People v. Pacheco

2025 IL App (3d) 150880-C

• Court: Appellate Court of Illinois
• Decided: May 7, 2025
• Docket: 3-15-0880
• Status: Published

Opinion

2025 IL App (3d) 150880-C

Opinion filed May 7, 2025 ____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 12th Judicial Circuit, ) Will County, Illinois, Plaintiff-Appellee, ) ) Appeal No. 3-15-0880 v. ) Circuit No. 12-CF-1799 ) JAMES A. PACHECO, ) Honorable ) Carla Alessio-Policandriotes, Defendant-Appellant. ) Judge, Presiding. ____________________________________________________________________________

JUSTICE HETTEL * delivered the judgment of the court, with opinion. Presiding Justice Brennan and Justice Peterson concurred in the judgment and opinion. ____________________________________________________________________________

OPINION

¶1 Defendant, James A. Pacheco, appeals from his convictions for aggravated assault,

criminal damage to property, aggravated fleeing or attempting to elude a peace officer, and

driving while under the influence of alcohol (DUI). Defendant argues (1) the Will County circuit

court erred in replaying video and audio recordings in the courtroom in the presence of the

parties and trial judge, (2) the court violated defendant’s right to confrontation by limiting his

cross-examination of a police officer, (3) the court abused its discretion in granting the State’s

* Justice Hettel was administratively reassigned to this case on January 6, 2025, due to the retirement of Justice McDade. motion in limine to bar defense counsel from questioning two police officers about their failure

to write police reports, (4) the State committed prosecutorial error during closing argument, and

(5) defendant is entitled to monetary credit for time spent in presentence custody.

¶2 We initially reversed defendant’s convictions, finding that the court erred by

(1) permitting the jury’s review of the video and audio recordings in the courtroom and in the

presence of the parties during deliberations, (2) violating defendant’s right to confrontation by

limiting the scope of defense counsel’s cross-examination of police officer Adam Stapleton, and

(3) granting the State’s motion in limine. People v. Pacheco, 2019 IL App (3d) 150880, ¶¶ 39,

64, 79. Subsequently, our supreme court vacated the judgment and directed this court to

reconsider our decision in light of People v. Hollahan, 2020 IL 125091. People v. Pacheco, No.

125191 (Ill. Nov. 18, 2020) (supervisory order). Again, we reversed and remanded, finding that

the circuit court violated defendant’s right to confront witnesses when it (1) barred cross-

examination of a police officer related to the effect this case had on his employment and

(2) granted the State’s motion in limine barring questioning the officers regarding their failure to

write police reports. People v. Pacheco, 2021 IL App (3d) 150880-B, ¶¶ 49, 63, 78. Our supreme

court reversed, finding that the circuit court did not err in limiting Stapleton’s cross-examination

or granting the State’s motion in limine and remanded the cause to this court for further

proceedings. People v. Pacheco, 2023 IL 127535, ¶¶ 50, 52, 61. We affirm and remand for the

circuit court to correct the sentencing judgment to reflect the appropriate presentence monetary

credit.

¶3 I. BACKGROUND

¶4 Prior to trial, defendant pled guilty to criminal damage to property (720 ILCS 5/21-

1(a)(1) (West 2012)) and proceeded to a jury trial on aggravated assault (id. § 12-2(b)(4)(i),

2 (c)(8)), attempted aggravated battery (id. §§ 8-4, 12-3.05(d)(4)(i)), aggravated fleeing or

attempting to elude a peace officer (625 ILCS 5/11-204.1(a)(4) (West 2012)), and DUI (id. § 11-

501(a)(1)). At trial, Officer Stapleton and Officer Eric Zettergren testified that they were

working in the early morning hours on July 30, 2012, when they received a report of criminal

damage to property committed by an individual driving a black Nissan. While Stapleton drove to

the scene of the complaint, they encountered defendant driving a black Nissan. Stapleton

activated his overhead lights, and defendant stopped his vehicle. When the officers exited their

squad car, defendant drove away. The officers 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 while the officers continued to follow.

¶5 Eventually, a stopped train blocked defendant’s path, causing him to stop the vehicle.

Stapleton positioned the squad car so that it was parallel with defendant’s vehicle. Stapleton

exited the squad car and moved to the back corner of the driver’s side of the squad car.

Zettergren also exited the squad car, and Stapleton lost sight of him. Defendant reversed his

vehicle, and Stapleton repeatedly told defendant to stop. 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 seven times in the direction of defendant. Stapleton

knew he was standing in front of defendant’s vehicle the entire time he discharged his firearm,

but he did not remember if he was positioned in the center or to the left of the vehicle. After

3 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.

¶6 The State introduced into evidence audio and video recordings of the encounter captured

by surveillance equipment. In the audio recording, a voice could be heard yelling, “I didn’t do

anything.” Another voice repeated “stop the car” several times, followed by seven gunshots. 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. The video recording showed a grainy image of a parked semitruck. 1

A dark-colored vehicle drove past the semitruck. A squad car with its sirens and lights activated

followed closely behind the dark-colored vehicle. The two vehicles drove off the screen, and

voices could be heard. Seven gunshots could then be heard in rapid succession and the dark-

colored vehicle drove back onto the screen. Stapleton could be seen running in front of the dark-

colored vehicle. Stapleton was close to the dark-colored vehicle when he first appeared on the

screen. Stapleton 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.

¶7 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

1 When reviewing the evidence in this case, the court discovered that the surveillance video recording had been damaged and compromised, therefore was unviewable. Notably, this matter has been on appeal several times with both appellate and supreme court orders. Supra ¶ 2. On this matter, we defer to the prior summaries describing what the surveillance video shows for purposes of this appeal.

4 towards me.” Stapleton indicated that he was aiming for defendant when he discharged his

firearm at the vehicle. Stapleton was “firing the rounds to stop the threat that was coming at me.”

Stapleton led the vehicle pursuit of defendant, who eventually struck a traffic signal pole and

stopped. In reference to the video, defense counsel asked Stapleton whether “somebody refers to

[defendant] as a piece of s***.” Initially, Stapleton responded “[n]o” but clarified that Zettergren

could be heard saying “stupid s***.”

¶8 Zettergren testified consistently with Stapleton regarding much of the encounter but

separately indicated that after exiting the squad car, he went to the front passenger side.

Zettergren observed defendant continue to reverse the vehicle while he and Stapleton yelled at

defendant to stop. 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.

Zettergren vaguely knew Stapleton’s location at that time. Zettergren saw and heard defendant’s

vehicle accelerate. Zettergren heard Stapleton give more commands to stop the vehicle then shots

being fired. He could not see Stapleton but observed defendant’s vehicle flee the area.

¶9 Michael McAbee, a semitruck driver, testified that he and his son, Jamie Kirk, were

sleeping in McAbee’s semitruck in the early morning hours on the date of the incident. At

approximately 2:45 a.m., McAbee heard sirens, which woke him up. He saw a black vehicle

drive up to the train tracks where a train was parked. The black vehicle could not get around the

train, and it turned around slowly, “like an old person.” When the black vehicle turned around a

squad car pulled up at an angle to it. Two police officers exited the squad car and yelled at the

driver of the black vehicle to stop. The black vehicle was facing the squad car at a 30-degree

5 angle. One officer walked to the front of the squad car, and the other officer to the back. The

black vehicle reversed and then started driving in the direction from which it had come. The

officers were still yelling at the driver of the black vehicle. 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 vehicle did not stop. Rather, “he acted as an old person; drove easy.” McAbee heard

gunshots and covered his face. When he looked up after a few minutes, both vehicles were gone.

¶ 10 Kirk testified that once awoken by McAbee, he saw a black vehicle 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 pointed his gun at the black vehicle and told the driver to stop the

vehicle. The black vehicle did not move until after the officer fired his gun. Kirk stated that it

was possible that the black vehicle was moving so slowly that he could not tell if it was moving.

The black vehicle then drove away slowly.

¶ 11 Officer Chris Delaney, a crime scene technician, photographed defendant’s vehicle after

the incident. The photographs showed that there were two bullet holes on the passenger side of

the windshield, three in the center, one on the driver’s side, and one on the hood of the vehicle.

Delaney had placed wooden rods through several of the bullet holes. The rods appeared to show

the same bullet holes with contradicting points of entry. Delaney explained that the photographs

looked different because they were taken from different vantage points. Delaney stated that the

rods represented “a guess as to where the bullet may have entered and its possible path.” Delaney

was not a shooting reconstructionist. The State rested.

¶ 12 Officer Christopher D’Arcy testified that he assisted in the pursuit of defendant’s vehicle

following defendant fleeing from officers at the train tracks until the vehicle crashed into a traffic

signal pole. When D’Arcy arrived, he exited his squad car and observed other officers

6 commanding defendant to exit the vehicle, but defendant did not comply. 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.

¶ 13 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 asserted 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. Defense counsel argued that the jury should:

“ask yourself was this investigation from start to finish conducted in a manner

that you as a citizen in this country feel is fair and unbiassed [sic] to both officers

and to [defendant]. You have to consider that. That also can raise issues of

reasonable doubt, if you just look at the thing and say, oh, man, I just don’t like

this. I just don’t like the way this thing went down. As an American, as a citizen, I

just don’t like it the way this went down period.”

Defense counsel continued:

“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

7 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.”

¶ 14 In rebuttal, the prosecutor started by saying that “[defense counsel] has a fantasy. In fact,

a lot of them[,] some of which he has shared with you today. He’s got a fantasy about what the

law is, about what [the] evidence [is].” Defense counsel objected, and the court instructed the

jury that “final arguments are arguments from the attorneys what they believe the evidence has

shown. The Court will be instructing you as to the law” and “[a]ny inconsistencies that may or

may not have been suggested to you, you must disregard.” The State asserted that:

“when you look at the evidence in this case[,] all of the evidence, every single

piece of it just screams the Defendant’s guilt. The Defendant’s guilt is dripping

off of every single piece of evidence in this case. There is not one piece of

evidence in this case that exonerates the Defendant. There is not one piece of

evidence in this case that excuses anything that [defendant] did this night. Every

single piece of evidence in this case points directly to him.

Let’s talk about the evidence. *** And let’s talk about *** Stapleton, the

person the defense has put on trial in this case.”

The prosecutor continued that Stapleton was “working” when he received the call reporting

criminal activity. He asserted:

8 “[Stapleton] didn’t have to go.

*** He didn’t make any excuses that night. He didn’t back away or shy

away from anything. He did his job. *** [Stapleton] could have easily put the

blinders on and said, *** I don’t feel like dealing with this, I’ll take that report

later on ***. But he didn’t do that. He did his job. ***

***

*** [Defendant] did everything in his power to put himself, put the police

and put the public in jeopardy that night.

And there are a few guys in existence who put themselves in harm’s way

who experienced facing danger that night in order to stop [defendant] from

hurting somebody. *** That is what *** Stapleton is doing that night is protecting

everyone in his community from the Defendant in this case.

*** Stapleton stops his car. Both officers get out of the car at this point.

Once again, they didn’t have to. *** [T]hey put themselves at a tremendous

disadvantage,didn’t they? *** Because now they’re no longer protected. ***

All it takes is one person to step out from behind their car; one person to

think the intersection is clear; or one person *** who works the late shift, they’re

taking their mother, son or daughter to work to be killed by this man. That’s what

these officers are trying to stop.”

9 Again, the prosecutor noted defense counsel’s “fantastical version of events in this case” in light

of the other witnesses’ testimony. Later, the prosecutor addressed defense counsel’s cross-

examination of Stapleton, and said:

“just to illustrate how desperate the Defendant in this case is to demonize ***

Stapleton. *** He was asked, did you hear yourself on the recording call

[defendant] a piece of [s***]. Stapleton’s answer was no. *** A couple questions

later it’s cleared up, *** that’s *** Zettergren who says it. *** Well, that’s never

been touched since then, has it? Oh, okay. Never mind. It wasn’t you who did

that? Okay. Zettergren’s not such a bad guy. We don’t need to demonize him in

this case ***.”

He continued:

“We’re not here to decide whether or not what the police did was

excessive. We’re not here to decide whether or not we feel what the police did is

okay. We’re not here to decide where those shots were fired from. ***

That’s, again, going to a fantasy land and say all those shots were fired

from the side of the car. It doesn’t make a difference where any of those shots

were fired from, because it’s not really a part of this case. It’s a very interesting

distraction, but you won’t see it in the Jury Instructions ***. It’s got nothing to do

with [defendant] trying to run over a police officer that night and acting like a

complete fool when he was doing it and putting the entire community in danger.

*** If you’re being asked to judge their credibility, think *** about the

officers and what they did that night and the choices they made [that] night. The

10 choices they made were to do their job, to show up for work, to respond to calls

for service that they’re sent to without asking why, without saying, I don’t feel

like it. And in this case with somebody like the Defendant out there who is gonna

put them and everyone else in danger to stand up to that person, *** and say, no,

you’re not gonna do this, you have got to stop doing this, and I am going to risk

my own safety in order to protect everyone.

That’s what the police do. That’s what *** Stapleton did that night. And

where did it lead him? To this courtroom to sit here and be accused, be insulted

and be degraded.”

In closing, the prosecutor stated:

“I know you will go back in the jury room and consider the evidence and ***

deliberate, but what I am gonna ask you not to do is to trick yourselves, is to fool

yourselves into thinking there is something there that’s not.

Don’t think that just because we’re here having a trial with this kind of

evidence there really is no genuine issue as to whether or not this guy is guilty.”

¶ 15 The court instructed the jury that it was their “duty to determine the facts and to

determine them only from the evidence in this case.” The court also instructed the jury “[o]nly

you are the judges of the believability of the witnesses and of the weight to be given to the

testimony of each of them” and “[n]either opening statements nor closing arguments are

evidence. Any statement or argument made by the attorneys which is not based on the evidence

should be disregarded.”

¶ 16 The jury found defendant guilty of aggravated assault, aggravated fleeing or attempting

to elude a peace officer, and DUI. The jury found defendant not guilty of attempted aggravated

11 battery. The court sentenced defendant to four years’ imprisonment for aggravated assault and

three years’ imprisonment for aggravated fleeing or attempting to elude a peace officer, to be

served concurrently. Defendant received 282 days of presentence custody credit toward his

prison sentence. The court stated that it was entering “straight judgments of conviction” for

criminal damage to property and DUI. The sentences for criminal damage to property and DUI

merged with the sentences for aggravated assault and aggravated fleeing or attempting to elude a

peace officer. The court also imposed a fine in the amount of $2,881. The court did not impose

monetary credit toward fines for defendant’s presentence custody. Defendant appealed.

¶ 17 II. ANALYSIS

¶ 18 Following the supreme court’s latest ruling, we must determine defendant’s remaining

two issues, which include whether (1) the prosecutor committed error requiring reversal as a

result of his comments during closing argument and (2) defendant is entitled to presentence

monetary credit toward his fines pursuant to section 110-14(a) of the Code of Criminal

Procedure of 1963 (Code) (725 ILCS 5/110-14(a) (West 2012)).

¶ 19 A. Prosecutorial Error

¶ 20 Defendant argues that the prosecutor committed several errors during his closing

argument. Specifically, defendant contends that the prosecutor (1) denigrated defense counsel,

(2) made improper emotional appeals and attempts to bolster the credibility of testifying officers,

and (3) improperly presumed defendant’s guilt. Defendant concedes that these alleged errors are

forfeited and asks for plain error review. See People v. Enoch, 122 Ill. 2d 176, 186 (1988).

¶ 21 The plain error doctrine allows a reviewing court to consider an otherwise forfeited error

when “(1) the evidence is close, regardless of the seriousness of the error, or (2) the error is

serious, regardless of the closeness of the evidence.” (Internal quotation marks omitted.) People

12 v. Piatkowski, 225 Ill. 2d 551, 564 (2007). Under the first prong, to determine whether the

evidence is close, “a reviewing court must evaluate the totality of the evidence and conduct a

qualitative, commonsense assessment of it within the context of the case.” People v. Sebby, 2017

IL 119445, ¶ 53. The determination is not one of the sufficiency of the evidence but “the

closeness of sufficient evidence.” Id. ¶ 60. Evidence can be closely balanced when each party

presents credible witnesses. Id. ¶ 63. Under the second prong, “[p]rejudice to the defendant is

presumed because of the importance of the right involved.” People v. Herron, 215 Ill. 2d 167,

187 (2005). The defendant bears the burden of persuasion under both prongs. Id. The first step of

the plain error analysis is to determine whether a clear or obvious error occurred. People v.

Eppinger, 2013 IL 114121, ¶ 19.

¶ 22 “[P]rosecutors have wide latitude in the content of their closing arguments.” People v.

Evans, 209 Ill. 2d 194, 225 (2004). “[C]losing arguments must be viewed in their entirety, and

the challenged remarks must be viewed in context.” People v. Wheeler, 226 Ill. 2d 92, 122

(2007). The prosecutor may remark on the evidence and any fair and reasonable inference the

evidence may yield, even if the suggested inference reflects negatively on defendant. People v.

Nicholas, 218 Ill. 2d 104, 121 (2005). Prosecutors may respond to comments made by defense

counsel that clearly invite a response and comment on the credibility of witnesses. People v.

Ammons, 2021 IL App (3d) 150743, ¶ 52. “An argument that serves no purpose but to inflame

the jury constitutes error.” Id. ¶ 43. Additionally, a prosecutor may not make arguments seeking

to “engender an ‘us-versus-them’ mentality.” People v. Johnson, 208 Ill. 2d 53, 80 (2003).

However, even if the prosecutor’s comments exceed the bounds of proper argument, “the verdict

must not be disturbed unless it can be said that the remark caused substantial prejudice to the

defendant [citation], taking into account the content and context of the language, its relationship

13 to the evidence, and its effect on the defendant’s right to a fair and impartial trial.” (Internal

quotation marks omitted.) People v. Williams, 192 Ill. 2d 548, 573 (2000).

¶ 23 First, defendant argues that the prosecutor denigrated defense counsel when he

(1) commented on defendant’s theory of the case, stating that it was “a fantasy,” “fantastical,”

“fantasy land,” and “[an] interesting distraction” and (2) asserted that counsel attempted to

“demonize” Stapleton and put him “on trial,” subjecting Stapleton to being “accused, ***

insulted and *** degraded.”

¶ 24 Initially, we note that the prosecutor’s comments, characterizing defendant’s theory of

the case as “a fantasy” and “[an] interesting distraction,” were not personally disparaging to

defense counsel or accusations of unethical behavior but the State’s conceptualization of

defendant’s theory of the case. Specifically, the prosecutor’s comments were made directly in

response to defense counsel’s assertions that Stapleton exaggerated his testimony about

defendant driving toward him and counsel’s comments that if the jury thought Stapleton “lied” or

“was acting to protect his own interests,” the jury should not “believe him.” Therefore, the

statements were proper. See Ammons, 2021 IL App (3d) 150743, ¶ 52 (a prosecutor may

properly respond “to the remarks made by defense counsel”); see also Nicholas, 218 Ill. 2d at

121-22 (a prosecutor may “urge the jury to administer the law without fear, when such argument

is based upon competent and pertinent evidence”).

¶ 25 However, the prosecutor’s comments that defense counsel attempted to “demonize”

Stapleton and put him “on trial,” subjecting Stapleton to being “accused, *** insulted and ***

degraded,” suggested impropriety of counsel and in the manner with which he conducted himself

at trial. While the State may comment on the evidence based on fair and reasonable inferences,

these comments went too far and were improper. See People v. Emerson, 97 Ill. 2d 487, 498

14 (1983) (it is improper for a prosecutor to accuse defense counsel of trying to “dirty up the

victim” (internal quotation marks omitted)).

¶ 26 Second, defendant alleges that the prosecutor made improper emotional appeals and

attempts to bolster the credibility of testifying officers by repeatedly invoking Stapleton’s “hero”

status as a reason for the jury to find his testimony credible and find defendant guilty.

Specifically, defendant highlights the prosecutor’s rebuttal argument, referencing the nature of

Stapleton’s employment in that Stapleton was “working” when he received the report of criminal

activity, he “didn’t have to go,” “[h]e didn’t make any excuses,” and “[h]e did his job” and that

Stapleton did not “have to” exit his squad car and doing so put him at a “tremendous

disadvantage.”

¶ 27 While the record reflects that the prosecutor did not make any reference to Stapleton

being a “hero,” the prosecutor’s comments about Stapleton could reasonably have induced the

jury to trust the State’s evidence over its own view due to Stapleton’s employment. See Johnson,

208 Ill. 2d at 75-77, 80, 84 (the prosecutor’s comments in closing argument describing a witness

as a “hero” who “risked his life *** to serve and to protect the people” were improper emotional

appeals intended to arouse the jury’s passion and outrage and sought to engender an “us-versus-

them” mentality, attributing to the court finding prosecutorial error (internal quotation marks

omitted)). Additionally, the statements were more than a passing reference to Stapleton’s role as

an officer, and the State used his position to bolster its case. See cf. Ammons, 2021 IL App (3d)

150743, ¶¶ 51, 53 (the court found the prosecutor’s argument that “ ‘if [the jury] found the

defendant not guilty, they were turning their backs on the local police department, who were

risking their lives for the jurors,’ ” amounted to a “single, passing reference” and was not error).

Therefore, the State’s comments were improper. See Johnson, 208 Ill. 2d at 75-77, 80, 84.

15 ¶ 28 Third, defendant contends that the State improperly presumed guilt when it stated that

there was not “one piece of evidence that exonerate[d] [defendant]” and asked the jury not to

make assumptions about the evidence due to defendant demanding trial. In combination, these

comments assert a negative inference against defendant simply exercising his constitutional right

to a trial. See People v. Libberton, 346 Ill. App. 3d 912, 923 (2003). In doing so, the comments

“penalize the defendant for the exercise” of that right and were improper. Id.

¶ 29 In sum, we find that the prosecutor made several improper closing remarks. Nevertheless,

those comments are insufficient to amount to clear or obvious error. To constitute plain error, the

remarks must have affected the fairness of defendant’s trial and challenged the integrity of the

judicial process. Herron, 215 Ill. 2d at 187. If this occurs, prejudice is presumed. Id. We note that

a court may cure the prejudicial effect of improper comments made in closing arguments by

instructing the jury that closing arguments are not evidence. People v. Simms, 192 Ill. 2d 348,

396 (2000). Absent evidence to the contrary, we presume that the jurors follow the instructions

provided by the court. People v. Green, 2017 IL App (1st) 152513, ¶ 98.

¶ 30 Here, immediately after the prosecutor’s comments in rebuttal, the court instructed the

jury that the parties’ arguments were not evidence, “[a]ny statement or argument made by the

attorneys which is not based on the evidence should be disregarded,” and that only the jurors

were the “judges of the believability of the witnesses and of the weight to be given to the

testimony of each of them.” See id. (a circuit court may cure a prosecutor’s improper remarks

through its jury instructions). The court’s instructions addressed the State’s characterizations of

evidence, defense counsel’s theory of the case, and defendant’s right to proceed to trial, and there

is no evidence in the record to indicate that the jury disregarded the instructions. See id. More

importantly, when viewed in context of the whole closing argument, the prosecutor’s comments

16 did not constitute plain error as they were generally related to the evidence. See Nicholas, 218

Ill. 2d at 121 (a prosecutor may remark on the evidence and any fair and reasonable inference

originating from the evidence).

¶ 31 Even if the State’s improper comments were clear or obvious error, the error would not

be reversible. On appeal, defendant only challenges his aggravated assault conviction, for which

the evidence against defendant was overwhelming. See 720 ILCS 5/12-2(b)(4)(i), (c)(8) (West

2012) (aggravated assault requires the State to prove defendant “operat[ed] a motor vehicle in a

manner which place[d] [an officer] in reasonable apprehension of being struck by the moving

motor vehicle”); see also Pacheco, 2023 IL 127535, ¶ 86 (Rochford, J., specially concurring,

joined by Holder White and O’Brien, JJ.) (describing the “case against defendant” as “strong”).

¶ 32 At trial, Stapleton testified that after blocking defendant’s vehicle between his squad car

and a train, he exited his squad car and ordered defendant to stop his vehicle. Stapleton observed

defendant’s vehicle roll forward, as if defendant had removed his foot off the brake. Stapleton

clarified that the vehicle did not move at “a high rate of speed” but “accelerated.” Defendant’s

vehicle continued to move forward despite repeated orders to stop. Defendant’s movement

caused Stapleton to believe he was going to be hit by defendant’s vehicle and killed. Stapleton

was standing in front of defendant’s vehicle when he discharged his weapon and moved out of

the way of the vehicle afterward. The photographs show bullet holes in the hood and windshield

of defendant’s vehicle, supporting Stapleton’s testimony that he stood in front of the vehicle as it

drove toward him. Zettergren and McAbee’s testimony corroborated Stapleton’s version, where

Zettergren recalled defendant’s stopped vehicle facing them, rolling forward, and increasing

speed, and McAbee observed defendant’s vehicle driving slowly toward the officers while being

ordered to stop. Additionally, the recordings corroborated Stapleton’s testimony by reflecting

17 that, after defendant was ordered to stop his vehicle, the car accelerated, and the surveillance

video showed Stapleton running away from defendant’s vehicle.

¶ 33 Notably, D’Arcy, Kirk, and Delaney’s testimony did not detract from Stapleton’s

testimony and credibility regarding whether he believed he would be imminently harmed by

defendant’s vehicle. Specifically, D’Arcy was not present when the aggravated assault occurred

and provided no testimony regarding his personal observations of that part of the incident. Kirk’s

testimony was generally consistent with McAbee’s testimony and differed only where Kirk

believed he heard gunshots before defendant’s vehicle moved. Moreover, the video corroborates

the other witnesses’ testimony, where Stapleton can be heard ordering defendant to stop his

vehicle before the gunshots, lending to a reasonable inference that Stapleton gave those orders

because defendant’s vehicle was, in fact, moving. Delaney’s testimony regarding the bullet

trajectories did not weigh against Stapleton’s credibility regarding where he stood when he

discharged his firearm, since all the bullet holes were in the front windshield and hood of

defendant’s vehicle, and there was no indication that the bullets came from anyone but Stapleton.

Importantly, none of the aforementioned testimony addressed whether Stapleton believed he

would be imminently harmed by defendant’s moving vehicle. See 720 ILCS 5/12-2(b)(4)(i),

(c)(8) (West 2012).

¶ 34 Further, we do not believe that the jury finding defendant not guilty of attempted

aggravated battery should factor into the closely balanced analysis of first-prong plain error. See

id. § 8-4, 12-3.05(d)(4)(i) (when defendant knowingly attempts to commit battery against an

individual that he knows to be a peace officer). The evidence showed that defendant’s vehicle

was moving, even if at a slow rate of speed. The jury was tasked with determining whether the

manner in which defendant operated his vehicle placed Stapleton “in reasonable apprehension of

18 being struck by the moving motor vehicle.” Id. § 12-2(b)(4)(i), (c)(8). Therefore, the jury’s

finding that defendant did not intend to hit Stapleton with his vehicle has no bearing on the jury’s

determination that Stapleton was “in reasonable apprehension of being struck by the moving

motor vehicle.” See id. Stated another way, as the counts required different findings related to

defendant’s mental state, the findings were consistent. See cf. People v. Boyd, 2021 IL App (1st)

182584, ¶ 57 (“Legally inconsistent verdicts occur when an essential element of each crime

must, by the very nature of the verdicts, have been found to exist and to not exist even though the

offenses arise out of the same set of facts.” (Internal quotation marks omitted.)); see also People

v. Latham, 31 Ill. App. 3d 66, 67 (1975) (“In law there is no inconsistency in verdicts of acquittal

and conviction upon charges of crimes composed of different elements, but arising out of the

same state of facts.” (Internal quotation marks omitted.)).

¶ 35 Finally, defendant claims that the cumulative effect of the prosecutor’s comments

satisfies second-prong plain error and requires reversal. After careful review of the record, we

find that the combination of these errors does not rise to the magnitude of reversible structural

error under the second prong of the plain error doctrine. See People v. Glasper, 234 Ill. 2d 173,

197-98 (2009). As previously discussed, the prosecutor’s improper argument possessed little

prejudicial effect following the court’s instructions. See Green, 2017 IL App (1st) 152513, ¶ 98.

Additionally, the combined effect of these errors did not create a pervasive pattern of unfair

prejudice such that a new trial is warranted. See People v. Howell, 358 Ill. App. 3d 512, 526

(2005). We find nothing in the trial transcript to suggest that the alleged errors caused substantial

prejudice to defendant when considering the closing argument as a whole and in the context in

which the statements were made. Moreover, none of the erroneous statements were of such

magnitude that they eroded the integrity of the judicial process and infringed on defendant’s right

19 to a fair trial or constituted a material factor in defendant’s conviction. See Wheeler, 226 Ill. 2d

at 123. Therefore, while some prosecutorial comments during closing arguments “exceed[ed] the

bounds of proper argument,” we will not disturb defendant’s conviction in the absence of

evidence of substantial prejudice. See Williams, 192 Ill. 2d at 572-73, 575 (the prosecutor’s

closing argument comments that the jury should not fear defendant, that defendant feared the

jury because the jury “ ‘will hold him responsible,’ ” or ask the jury to “ ‘show the defendant that

you are to be feared’ ” failed to rise to the level of substantial prejudice requiring reversal); see

also Johnson, 208 Ill. 2d at 64 (“Absent reversible error, there can be no plain error.”).

¶ 36 B. Presentence Monetary Credit

¶ 37 Defendant contends that, pursuant to section 110-14(a) of the Code, he is entitled to

monetary custody credit for time spent in presentence custody in the amount of $1,410 to be

applied against his court fine. Section 110-14(a) of the Code provides that “[a]ny person

incarcerated on a bailable offense who does not supply bail and against whom a fine is levied on

conviction of such offense shall be allowed a credit of $5 for each day so incarcerated upon

application of the defendant.” 725 ILCS 5/110-14(a) (West 2012). The $5-per-day credit is

available to defendants who also receive presentence custody credit toward their prison sentence.

People v. Hare, 119 Ill. 2d 441, 452 (1988).

¶ 38 Here, defendant spent 282 days in presentence custody awaiting trial. The court used

defendant’s presentence custody toward his prison sentence but did not apply defendant’s $5

presentence custody credit toward his fine. The court imposed a $2,881 fine. The State concedes

that defendant is entitled to presentence credit in the amount of $1,410 toward his $2,881 fine.

We accept the State’s confession of error and remand to the circuit court to apply defendant’s

monetary presentence custody credit in the amount of $1,410 to his fine.

20 ¶ 39 III. CONCLUSION

¶ 40 The judgment of the circuit court of Will County is affirmed and remanded with

directions to correct the sentencing judgment to reflect the appropriate presentence monetary

¶ 41 Affirmed and remanded with directions.

21 People v. Pacheco, 2025 IL App (3d) 150880-C

Decision Under Review: Appeal from the Circuit Court of Will County, No. 12-CF-1799; the Hon. Carla Alessio-Policandriotes, Judge, presiding.

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

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