A leading appellate attorney reviews the Illinois Supreme Court opinion handed down Friday, June 2.

People v. Pinkett, 2023 IL 127223

By Kerry J. Bryson, Office of the State Appellate Defender

Michael Pinkett was convicted of aggravated fleeing or attempting to elude a peace officer following an incident where he failed to stop his motorcycle in response to police lights and sirens and drove more than 21 mph over the speed limit.

In June 2017, Deputy Sheriff Brad Wassell observed Pinkett and two other individuals driving motorcycles in excess of the speed limit. Wassell, who was in an unmarked sheriff’s vehicle, attempted to initiate a traffic stop and pursued the motorcycles for approximately 13 miles. Wassell eventually stopped one of the motorcycles, but not the one Pinkett was operating. Pinkett ultimately parked his motorcycle at a Wal-Mart and subsequently was arrested by an off-duty, plain-clothed officer inside the store’s bathroom. 

During opening statements at Pinkett’s jury trial, the prosecutor stated that Pinkett had not asked the reason why he was being detained when he was arrested. Defense counsel moved for a mistrial, arguing that it was improper for the State to comment on Pinkett’s exercise of his right to remain silent. The State countered that post-arrest, pre-Miranda silence is not constitutionally protected, and the court denied the mistrial motion. 

The State subsequently elicited testimony from the arresting officer that after receiving information about the motorcycle pursuit, he encountered Pinkett in the Wal-Mart bathroom, approached him, identified himself as a deputy sheriff, and told Pinkett not to “make a scene.” The officer then removed a knife from a sheaf on Pinkett’s waist and escorted Pinkett to the front of the store. In closing argument, the prosecutor noted that Pinkett had not asked why he was being arrested, stating, “Don’t you think a normal person would say what’s this all about, why, why are you detaining me, what’s going on?” The prosecutor argued that if Pinkett was innocent, he would have asked what was going on when he was arrested in the bathroom.

On appeal, Pinkett argued that it was improper for the prosecutor to comment on his post-arrest silence under Illinois evidentiary law. The appellate court agreed. Illinois prohibits any such commentary under Illinois Rule of Evidence 401. In particular, such evidence is not relevant to guilt. Accordingly, the appellate court reversed Pinkett’s conviction and remanded for a new trial.

The State challenged that ruling in the Illinois Supreme Court, and the Supreme Court affirmed. The State argued that its comments were permissible because defendant’s silence was indicative of his consciousness of guilt under the unique circumstances of this case and that the probative value of that evidence outweighed its prejudicial effect under the balancing test of Illinois Rule of Evidence 403. The Court rejected the State’s argument for application of Rule 403, and confirmed that it is Rule 401's relevance test which controls.
 
Rule 401 defines relevant evidence as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” The Court confirmed that under Illinois evidentiary law, it has long been held that evidence of a defendant’s post-arrest silence “is considered neither material nor relevant to proving or disproving the charged offense.” This was especially true in the instant case where the arresting officer ordered Pinkett to keep quiet and not to make a scene. 

The Illinois Supreme Court also rejected the State’s argument that any error was harmless. For an evidentiary error to be harmless, there must be “no reasonable probability that the jury would have acquitted the defendant absent the error.” Here, the evidence was close as to the question of whether Pinkett willfully failed to stop in response to the officer’s indication to do so. The officer was behind the motorcycles when he activated the lights, and later the siren, on his unmarked vehicle. Pinkett did not have rearview mirrors on his motorcycle, and Pinkett never turned around during the time the officer was following him. The motorcycles were loud, and Pinkett was wearing a helmet and earphones, all of which would have interfered with his ability to hear. Because the evidence against Pinkett was not overwhelming, the error was not harmless.