched her breast, so she grabbed his hand and triedto remove it from her body. Weiler opened the door and pulledher out of the Jeep, telling Petrovic "This is how you treat anigger." Weiler started to handcuff defendant and then knockedher unconscious with his flashlight. Defendant testified thatshe regained consciousness at the station. There, Weilercontinued to push and grab her. She said that she did not learnwhat the charges against her were until Brown had already bailedher out the next day. When she went home she discovered that oneof her headlights had been ripped out. She reported the missingheadlight to the police.

On cross-examination, the State elicited that defendant didnot report her alleged maltreatment at the hands of the police toa government authority or to the media. Nor did defendant speakof police maltreatment when she took the stand at the hearing onthe motion to quash.

Millaun Brown testified that he went to the station on thenight of defendant's arrest but that Weiler prevented him fromseeing defendant. He said that when he picked defendant up thenext day she did not appear to have been drinking. When defensecounsel asked Brown if defendant drank, the judge would not allowBrown to answer the question.

While deliberating, the jurors requested a copy of Weiler'sarrest report. The defense had mentioned this report duringtrial but it had not been admitted into evidence. The judgeprovided it to the jury over defendant's objection.

The jury convicted defendant of resisting a peace officerand acquitted her of battery to Officer Weiler. Because the jurycould not reach agreement on the other charges, the judgedeclared a mistrial as to those counts. Defendant was thenretried on the unresolved counts.

The second trial proceeded before a different judge, FrancisGolniewicz. The State called Weiler, Petrovic and Long who gavesubstantially the same testimony they had given previously. Thedefense called an additional witness, Cecelia McCoach. McCoachtestified that on December 13, 1998, defendant stayed at herhouse from around 8 p.m. until 1 a.m. According to McCoach,defendant was not drunk when she arrived, did not have anythingto drink there and when she left both her headlights wereworking.

The second jury convicted defendant of driving under theinfluence of alcohol and acquitted her of battery to OfficerTaylor. Defendant was sentenced to 60 days in the Cook Countyjail for resisting arrest and to a year of conditional dischargeand a $500 fine for driving under the influence.

Defendant appeals both convictions on the grounds ofinsufficient evidence. She also appeals the conviction forresisting arrest on the grounds that: (1) the trial courtimproperly sent the arrest report to the jury; (2) during voirdire the trial court erroneously denied defendant's motion tostrike one prospective juror for cause and improperly granted aracially motivated peremptory strike by the State; (3) in thepresence of the jury the court asked Brown a question thatimplied that it might not be proper for him to testify; and (4)the trial court allowed the State to question defendant about herpretrial silence.

ANALYSIS

Defendant argues that there was insufficient evidence tosupport her convictions for driving under the influence andresisting a peace officer. In reviewing for sufficiency of theevidence, we determine whether, when the evidence is viewed inthe light most favorable to the prosecution, any rational trierof fact could have found the essential elements of the offensebeyond a reasonable doubt. People v. Lamborn, 185 Ill. 2d 585,590, 708 N.E.2d 350, 353-54 (1999). A conviction should only beset aside if the evidence is so unreasonable, improbable orunsatisfactory as to create a reasonable doubt of the defendant'sguilt. People v. Slim, 127 Ill. 2d 302, 307, 537 N.E.2d 317, 319(1989).

The essential elements of driving under the influence are:(1) that the defendant is driving a vehicle; and (2) thedefendant is intoxicated while driving. People v. Rhoden, 253Ill. App. 3d 805, 809, 625 N.E.2d 940, 943 (1993). It isundisputed that defendant was driving. As to intoxication, thearresting officers attested to defendant's erratic driving andbelligerent manner. They testified that she smelled of alcohol,her eyes were bloodshot and her speech was slurred. She wasunable to put her Jeep in gear, and she fell out of the Jeep. Areasonable jury could infer from this testimony that defendantwas intoxicated. People v. Wiebler, 266 Ill. App. 3d 336, 339-40,640 N.E.2d 24, 27 (1994). Viewing the evidence in the light mostfavorable to the prosecution, there was clearly a sufficientbasis for the jury at the retrial to convict.

In order to show that a defendant is guilty of resisting apeace officer, the prosecution must demonstrate that thedefendant knowingly resisted the peace officer or obstructed theofficer in the performance of any authorized act within his orher official capacity. 720 ILCS 5/31-1(a) (West 1998). Defendantadmits she knew Weiler to be a peace officer but denies that sheengaged in conduct that would constitute "resisting" under thestatute.

In People v. Flannigan, 131 Ill. App. 2d 1059, 267 N.E.2d739 (1971), the defendant was arrested for reckless driving. Hedid not immediately exit his car when asked to by the arrestingofficer. He did not give his keys to the officer when asked,saying that he wanted to give them to his girlfriend. He jerkedhis arm away from the officer when the officer tried to take himto the squad car, saying that he would go by himself. However,he did not actually refuse to go to the car or try to escape. The appellate court reversed the defendant's conviction forresisting a peace officer. It found that, while the defendanthad been uncooperative, his conduct did not rise to the level ofresisting. Flannigan, 131 Ill. App. 2d at 1063, 267 N.E.2d at742.

Merely arguing with a police officer--even using abusivelanguage--does not constitute resisting a peace officer. Flannigan, 131 Ill. App. 2d at 1063, 267 N.E.2d at 742. In thiscase, however, defendant did more. As the law mandates, lookingat the evidence in the light most favorable to the prosecution,we accept the officers' account of defendant's conduct. Lamborn,185 Ill. 2d at 590, 708 N.E.2d at 353-54. She scratched OfficerWeiler and struggled when he tried to handcuff her. Shephysically tried to force Officer Taylor to stop when she triedto remove defendant's belt. When Weiler tried to help Taylor,defendant kicked Weiler in the shin. When the officers tried toget defendant to go back into the holding cell, she went limp andhad to be carried. It was reasonable for the jury to concludethat defendant was not merely displaying hostility towards theofficers, but also was trying to physically thwart, or at leastimpede, them in the performance of their duties. See People v.Crawford, 152 Ill. App. 3d 992, 505 N.E.2d 394 (1987). Accordingly, we find that there was sufficient evidence tosupport both convictions. As defendant has not alleged any othererror in the conduct of the second trial, we affirm defendant'sconviction for driving under the influence of alcohol and theremainder of our analysis will pertain solely to the conduct ofthe first trial and the conviction for resisting a peace officer.

Defendant next contends that her conviction for resisting apeace officer must be reversed because the judge sent a documentnot in evidence to the jury room. While deliberating, the jurorsasked to see two pages of the arrest report that Weiler prepared. The judge sent these pages to the jury over defendant'sobjection. Later, the jury requested the rest of the report andagain the judge acceded over the objection of defendant. It iserror for a judge to allow the jury during deliberations to viewmatters of any sort that were not admitted into evidence. Peoplev. Carr, 53 Ill. App. 3d 492, 497, 368 N.E.2d 128, 131 (1977). Moreover, police reports are generally inadmissible hearsay. People v. Smith, 141 Ill. 2d 40, 72, 565 N.E.2d 900, 914 (1990).

The State itself concedes that the judge erred in sendingthe arrest report to the jury. Nevertheless, the State argues,the error does not require reversal because it did not prejudicedefendant. See People v. Hayes, 70 Ill. App. 3d 811, 828, 388N.E.2d 818, 830 (1979). Where an error of this type could nothave reasonably affected the outcome of the trial, the verdictwill be affirmed. People v. Burdine, 57 Ill. App. 3d 677, 686,373 N.E.2d 694, 701-02 (1978), rev'd in part on other grounds, 71Ill. 2d 610, 401 N.E.2d 1390 (1978).

Having reviewed the report, we find that allowing the juryto examine the report was clearly prejudicial. Moreover, it iscertainly possible that the jury would have acquitted defendantof resisting a peace officer had the jury not seen the arrestreport. It is obvious that the jury was wavering betweencrediting defendant's testimony and crediting the State'switnesses since it acquitted as to one charge, convicted as toanother and could not reach a verdict as to the other two counts. The police report in question served both to reinforce Weiler'stestimony at trial as well as provide information that was notbrought out in testimony.

The report paints a picture of defendant that, at best, isnot flattering. Almost every utterance of defendant recorded inthe report contains profanity. The report also containsstatements allegedly made both by defendant and Brown that couldbe construed as their making threats to manufacture falseaccusations against the arresting officers. The report has Brownfirst accusing the officers of singling out defendant because ofher race and then further accusing them of fabricating chargesagainst her to protect themselves. According to the report,Brown then said he knows "how to play that game too." WhenWeiler noticed that defendant had torn her blouse and asked herabout it, the report states defendant responded "I'll show youhow I'm gonna fuck you."

The State argues that it was the defense that brought thereport to the attention of the jury and, thus, the report mustnot have been prejudicial to the defense. While it is true thatthe defense attempted to use the report for impeachment ofWeiler, the point on which the report purportedly contradictedWeiler's testimony was trivial: the arrest form had a question"Victim injured?" and Weiler checked "no." However, adjacent tothis, in a blank labeled "Nature of injuries and location onbody" Weiler typed "sore shin; pulled hair." Moreover, thenarrative portion of the report says "Long pushed Ofc. Taylor'shands away and grabbed a handful of Ofc. Taylor's hair. Longpulled Ofc. Taylor's head down and tried to push her to thefloor. I stepped in to help restrain Long and Long kicked metwice in the left shin with her high heeled shoes." Viewed as awhole, the report did not contradict Weiler's testimony.

As the trial court's error in providing the arrest report tothe jury is so prejudicial as to mandate reversal, we reverse theconviction for resisting a peace officer. Having so found,consideration of the remaining issues is unnecessary to ourdisposition. For this reason, we will not reach the dispute overjury selection. However, since there are some remaining issuesthat may recur, we will address them for guidance on remand.

As the direct examination of Millaun Brown was commencing,with the jury in the box, the court interjected a question.

"THE COURT: Did you call the State's Attorney'sOffice and tell them you were coming in here to testifyin this case?

THE WITNESS: No, sir.

THE COURT: Oh, you didn't. Oh, okay.

DEFENSE COUNSEL: This officer's name has beenmentioned.

THE COURT: No, no, no. You don't understand. There's a rule in the Chicago Police Department that apolice officer who intends to appear in a criminal caseand testify on behalf of a defendant must call theState's Attorney's Office.

DEFENSE COUNSEL: There's a rule in the policedepartment?

THE COURT: There's a rule in the policedepartment.

DEFENSE COUNSEL: I don't think the rules withinthe police department govern what happens in thiscourtroom.

THE COURT: Okay. It's up to him. If he wants tocontinue, okay."

The State has not provided us with a citation for this "rule,"nor after a diligent search have we found it among the rules andregulations of the Chicago Police Department. Accordingly, inthe first instance, we are not even sure that the trial court'scomments were correct. But even if such a regulation does exist,it was clearly not a proper subject of questioning. It wasunrelated to a material issue in the case and the question mayhave impaired the witness' credibility. Fugate v. Sears, Roebuckand Co., 12 Ill. App. 3d 656, 674, 299 N.E.2d 108, 122 (1973)."In Illinois a witness' credibility may not be impeached byinquiry into specific acts of misconduct which have not led to aconviction." Podolsky and Associates L.P. v. Discipio, 297 Ill.App. 3d 1014, 1026, 697 N.E.2d 840, 848 (1998). Similarly,impeachment which tends to impugn a witness' general moralcharacter is impermissible. Fugate, 12 Ill. App. 3d at 674, 299N.E.2d at 121-22.

The judge's question may have served to undermine Brown'scredibility by suggesting that it was improper for him to betestifying. The suggestion may also have had greater effect onthe jury since it came from the judge rather than the State. "While the court has a wide discretion in the conduct of a trial,it must not invade the province of the jury by making comments,insinuations or suggestions indicative of belief, or disbelief inthe integrity or credibility of a witness." People v. Marino, 414Ill. 445, 450, 111 N.E.2d 534, 537 (1953). Because jurors arewatchful of a judge's conduct, a judge must exercise a highdegree of care not to influence the jury. People v. Williams,209 Ill. App. 3d 709, 718, 568 N.E.2d 388, 394 (1991). In theinstant case, the judge should have posed the question, if atall, outside the presence of the jury. Given the limited scopeof Brown's testimony, however, it should be noted these commentsstanding alone probably would be harmless error. See People v.Heidorn, 114 Ill. App. 3d 933, 449 N.E.2d 568 (1983). However onretrial no such questioning should be undertaken in the presenceof the jury.

At the hearing on the motion to quash, defendant's onlytestimony was that both of her headlights were working when shewas stopped by the police. At trial, defendant testified thatshe was the victim of various types of misconduct at the hands ofthe arresting officers, Officer Weiler in particular. The trialcourt allowed the State to cross-examine her as to why she hadnot mentioned the alleged misconduct before. Defendant contendsthat this questioning was improper.

As a general proposition, impeachment through prior silenceis permissible when it is shown that the witness had anopportunity to make a statement and, under the circumstances, aperson would normally have made a statement. People v. Conley,187 Ill. App. 3d 234, 244, 543 N.E.2d 138, 145 (1989).

"A witness may be impeached by proof that she madea statement outside of court contradicting her in-courttestimony or failed to speak under circumstances whereit would have been natural to relate the matterstestified to in court if true." M. Graham, Cleary &Graham's Handbook of Illinois Evidence,