Illinois Official Reports

Appellate Court

People v. Pacheco, 2021 IL App (3d) 150880-B

Appellate Court 

Caption

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. 

JAMES A. PACHECO, Defendant-Appellant.

District & No. Third District 

No. 3-15-0880

Filed July 12, 2021

Decision Under 

Review

Appeal from the Circuit Court of Will County, No. 12-CF-1799; the 

Hon. Carla Alessio-Policandriotes, Judge, presiding.

Judgment Reversed and remanded.

Counsel on

Appeal

James E. Chadd, Peter A. Carusona, and Emily A. Koza, of State 

Appellate Defender’s Office, of Ottawa, for appellant.

James Glasgow, State’s Attorney, of Joliet (Patrick Delfino, David J. 

Robinson, and Luke McNeill, of State’s Attorneys Appellate 

Prosecutor’s Office, of counsel), for the People.

Panel PRESIDING JUSTICE McDADE delivered the judgment of the court, 

with opinion.

Justice Wright concurred in the judgment and opinion.

Justice Schmidt dissented, with opinion.
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OPINION

¶ 1 Defendant, James A. Pacheco, pled guilty to criminal damage to property. Following a jury 

trial, defendant was convicted of aggravated assault, aggravated fleeing or attempting to elude 

a peace officer, and driving under the influence of alcohol (DUI). On appeal, defendant argues 

(1) the trial court erred in replaying video and audio recordings in the courtroom in the presence 

of the parties and trial judge rather than in the jury room during jury deliberations, (2) the trial 

court violated defendant’s right to confrontation by limiting his cross-examination of a police 

officer, (3) the trial court abused its discretion in granting the State’s motion in limine to bar 

defense counsel from questioning two police officers about their failure to write police reports, 

(4) the State engaged in prosecutorial misconduct during closing argument, and (5) defendant 

is entitled to monetary credit for time spent in presentence custody in the amount of $1410. 

¶ 2 In our original opinion, we reversed and remanded for a new trial. The lead opinion found 

that reversible error occurred where the trial court played video and audio recordings for the 

jury in the courtroom in the presence of the parties and judge during jury deliberations. The 

lead opinion further found that, while reversal was warranted on the jury deliberation issue 

alone, error also occurred where the trial court limited defendant’s cross-examination of a 

police officer and barred defense counsel from questioning two police officers on their failure 

to write police reports. The lead opinion also found that several of the prosecutor’s statements 

during closing arguments were improper. In a special concurrence, Justice Wright stated that 

she would not reach the jury deliberation issue or weigh in on the closing argument issue, as 

she believed that reversal was warranted on the issues of limiting defendant’s crossexamination of a police officer and barring defense counsel from questioning officers on their 

failure to write police reports. Justice Schmidt dissented.

¶ 3 In a supervisory order, our supreme court directed us to vacate our prior judgment and 

consider the effect of People v. Hollahan, 2020 IL 125091, on the issue of whether the trial 

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

parties and judge rather than in the jury room during deliberations and to determine if a 

different result is warranted. People v. Pacheco, No. 125191 (Ill. Nov. 18, 2020) (supervisory 

order).

¶ 4 After reconsidering the matter, we find that no error occurred where the recordings were 

played for the jury in the courtroom rather than the jury room during deliberations. We reverse 

defendant’s convictions on other grounds and remand the matter for a new trial.

¶ 5 I. BACKGROUND

¶ 6 The State charged defendant with aggravated assault (720 ILCS 5/12-2(b)(4)(i), (c)(8) 

(West 2012)) in that he operated a motor vehicle in a manner that placed Adam Stapleton in 

reasonable apprehension of being struck by the vehicle. The State also charged defendant with 

attempted aggravated battery (id. §§ 8-4(a), 12-3.05(d)(4)(i)) in that he attempted to make 

physical contact of an insulting or provoking nature with Stapleton by driving a vehicle toward 

Stapleton. The indictment alleged defendant knew Stapleton to be a police officer engaged in 

the performance of his official duties during these offenses.
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¶ 7 The State also charged defendant with aggravated fleeing or attempting to elude a peace 

officer (625 ILCS 5/11-204.1(a)(4) (West 2012)), criminal damage to property (720 ILCS 

5/21-1(a)(1) (West 2012)), and two counts of DUI (625 ILCS 5/11-501(a)(1), (2) (West 2012)).

¶ 8 Defendant filed a motion to suppress evidence, which the court ultimately denied. At the 

hearing on the motion to suppress, Stapleton testified that he did not write a police report in 

connection with the instant case. Stapleton stated: “It was explained to me the only thing that 

I was to do with anything with the case was to give a statement, a video and audiotaped 

statement, after the incident.” Stapleton said that it was customary for officers to write police 

reports unless there was an officer-involved shooting, which occurred in this case. Defense 

counsel asked Stapleton why that situation was different. Stapleton replied: “Because of the 

protection by our union, legal protection, things of that nature.” Stapleton said he believed it 

was also the police department’s policy. Officer Eric Zettergren also testified that he did not 

write a police report. Zettergren explained: “I believe it is the department’s policy that if you’re 

involved in an incident like this you just give a statement.” Defense counsel asked Zettergren 

if he was ordered by his supervisor not to write a report. Zettergren replied: “I don’t know if 

I’m specifically ordered not to, but that’s just the way it has been done.”

¶ 9 The State filed a motion in limine to bar defendant from eliciting any testimony or evidence 

regarding the absence of police reports written by Stapleton and Zettergren. The motion alleged 

that the police department’s regulations prohibited Stapleton and Zettergren from writing 

reports involving the incident because Stapleton discharged a firearm during the incident.

¶ 10 At a hearing on the motion in limine, the State noted that Stapleton and Zettergren testified 

at the suppression hearing that they had been prohibited from writing reports because Stapleton 

had discharged a firearm. Defendant argued that he should be permitted to cross-examine 

Stapleton and Zettergren about their failure to write police reports. Defense counsel argued 

that the police department policy manual was “ambiguous as to whether a police officer should 

make a report.” Defense counsel read a portion of the policy manual stating that an officer who 

discharges a firearm was to write a report unless physically unable. Defense counsel noted that 

another section of the manual said that the watch commander would designate a second officer 

other than the officer involved in the incident to complete a report.

¶ 11 The court granted the motion in limine. The court reasoned that if it was the police 

department’s policy to preclude officers from writing reports in the event of a shooting, then 

the officers had no discretion as to whether they wrote reports. The court found that absent any 

discretion on the part of the officer, failing to write a report in this situation was not a bad act 

and did not indicate that the officer was biased. The court stated that the officers were not in a 

position to interpret the written regulations presented by defense counsel and stated that an 

officer probably would not even know that the document existed. The court indicated that it 

would reconsider its ruling if the parties could provide evidence that the officers were not told 

they could not write police reports. The court suggested that the parties call a police official 

and ask about the situation. Neither party made any further representations to the court on the 

matter.

¶ 12 Defendant pled guilty to criminal damage to property. The matter proceeded to a jury trial 

on the remaining charges.

¶ 13 At the trial, Ralph Gallup; his son, Jonathan Gallup; and their neighbor, Reginald Phillips, 

testified that they heard the sound of glass breaking at approximately 2:20 a.m. on July 30, 

2012. They observed a black car in the alley behind their residences and saw that defendant 
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was driving the car. Jonathan saw that the windows of Ralph’s truck were broken. Jonathan or 

Ralph called the police. Defendant drove his car to the end of the alley, which was a dead end. 

Ralph drove his truck into the middle of the alley to prevent defendant from leaving. Defendant 

exited his vehicle and looked around for a few minutes. Defendant then reentered his vehicle 

and drove through a yard onto Union Street.

¶ 14 Stapleton testified that he was working with Zettergren at approximately 2:20 a.m. on the 

day of the incident. Stapleton was driving the squad car. They received a report of criminal 

damage to property committed by a white male driving a black Nissan. While the officers were 

driving to the scene of the complaint, they encountered a black Nissan that matched the 

description from the complaint. It was later determined that defendant was driving the vehicle. 

Stapleton activated his overhead lights and followed the vehicle.

¶ 15 Defendant stopped his vehicle after Stapleton activated his overhead lights. The officers 

exited their squad car, and defendant drove away. The officers returned to the squad car and 

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. The officers continued to follow 

defendant.

¶ 16 Eventually, the roadway was blocked by a train near the Filtration Group, and defendant 

was unable to continue. Stapleton drove his squad car so that it was parallel with defendant’s 

stopped vehicle. Stapleton believed that defendant had given up running from the officers. He 

exited his squad car and told defendant to stop his car. Defendant said “what the f*** did you 

pull me over for” and that he did not do anything. Stapleton was standing at the back corner of 

the driver’s side of his squad car. Zettergren also exited the squad car, and Stapleton lost sight 

of him.

¶ 17 Defendant began backing up his vehicle. Stapleton repeatedly told defendant to stop his 

vehicle. 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 in the direction of defendant and fired seven rounds. Stapleton knew he was 

standing in front of defendant’s vehicle when he discharged his firearm, but he did not 

remember if he was positioned in the center or to the left of the vehicle. After 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.

¶ 18 The State introduced an audio recording of the encounter captured by surveillance 

equipment at the Filtration Group into evidence and played it for the jury. A voice could be 

heard yelling, “I didn’t do anything.” Another voice repeated “stop the car” several times. 

Seven gunshots could then be heard. 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. Defendant 

introduced a second audio recording of the incident into evidence, which captured the same 

events as the first recording.
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¶ 19 The State also introduced a video recording of the encounter into evidence, which was also 

captured by surveillance equipment at the Filtration Group. The State played the video 

recording for the jury. The video recording contained some audio, but it was not as clear as the 

separate audio recordings. The image was grainy. In the video recording, a parked semitruck 

could be seen. A dark-colored vehicle drove past the semitruck. A squad car with its sirens and 

lights activated followed closely behind the dark-colored car. The two vehicles drove off the 

screen, and voices could be heard. Seven gunshots could then be heard in rapid succession. 

While the gunshots could be heard, the dark-colored vehicle drove back onto the screen and 

an individual could be seen running in front of the dark-colored vehicle. This individual was 

close to the dark-colored vehicle when he first appeared on the screen. The individual 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. Stapleton testified that he was the individual running 

in the video.

¶ 20 The State asked Stapleton if he discharged his firearm while taking cover behind the trunk 

of his squad car, and Stapleton said no. Stapleton said that he was not standing close to his 

squad car when he discharged his firearm. Stapleton testified that he was standing in front of 

defendant’s vehicle the entire time he discharged his firearm.

¶ 21 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 

towards me.” Defense counsel asked Stapleton if he was aiming for defendant when he was 

discharging his firearm at the vehicle. Stapleton said yes. Defense counsel asked Stapleton if 

he was trying to kill or wound defendant, and Stapleton said no. Stapleton said, “I was firing 

the rounds to stop the threat that was coming at me.” Defense counsel asked, “If you are firing 

the weapon to stop the car, what did you hope would happen by firing the weapon that would 

cause the car to stop?” Stapleton replied, “That it would either change directions or stop.” 

Stapleton acknowledged that if he had shot defendant in the head, defendant could have 

become unconscious and unable to control the vehicle.

¶ 22 Stapleton testified that he and Zettergren pursued defendant after the shooting. Initially, 

there were two other squad cars in front of them, but Stapleton passed them so that he would 

lead the pursuit. Stapleton testified that defendant drove through a red light and failed to stop 

at a stop sign while driving through a residential area. At one point, Stapleton was driving 80 

miles per hour in pursuit of defendant. Eventually, defendant struck a traffic signal pole and 

stopped. Stapleton exited his squad car.

¶ 23 Stapleton told defendant to open the door of his vehicle, but defendant did not comply. 

Stapleton wanted to remove defendant from the vehicle as quickly as possible so that he could 

not harm anyone else. Defendant’s vehicle was still running after it crashed. Stapleton broke 

the window of defendant’s vehicle and opened the door. Stapleton twice told defendant to exit 

the vehicle, but he refused. Stapleton twice tried to pull defendant out of the vehicle, but 

defendant resisted. Defendant was bleeding and said he had been shot. Stapleton deployed his 

taser, and the officers were able to remove defendant from the vehicle. Defendant was lying 

on the ground, but he was still fighting with the officers. Defendant refused to put his arms 

behind his back so the officers could place him in handcuffs. Defendant pulled his arms away 
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from the officers. Stapleton activated his taser a second time. Other officers then gave 

defendant medical attention.

¶ 24 In the middle of defense counsel’s cross-examination of Stapleton, the parties had a 

discussion outside the presence of the jury. Defense counsel stated that he planned to ask 

Stapleton whether he would lose his job if he improperly used deadly force. Defense counsel 

argued that Stapleton’s potential fear of losing his job could provide a motive to testify falsely. 

The State argued that it would be improper for defense counsel to argue that Stapleton had 

“motive to testify falsely out of a desire or motivation to protect his job.” The court agreed, 

reasoning that, pursuant to the holding in People v. Adams, 2012 IL 111168, “[y]ou cannot tie 

perjury or sworn testimony to employment in a criminal case.”1

¶ 25 Zettergren testified that he and Stapleton pursued defendant’s vehicle until itstopped where 

the train was blocking the road. Zettergren exited the squad car and went to the front passenger 

side of the squad car. Defendant began backing up his vehicle. Zettergren and Stapleton yelled 

at defendant to stop his vehicle. Defendant continued to back up his vehicle. 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.

¶ 26 Zettergren vaguely knew Stapleton’s location at that time. He could hear Stapleton’s voice 

moving from the front of the squad car to the back. Stapleton was giving defendant commands 

to stop the vehicle. Zettergren saw defendant’s vehicle accelerate. Zettergren stated that there 

was a visible and audible increase in the speed of defendant’s vehicle. Stapleton gave more 

commands. Zettergren then heard shots being fired. He could not see Stapleton at that point. 

He then saw defendant’s vehicle flee the area.

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

sleeping on bunks in McAbee’s semitruck in the early morning hours on the date of the 

incident. The truck was parked at the Filtration Group. They were waiting for the plant to open 

to drop off their freight. At approximately 2:45 a.m., McAbee heard sirens, which woke him 

up. He saw a black car drive up to train tracks where a train was parked. A squad car then 

passed his truck and stopped. The black car could not get around the train, and it turned around 

slowly, “like an old person.” When the black car turned around, the squad car pulled up at an 

angle to it. Two police officers exited the squad car. The officers yelled at the driver of the 

black car several times, telling him to stop his vehicle. The black car was facing the squad car 

at a 30-degree angle. One of the officers walked to the front of the squad car, and the other 

officer went to the back.

¶ 28 The black car backed up and then started driving back in the direction from which it had 

come. The police officers were still yelling at the driver of the black car. They told him to “stop 

the f’ing car or they gonna shoot.” At one point, the driver of the black car yelled at the officers 

to get out of his way. The driver did not otherwise respond to the officers. 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 car did not stop. Rather, “he acted as an old person; drove easy.” 

1

The court described the factual scenario presented in Adams, 2012 IL 111168, but did not identify 

the case by name. It was later established that Adams was the case the court was referring to.
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McAbee heard gunshots and covered his face. After the gunshots stopped, McAbee lay down 

for a few minutes. When he looked up, both vehicles were gone.

¶ 29 Kirk testified that he was 19 years old. In the early morning hours on the date of the 

incident, Kirk was sleeping on the top bunk of McAbee’s semitruck. He heard McAbee 

exclaim, and he woke up. He saw a black car in front of the semitruck and a squad car to the 

left of the truck. A train was blocking the road. The black car was 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 told the man driving the black car “to stop the car or he’d effing 

shoot.” The officer was holding a gun. The State asked Kirk if he could hear the individual in 

the black car say anything. Kirk replied: “If I’m not mistaken, I heard him say to the cop to get

the—out of his way, F-word.” Kirk testified that he saw the officer point his gun at the black 

car. The black car remained stationary and did not move until after the officer fired his gun. 

Kirk stated that it was possible that the black car was moving so slowly that he could not tell 

if it was moving. Kirk believed the officer fired six shots. The black car then drove away 

slowly.

¶ 30 A firefighter paramedic testified that he responded to the scene of defendant’s motor 

vehicle collision. The paramedic transported defendant to the hospital in an ambulance. A 

phlebotomist testified that she drew defendant’s blood when he was taken to the hospital. The 

phlebotomist took the blood to the hospital’s laboratory for testing. The tests showed that 

defendant’s blood alcohol content was 0.183.

¶ 31 Police officer Chris Delaney testified that he was a crime scene technician. Delaney 

photographed defendant’s vehicle after the incident. The photographs showed that there were 

six bullet holes in defendant’s windshield and one bullet hole on the hood of the vehicle. 

Delaney had placed wooden rods through a few of the bullet holes. In three of the photographs, 

the wooden rod appeared to be entering a bullet hole on the hood of the vehicle from the front. 

In one photograph, the wooden rod appeared to be entering the same bullet hole from the side. 

Delaney stated that he did not move the rod. Rather, the photographs looked different because 

they were taken from different vantage points. Delaney stated that the purpose of the wooden 

rods was to “show perspective of the holes.” The rods did not represent an exact trajectory of 

the bullets. Rather, it was “a guess as to where the bullet may have entered and its possible 

path.” Delaney was not a shooting reconstructionist.

¶ 32 The State rested. Defense counsel asked the court to revisit its ruling on the issue of whether 

defense counsel could question Stapleton as to whether he believed the shooting could have a 

potential negative impact on his employment. Defense counsel stated that he wanted to recall 

Stapleton as a witness and ask this question. Defense counsel argued that he would be asking 

Stapleton if his actions on the day of the incident gave him a reason to lie, which was “just 

good ol‘ fashion cross examination.” Defense counsel argued that the instant case was 

distinguishable from Adams. The court upheld its ruling that it would not allow such 

questioning or argument.

¶ 33 Police officer Christopher D’Arcy testified that he pursued defendant’s vehicle from the 

time of the shooting to the time the vehicle crashed into a traffic signal pole. D’Arcy’s 

maximum speed during the pursuit was 55 miles per hour. D’Arcy saw defendant’s vehicle 

crash. D’Arcy exited his squad car and stood 10 to 15 feet away from the scene of the crash 

with his canine. Other officers commanded defendant to exit the vehicle, but defendant did not 

comply. D’Arcy could not recall if defendant’s vehicle was running but stated that it appeared 
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to be inoperable. 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. Defendant displayed 

no unusual physical behavior that would require additional tasing. 

¶ 34 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 argued 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, particularly Officer D’Arcy. Defense counsel stated:

“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 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.”

¶ 35 The State argued that Stapleton’s testimony was credible. The State contended that 

Stapleton’s actions on the day of the incident were motivated by a desire to do his job and to 

protect the community from defendant’s actions.

¶ 36 During jury deliberations, the jury asked to have the video and audio recordings from the 

security cameras at the Filtration Group replayed. The jury also asked if there was any way to 

view the video recording in slow motion. The court asked the parties if they objected to 

replaying the recordings for the jury. The State said no. Defense counsel indicated that he did 

not object as long as the defense’s audio recording was played along with the State’s audio and 

video recordings. The court stated that it appeared that the jury was asking for all three 

recordings to be played. The State indicated that it was not possible to play the video recording 

in slow motion. The following exchange occurred between the court and the parties:

“THE COURT: *** All right. What happens now since this is—we do not have the 

equipment in a jury room, we do not have equipment in here to bring it in. The jury has 

to come out into this courtroom and view what is on each of those video and audios 

from the filtration group. We know which three we are talking about, correct?

[DEFENSE COUNSEL]: Yes.

[ASSISTANT STATE’S ATTORNEY]: Yes.

THE COURT: No disagreement what we are talking about?

[DEFENSE COUNSEL]: Correct.

[ASSISTANT STATE’S ATTORNEY]: Correct.

THE COURT: So everybody else other than the attorneys, [defendant], *** and 

Court staff should be removed from the courtroom, please, so there is no interruption 

or any suggestion from any interruption during deliberations.
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[DEFENSE COUNSEL]: Fair enough, [Y]our [H]onor.”

¶ 37 The court stated that there was to be no communication from the attorneys or defendant in 

the presence of the jury. The court asked if anyone had “any issue” before it brought in the 

jury. The prosecutor said that the State was ready. Defense counsel said, “Nothing from us, 

Judge.”

¶ 38 The jury entered the courtroom. The court advised the jury that it would play the video and 

audio recordings in the courtroom, but it was not possible to play the video in slow motion. 

The court then played the video and audio recordings for the jury. The parties did not speak in 

the presence of the jury, and none of the jurors spoke while the recordings were played in the 

courtroom.

¶ 39 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 

battery.

¶ 40 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. The court stated that it was entering “straight judgments of conviction” for 

criminal damage to property and DUI. The court stated that 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 $2881.

¶ 41 II. ANALYSIS

¶ 42 A. Replaying Video and Audio Recordings in Open Court

During Jury Deliberations

¶ 43 Defendant argues that error occurred where the court played the video and audio recordings 

of the encounter in the courtroom in the presence of the parties during jury deliberations rather 

than in the jury room. Defendant concedes that he forfeited this issue by failing to object to 

the court’s procedure for playing the video and audio recordings during jury deliberations and 

for failing to include the issue in a posttrial motion. 

¶ 44 Defendant requests that we review this issue under both prongs of the plain error doctrine.

“The plain error doctrine permits a reviewing court to consider unpreserved error 

when (1) a clear or obvious error occurred and the evidence is so closely balanced that 

the error alone threatened to tip the scales of justice against the defendant, regardless 

of the seriousness of the error, or (2) a clear or obvious error occurred and the error is 

so serious that it affected the fairness of the defendant’s trial and challenged the 

integrity of the judicial process, regardless of the closeness of the evidence.” People v. 

McDonald, 2016 IL 118882, ¶ 48.

The first step in plain error analysis is determining whether an error occurred. Id.

¶ 45 In Hollahan, our supreme court held that no error occurred where the court brought the 

jurors back into the courtroom after deliberations had commenced and allowed them to view a 

video in the presence of nonjurors. Hollahan, 2020 IL 125091, ¶ 27. The court found that 

deliberations were not taking place at the time the jurors viewed the video because the record 

did not indicate that anyone, including the jurors, spoke during the viewing of the video. Id. 

¶ 25. The Hollahan court reasoned that “ ‘jury deliberation’ is a collective process that 

necessarily entails communicative interchange amongst the members of the jury.” (Emphasis 
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in original.) Id. The court noted that the trial court instructed everyone in the courtroom not to 

say a word while the jury viewed the video. Id.

¶ 46 We find that, pursuant to Hollahan, no error resulted from the procedure employed by the 

trial court in replaying the video and audio recordings for the jurors in the courtroom. The court 

instructed the attorneys and defendant not to speak in the presence of the jurors. Like in 

Hollahan, the record does not indicate that anyone, including the jurors, spoke while the jury 

was in the courtroom viewing and listening to the recordings. Accordingly, under the reasoning 

set forth in Hollahan, jury deliberations did not occur while the jury was in the courtroom in 

the presence of nonjurors. Thus, the procedure employed by the trial court did not chill or 

intrude on the secrecy of jury deliberations. 

¶ 47 As reversal is not warranted on the jury deliberation issue in light of our supreme court’s 

decision in Hollahan, we proceed to consider the other issues defendant has raised on appeal.

¶ 48 B. Limiting Cross-Examination of Stapleton

¶ 49 Defendant argues that the trial court erred in limiting defense counsel’s cross-examination 

of Stapleton. Specifically, defendant argues that the court erred in barring defense counsel from 

cross-examining Stapleton about the potential consequences of an unjustified shooting and 

from arguing that Stapleton might have been motivated to lie about the incident out of a desire 

to protect his job. Defendant contends that this limitation on his cross-examination of Stapleton 

violated his right to confront the witnesses against him under the United States Constitution 

and the Illinois Constitution. Alternatively, defendant argues that even if his constitutional 

right to confrontation was not violated, the court abused its discretion in limiting defendant’s 

cross-examination of Stapleton. We find that the trial court’s limitation on defense counsel’s 

cross-examination of Stapleton violated defendant’s right to confrontation, and accordingly, 

we do not reach defendant’s alternative argument.

¶ 50 1. Standard of Review

¶ 51 Initially, we find that defendant’s confrontation clause claim is subject to a de novo

standard of review. See People v. Lovejoy, 235 Ill. 2d 97, 141-42 (2009) (“[D]efendant’s claim 

that his sixth amendment confrontation rights were violated involves a question of law, which 

we review de novo.”); People v. Connolly, 406 Ill. App. 3d 1022, 1027 (2011) (“A sixth 

amendment confrontation clause violation claim is a question of law that we review de novo.”).

¶ 52 We reject the State’s contention that defendant’s confrontation claim is subject to an abuse 

of discretion standard of review. The State cites People v. Kliner, 185 Ill. 2d 81, 130 (1998), 

in support of its position. The Kliner court stated:

“A criminal defendant has a fundamental constitutional right to confront the 

witnesses against him, which includes the right to cross-examination. [Citations.] Any 

permissible matter which affects the witness’s credibility may be developed on crossexamination. [Citation.] *** Nevertheless, the latitude permitted on cross-examination 

is a matter within the sound discretion of the trial court, and a reviewing court should 

not interfere unless there has been a clear abuse of discretion resulting in manifest 

prejudice to the defendant.” Id.
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Despite the Kliner court’s reference to the constitutional right of confrontation, we find that 

the court was setting forth the standard of review for a common-law evidentiary claim 

regarding restriction of cross-examination.

¶ 53 Were we to interpret Kliner to mandate an abuse of discretion standard for confrontation 

claims involving limitations on cross-examination, it would be difficult to reconcile Kliner

with the supreme court’s later decision in People v. Blue, 205 Ill. 2d 1 (2001). In Blue, the 

court stated: 

“We have noted repeatedly that the court enjoys discretion to impose reasonable limits 

on *** cross-examination to assuage concerns about harassment, prejudice, jury 

confusion, witness safety, or repetitive and irrelevant questioning [citation], but this 

discretionary authority arises only after the court has permitted sufficient crossexamination to satisfy the confrontation clause [citation].” Id. at 13.

The Blue court’s statement that a court’s discretionary authority to impose limitations on crossexamination arises only after the court has permitted sufficient cross-examination to satisfy the 

confrontation clause indicates that a constitutional confrontation claim should not be reviewed 

for abuse of discretion.

¶ 54 2. Right to Confrontation

¶ 55 We find that the trial court violated defendant’s right to confrontation by barring defendant 

from questioning Stapleton regarding the potential negative consequences to his employment 

if the shooting were determined to be unjustified. “A defendant states a confrontation clause 

violation ‘by showing that he was prohibited from engaging in otherwise appropriate crossexamination designed to show a prototypical form of bias on the part of the witness.’ ” Id. at 

14 (quoting Delaware v. Van Arsdall, 475 U.S. 673, 680 (1986)). A “defendant has the right 

to inquire into a witness’ bias, interest, or motive to testify falsely.” People v. Coleman, 206 

Ill. 2d 261, 278 (2002). “[T]he court should afford a defendant the widest latitude to establish 

the witness’ bias or hostile motivation.” Blue, 205 Ill. 2d at 14.

¶ 56 Here, defense counsel indicated that he wished to cross-examine Stapleton as to whether 

Stapleton feared he would lose his job if it were determined that he improperly used lethal 

force when he shot defendant. This was a proper subject of cross-examination, as it went to 

Stapleton’s potential bias or motive to testify falsely. By barring defense counsel from pursuing 

this line of questioning, the court improperly prevented defendant from “ ‘engaging in 

otherwise appropriate cross-examination designed to show a prototypical form of bias on the 

part of the witness.’ ” Id. (quoting Van Arsdall, 475 U.S. at 680).

¶ 57 Notably, the trial court’s reasoning for barring defense counsel from questioning Stapleton 

regarding his desire to protect his job was based entirely on the court’s misreading of the 

holding in Adams, 2012 IL 111168, ¶ 20. The court believed that Adams stood for the broad 

proposition that “[y]ou cannot tie perjury or sworn testimony to employment in a criminal 

case.” However, a careful reading of Adams shows that the holding was much narrower.

¶ 58 In Adams, a police officer testified that he found a bag of cocaine in the defendant’s pocket 

when he was searching the defendant after arresting him. Id. ¶¶ 5-6. The defendant testified 

that there was no cocaine in his pocket; rather, when the officers were arresting him, they 

pointed to a plastic bag with a white substance lying on the ground and claimed it was his. Id.

¶ 8. On rebuttal, another officer testified that he saw the first officer remove the cocaine from 
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the defendant’s pocket. Id. ¶ 12. The prosecutor argued during closing argument that the 

officers would not “ ‘risk[ ] their jobs *** over 0.8 grams of cocaine.’ ” Id. ¶ 16. The court 

held that “[t]he prosecutor’s comments *** were impermissible speculation, as no evidence 

was introduced at trial from which it could be inferred that the testifying officers would risk 

their careers if they testified falsely.” Id. ¶ 20. The court further reasoned that the prosecutor’s 

comments violated “the principle that ‘a prosecutor may not argue that a witness is more

credible because of his status as a police officer.’ ” Id. (quoting People v. Clark, 186 Ill. App. 

3d 109, 115-16 (1989)).

¶ 59 Here, unlike in Adams, defense counsel was not speculating during closing argument that 

Stapleton was motivated to testify falsely to protect his job where there was no such evidence 

at trial. Rather, defense counsel was trying to elicit evidence that Stapleton was motivated to 

testify falsely through cross-examination. Also, unlike in Adams, defense counsel’s potential 

argument that Stapleton had a motive to testify falsely to protect his job would not violate “the 

principle that ‘a prosecutor may not argue that a witness is more credible because of his status 

as a police officer.’ ” Id. (quoting Clark, 186 Ill. App. 3d at 115-16). Defense counsel was not 

trying to tie Stapleton’s credibility to his status as a police officer; rather, defense counsel 

sought to elicit evidence that Stapleton was motivated to testify falsely out of fear of negative 

consequences for specific actions he had taken.

¶ 60 Having found that the court violated defendant’s right to confrontation in barring defense 

counsel from questioning Stapleton regarding a potential motive he may have had to testify 

falsely, we next consider whether this error was harmless beyond a reasonable doubt. Where a 

court denies a defendant the right of effective cross-examination under the confrontation 

clause, “ ‘[t]he correct inquiry is whether, assuming that the damaging potential of the crossexamination were fully realized, a reviewing court might nonetheless say that the error was 

harmless beyond a reasonable doubt.’ ” Blue, 205 Ill. 2d at 14 (quoting Van Arsdall, 475 U.S. 

at 684). “In other words, the inquiry is ‘whether the defendant would have been convicted 

regardless of the error.’ ” People v. Mullins, 242 Ill. 2d 1, 23 (2011) (quoting People v. Dean,

175 Ill. 2d 244, 259 (1997)).

“ ‘Whether *** an error is harmless in a particular case depends upon a host of factors, 

all readily accessible to reviewing courts. These factors include the importance of the 

witness’ testimony in the prosecution’s case, whether the testimony was cumulative, 

the presence or absence of evidence corroborating or contradicting the testimony of the 

witness on material points, the extent of cross-examination otherwise permitted, and, 

of course, the overall strength of the prosecution’s case.’ ” Blue, 205 Ill. 2d at 14 

(quoting Van Arsdall, 475 U.S. at 684).

¶ 61 Applying the above factors to the instant case, we find that the court’s order barring defense 

counsel from cross-examining Stapleton regarding the potential consequences to his 

employment if the shooting were determined to be unjustified was not harmless beyond a 

reasonable doubt. Stapleton’s testimony that defendant accelerated his vehicle toward 

Stapleton prior to the shooting was crucial to the prosecution’s case for aggravated assault and 

was not cumulative. This testimony was not directly corroborated by other evidence at trial. 

The video recording did not show defendant’s and Stapleton’s locations or actions prior to the 

shooting. Rather, defendant’s vehicle and Stapleton came into view of the security camera only 

after the shooting commenced. While Zettergren testified that there was a visible and audible 

increase in the speed of defendant’s vehicle prior to the shooting, he could not see Stapleton at 
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that time. Also, no acceleration could be heard on the audio recording prior to the shooting. 

Furthermore, Stapleton’s testimony was contradicted by Kirk’s testimony that defendant’s 

vehicle remained stationary until after the shooting. Because Stapleton’s testimony that 

defendant accelerated his vehicle toward him was not corroborated by other evidence and was 

contradicted by Kirk’s testimony, the strength of the State’s case for aggravated assault was 

not overwhelming.

¶ 62 Also, the cross-examination otherwise permitted by the court did not sufficiently allow 

defendant to present his theory that Stapleton had motivation to testify falsely in order to 

protect his employment. The court did not allow defense counsel to question Stapleton and 

Zettergren about their failure to write police reports in this case, which would have supported 

this theory. See infra ¶¶ 67-68. While the defense was generally able to challenge Stapleton’s 

credibility based on inconsistencies between his testimony and other evidence in the case, the 

defense was not able to present any motivation Stapleton may have had to testify falsely. 

Defense counsel stated during closing argument that the jurors should not believe Stapleton if 

they thought he was “acting to protect his own interests.” However, the court’s ruling limiting 

defense counsel’s cross-examination of Stapleton precluded the defense from presenting a 

theory as to what Stapleton’s interests were and why he might be motivated to protect his 

interests. The State, on the other hand, was able to argue extensively that Stapleton’s only 

motivation was to do his job and keep the community safe.

¶ 63 Viewing all the above factors in totality, the court’s improper limitation of defense 

counsel’s cross-examination of Stapleton was not harmless beyond a reasonable doubt. 

Reversal and remand for a new trial is warranted on this issue alone. However, we proceed to 

address the other issues defendant raises on appeal, as they are likely to recur at a new trial. 

¶ 64 C. Barring Defense Counsel From Questioning Officers About

Failure to Write Police Reports

¶ 65 Defendant argues that the trial court abused its discretion in barring defense counsel from 

questioning Stapleton and Zettergren about their failure to write police reports regarding their 

encounter with defendant. Defendant acknowledges that the officers testified at the hearing on 

the motion to suppress that they were not allowed to write reports based on a policy of the 

police department that officers were not permitted to write reports if an officer discharged a 

firearm. However, defendant notes that defense counsel called this testimony into question by 

presenting a portion of the police department policy manual stating that an officer who 

discharges his or her weapon is to write a police report unless he or she is physically unable.2

Defendant further argues that, even if it was the policy of the police department to prohibit 

officers involved in a shooting from writing police reports, the policy itself would have called 

the credibility of the officers’ testimony into question. Specifically, defendant contends that 

2Defense counsel noted at the hearing on the motion in limine that the policy manual was 

ambiguous in that one portion of the manual stated that an officer who discharged a firearm was to 

write a report unless physically unable and another portion stated that the watch commander would 

designate a different officer to write the report. While these two portions of the manual may have 

created an ambiguity as to whether Stapleton was permitted to write a report, it does not appear that 

either portion of the manual would have prohibited Zettergren from writing a report.
- 14 -

the jury could have inferred from the police department’s policy that the department advised 

its officers to “keep quiet” in order to insulate the department from civil liability.

¶ 66 “The scope of a defendant’s cross-examination is limited to the subject of direct 

examination and ‘[a]ny permissible matter which affects the witness’s credibility.’ ” Blue, 205 

Ill. 2d at 13 (quoting Kliner, 185 Ill. 2d at 130). “[T]he court enjoys discretion to impose 

reasonable limits on such cross-examination to assuage concerns about harassment, prejudice, 

jury confusion, witness safety, or repetitive and irrelevant questioning ***.” Id. However, “that 

discretion must be exercised in such a way as to allow the defendants wide latitude in 

establishing bias, motive or interest by a witness.” People v. Adams, 129 Ill. App. 3d 202, 207-

08 (1984). “ ‘Generally, evidentiary motions, such as motions in limine, are directed to the trial 

court’s discretion, and reviewing courts will not disturb a trial court’s evidentiary ruling absent 

an abuse of discretion.’ ” People v. Way, 2017 IL 120023, ¶ 18 (quoting People v. Harvey, 211 

Ill. 2d 368, 392 (2004)).

¶ 67 Here, the court abused its discretion in barring defense counsel from cross-examining 

Stapleton and Zettergren about their failure to write police reports. The officers’ failure to write 

reports was relevant to their credibility as witnesses because it could support an inference that 

the officers sought to insulate themselves from potential scrutiny regarding their actions on the 

day of the incident. Even if the officers had testified that department policy prevented them 

from writing police reports because Stapleton had discharged a firearm during the incident, the 

policy itself could have supported an inference that the officers’ testimony lacked credibility. 

A blanket policy that officers who discharge firearms are precluded from writing police reports 

indicates a lack of transparency and deprives defendants of the valuable impeachment tool that 

police reports provide. See People v. Williams, 240 Ill. App. 3d 505, 506 (1992) (recognizing 

that police reports may be used for impeachment).

¶ 68 Stapleton’s and Zettergren’s testimony was important to the State’s case against defendant. 

Accordingly, precluding defense counsel from challenging their credibility based on their 

failure to write police reports was prejudicial to defendant, especially when taken in 

conjunction with the trial court’s ruling that defense counsel could not cross-examine Stapleton 

regarding the potential negative consequences to his employment if the shooting were 

determined to be unjustified. The tandem effect of these two rulings was to deprive defendant 

of a potential defense—namely, that the officers had motivation to testify falsely regarding 

their actions on the day of the incident to insulate themselves from the potential negative 

consequences if the shooting were determined to be unjustified. The defense should have been 

able to conduct the necessary cross-examination to present this theory to the jury.

¶ 69 Defendant concedes that he failed to preserve this issue for review by failing to include the 

issue in a posttrial motion. However, defendant requests that we review this issue under the 

first prong of the plain error doctrine on the basis that the evidence was closely balanced as to 

the offense of aggravated assault. See McDonald, 2016 IL 118882, ¶ 48 (“The plain error 

doctrine permits a reviewing court to consider unpreserved error when *** a clear or obvious 

error occurred and the evidence is so closely balanced that the error alone threatened to tip the 

scales of justice against the defendant, regardless of the seriousness of the error ***.”). 

Defendant does not contend that the evidence was closely balanced as to the charges of 

aggravated fleeing or attempting to elude a peace officer or DUI.

¶ 70 We find that defendant’s forfeiture of this issue is excused because the evidence was 

closely balanced as it related to the charge of aggravated assault. That is, the evidence was 
- 15 -

closely balanced as to whether defendant operated his vehicle in a manner that placed Stapleton 

in reasonable apprehension of being struck by the vehicle. The State’s case for aggravated 

assault was based primarily on Stapleton’s testimony that defendant accelerated his vehicle 

toward Stapleton, which caused him to fear for his life and discharge his firearm. However, 

Stapleton’s testimony was contradicted by Kirk’s testimony that defendant’s vehicle remained 

stationary until after the shooting. Also, as we previously discussed, Stapleton’s testimony that 

defendant accelerated his vehicle toward Stapleton prior to the shooting was not directly 

corroborated by other evidence at trial. See supra ¶ 61.

¶ 71 D. Prosecutorial Misconduct

¶ 72 Defendant contends that the State engaged in prosecutorial misconduct during rebuttal 

closing argument. Specifically, defendant argues that the prosecutor “denigrated defense 

counsel, inflamed the passions of the jury, shifted the burden of proof, and urged the jury not 

to ‘trick’ themselves into thinking that there was any question as to whether or not [defendant] 

was guilty.” Defendant concedes that he failed to preserve this issue for review by failing to 

include the issue in a posttrial motion and requests that we review the issue under the plain 

error doctrine.

¶ 73 Because we have found that reversal of defendant’s convictions is warranted on other 

grounds, we do not reach this issue. We note, however, that some of the challenged remarks 

were improper. For example, the prosecutor’s comment that defense counsel had a “fantasy” 

as to the law and the evidence improperly denigrated defense counsel. Also, the prosecutor’s 

remark that there was “not one piece of evidence *** that exonerate[d]” defendant was 

improper. Defendant was not required to present any exonerating evidence; it was the State’s 

burden to present sufficient evidence to prove defendant guilty beyond a reasonable doubt.

¶ 74 We caution the State on remand to avoid such improper commentary during closing 

argument in the event of a new trial. Rather, the State’s argument should be limited to 

“comment[ing] on the evidence and all inferences reasonably yielded by the evidence.” People 

v. Blue, 189 Ill. 2d 99, 127 (2000).

¶ 75 E. Presentence Monetary Credit

¶ 76 Defendant argues that, pursuant to section 110-14(a) of the Code of Criminal Procedure of 

1963 (725 ILCS 5/110-14(a) (West 2012)), he is entitled to monetary custody credit for time 

spent in presentence custody in the amount of $1410 to be applied against the fine assessed by 

the court. The State concedes that defendant is entitled to such a credit. However, because we 

have reversed defendant’s convictions, these assessments are no longer in effect. Accordingly, 

we do not address the merits of this issue.

¶ 77 III. CONCLUSION

¶ 78 For the foregoing reasons, we reverse defendant’s convictions for aggravated assault, 

aggravated fleeing or attempting to elude a peace officer, and DUI. We remand the matter for 

a new trial on these charges. Because defendant pled guilty to criminal damage to property 

prior to trial, the trial issues raised in this appeal do not affect that conviction.
- 16 -

¶ 79 Reversed and remanded. 

¶ 80 JUSTICE SCHMIDT, dissenting:

¶ 81 I would find that none of the issues raised in this appeal resulted in reversible error. 

Accordingly, I respectfully dissent.

¶ 82 A. Jury Deliberations

¶ 83 I agree with the majority’s conclusion that, pursuant to Hollahan, 2020 IL 125091, no error 

occurred where the court played the video and audio recordings in the courtroom in the 

presence of the parties after jury deliberations had commenced.

¶ 84 B. Limiting Cross-Examination of Stapleton

¶ 85 I disagree with the majority’s holding that reversible error occurred when the court barred 

defense counsel from cross-examining Stapleton about the consequences of an unjustified 

shooting and from arguing that Stapleton may have been motivated to lie about the incident in 

order to protect his job. Defendant failed to preserve this claim by failing to make an offer of 

proof. Moreover, the court’s limitation of defense counsel’s cross-examination of Stapleton 

did not result in error. Even assuming error occurred, any error would be harmless. 

¶ 86 First, defense counsel failed to preserve this issue by failing to make an offer of proof as 

to what Stapleton’s testimony would have been. “When a trial court refuses evidence, no 

appealable issue remains unless a formal offer of proof is made.” People v. Peeples, 155 Ill. 

2d 422, 457 (1993). “The purpose of an offer of proof is to disclose to the trial judge and 

opposing counsel the nature of the offered evidence and to enable a reviewing court to 

determine whether exclusion of the evidence was proper.” People v. Andrews, 146 Ill. 2d 413, 

421 (1992). “Where it is not clear what a witness would say, or what his basis would be for 

saying it, the offer of proof must be considerably detailed and specific.” Peeples, 155 Ill. 2d at 

457. “However, an offer of proof is not required where it is apparent that the trial court clearly 

understood the nature and character of the evidence sought to be introduced, or where the 

question itself and the circumstances surrounding it show the purpose and materiality of the 

evidence.” Id. at 458. “The failure to make an adequate offer of proof results in a waiver of the 

issue on appeal.” Andrews, 146 Ill. 2d at 421.

¶ 87 Here, defendant failed to make an offer of proof as to what Stapleton’s testimony would 

have been had defense counsel been permitted to cross-examine him regarding the 

consequences of an unjustified shooting and his desire to protect his job. It is unclear what 

Stapleton would have said if defense counsel had questioned him regarding these matters. 

Accordingly, any argument that Stapleton’s testimony would have shown bias or motive to 

testify falsely is speculative and uncertain. Thus, defendant was required to make an offer of 

proof, and he has forfeited this issue by failing to do so. See id.

¶ 88 It seems clear that defendant’s intended cross-examination was for the purpose of 

suggesting to the jury, simply by asking argumentative questions, that Stapleton fired his 

weapon at defendant without justification and he was lying in court to save his job. No one 

testified that Stapleton’s discharge of his service weapon was unjustified. The issue was and is 

a red herring. If one could allow the type of examination requested by defendant, then the door 

is open to making unjustified allegations, simply through cross-examination, that every police 
- 17 -

officer is lying in court because he or she filed a false police report and now he or she must 

testify in accordance with that report to keep from being fired. This with no other evidence that 

the report was false or evidence in the record that indicates that counsel could close this 

“impeachment.” What defense counsel suggests is a cross-examination that may go like this: 

“Q. Officer, if you filed a false report, that would be the basis for your dismissal 

from the police force, correct? 

A. If I did that, yes.

Q. And if you admitted here in court that your police report was intentionally false, 

that would pretty much seal your fate, wouldn’t it?

A. Yes, I guess it would.

[DEFENSE COUNSEL]: Ah ha! So you’re lying here in court to protect your job, 

isn’t that right?

[PROSECUTOR]: Objection.

THE COURT: Sustained.

[DEFENSE COUNSEL]: No further questions for this witness.

(As defense counsel bows to the jury.)”

At that, defense counsel would have improperly suggested to the jury just by that crossexamination that the police officer was lying in court and his police report was false. That is 

not the way we do things. Defense counsel in this case was attempting the same tactic with 

respect to Stapleton’s firing of his service weapon. The trial court did not err in disallowing 

this clearly improper tactic.

¶ 89 Even assuming the court erred in limiting defense counsel’s cross-examination of 

Stapleton, any error would be harmless beyond a reasonable doubt upon application of the 

factors articulated in Blue, 205 Ill. 2d at 14. Whether Stapleton fired his weapon is irrelevant 

to any issue the jury was required to decide. It was and is a red herring. An officer may use 

deadly force to protect not only himself but also others, including the public in general, from 

the threat of imminent and serious harm. The prosecution’s case for aggravated assault was 

strong. Stapleton testified that he ordered defendant to stop his vehicle several times, but 

defendant did not stop. Stapleton testified that defendant then accelerated his vehicle toward 

Stapleton, causing Stapleton to fear for his life. At that point, Stapleton discharged his firearm 

in an attempt to stop defendant’s vehicle. However, whether he fired his weapon is irrelevant.

¶ 90 The audio and video recordings of the encounter generally corroborated Stapleton’s 

testimony. In the audio recording, the officers repeatedly ordered defendant to stop the vehicle. 

The last time the officers ordered defendant to stop the vehicle was approximately one second 

before the gunshots could be heard. From this recording, an inference can be made that 

defendant had not stopped the vehicle at the time of the shooting. The video recording showed 

Stapleton running and the vehicle driving away as some of the gunshots were fired. 

Zettergren’s testimony that he saw and heard the vehicle accelerate prior to the shooting also 

partially corroborated Stapleton’s testimony. While Kirk testified that defendant’s vehicle did 

not begin moving until after Stapleton discharged his firearm, his testimony was inconsistent 

with the foregoing evidence.

¶ 91 Also, the cross-examination otherwise permitted by the court was extensive. Defense 

counsel was able to cross-examine Stapleton about his motivation for shooting defendant. 

When Stapleton testified that he was not trying to kill defendant but was only trying to make 
- 18 -

defendant stop his vehicle, defense counsel questioned Stapleton as to how shooting defendant 

would have caused the vehicle to stop. During closing argument, defense counsel argued that 

Stapleton’s testimony was not credible and told the jury not to believe Stapleton if they thought 

he was “out of control” or “acting to protect his own interests.”

¶ 92 C. Barring Defense Counsel From Questioning Officers About

Failure to Write Police Reports

¶ 93 The trial court did not abuse its discretion in granting the State’s motion in limine to bar 

defense counsel from questioning Stapleton and Zettergren about their failure to write police 

reports regarding their encounter with defendant. Stapleton and Zettergren had previously 

testified that the police department did not permit them to write reports in the event of an 

officer-involved shooting. Accordingly, the court granted the State’s motion in limine on the 

basis that the officers’ failure to write the reports did not show bias because the officers had 

no discretion as to whether they wrote reports. This ruling was within the court’s discretion. 

See id. at 13 (“[T]he court enjoys discretion to impose reasonable limits on such crossexamination to assuage concerns about harassment, prejudice, jury confusion, witness safety, 

or repetitive and irrelevant questioning ***.”).

¶ 94 I disagree with the majority’s finding that the police department’s policy prohibiting 

officers from writing reports when an officer discharges a firearm would itself have called into 

question the credibility of Stapleton’s and Zettergren’s testimony. Even if the police 

department’s general policy that officers involved in shootings were not to write police reports 

was rooted in a desire to protect the department from civil liability, such a policy does not 

support an inference that in this particular case the department feared civil liability or that the 

officers were testifying untruthfully. Such an inference would be remote and speculative. See 

People v. Rivera, 307 Ill. App. 3d 821, 833 (1999) (“To be admissible the evidence allegedly 

showing bias or motive must be positive and direct, not remote, speculative or uncertain.”).

¶ 95 As the majority notes, defendant failed to preserve this issue and requests review under the 

first prong of the plain error doctrine. “Under the first prong [of plain error analysis], the

defendant must show that the evidence was ‘so closely balanced that the error alone threatened 

to tip the scales of justice against the defendant, regardless of the seriousness of the error.’ ” 

People v. Johnson, 238 Ill. 2d 478, 486 (2010) (quoting People v. Piatkowski, 225 Ill. 2d 551, 

565 (2007)). Because I would find that the court did not err in granting the State’s motion 

in limine, it would be unnecessary to consider whether the first prong of the plain error doctrine 

applies to this issue.

¶ 96 I disagree with the majority’s finding that the evidence was closely balanced as to the 

charge of aggravated assault. Stapleton testified that he ordered defendant to stop his vehicle 

several times, but defendant did not stop. Instead, defendant accelerated his vehicle in 

Stapleton’s direction, causing Stapleton to fear for his life. Stapleton then discharged his 

firearm in an attempt to stop defendant’s vehicle. The audio recording of the encounter 

corroborated Stapleton’s testimony that he repeatedly ordered defendant to stop the vehicle. 

The last time the officers ordered defendant to stop the vehicle was approximately one second 

before the gunshots could be heard, which indicates that defendant had not yet stopped his 

vehicle at that time. The video recording showed Stapleton running and the vehicle driving 

away as some of the gunshots were fired. Zettergren’s testimony that he saw and heard the 

vehicle accelerate prior to the shooting also partially corroborated Stapleton’s testimony. 
- 19 -

McAbee testified that defendant drove his vehicle slowly and did not stop his vehicle when the 

officers commanded him to. McAbee was not watching defendant’s vehicle as the gunshots 

were being fired. While Kirk testified that defendant’s vehicle did not begin moving until after 

Stapleton discharged his firearm, his testimony was inconsistent with Stapleton’s testimony, 

Zettergren’s testimony, and the audio and video recordings.

¶ 97 D. Prosecutorial Misconduct

¶ 98 Defendant argues that the State engaged in prosecutorial misconduct during rebuttal 

closing argument by making comments that denigrated defense counsel, inflamed the passions 

of the jury, shifted the burden of proof, and urged the jurors not to trick themselves into 

thinking that there was any question as to whether defendant was guilty. 

¶ 99 I would find that the prosecutor erred in remarking that defense counsel had a “fantasy” 

about the law and the evidence. This comment improperly suggested that defense counsel 

fabricated a defense theory or attempted to free his client through trickery or deception. See 

People v. Kirchner, 194 Ill. 2d 502, 549 (2000). However, the other challenged remarks, when 

viewed in context, did not result in error. 

¶ 100 Defendant concedes that he failed to preserve this issue for appeal and requests review 

under both prongs of the plain error doctrine. See McDonald, 2016 IL 118882, ¶ 48. I would 

find that the prosecutor’s single improper comment did not warrant reversal under either prong. 

Contrary to defendant’s argument, the evidence regarding the offense of aggravated assault 

was not closely balanced. See supra ¶ 96. Also, defendant is not entitled to relief under the 

second prong of the plain error doctrine because the lone improper comment was not “so 

serious that it affected the fairness of [his] trial and challenged the integrity of the judicial 

process.” Piatkowski, 225 Ill. 2d at 565.

¶ 101 E. Presentence Monetary Credit

¶ 102 Regarding defendant’s claim that he was entitled to $1410 in presentence monetary credit 

to be applied against his fines pursuant to section 110-14(a) of the Code of Criminal Procedure 

of 1963 (725 ILCS 5/110-14(a) (West 2012)), I would accept the State’s confession of error 

and award the credit.