## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

People v . Quinon ez , 2011 IL App (1st) 092333

Appellate Court Caption THE PEOPL E OF THE STATE OF I LL I NOI S, Plaintiff-Appellant, v. DENY Q UI

NONEZ , Def

endant- Appellee

.

District & N o. First District, F ifth Division Docke t No. 1-09-2333

Filed Rehea ringdenied September 2, 2011

Dec ember

22, 2011

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) Def endant’ s conviction for unlawful possession of coca ine was reve rsed and the cause was remanded for a new trial wher e the S t at e i mproperly

cross-e x amined him about his postarre st silence by asking him about his failure to tell the police that a man who was standing near him at the time attempted to put drug s in de fenda nt’s hand and in his pocket, espec ially when defe ndant’s explanation o f the prese nce of the coca ine the police seized was intrinsic to his defe nse and the error was compounded by the comments made in the State’ s closing a rgument.

Dec ision Under Review Appea l from the Circuit C o urt of Cook County
, No. 07-CR-2767; the Hon. J ohn T. Doody , J r., Judge, pr esiding

.

J udg ment Reverse d and re manded.Counsel on

Appea l Michae l J

. Pelletier, Alan D. Goldberg
, and Brian E. Ko ch
, all of State Appellate D efe nder’ s Offic e, of Chica g o, for a ppellant.

Anita M. Alvare z, State’s Attorney
, of Chicag o (Alan J

. Spellberg
, Rimas F. Cernius, and Michele I

. L avin, Assistant State’s Attorney s, of counsel), for the People

.

Panel J USTI CE J

. GORDON delivere d the judgme nt of the court, with opinion.
J ustices Howseand Epstein conc urre d in the judgme nt and opinion.

OP INION

¶ 1 Following a jury trial, defe ndant Deny Quinonez was found guilty of possession of less than 15 grams of coca ine and sentenc ed to 30 month s o f probation. On appea l, defe ndant

co ntends that his conviction should be reve rsed and his cause rema nded for a new t ri al beca use the State improperly cross-e x amined defe ndant about his posta rr es t s i lence
, and beca use the trial cour

t failed to strictly comply with the admonition r equire ment of I llinois Supreme Court Rule 431(b) (ef f. May 1, 2007). For the rea sons discussed below, we reve rse and re mand.

¶ 2 BA CKGROUND ¶ 3 Def

endant was charg ed with possession of more than 1 but less than 15 grams of coc aine with intent to deliver in connec tion with an incident which took place on Dec ember 14, 2006,

on the north side of Chicag o. Def endant fi l ed a motion to quash his arr est and suppress evidenc e, which the trial court de nied and his ca se proc eede d to a jury trial. ¶ 4 As voir dire beg an, the trial judge ad dre s s ed t h e en t i re v en i re and explained the following : “[Defe ndant], as is the case with all persons charg ed with crimes, is presumed to be innocent of the charg e that bring s him here befor e you. This presumption is with him

now at the beg inning of the trial and rema ins with him throughout the course of the trial and into your deliberations unless an d until you individually and collectively are convince d beyond a rea sonable doubt that the Def endant is guilty

. It is ab solutely essential as this j u ry i s selec ted that eac h of you understand and embra ce these fundame ntal principles, that is that all persons charg ed with a crime are presumed to be innocent and that it is the burden of the S t at e, who brought this charg e, to prove the Def endant guilty

beyond a re asonable doubt. The Def endant has no obligation to testify in his own behalf or to prese nt any

-2-evidenc e in his defe nse. The fac t that the De fe ndant does not testify must not be considere d buy [ s ic ] you in any way in arriving at your verdic t. Howeve r, should the Defen d ant elec t to testify or prese nt evidenc e in his behalf
, you are to consider that evidenc e in the same manner and by the same stand ar ds as evidenc e prese nted by the State. There is no burden upon the Def endant to prove his innocenc e. I t is the State’s burden to prove the Def

endant guilty

beyond a re asonable doubt.” ¶ 5 After the venire was sworn in, the judge asked the first panel of 28 prospec tive jurors the followingquestions:
“A De fenda

nt in a criminal case is presumed to be innoc ent until a jury deter mines afte r deliber ation that the Def endant is guilty

beyond a re asonable doubt. Does anyone have a problem with this rule of law? The State has the burden of proving the Def endant guilty beyond a rea sonable doubt. Does a nyone disagree with this rule of law?
A Def endant does not have to prese nt an y ev i d en ce at all and may rely upon the presumption of innoce nce. D oes anyone disagree with this rule of law? A Def endant doe s not ha

ve to testify . Would anyone hold the fa ct that a De fenda nt did not testify

at trial ag ainst the Def

endant? ” ¶ 6 None of the 28 prospec tive jurors answe red aff irmatively to any of those questions. E ight jurors wer e chosen from that first panel. The trial court then called 22 other p ro s p ec tive jurors and asked them those very same questions. Ag ain, none of the prospec tive jurors from the second panel answe red aff irmatively to any of those questions, and the rema ining jurors

wer e selec ted from that panel. After the jury was selec ted, the court heard motions in limine and the State then be g an its case -in-chie f. ¶ 7 The State first called Chicag o police office r David Phelan, who testified that at about 9
p.m. in the even i ng in question, he was on patrol with his partne r, Offic er Pearson. The office rs wer e driving south on Sheffield Avenue and turned right onto School Stre et, when they drove past defe ndant and another man arguing near the intersec tion of the two streets. ¶ 8 The officer s exit ed the vehicle in an area well-lit by streetlights, and as Offic er Phela n approa ched defe ndant and the other man, he observe d defe ndant, who was three to five fee t

awa y from the o ff

i ce r, dro p a clea

r plastic bag on the ground. Acc ording to the office r, defe ndant dropped the bag betwee n himself and Offic er Phelan, who immediately rec overe d the bag and found that i t contained six smaller plasti c bags with suspect ed co ca i n e ins ide. Offic er Phelan stated that afte r he rec overe d the bag
, he “immediately place d [defendant] in custody
, ” and afte r perf

orming a custodial sear ch, the office r found in defe ndant’s jacke t pocket anot h er p l as tic bag
, which contained seven smaller clea r plastic bag s of suspected

coca ine. After defe ndant was arr ested, the office rs transporte d h i m t o t he police station, wher e Of fice r Phelan inventorie d the items rec overe d from def endant. ¶ 9 On cross-e x amination, defe nse counsel asked Offic er Phelan at what time “this alleg ed

occur renc e” ha ppened, which the officer replied that it was 8:55 p.m . When asked a t what time he place d defe ndant under arr est, the office r replied that it a lso ha ppened at 8:55 p.m. The office r then acknow ledg ed that the arr est was “pre tty immediate.” Offic er Phelan did not see the other man on the scene drop any thing, nor did he re cover

any thing f rom that man.

-3-¶ 10 The State then called Offic er Pearson, who testified that he conducte d a pat-down se arc h

of the man who h ad been arguing with defe ndant but did not rec over any thing from him. Offic er Pearson was not as ked on direc t examination whether he observed defenda nt drop
any thing or whether he saw Offic er Phelan rec over a bag from defe ndant’s jacke t. Howeve r, although he was not cross-e x amined with reg ard to his knowledg e of the orig in of the plastic bag s, the office r attested that he rec ognized the two bag s, for which he g ener ated repor ts, as the bagrec overe d from the ground and the bagrec overe d from def endant’ s jacke t. ¶ 11 Next, the State called David Bole r, a fore nsic scientist for the I llinois State Police crime laboratory , who testified that the substance contained in the plastic bag s that wer e rec overe d from the ground and from defe ndant’s jack et tested positive for coca ine. After the State rested, the defe nse made a motion for dire cted ve rdict, which the trial court de nied. ¶ 12 Def

endant testified on his own behalf

. He stated that in the evening in que stion, he had
p l an s t o m ee t with his landlady at a restaur ant near C lark and Sheffield. W hen he arrived
, defe ndant re alized that he did not have his wa llet, so he left the r estaura nt to ge t his wallet from his ca

r, which w as par

ked on Sheff

ield Avenue

. ¶ 13 Def

endant stated that as he walked down Sheffield, he was approa ched by a strang e man, whom he described as Afric an-America n, in his thirties, dirty and disheveled. Acc ording to defe ndant, that man ini tially asked him for spare c hang e, and a fter de fenda nt told himthat he did not have any , the man grabbe d defe ndant’s arm and kept walking along side him. Def endant testified that he turned left on School Street, which was not wher e he had parke d his car , beca

use he did not want that man to know wher e his car was parke d. After defe ndant

rea ched the eleva

ted trac ks above School Street, he turned around and beg an walking toward Sheffield. According to defe ndant, the man was touching defe ndant’s jacke t. Def endant stated that h e did not push or yell at the man or call out for help beca use he did not fee l threatened by the man, who was only bothering him. Def endant denied that he and the man

wer e arguing at any

point. ¶ 14 As defe ndant approa ched the intersec tion of Sheffield and School Street, he heard a car

scre eching
, then saw an unmarke d car parke d next to him. Def endant stated that there wer e

no li gh t s ab o v e the are a wher e he was standing

. Two police office rs exit ed the car and
approa ch ed defe ndant and the other man with flashlights. One of the office rs grabbe d the other man and took him to the trunk of the car , while the other office r grabbe d defe ndant and place d him by a fenc e. Def endant testified that the office rs handcuf fe d b o t h men, and he denied that he either dropped a bag on the ground or that he had t h e s ev en p l astic bag s of

coca ine in his pocket. Acc ording to defe ndant, the incident invol ving the police office rs happene d fast and they put defe ndant in a police car within 10 seconds of handcuf fing him. ¶ 15 On cr o s s-examination, defe ndant acknow ledg ed that he had previously testified, at a hearing on his motion to quash his arr est and suppress evidenc e, that the man who followed him had also tried to sell him drug s. Def endant then explained that he did not know whether the man was trying to sell him drug s, but he stated that the man told him “I have something
g ood for you,” and “I g o t a go o d d eal.” Def endant further stated that he did not know wh et h er the man had g one into his pockets or put any thing in his jacke t while he wa l k ed along side defe ndant. He acknow ledg ed that at the hearing, he had testified that the man had

-4-been trying to put bag s with some kind of substance into defe ndant’s hands and pockets

while the man f

ollowed def

endant. De fenda

nt expl ained, howe ver, that at the time of trial, he could no longe r rec all whethe r t h e man had, in fac t, tried to put bag s in his hands and pockets. When asked about the point in time when the man tri ed t o put something in his pocket, defe ndant stated that he tried it twice, once on Sheffield and once on School Street, but de fenda

nt c ould not fee l whether

he ac tually

had mana g ed to put any

thing in his jacke t pocket. Additionally
, defe ndant stated that the man put some kind of packa g e in defe ndant’s hand, and de fenda

nt ga ve it back to him. ¶ 16 Continui ng to c ross-examine, the State asked defe ndant, “At the point the police ar rive

on the scene and they stop you and they stop this individual, this strang e man, you don’t tell the pol ice what just happene d to you from the tim e you g ot out of the restaura nt until they
g ot on the scene , do you? ” Def endant answe red “no.” Def ense counsel objected to the State’s question on the grounds that it was “post-ar rest,” and the trial court overr uled the objection. The State then asked defe ndant, “The police g et on the scene , you’ve encounte red a strang e man, you say the strang e man is putting a chunky substance in your hand and in your pocket,
you don’t tell them, do you? ” Def endant ag ain answe red “no.” Def ense couns el objected
ag ain and asked for a sidebar. The trial court sustained the objection “as to what [the State] just a sked, the chunky substance,” and denie d the sidebar . The State then asked defe ndant,
ag ain, whether he told the police that the man had put something in his hand or pocket, which defe ndant, ag ain, answe red neg atively

. Def endant acknow ledg ed that the police office rs re cover ed a pa ckag e fr om the right outer pocke t of his ja cket, but he stated that he did not know what it was. ¶ 17 S y l v i a S z af

ra n , d ef en d an t ’s landlady
, corr oborate d defe ndant’s testimony . Sz afr an testified that she followed defe ndant afte r he left the restaur ant, and when she was about 40 fee t behind defe ndant, she saw a man grab him under his arm and walk with him. She stated that defe ndant tried to release himself from the other man, who continued to hold him. On direc t examination, Sz afr an stated that she did not call 911 beca use s he did not think that defe ndant was in a

ny dang er, but she f

urther te stified that she did not call out to defe ndant beca use she was “ter

rified” and did not know what to do. She later stated, on crossexamination, that she had heard a rumor that defe ndant “likes boy s,” and she continued to follow defe ndant to find out if that man was his date

. ¶ 18 Sz afr an further stated that when defe ndant turned left onto School Street, she stopped at the corne r acr oss the street from the two men. She then saw a car drive up to defe ndant and the other man and saw a police office r grab defe ndant while the other grabbe d the other man. Acc ording to Sz afr an, the office rs let the other man g o a few minutes later, while defe ndant

was handcuf

fed and place d in a car

. She later testified, on cross-e x amination, that she did not know that def

endant wa s arr ested until two or three o’cloc k the next morning. ¶ 19 Fur

ther, Sz afr an testified that she did not see defe ndant or the other man drop any thing. She further

noted that she c ould observe the incident from he r vanta g e point beca use there

was a light at the corne r. Sz afr an stated, on cross-e x amination, that she never went up to the police office rs to tell them what she saw the other man do beca use it happene d quickly
, and she thought that “may

be it was dating .” Additionally
, Sz afr an acknow ledg ed that she did not g o to the police station to tell them what happe ned.

-5-¶ 20 Duringthe State’s rebuttal at closingarguments, the State noted: “Of fice rs ca me into contact with an individual. They stopped the individual, ladies and g entlemen. The y

stopped the individual alongwith the defe ndant.
Perfe ct timing to tell someone that someone planted something in my jacke t. Perfe ct timing to tell the office rs, who serve and protec t, hey
, this guy ’s been hara ssing me, this
guy ’s bee n pesteringme, this guy ’s plantingdrug s on me. ***
None of that was done when the office rs had the second individual there. W h y ? Be cause the sec ond individual didn’t do that. He didn’t plant drug s on the defe ndant.” ¶ 21 The jury s ub s equ en t l y fo u n d t h e defe ndant guilty of the lesser included offe nse of
p o s s essi on of a controlled substance, less than 15 grams of coca ine. On Marc h 4, 2009
, defe ndant filed a posttrial motion in which defe ndant claimed, inter alia
, that he was denied due proce ss and equal protec tion of the laws. On May 20, 2009, h e fi l ed a supplemental motion for a new trial in which he argued, inter alia
, that his constitutional right ag ainst selfincrimination was violated when the State was allowed to ask defe ndant, at trial, whether he told the police that the other man at the scene had tried to put drug s in defe ndant’s hand and pockets. The trial court denied the motion and ruled that the State’s questions at trial ref err ed
to defe ndant’s actions prior to his arr est and wer e, there fore
, proper

. The trial co u rt then
sentenc ed def

endant to 30 months of probation.

¶ 22 ANALYSI S ¶ 23 A. The State’ s Use of D efe ndant’s Postarre st Si lence ¶ 24 On appea l from the trial court’s judgment, defenda nt first contends that his conviction should be reve rsed and his cause rema nded for a new trial beca use the State improperly

cross-e x am i n ed h i m about his postarre st silence by asking him whether he told the police office rs that the man standing near him had tried to put drug s in his hand and pocket. He further maintains that the err or was not harmless beca use the State’s improper impeachme nt of defe ndant with his postarre st silence undermined his cre dibility wher e the outcome of the

case depende d on whether the jury believed defe ndant’s testimony or that of the office rs who testified for the State. Additionally
, defe ndant contends that the prejudice resulting from that

err or was compounded wh en t h e State ref err ed to defe ndant’s postarre st silence during closingarguments. ¶ 25 We initially note, and the parties agree , that the fede ral constitution does not purport to prohibit the use of pre-

Miranda silence, including silence following a defe ndant’s arr est but befor e rece iving Miranda wa rn ings. Admitt edly
, the Unit ed S tates S upreme Court held i n Doyle v. Ohio
, 426 U.S. 610, 617-20 (1976), that it was a violation of the due proce ss clause of the fourtee nth amendment for the State to impeach a d efe ndant using evidenc e that defe ndant was silent fol l o wi n g h i s arrest, afte r he was advised of his Miranda rights. The Court rea soned that since the Miranda war nings car ry the implicit assura

nce that his silence will car ry no penalty
, it would be fundame ntally unfair to allow a defe ndant’s post-Miranda silence to impea ch his tria l te stimony

. Doyle
, 426 U.S. a t 612, 618. Howeve r, the Supreme Court later held that the prohibition applies only to a defe ndant’s silence afte r being advised of his Miranda rights. Fletche r v. W eir
, 455 U.S. 603, 607 (1982) ( per curiam ). In doing so,

-6-it found that states wer e fre e to formulate their own rules with respe ct to defe ndant’s silence

befo re arr est (

Jenk ins v. Anderson
, 447 U.S. 231, 238 (1980))
, as well as afte r arr est but befor e re ceiving Miranda war nings ( Fletche r , 455 U.S. at 607). ¶ 26 In this case , since there is no evidenc e in the rec ord that defe ndant rec eived his Miranda

war nings during the incident i n question, both parties agree that fe d era l constitutional law prohibiting the State from impeachingdefe ndant by ref erring to his silence afte r the police office rs arri v ed i s not invoked. Howeve r, that is not dispositi ve of defe ndant’s argument beca use, apar t from any constitutional conce rns, I llin o is e v ide n c e la w p ro h ibits impeachme nt of a criminal “def

endant with his or her postarre st silence, reg ardle ss of whether the silence

occur red befor e or afte r the defe ndant was g iven Miranda war nings.” People v. Clark
, 335 I ll. App. 3d 758, 762-63, 781 N.E.2d 1126, 112 9 -30 (2002). The I llinois principle that prohibits impea chment of a de fenda nt with his post arr est, pre- Miranda silence is base d on

our supreme court’s decisions in People v. Lewerenz
, 24 I ll. 2d 295, 299, 181 N.E.2d 99, 103 (1962), and People v. Rothe
, 358 I ll. 52, 57, 192 N.E. 777, 779 (1934). See, e.g. , Clark
, 335 I ll. App. 3d at 763, 781 N.E.2d at 1129. Our supreme court held that “a n acc used is within his rights when he ref

uses to make a statement [at the time of his arr est], and the fac t that he exercised such right has no tendenc y to prove or disprove the charge aga i n s t him, thus making eviden ce o f h i s ref usal neither materia l or rele vant to the issue being tried.” Lewerenz
, 24 I ll. 2d at 299, 181 N.E.2d at 101 (citing Rothe
, 358 I ll. at 57, 192 N.E. at 779). Since both decisions predate Miranda v

. Arizona
, 384 U.S. 436 (1966), the prohibition which they set forth under I llinois evidenc e law does not depend on whether defe ndant’s postarre st silence occurr ed before or afte r he was advised of hi s Miranda rights. Clark
, 335 I ll. App. 3d at 762-63, 781 N.E.2d at 1129 (quoting People v. McM ullin
, 138 I ll. App. 3d 872, 876-77, 486 N.E.2d 412, 415 (1985))

. The l anguag e of rele vancy and materia lity utiliz ed by our

s upreme court in Lewerenz and Rothe indicates that the I llinois rule which prohibi t s impeachme nt with defe ndant’s post arr est silence is based on evidentia ry principles, rather than constitutional law. Id

. There for e, t h e rul e is unaltere d by fede ral constitutional case s which found that the us e of a defen d an t’s postarre st, pre- Miranda silence does not violate due proc ess. Id .; see Fletche r , 455 U.S. at 607; see also People v. Homes
, 274 I ll. App. 3d 6 1 2
, 6 1 9-20, 654 N.E.2d 662, 668-69 (1995) (ac knowledg ing wher e the State introduces evidenc e of a defe ndant’s post arr est, pre- Miranda silence is not a constitutional violation, but it is prohibited by

the I llinois rule); cf. People v. Givens
, 135 I ll. App. 3d 810, 823-24, 482 N.E.2d 211, 220-21 (1985) (finding that the use of a defe ndant’s postarre st, pre- Miranda silence does not violate due proce ss, but not addre ssing the issue of whether it violates any other e videntiary

principles). ¶ 27 T h u s , t h e I llinois evidentiar y rule g ener ally prohibits imp ea ch m en t o f a cr i m i n al defe ndant with his postarre st silence, reg ardle ss of whether it occur red befor e or afte r he was g iven Miranda war

nings, beca

use under those circ umstances, that silence is not considere d rele vant or materia l. Clark
, 335 I ll. App. 3d at 763, 781 N.E.2d at 1129. Howeve r, courts have held that there are two exceptions to the g ener al rule, wher e that postarre st silence will be considered releva

nt. McM ullin
, 138 I ll. Ap p

. 3d at 877, 486 N.E.2d at 416. Pursuant to those exceptions, a defe ndant’s postarre st silence may be used to impeach his trial testimony : (1) when defe ndant testifies at trial that he made an exculpatory statement to the police at the

-7-time of his arr est; and (2) when he makes a postarre st statement that is inconsistent with his

exculpatory trial testimony

. People v. Simmons
, 293 I ll. App. 3d 806, 811, 689 N.E.2d 418, 422 (1998); see also McM u l l i n , 1 3 8 I l l

. App. 3d at 877, 486 N.E.2d at 416. Howeve r, in
contra st to a defe ndant’s postarre st silenc e, his silenc e prior to a rre st ma y properly be used by the State to impeach his trial testimony under I llinois law. People v. Grave s , 142 I ll. App. 3d 885, 889-90, 492 N.E.2d 517, 521 ( 1986). ¶ 28 Her e, defe ndant argues that when the State questioned him at trial as to whether he told the police of

fice rs about the other

man’s ac tions, thus refer red to the pe riod afte r his a rre st beca use the office rs arr ested defe ndant almost immediately afte r they arrived on the scene

. Thus, defe ndant contends that the State at t em pted to use his postarre st silence, notwithstanding the evidentiar y prohibition ag ainst such use, as enunciated in Lewerenz and Rothe

. Def

endant further contends that the State’s questions do not f all within e ither of the exceptions to the prohibition ag ainst the use of his postarre st silence for i mpeac hment beca use there is no evidenc e that defe ndant made any statements to the police at the time of his arr est that wer e inconsistent with his trial testimony
, and beca use defe ndant did not testify that he made an exculpatory statement to the police when they arr ested him. ¶ 29 The State responds that its questions did not violate the prohibition beca use they ref

err ed to de fenda

nt’s silence prior to his a

rre st. Accor ding to the State, its que stions re fer red only
to defe ndant’s failure to flag the police for help befor e the office rs stopped and to ask them for help once they approa ched defe ndant and the other man on the street. Alternatively
, the State contends that even if its questions ref err ed to defe ndant’s postarre st silence, they would fall under an exception to the evidentiar y rule beca

use, contra

ry to defe ndant’s asser

tion, his silence at the t ime of hi s arr est is manifestly inconsiste n t t o d efendant’s testim ony at trial, beca use if that man had, in fac t, bee n h ar as s i n g defe ndant, he would have told that to the office rs when th ey arrived at the scene

. In a related argument, the State contends that its questions and comments did not ref er to defe ndant’s silence, but only to his actions in failing
to ask the police for help under circ umstances wher e a rea sonable person would have asked for a ssistance. ¶ 30 We first addre ss the issue of whether the State’s qu es t i o n s re fe rr ed to defe ndant’s
p ostarre st silence or mere ly his silence prior to arr est. This court has held that
, fo r t h e purposes of the constitutional prohibition ag ainst in t ro duction of a defe ndant’s postarre st, post-Miranda silence, a defe ndant is deeme d arr ested when he is restrained by police office rs and placed in a squad car

. People v. Adams
, 102 I ll. App. 3d 1129, 1132, 430 N.E.2d 267, 271 (1981). In that case , the court found that although defe ndant was not for mally charg ed with a crime until later that night at the police station, the prohibition beca me operative when defe ndant was restra ined at the scene , place d in a squ ad ca r and advised of her Miranda rights. Adams
, 102 I ll. App. 3d at 1132, 430 N.E.2d at 271 (citing People v. Creach
, 79 I ll. 2d 96, 100-01, 402 N.E.2d 228, 230 (1980), and People v. W ipfler
, 68 I ll. 2d 158, 166, 368 N.E.2d 870, 873 (1977))

. In doing so, the court relied on Creach
, in which our supreme court found that the de fenda

nt was ef fec tively arr ested whe n an office r frisked him a nd told him that he wou l d h ave to g o to the police station, wher e, acc ording to the office r’s own testim o n y , h e t ook defe ndant into custody in that encounte r and he was not fre e to leave

. Creach
, 79 I ll. 2d at 100-01, 402 N.E.2d at 230; see also Simmons
, 293 I ll. App. 3d at 808-

-8-12, 689 N.E.2d at 420-23 (finding that the State re fe rr ed to defe ndant’s postarre st silence

wh en the prosec utor asked defe ndant whether he denied owning the gun found in h i s s ea t afte r he was pulled out of the vehicle and handcuf fed) ; cf

. Grave s , 142 I ll. App. 3d at 888-90, 492 N.E.2d at 520-21 (finding that the State’s questions properly ref err ed only to defe ndant’s
prea rre st silence whe re the prosec utor asked whether he contac ted the police to tell them about his exercise of sel f- d ef en s e three to four day s befor e he surre ndere d himself to the police). ¶ 31 In this case , as previously noted, the Stat e s p ec i fi ca l l y as k ed defe ndant on crossexamination, “At the point the police arri v e o n s ce n e and they stop you and they stop this individual, *** you don’t tell the police what just happene d to you from the time you g ot out of the restaur ant until they g ot on the scene , do you? ” (Emp h as i s ad d ed.) Def endant

answe red that h e d id not, and the State then asked, “The police g et on the scene , you’ve
encounte red a strang e man, you say the s tr an ge man i s putting a chunky substance in your hand and in your pocket, you don’t tell the m, do you? ” Def endant, a g ain, answe red tha t he did not, and the State, ag ain, asked defe ndant whether he told the office rs that the man had put something in his pocket, whic h defe ndant ag ain said that he did not. ¶ 32 Ad d i t i o n al l y , Of fi ce r P h el an’s testimony indicates that he was still ap p ro ac h i n g defe ndant from no more than five fee t awa y when defe ndant dropped a bag
, which the office r immediately rec overe d. Fur ther, the office r stated that he saw that the bag contained smaller bag s of suspected coca ine, and he “immediately place d [defendant] in custody .” Acc ording
to the office r, both the “occ urre nce” and defe ndant’s arr est took place at 8:55 p.m. that evening
, and he acknow ledg ed that the arr est was “pre tty immediate.” Thus, Offic er Phelan’s testimony indicates that when he put defe ndant on the fenc e and handcuf fed him, he was, in fac t, arr esting him (

Adams
, 102 I ll. App. 3d at 1132, 430 N.E.2d at 271) and that such arr est

was the only time he “stopped” defe ndant. Fur ther, defe ndant testified that afte r the office rs exit ed their car , one of them grabbe d defe ndant, put him ag ainst a fenc e and handcuf fed him. He stated that once the office rs came up to hi m , ev ery thing happene d fast. Consequently
, defe ndant’s testimony appea rs to indicate that his arr est was instantaneous in that there was

no delay betwee n the time he was stopped and the time he was arr ested. Def endant stated that when he was first approa ched by an office r, he was almost immediately place d on the fenc e and handcuf

fed, which, acc ording to Offic er Phelan, was an arr est. There fore
, when the State asked defe ndant about what he told the office rs when they “stopped” him, it appea rs to ref er to the point in time when Of fi ce r P helan put defe ndant on the fenc e and handcuf fed him, eff ectively arr esting him. Even if there was a short period betwee n the time the office rs first exit ed the car and approa ched defe ndant and the time Offic er Phelan stopped him, the State’s question appe ar s t o ref

er specific ally to defe ndant’s silence afte r he was stopped, which,

acc ordingto the office r’s testimony , was the time of his a rre st. ¶ 33 Fur

thermore
, none of the S tate’s qu es t ions with reg ard to whether defe ndant informed the poli ce office rs that the other man had been hara ssing him wer e limit ed in their scope solely to the short interval betwee n the time the office rs arrived and the time that they stopped defe ndant. Since the testimony of both Offic er Phelan and defe ndant indicates that the arr est occur

red almost immediate ly afte r the office rs arrived on the scene , we conclude that those questions wer e made in ref ere nce to defe ndant’s silence aft er his arr est.

-9-Acc ording ly
, the State’s quest i ons and comment on rebuttal did, in fac t, perta in to his

postarre st silence and w ere , there fore , improper. ¶ 34 We now turn to the State’s contention that those questions wer e proper beca use they fall within one of the two exceptions ref err ed to earlier, under which postarre st silence would be admissible, namely : (1) wher e defe ndant falsely testifies at trial that he made the same exculpatory statement to the poli ce at th e time of his arr est; and (2) wher e he makes a postarre st, pretria l statement that is manifestly inconsistent with his trial te stimony

. The State contends that defe ndant’s failure to tell the police office rs what the other man had done falls within the second exception, in that his silence was inconsistent wi t h h i s exculpatory testimony at trial. In that reg ard, we also addre s s t h e S tate’s related contention in which it char acte rizes defe ndant’s failure to ask for help as an act, instead of silence, and argues that since it s questions and comments refe r only to defe ndant’s ac tions, the prohibition ag ainst the use of postarre st si l en ce i s i napplicable

. The State maintains, in support of both
arguments, that if the other man had, i n fa ct, been hara ssing defe ndant and trying to put objects in defe ndant’s hand and pocket, defe ndant would have asked the police for help. Both contentions lack me rit. ¶ 35 As noted above, the I llinois evidentia ry ru l e al l o ws the State to use a def endant’ s postarre st failure to tell police his exculpatory story when the defe ndant makes statements afte r arr est that are manifestly inconsistent with his trial testimony

. McM ullin
, 138 I ll. App. 3d at 877, 486 N.E.2d at 416. Acc ording ly
, wher e a defe n d an t makes no statements t o the police before trial, there is no such m anife st inconsistency betwee n his trial testimony and
any statements m ade before trial. People v. Moody
, 199 I ll. App. 3d 455, 465, 557 N.E.2d 335, 342 (1990). In Moody
, 1 9 9 I l l

. Ap p. 3d at 465, 557 N.E.2d at 342, wher e defe ndant ref used to answe r any of the police office r’s questions, and testified for the first time at trial that a thi rd party had threatened the victim’s life, the court held that the State improperly commented on his postarre st silence beca use it had no statements “ ‘m an ifestly inconsistent’ ” with defe ndant’s exculpatory testimony that could be used for impeachme nt. ¶ 36 Simi larly
, in Homes
, 274 I ll. App. 3d at 616-20, 654 N.E.2d at 666-69
, d ef en d an t ’s juvenile brother was silent during a police interrog ation afte r his own arr est and later testified
at trial that it was him, and not defe ndant, who committed the shooting in question. The court held that hi s silence wa s not sufficiently inconsistent with his trial t estimony to fall within the exception to the evidentiar y rule ag ainst the use of postar rest silence for impea chment. Homes , 274 I ll. App. 3d at 620-21, 654 N.E.2d a t 668-69. In doing so, the court noted that the silence of an acc used afte r arr est is so ambiguous that it lacks the requisite inconsistency with his exculpatory trial testimony
, and there wer e many rea sons why defe ndant’s brother would not tell the pol ice that defe ndant was not involved in t h e crime, such as reliance on his constitutional priv i l ege s

. Id

. The court further noted that whil e it is appropriate for the State to cross-e x amine a defe ndant’s alibi witnesses, who wer e not themselves arr ested, with
reg ard to their f

ailure to come forwa

rd before trial, that principle does not apply to the use of a witness’s postarre st silence for impeachme nt. Id. at 620. Thus, unlike a defe ndant’s postarre st statements, his f ailure to spe ak afte r ar

rest, whe ther it is char acte rized as silence

or as a failure to act, i s not sufficie ntly inconsistent with that defe ndant’s exculpatory testimony to be prope rly

used for his impeachment.

-10-¶ 37 In this case , as in Moody
, there i s n o th i n g in the rec ord to indicate, nor do the par ties contend, that de fenda

nt made any statements t o the pol ice officer s at any time before trial,

an d the State mere ly contends that defe ndant’s failure to ask for help is, in and o f i t s el f, inconsistent with his trial testimony

. Howeve r, defe ndant testified that he did not ask for help beca use he did not fee l threate ned by the other ma

n, that he did not know whether the man had manag ed to put any

thing in his p o cket, and that when Offic er Phelan took something from defe ndant’s pocket, defe ndant did not know what that was. There fore
, whether defe ndant’s failure to ask the office rs for help is char acte rized as silence or failure to act, as in Homes
, it is t o o ambiguous to be properly used aga inst him for impeachment purposes. Simi larly to the defe ndant in Homes
, there wer e sever al rea sons why defe ndant in this case would choose not to ask the police for help, including possible relianc e on his constitutional rights. In addition, sinc e defe ndant did not make any statements to the police at the time of his arr est, there wer e no manifestly inconsistent pretria l statements that the State could have
properly used for imp ea ch m en t purposes. Additionally
, with respe ct to the attempt to impeach defe ndant’s failure to ask for help, we note that since n othing indicates that defe ndant testified at trial that at the time of his arr est, he told the police office rs that the man had tried to put something in his hand and jacke t, we conclude that the State’s questions do not fall under a

ny exception to the I llinois rule a nd wer e, ther efor e, improper

. ¶ 38 The State’s attempt to distinguish this case from Homes
, 274 I ll. App. 3d at 616-20, 654 N.E.2d at 666-69, is misplaced. Admittedly
, the statement that the witness in Homes failed
to g ive the police afte r his own arr est would have exculpated that witness’s brother and not himself, while defe ndant in this case failed to tell the police fac ts that would have exculpated his own crime, namely
, why there was a bag of coca ine in his pocket. Howeve r, if any thing,

as shall be postulated in our discussion of Conley
, that d i stinction would have indicated a

more relax ed ru l e in Homes
, wher e the witness was a third party , while in this case the witness was defe ndant himself. Consequently
, t h e p rohi bition ag ainst postarre st silence proff ere d in Homes would, a fortiori , be applica ble her e. ¶ 39 Fur

thermore
, the State’s relianc e on People v. Conley
, 1 8 7 I l l

. Ap p

. 3 d 234, 244, 543 N.E.2d 138, 145 (1989), also lacks merit. In that case , wher e the court held that a witness’s failure to speak is admissible to discredit his t est imony under circ umstances wher e a

rea sonable person would have spoken up, the witnesses in question wer e not themsel v es criminal defe ndants. Co n l ey , 1 8 7 I ll. App. 3d at 238, 543 N.E.2d at 140-41. In contra st, defe ndant in this case was impeache d with his silence afte r his own arr est, and the principle that applies to the impeachme nt of other witnesses with their failure to speak is inapplicable
to a defenda

nt’s postarre st silence. Homes
, 274 I ll. App. 3d at 620, 654 N. E

. 2 d at 668-69; see also People v . Long , 316 I ll. App. 3d 919, 930-31, 738 N.E.2d 216, 224 (2000) (in the

co ntext of post-Miranda silence, the principle that allows the impeachme nt of witnesses with their fa ilure to speak doe s not apply to criminal defe ndants). ¶ 40 We rec ognize that although the State’s questions and rema rks made during rebuttal we re improper, the judgme nt will not be rev er s ed if the error was harmless, namely
, it did not

cause prejudice to defe ndant. People v. Johnson
, 208 I ll. 2d 53, 115, 803 N.E.2d 405, 440-41 ( 2 0 0 3 )

. T h

u s , d e fenda

nt’s conviction may be aff irmed if the revie wing court deter mines
, a f ter examining the rec ord, that the err or was harmless beyond a rea sonable doubt. People v.

-11-Arman
, 131 I ll. 2d 115, 127, 545 N.E.2d 658, 664 (1989). Def endant contends that the err or

was not harmless beca

use the evidenc e prese nted at trial was cl o s e an d t hat the verdic t depende d on the cre dibility of the State and the defe nse witnesses, who offe red differ ent versions of the events. Acc ording to defe ndant, the State’s improper questions undermined defe ndant’s cre dibility , which was a centr al issue in this case , and the error was compounded by the State’s comments during closing arg ument that once the police stopped defe ndant, it

was the “per fec t timing” to tell them that the other man had planted something in his jacke t, and that the rea son why defe ndant did not say any thing was beca

use the other man had not, in f act, place d any

thing on him. The State, on the other hand, posits that any possible e rror

wo u l d h ave been harmless beca use it contends that the evidenc e of defe ndant’s guilt
prese nted at trial was overwhelming. The State maintains that defe ndant’s testimony that the oth er m an p l ace d drug s in defe ndant’s hand and pocket was not believable and that the office rs’ testimony
, combined with the drug s found in front of defe ndant and in his pockets, would have been sufficie nt to conv i ct defe ndant in the absenc e of the State’s improper questions and comments on rebuttal. We agree with the defe ndant. See Moody
, 199 I ll. App. 3d at 465, 5 5 7 N. E

. 2 d at 342; McM ullin
, 138 I ll. App. 3d at 873-77; see also People v. Naylor , 229 I ll. 2d 584, 606-10, 898 N.E.2d 653, 667-70 (2008)

. ¶ 41 In Mo o d

y , 1 9 9 I l l

. App. 3d at 465, 557 N.E.2d at 342, the court found that wher e a defe ndant’s own explanation of the events was of signific ant import to his defe nse, improper
comments with reg ard to his postarre st silence wer e not harmless err or. In that case , the State
prese nted testimony from a police office r and defe ndant’s cousin that defe ndant admitted to shooting the vic tim, and evidencethat defe ndant had gun residue in his ha nds shortly

afte r the shooting. Moody
, 199 I ll. App. 3d at 458-61, 557 N.E.2d at 337-39. As previously noted, defe ndant’s defe nse included his own testimony of his wher eabouts at the time of the crime,
t hat a third party had threatene d the vi ctim’s life and that he did not admit t o s h o o t i n g t h e

v i ct i m. Moody
, 199 I ll. App. 3d at 458-61, 557 N.E.2d at 337-39. The court held t h at t h e State’s ref ere nces to defe ndant’s postarre st silence wer e not harmless beca use they seriously damag ed his cre dibility and undermined his alibi, which wer e critica l to his defe nse. Moody
, 199 I ll. App. 3d at 465, 557 N.E.2d at 342; acc ord McM ullin
, 138 I ll. App. 3d at 873-77, 486 N.E.2d at 414-15 (improper ref ere nces to defe ndant’s postarr est silence w ere not harmless wher e the verdic t depende d on whether the jury believed defe ndant’s testimony that he was

unawa re that the co-de fend an t s wer e committing burg lary ); see also Naylor
, 229 I ll. 2d at 606-10, 898 N.E.2d at 667-70 (evide nce was closely balanc ed wher e police office rs testified that they purcha sed drug s from defe ndant and a third o ff i ce r arr ested defe ndant, and defe ndant’s testimony that he was arr ested in a drug raid was consistent with the office rs’ testimony). ¶ 42 In this case, the State pr esente d Offic er Phela n’s testimony

that he observed defenda nt drop a packa g e on the ground from three to five fee t, and that a custodial sear ch reve aled that he had another bag of coca ine in his jacke t pocket. There was no testimony forthcoming from Offic er Pearson that he observe d defe ndant drop a bag on the ground or that he saw Offic er Phelan rec over any

thing from defe ndant’s pocket. Fur ther, Offi c e r Ph e la

n a c k n o w le dg ed that there was another individual next to defe ndant at the time of the incident. Def endant testified that the man standing near him had been following him, may have been tryi n g t o sell him

-12-drug s, and tried to put objects in defe ndant’s hand and jacke t pocket. Whil e defe ndant denied

having dropped a bag on the ground, he testified that he g ave ba ck the object that the m an tried to put in his hand. Sz afr an, whose relationship to defe ndant was described only as that of being his la

ndlady
, corr oborate d defe ndant’s testimony
, stating that she was an observe r and that she saw that man follow defe ndant in the manner that defe ndant described, and did
not see de fe n dant drop any thing on the ground. Defenda nt’s explanation of how the drugs

wer e in his jacke t and denial that he dropped the bag wer e intrinsic to his defe nse. Acc ording ly
, the i mproper use of defendant’ s p ostarre st silence to impeach him cannot be deeme d to have be en har

mless.

¶ 43 B. The Trial Court’s Compliance With I llinois Supreme Court Rule 431(b) ¶ 44 W e n ex t addre ss defe ndant’s contention that the trial court violated I llinois Supr em e Court Rule 431(b) for failing to ask t h e prospec tive jurors whether they understood the principles enumer ated in the rule. As previously d iscussed, the trial court, in g iving its admonitions, first explained to the prospective j urors that defe ndant i s presu m ed i n n ocent and asked whethe r anyone “ha [d] a problem” with that principle, then stated that the S tate has the burde n of provingdefe ndant guilty beyond a re asonable doubt a nd asked if anyone “disagree d” with that rule. The trial court then explained that the defe ndant does not have to prese nt any evidenc e and ag ain asked if anyone “disagree d” with that rule. Finally
, the court stated that defe ndant does not have to testify and asked whether anyone would hold it ag ainst defe ndant if he did not testify

. Def endant now maintains that when the trial judge made the admonitions to the prospec tive jurors, he asce rtained only that the venire members acc epted the principles, but fa iled to question them on whether the y understood those princ iples. ¶ 45 The State responds that defe ndant has forf eited this issue by failing to object at trial and
to raise the issue in a written posttrial motion as requir ed t o p re serve an issue for revie w. People v. Piatkowski
, 2 2 5 I ll. 2d 551, 564, 870 N.E.2d 403, 409 (2007). Def endant acknow ledg es those omissions but contends that the forf eiture rule should not be applied to this case beca

use if counsel wer e require d to object to a violation of Rule 431(b) to prese rve the err or, that would be inconsistent with the purpose of the rule, as amende d, which require s the trial court to question the venire sua sponte on the four enumer ated principles. Alternatively
, defe ndant contends that the issue should be revie wed under both prong s of the plain err or rule. ¶ 46 Since we now remand this cas e t o t h e trial court by rea son of the erroneous a dmission of defendant’ s postarre st silence, we find that there is no nece ssity to proce ed with a plain

err or analy sis to deter

mine whether the trial court’s handling of the Rule 431(b) admonitions is revie wable under the plain err or doctrine. Howeve r, reg ardle ss of its curr ent revie wability under the plain err or doctrine, it may be useful to discuss whether the trial court’s handling of those admonitions was err oneous, since the trial court may well revisit those admonitions

on retria l upon rema

nd. Thus, we revie w de novo the iss u e o f t he trial court’s compliance with Rule 431(b). People v . Thompson , 238 I ll. 2d 598, 606, 939 N.E.2d 403, 409 (2010). ¶ 47 The rule require s the trial court to ask eac h prospec tive juror, individually or in a group, whether he or she understands and acc epts that (1) defe ndant is presumed innocent of the

-13-charg e ag ainst him; (2) befor e defe ndant can be convicted, the State must prove him guilty

beyond a rea sonable doubt; (3) defe ndant is not require d to offe r any evidenc e on his behalf ; and (4) defe ndant’s failure to testify cannot b e h el d ag ainst him. I ll. S. Ct. R. 431(b) (ef f. May 1, 2007). As our supreme court rec ently noted, the rule mandates a “spec ific question and response proce ss,” in which the jurors, either individually or in a group, are asked whether they understand and acc ept the enumer ated principles. People v. Thompson
, 238 I ll. 2d 598, 607, 939 N.E.2d 403, 409-10 ( 2010). ¶ 48 Def

endan t d o es n o t dispute that the trial court addre ssed each of the four principles or that the court asce rtained whether the prospec tive jurors acc epted the principles. Rather, he contends that the trial court failed to asce rtain whether they understood those principles beca use it did not use the word “under stand” but, instead, asked the jurors whether they “had

a problem” with the first princple, if they “disagree d” with the second and third, and whether they would hold defe ndant’s failure to testify ag ainst him. For the following rea sons, we find that the cour

t’s questioning w as in compliance with Rule 431(b). ¶ 49 This co u rt h as h el d t h at Rule 431(b) does not dictate a particula r methodology

for establishing the prospec tive jurors’ understanding or acc eptanc e of those principles. People

v. Strickland
, 399 I ll. App. 3d 590, 603-04, 926 N.E.2d 744, 756 (2010); People v. Ingram
, 409 I ll. App. 3d 1, 12, 946 N.E.2d 1058, 1068-79 (2011). In doing so, we have noted that there is no require ment that the specific languag e of the rule be used. Strickland
, 39 9 I ll. App. 3d at 604
, 9 2 6 N. E

. 2 d at 756. For example, in Ingram
, 409 I ll. App. 3d at 12, 946 N. E

. 2d at 1068-79, this court held that the trial court met the requirements of Rule 431(b ) wher e it admonished the potential jurors of the four principles, then asked them whether they had any “ ‘diff iculty or quar rel’ ” with e ach of the four principles. Simi larly
, in Strickland
, 399 I ll. App. 3d at 603-04, 926 N.E.2d at 756, this court found compliance wher e the court asked the venire whether eac h juror would hold defe ndan t ’s decision ag ainst him if he decide d not to testify

. ¶ 50 I n th i s ca s e, there is no substantive differ ence from Ingram and Strickland
, since t h e court in th i s ca s e asked the venire members if they “had a problem” with the presumption that defe ndant is innocent, if they “disagree d” with the State’s burden of proving defe ndant
guilty
, and if they would hold defe ndant’s failure to testify “ag ainst” him. Although the court did not use the precise langua g e of Rule 431(b), the wo rds that i t did use clearly indicated
to the prospec tive jurors that the court was asking them, not only whether they acc epted the principles en u merated in the rule, but also whether they understood them. As a result, we find no err or. ¶ 51 For the fore g oing rea sons, we reve rse the judgme nt of the circ uit court of Cook County and re mand this cause f

or a ne w trial.

¶ 52 Reverse d and re manded.

-14-