2019 IL App (2d) 170442-U No. 2-17-0442 Order filed December 17, 2019
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court ) of Du Page County. Plaintiff-Appellee, ) ) v. ) No. 16-CF-2047 ) CRAIG V. SINGLETON, ) Honorable ) Daniel P. Guerin, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________
JUSTICE SCHOSTOK delivered the judgment of the court. Justices Hutchinson and Burke concurred in the judgment.
ORDER
¶1 Held: Trial court’s failure to give jury instruction was harmless error; and the State’s arguments in rebuttal did not deprive the defendant of a fair trial.
¶2 Following a jury trial, the defendant, Craig Singleton, was convicted of driving while his
license was suspended (625 ILCS 5/6-303(a), (d-3) (West 2016)) and aggravated fleeing and
eluding of a police officer (625 ILCS 5/11-204.1 (a)(1), (b) (West 2016)). He was sentenced to a
total of six years’ imprisonment. On appeal, the defendant argues that he was deprived of a fair
trial because (1) the trial court failed to give Illinois Pattern Jury Instruction No. 3.11 (Illinois 2019 IL App (2d) 170442-U
Pattern Jury Instructions, Criminal, No. 3.11 (approved October 17, 2014) (IPI Criminal No. 3.11))
and (2) the State made improper statements during the rebuttal of its closing argument. We affirm.
¶3 I. BACKGROUND
¶4 On November 29, 2016, the defendant was charged by indictment with driving while his
license was suspended (625 ILCS 5/6-303(a), (d-3) (West 2016)) and two counts of aggravated
fleeing and eluding a police officer (625 ILCS 5/11-204.1 (a)(1), (b) (West 2016)). The charges
all arose from the defendant’s alleged conduct on October 5, 2016. On March 14, 2017, the trial
court conducted a jury trial on the charges.
¶5 Trooper Andrew Clinton of the Illinois State Police testified that he was on duty at
approximately 1 a.m. on October 5, 2016. While on patrol at mile post 30½ on northbound I-355,
Clinton observed a brown GMC Acadia travelling 88 mph when the speed limit was 60 mph.
Clinton observed the vehicle swerve slightly and thought something might be wrong with the
driver. He activated his emergency lights, but the GMC did not stop. Clinton pulled his squad car
up to the driver’s side of the GMC. When Clinton was beside the GMC, the driver was
approximately seven to eight feet away. Clinton described the driver as a black male in his “mid
to upper thirties” with “scruffy” facial hair and hair that was “kind of in cornrows” but “kinda
messed up.”
¶6 Clinton kept trying to get the driver to pull over, but he did not stop. Clinton’s “in-car
speedometer” indicated that the GMC was driving approximately 114 mph in a 55 mph zone. In
keeping with “district policy,” Clinton stopped following the GMC because of “safety concerns.”
¶7 After the incident, Clinton conducted an investigation to attempt to identify the driver. He
learned that the car was registered to Denise Singleton (the defendant’s mother). He also learned
that the GMC had been involved in an incident in Chicago fifteen days later on October 20, 2016.
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Clinton talked to Trooper Leathers of the Illinois State Police regarding that incident. Leathers
told him that the defendant had been driving the GMC during the Chicago incident. Clinton
thereafter determined that the defendant lived at an address in Lake in the Hills.
¶8 On November 8, 2016, Clinton and Trooper Kyle Fletcher of the Illinois State police went
to the Lake in the Hills address. They saw a GMC backing out of the driveway onto the road. The
defendant was in the driver’s seat. Clinton testified that the defendant looked “the same” on
October 5 and November 8.
¶9 On cross-examination, Clinton testified that as he tried to get the driver to pull over on
October 5, Clinton was (1) driving at a high rate of speed through a construction zone; (2) running
the GMC’s registration by pressing a button on the microphone attached to his radio; (3) moving
his spotlight to shine it into the GMC; and (4) operating his mounted radar from which he
continuously read the GMC’s speed as well as his own. Clinton acknowledged that he initially
identified the GMC as a “gray Jeep” before partially correcting himself and calling it a “gray
GMC.” Ultimately, he discovered that the car was a brown GMC. Clinton stated that he saw
Singleton for four to five seconds while driving 65-70 mph.
¶ 10 Clinton testified that he wrote reports on October 5 and November 8. These reports omitted
information that Clinton testified to at trial. Specifically, the reports did not indicate that (1)
Clinton used his lights, sirens, radio, and spotlight on October 5; (2) the GMC swerved on October
5; (3) the driver’s hairstyle, facial hair, and clothing on October 5; (4) information about a “black
male” sitting behind the driver; (5) Clinton’s attempts to contact Denise Singleton’s family
members; (6) Clinton’s ability to see the driver “quite clearly” on October 5; (7) Clinton’s
conversation with Trooper Leathers after searching the LEADS police database, including the
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description of the individual driving the GMC in the October 20 incident; and (8) Trooper
Fletcher’s presence when Clinton interviewed the defendant on November 8.
¶ 11 On redirect, Clinton testified that he called for the GMC to stop and ran its registration
after pulling up alongside of it and following it for about a mile. He did not need to manually
control his radar once he turned it on. He was focused on driving and operating his spotlight so
that he could see the GMC’s driver. Clinton’s in-car camera documented his use of the spotlight,
although he did not mention the spotlight in his reports. He said he had a good look at the driver
because only the GMC’s back window was tinted.
¶ 12 Troopers Leathers and Fletcher also testified. Trooper Leathers identified the defendant as
the driver of the brown GMC Acadia involved in an incident in Chicago on October 20, 2016.
Trooper Fletcher observed the defendant backing out of a driveway in the brown GMC on
November 8, 2016. Both Leathers’ and Fletcher’s descriptions of the defendant’s physical
characteristics were consistent with how Clinton described them in his trial testimony.
¶ 13 The parties stipulated that the defendant’s license was suspended on October 5, 2016.
¶ 14 At the close of evidence, the trial court held a jury instruction conference. Defense counsel
proposed three instructions regarding Clinton’s impeachment by omissions in his reports.
Specifically, defense counsel submitted IPI Criminal No. 3.11 and two alternative non-IPI
instructions citing People v. King, 10 Ill. App. 3d 652 (1973) and People v. Brown, 47 Ill. App. 3d
920 (1977). The trial court denied all three instructions, finding that none of them adequately
addressed impeachment by omission and that the proposed instructions were not “clear enough or
exactly dealing with our situation.”
¶ 15 At the close of the trial, the jury found the defendant guilty of both driving with a suspended
license and aggravated fleeing and eluding.
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¶ 16 Following the denial of his motion for a new trial, the trial court sentenced the defendant
to a 3-year prison term for driving while his license was suspended and a concurrent 6-year term
for aggravated fleeing and eluding. The defendant thereafter filed a timely notice of appeal.
¶ 17 II. ANALYSIS
¶ 18 The defendant’s first contention on appeal is that the trial court abused its discretion in not
submitting IPI Criminal No. 3.11 regarding impeachment by omission to the jury. The defendant
insists that the instruction was appropriate because Clinton was impeached with his failure to
document in his report crucial details of his investigation into the identity of the driver on October
5, 2016. Because the trial court did not submit the instruction, the defendant contends that he was
deprived of a fair trial.
¶ 19 “ ‘The sole function of instructions is to convey to the minds of the jury the correct
principles of law applicable to the evidence submitted to it in order that, having determined the
final state of facts from the evidence, the jury may, by the application of proper legal principles,
arrive at a correct conclusion according to the law and the evidence.’ ” People v. Ramey, 151 Ill.
2d 498, 535 (1992) (quoting People v. Gambony, 402 Ill. 74, 81-82 (1948)). In general, whether
the trial court erred in refusing a particular jury instruction is reviewed under an abuse of discretion
standard. People v. McDonald, 2016 IL 118882, ¶ 69. Whether a particular jury instruction
accurately conveyed to the jury the law applicable to the case, however, is an issue that we review
de novo. People v. Nere, 2018 IL 122566, ¶ 29; see also IPI Criminal 3.11, Committee Notes
(“The materiality of the earlier [allegedly inconsistent] statement is a question of law for the
court.”).
¶ 20 “ ‘The theory of attack by prior inconsistent statements is not based on the assumption that
the present testimony is false and the former statement true but rather upon the notion that talking
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one way on the stand and another way previously is blowing hot and cold, and raises a doubt as to
the truthfulness of both statements.’ ” People v. Miller, 2017 IL App (1st) 143779, ¶¶ 42, quoting
John William Strong, McCormick on Evidence § 34 at 114 (4th Ed. 1992). IPI Criminal No. 3.11
provides:
“The believability of a witness may be challenged by evidence that on some former
occasion he [(made a statement) (acted in a manner)] that was not consistent with his
testimony in this case. Evidence of this kind [ordinarily] may be considered by you only
for the purpose of deciding the weight to be given the testimony you heard from the
witnesses in this courtroom.”
¶ 21 IPI Criminal No. 3.11 covers inconsistencies caused by both omissions and affirmative
statements in the prior statement. People v. Eggert, 324 Ill. App. 3d 79, 82-83 (2001). Under the
rule for impeachment by omission it is permissible to use prior silence to discredit a witness’s
testimony if (1) it is shown that the witness had an opportunity to make a statement and (2) the
witness fails to mention a fact under circumstances that make it reasonably probable that he or she
would have mentioned them if true. People v. Clay, 379 Ill. App. 3d 470, 481 (2008).
¶ 22 The State first responds that the issue is forfeited because the record does not contain a
written version of the proposed IPI Criminal No. 3.11. We do not find that this issue is forfeited.
Our supreme court held that a defendant waives his jury instruction argument if “[n]either the
common law record nor the report of proceedings reveals the substance of [the] instruction.”
People v. Emerson, 189 Ill. 2d 436, 504 (2000). Here, although the instruction is not in the
common law record, the record of proceedings identifies IPI Criminal No. 3.11 as the instruction
defense counsel asked to be submitted to the jury during the jury instruction conference.
Moreover, in denying the defendant’s motion for a new trial, the trial court specifically cited to the
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language in IPI Criminal No. 3.11 that defense counsel had wanted given. Thus, the record is
sufficient for us to consider the defendant’s appeal. See id.
¶ 23 Turning to the merits of the appeal, we note that this court considered a similar issue in
Eggert, 324 Ill. App. 3d at 82. In Eggert, the defendant was convicted of aggravated driving under
the influence of alcohol (625 ILCS 5/11-501(a)(2), (d)(1) (West 1998)) and driving while license
revoked (625 ILCS 5/6-303 (West 1998)). The sole testimony presented at trial was of a police
officer who testified that he observed the defendant drive his pickup truck over the lane line four
or five times. The officer pulled over the truck and observed the defendant exit the vehicle. The
defendant staggered and tripped several times. When the officer asked for the defendant’s driver’s
license, the defendant responded that it had been revoked. Eggert, 324 Ill. App. 3d at 80.
¶ 24 As he spoke with the defendant, the officer noticed the defendant’s bloodshot, glassy eyes
and smelled alcohol on the defendant’s breath. The defendant swayed back and forth while he
stood, and he refused field sobriety tests. The officer placed the defendant under arrest for driving
under the influence of alcohol. Id. On cross-examination, the officer acknowledged that his
written report contained two omissions: (1) that he observed the defendant weaving over the lane
line while driving; and (2) that the defendant refused field sobriety tests. Id. at 81.
¶ 25 Defense counsel subsequently tendered IPI Criminal No. 3.11 concerning the believability
of a witness. The trial court refused the instruction, apparently on the basis that since the
impeachment consisted of an omission, IPI Criminal No. 3.11 did not apply. Id. at 81-82.
¶ 26 On appeal, this court reversed and remanded for a new trial, holding that the trial court
abused its discretion by refusing to give IPI Criminal No. 3.11 regarding prior inconsistent
statements. We held that IPI Criminal No. 3.11 does apply to impeachment by omission if the
omission pertains to a material matter. Id. at 82. We noted that the trial court had not addressed
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whether the omissions in the officer’s report were material. Id. Further, we found that the
omissions were material because the officer’s trial testimony that he observed the defendant
weaving across the lane line was directly relevant to whether the defendant was capable of driving
a vehicle. Id. Additionally, the defendant’s refusal of field sobriety and breathalyzer tests was
material because the jury could infer guilt due to his refusal. The officer’s trial testimony that
defendant was weaving and that he refused testing was therefore impeached by the omission of
these observations in the police report. Id.
¶ 27 Here, as in Eggert, the trial court erred in finding that IPI Criminal No. 3.11 did not apply
to impeachment by omission. As in Eggert, the trial court erred in not giving the instruction
because the discrepancy between the police officer’s report and his testimony involved a material
issue. In this case, the material issue was the defendant’s identity. See People v. Rodriguez, 312
Ill. App. 3d 920, 933 (2000) (the prosecution has the burden of proving beyond a reasonable doubt
the identity of the person who committed the crime); United States v. Armenta, 883 F.3d 1005,
1008 (7th Cir. 2018) (the defendant’s identity is nothing more or less than an element that must be
established beyond a reasonable doubt). The fact that Clinton was able to describe more of the
defendant’s physical characteristics in his trial testimony—five months after the incident—than
on the day of the incident in his report impeached his trial testimony. The trial court therefore
abused its discretion in not submitting IPI Criminal No. 3.11 to the jury.
¶ 28 In so determining, we find unpersuasive the State’s reliance on People v. Miller, 2017 IL
App (1st) 143779, ¶ 40, People v. Larry, 218 Ill. App. 3d 658, 666-67 (1991), and People v.
Cannon, 150 Ill. App. 3d 1009, 1018-20 (1986). In none of those cases was the omission from the
police officer’s report material. See Miller, 2017 IL App (1st) 143779, ¶ 44 (difference in police
report and trial testimony was only “over semantics”); Larry, 218 Ill. App. 3d at 667 (concluding
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that “none of the inconsistencies or omissions of which defendant complains are material to the
issues of defendant’s guilt”); Cannon, 150 Ill App. 3d at 1018-19 (information omitted by the
officer’s report was immaterial because the report concerned only “minor discrepancies and
inconsistencies in testimony”).
¶ 29 Nonetheless, although we find that the trial court erred in not giving IPI Criminal No. 3.11,
we must still consider whether the trial court’s failure to give that instruction was harmless. See
People v. Dennis, 181 Ill. 2d 87, 95 (1998) (the test for harmless error in the context of an
instructional error is whether the result at trial would have been different had the jury been properly
instructed.). Here, although the trial court did not give IPI Criminal No. 3.11, it did give Illinois
Pattern Jury Instructions, Criminal, No 1.02 (4th ed. Supp. 2009) (IPI Criminal 4th No. 1.02) and
Illinois Pattern Jury Instructions, Criminal, No 3.15 (4th ed. Supp. 2009) (IPI Criminal 4th No.
3.15). IPI Criminal No. 1.02 discusses the believability of witnesses and the weight witness
testimony should be given. IPI Criminal No. 3.15 sets forth factors the jury should consider when
weighing identification testimony, such as: the opportunity the witness has to view the offender;
the witness’s degree of attention; and the witness’s earlier description.
¶ 30 In Eggert, the trial court gave IPI Criminal No. 1.02. We held that IPI Criminal No. 1.02
was not a sufficient cautionary instruction regarding the impeachment of the State’s only witness
on the material issue of whether the defendant was intoxicated. See Eggert, 324 Ill. App. 3d at 83.
This court, however, did not address whether the giving of IPI Criminal No. 3.15 would have cured
the failure to give IPI Criminal No. 3.11.
¶ 31 IPI Criminal No. 3.15 expressly draws the jury’s attention to the factors to consider in
evaluating identification testimony. Specifically, IPI Criminal No. 3.15 instructs the jury to
consider “the witness’s earlier description of the offender.” Here, defense counsel made the jury
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aware through his cross-examination of Clinton and through his closing arguments that Clinton
was able to describe more of the defendant’s physical characteristics in his trial testimony—five
months after the incident—than on the day of the incident in his report.
¶ 32 Based on the trial court giving IPI Criminal No. 3.15 and the evidence presented at trial,
we hold that the trial court’s failure to give IPI Criminal No. 3.11 did not change the outcome of
the trial. Clinton identified the defendant as the driver and his description was corroborated by
two other troopers. Most importantly, the defendant was observed driving the same vehicle on
two separate occasions shortly after the incident in question. Accordingly, we hold the trial court’s
failure to give IPI Criminal No. 3.11 was harmless error.
¶ 33 In so ruling, we find the defendant’s reliance on People v. Crane, 145 Ill. 2d 520 (1991) to
be misplaced. There, the supreme court held that the trial court’s failure to give a mistake of fact
instruction was not harmless error where the defendant’s whole case rested upon concepts of self-
defense and mistake of fact and the given instructions did not expressly draw to the jury’s attention
the concept of mistake of fact. Id. at 527-28. Here, IPI Criminal No. 3.15 did draw the jury’s
attention to a key issue in the case—that Clinton’s earlier description of the defendant was not as
detailed as the description he gave at trial.
¶ 34 Turning to the defendant’s second argument, the defendant argues that he was deprived of
a fair trial based on improper comments that the State made during the rebuttal portion of its
closing argument. Specifically, the defendant argues that the State (1) improperly shifted the
burden of proof by stating that it was the defendant’s fault that an identification issue existed; (2)
implied that he was a liar who changed his appearance after the incident in question to confuse the
troopers; and (3) attacked defense counsel’s credibility.
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¶ 35 The defendant acknowledges that he did not object to any of the State’s allegedly improper
comments at trial or raise them in a posttrial motion. Therefore, we consider the defendant’s
argument under the plain error doctrine. See People v. Burman, 2013 IL App (2d) 110807, ¶ 32.
¶ 36 Generally, prosecutors are afforded a great deal of latitude in closing argument. People v.
Slabaugh, 323 Ill. App. 3d 723, 729 (2001). As such, the State may comment on the evidence and
all reasonable inferences drawn therefrom. People v. Schneider, 375 Ill. App. 3d 734, 755 (2007).
A reviewing court looks at “the language used, its relation to the evidence, and the effect of the
argument on the defendant’s right to a fair trial” to determine whether the State’s remarks were
improper. People v. Simms, 192 Ill. 2d 348, 396 (2000). “In reviewing comments made at closing
arguments, this court asks whether or not the comments engender substantial prejudice against a
defendant such that it is impossible to say whether or not a verdict of guilt resulted from them.”
People v. Nieves, 193 Ill. 2d 513, 533 (2000).
¶ 37 Here, we do not believe that the defendant was substantially prejudiced by any of the
State’s comments. The defendant first complains that the State switched the burden of proof when
it argued that “We wouldn’t even be here today” “[i]f the defendant pulled his vehicle over like
any other law-abiding citizen.” This comment is a fair characterization of the evidence. See
Schneider, 375 Ill. App. 3d at 755. Clinton testified that he attempted to pull the defendant over
but the defendant did not stop. Hence, that is why the State charged the defendant with aggravated
fleeing and eluding of a police officer.
¶ 38 The defendant next complains that the State improperly argued that he changed his
appearance from when the troopers originally saw him to the date of trial in order to confuse the
troopers. The defendant argues that the State’s argument was improper because it implied that the
defendant was a liar. See People v. Peters, 2018 IL App (2d) 150650, ¶ ¶ 1, 56, 62 (improper to
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refer to the defendant as a “lying liar” or to otherwise comment on his credibility when he declines
to testify). We note, however, that the State never referred to the defendant as a liar. Rather, as
the record reveals that the defendant did change his appearance from when the troopers first saw
him to the day of trial, the State’s comment was a reasonable inference to be drawn from the record.
See Schneider, 375 Ill. App. 3d at 755.
¶ 39 Finally, we reject the defendant’s arguments that the State improperly attacked defense
counsel’s credibility by calling substantial portions of defense counsel’s closing argument a “ploy”
and a “trick.” Although the State may not claim that defense counsel “deliberately lied to the jury
or fabricated a defense,” it may challenge the defendant’s credibility and the credibility and
persuasiveness of the defense’s theory. People v. Robinson, 391 Ill. App. 3d 822, 840 (2009). In
challenging the credibility of the defendant or the defense theory, the State may use terms
including, “ridiculous,” “wacky,” ‘preposterous,” “silly,” and a “joke” to describe the defense’s
theory. Id. at 840-41.
¶ 40 Here, the defendant claims that the following comment was improper:
“Now, I am sure the defense loves making a lot of issue of this, but this is nothing but a
ploy by the defense to move the spotlight from the defense, the guy on trial, to the trooper.
*** Don’t fall for that trick by the defense. They would love nothing more for you to go
back there and just talk about Trooper Clinton the whole time and not even bring the
defendant up.”
¶ 41 We find that this statement, when taken in context, was not improper. The State’s
comments were in response to the defendant’s arguments that Clinton’s testimony was insufficient
to convict the defendant. People v. Glasper, 234 Ill. 2d 173, 204 (2009) (statements will not be
held improper if they were provoked or invited by the defense counsel's argument). Further, we
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note that comments similar to those made by the State here have been held to be within the bounds
of proper argument. See People v. Bramlett, 131 Ill. App. 3d 616, 620 (1985) (holding that State’s
comment that “Now, you know it’s an old defense trick to put everybody on trial but the defendant”
was not improper based on the context in which it was made).
¶ 42 III. CONCLUSION
¶ 43 For the reasons stated, the judgment of the circuit court of Du Page County is affirmed.
¶ 44 Affirmed.
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