People v. McElrath

2020 IL App (1st) 181198-U

THIRD DIVISION

December 30, 2020

No. 1-18-1198

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the

limited circumstances allowed under Rule 23(e)(1).

______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

FIRST JUDICIAL DISTRICT

______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the

) Circuit Court of

Plaintiff-Appellee, ) Cook County.

)

v. ) No. 14 CR 8429

)

SEAN McELRATH ) Honorable

) Stanley J. Sacks,

Defendant-Appellant. ) Judge Presiding.

______________________________________________________________________________

JUSTICE ELLIS delivered the judgment of the court.

Justices McBride and Burke concurred in the judgment.

ORDER

¶1 Held: Affirmed. Counsel was not ineffective for failing to introduce FOID card of

defendant’s wife to support defense theory that guns seized during search were in

wife’s, not defendant’s, possession. Error in prohibiting defense from eliciting

testimony about defendant’s “post-Miranda conduct” from officers was not plain

error.

¶2 While searching a house owned, if not occupied at the time, by defendant Sean McElrath

and his wife Susie, the police seized a shotgun, a .357 revolver, ammunition, and just shy of an

ounce of cannabis. Defendant was charged with armed habitual criminal (AHC) and possession

of cannabis with intent to deliver. At his trial, Susie testified that this contraband was hers: She

used cannabis to treat chronic pain, and she was temporarily storing the guns as a favor to her

mother-in-law. The jury found defendant not guilty of the cannabis charge but guilty of AHC.

No. 1-18-1198

¶3 Defendant raises two issues on appeal. First, he claims his attorney was ineffective for

not introducing Susie’s Illinois Firearm Owner’s Identification (FOID) Card. This failure, he

says, undermined Susie’s credibility and weakened the defense theory that the guns were in her

possession, not his.

¶4 Second, defendant argues that the trial court erred in ruling that the defense could not

elicit testimony from the officers about his “post-Miranda conduct,” as he calls it—a mix of

silence and statement during which defendant asked for his lawyer, said “I’ve been through this

sh-- before,” and otherwise remained silent. See Miranda v. Arizona, 384 U.S. 436 (1966). This

testimony, he says, would have cast doubt on another officer’s testimony that he spontaneously

admitted that the guns were his during the search. We find no basis for reversal and affirm.

¶5 BACKGROUND

¶6 On April 15, 2014, the police arrived with a warrant to search a house on South Green

Street, on the far south side of Chicago. The details of this property were disputed at trial, other

than the fact that defendant and Susie owned it. The Cook County Assessor’s Office listed the

property as a single-family home. The State argued that this and other facts showed that

defendant and Susie resided at the property at the time of the search.

¶7 Susie testified otherwise. She said that they purchased the house in 2003 and lived there

until early 2012, when they moved to Gary, Indiana. They maintained the house as a rental

property until they “lost” it in late 2014. The house was carved up into three separate units—the

main floor; the upstairs; and the basement—each with its own entrance, kitchen, and bathrooms.

She acknowledged that this arrangement was illegal, and she claimed that the assessor’s office

knew about it and told them they were “in violation.” At the time of the search, there was one

tenant living upstairs, but the main floor unit—where the search was conducted—was vacant.

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No. 1-18-1198

Susie would visit the property every couple of weeks, for purposes we will describe later.

Defendant, who was handy, would tend to maintenance issues, as needed.

¶8 Whatever the truth may be, defendant was alone at the property when the police arrived.

Sergeant McInerney testified that defendant came to the door when the officers knocked and

announced. But defendant could not let them in, since he left the key to the security gate inside.

Defendant offered to get the key, but for “safety reasons,” Sergeant McInerney told him to stay

put. Officers Kirner and Hayes went in through the back door. They handcuffed defendant, sat

him down on a couch in the living room, and let the rest of the team in through the front door.

¶9 The officers searched a bedroom adjacent to the living room, where they found an open

shelving unit. On one shelf, there was a loaded .357 revolver, next to several vials of defendant’s

prescription medicine, and atop several pieces of mail addressed to defendant, some of which

were opened. The parties disputed whether it was junk mail, and whether it was viable proof of

residency, but for reasons that will become clear, these are not questions that we need take up.

¶ 10 In the bedroom closet, the officers found a loaded shotgun, two boxes of ammunition,

and another vial of defendant’s prescription medicine.

¶ 11 In a basket on the shelving unit (but on a different shelf than the revolver), the officers

found some bags of cannabis, later confirmed to weigh 25.4 grams. There was also a stash of

empty sandwich bags. On a table in the living room, they found a small digital scale.

¶ 12 Upon finding the guns, Sergeant McInerney and Officer Zattair had a brief conversation

on the topic of “safety.” They spoke among themselves and did not address defendant, who was

still sitting on the couch. Without any prompting from the officers, defendant interjected, “I was

robbed at gunpoint in front of my house and I need—and I need those because you all ain’t

gonna do sh--.” (The trial court had denied defendant’s motion to suppress the statement, finding

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that although defendant was in custody, the statement was spontaneous, and not the result of any

police interrogation.)

¶ 13 Officers Zattair and Kirner drove defendant to the station. During the ride, Officer Zattair

read defendant his rights. The defense called Officer Kirner to elicit that, after defendant was

Mirandized, he asked for his lawyer, said, “I’ve been through this sh-- before,” and otherwise

remained silent. (The defense also tried to elicit this testimony from Sergeant McInerney, who

was not in the car with them.) The trial court sustained the State’s objections and barred any such

testimony. The court reasoned that if the State may not elicit testimony about defendant’s post-

arrest silence, then the defense may not do so, either.

¶ 14 Susie testified that the cannabis was hers. She smoked two or three times a week, to ease

her diabetic nerve pain and psoriatic arthritis. Although they no longer lived at the Green Street

property, she kept most of her stash there to avoid having to take it to Gary. Once every couple

of weeks, she would come by and take what she needed, measuring it out with the digital scale to

regulate how much she was using. She never told defendant that she kept her cannabis there.

¶ 15 Venita Parrish was defendant’s sister. Venita and Susie testified that the guns belonged to

Venita’s and defendant’s brother, who had passed away a few months before the search. Before

he died, their brother (whose name was not revealed) lived with their mother, Maxine Crawford,

in the basement of her house, where he kept his guns in a safe. Sometime after his death, the

family went through his belongings. They did not have the combination for the safe, but Venita’s

ex-husband broke into it. Maxine’s grandchildren were scheduled to move into her basement,

and now that the safe was broken, she insisted that the guns had to go.

¶ 16 Susie testified that she agreed to hold the guns temporarily and arranged to have Venita

pick them up at the Green Street property. That way, she could store the guns in the vacant unit,

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No. 1-18-1198

rather than at home. Defendant, who had prior felony convictions, would “hit the roof” if he

knew there were guns in the house. So Susie took the guns to Green Street and put them in a

bedroom closet. She never told defendant they were there. The police showed up before Venita

did.

¶ 17 After arresting defendant, the officers turned the property over to Susie, who arrived

during or shortly after the search. Susie acknowledged telling Sergeant McInerney that she had a

FOID card when she spoke to him there. But beyond that, Susie never said anything about the

guns or the cannabis, either to the police or the prosecution, in the three years that passed from

defendant’s arrest until his trial. Susie testified that she brought her FOID card with her to court,

but it was in her purse, which she had to leave in the car.

¶ 18 Defendant did not testify. The parties stipulated that he had two qualifying convictions

for the AHC charge.

¶ 19 After the jury found defendant guilty of AHC, post-trial counsel filed a motion for new

trial. The motion alleged, as relevant here, that trial counsel was ineffective for not introducing

Susie’s FOID card. The motion included three exhibits. One was Susie’s FOID card, issued to

her at the Green Street address. Another was Susie’s affidavit, attesting that she told trial counsel

about her FOID card, but counsel never asked for it or otherwise followed up. Nor did counsel

ever discuss trial strategy with Susie and defendant.

¶ 20 The third exhibit was a “Notice of Disclosure,” tendered to counsel before trial, which

recounted Sergeant McInerney’s conversation with Susie at the time of the search. It stated—as

Susie acknowledged on cross-examination—that she told Sergeant McInerney about her FOID

card. The sergeant told her that defendant “cannot be in the same house as the guns,” because he

is a convicted felon. But if she had a FOID card, she should bring it to the station. She never did.

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No. 1-18-1198

In fact, she never came to speak to the police at all. And the guns seized from the house were not

registered to her.

¶ 21 The trial court denied the post-trial motion, finding, for various reasons, that producing

Susie’s FOID card at trial would not have changed the jury’s verdict. Defendant was sentenced

to 8 years in prison. This appeal followed.

¶ 22 ANALYSIS

¶ 23 I. Failure to Introduce Susie’s FOID card

¶ 24 Defendant first argues that trial counsel was ineffective for failing to produce Susie’s

FOID card. This failure, defendant says, weakened Susie’s credibility and allowed the State to

paint her as a liar. And it weakened the defense theory that the guns were in her (constructive)

possession, not defendant’s, because her FOID card was relevant to her “ownership” of the guns.

¶ 25 Defendant must satisfy the familiar deficiency and prejudice requirements of Strickland

v. Washington, 466 U.S. 668 (1984). If he cannot demonstrate a reasonable probability that the

verdict would have been different, if not for counsel’s alleged failures, we may reject the claim

based on this lack of prejudice alone, without passing judgment on the quality of counsel’s

representation. Id. at 697; People v. Scott, 2011 IL App (1st) 100122, ¶ 27.

¶ 26 We do so here. There is little or no chance that the jury would have acquitted defendant

of AHC, if only counsel had produced Susie’s FOID card. There are at least three reasons why.

¶ 27 First, according to Sergeant McInerney, defendant admitted that the guns were his. The

sergeant’s uncontradicted testimony, if believed by the jury, all but assured a guilty verdict on

the AHC charge, whether or not Susie’s FOID card was in evidence. (And if the jury believed

the sergeant, it did not need to decide whether defendant lived at the Green Street property at the

time, exercised control over the areas where the guns were found, or otherwise “constructively”

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No. 1-18-1198

possessed the guns. See People v. Brown, 327 Ill. App. 3d 816, 826 (2002). So we need not

explore these disputes, either.)

¶ 28 Defendant asserts, in so many words, that he made no such spontaneous, pre-Miranda,

statement; that the sergeant was lying; and that the trial court deprived him of his right to mount

this defense by introducing evidence of his “post-Miranda conduct.” We will address this claim

in due course. For now, to demonstrate prejudice on his ineffective-assistance claim, defendant

must explain how putting Susie’s FOID card into evidence may have led a reasonable juror to

discredit the testimony from Sergeant McInerney on this critical, if not dispositive, point. The

prospects for such an argument seem slim at best, and defendant does not even broach the topic

in his brief.

¶ 29 Second, Susie’s FOID card did not have significant probative value with respect to any

disputed issue at trial. Defendant argues, for example, that Susie’s FOID card was probative on

the purported issue of her “ownership,” and thus possession, of the guns.

¶ 30 Susie never claimed that she owned the guns. Her testimony, and the defense theory, was

that the guns belonged to defendant’s deceased brother and were in the process of being handed

over to his sister, with Susie effecting the transfer on behalf of their mother and thus temporarily

having the guns in her possession. That does not make Susie the “owner” of the guns. And

whatever value her FOID card may have had on that question, had it been at issue, it certainly

has little probative value on the questions actually raised by the defense in this case.

¶ 31 Defendant also argues that the failure to produce Susie’s FOID card allowed the State to

paint her as a “liar” and thus damage her credibility as a key defense witness. The State argued in

closing that Susie lied about the arrangement with Venita and Maxine and lied about having

anything to do with the guns, all to protect her husband. But the State never accused Susie of

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No. 1-18-1198

lying about having a FOID card. Consider the prosecutor’s questions:

Q: Do you have a FOID card?

A: Yes, I do.

Q: Do you have it with you?

A: Yes. It’s in my wallet.

Q: What State issued your FOID card, ma’am?

A: Illinois.

Q: And that was to the Green Street address, is that right?

A: Yes.

The prosecutor’s last two questions, in particular, implied that Susie did have a FOID card, one

issued to her at the Green Street address—as indeed it was. (Susie’s claim to have a FOID card

was known to the State before trial and easily verified by law enforcement. Thus, as the question

suggests, the prosecutor evidently knew that Susie had a FOID card.)

¶ 32 Rather, the State’s point about Susie’s FOID card was that she never showed it to the

police, even after Sergeant McInerney advised her to do so. And that was part of the State’s

broader point that, despite her husband facing serious charges, despite claiming to have lawfully

possessed the guns, and despite three years passing before trial, Susie never came forward to the

police with this innocent explanation for the presence of the guns at their property. To this end,

after eliciting Susie’s testimony that she left her purse in the car, the State asked Susie questions

like this one:

Q: —as the wife of someone who is charged here with having the guns that you say

are yours or you brought to the home, have you ever presented any sort of

documentation to the police or the State’s Attorney’s office to explain how this all

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No. 1-18-1198

happened?

A: No.

In other words, Susie’s testimony was not believable because it was a recent fabrication. If what

she said was true, the State implied, she would (or should) have told the police long ago, and she

would (or should) have produced her FOID card then.

¶ 33 We need not decide how damaging this line of impeachment may have been for Susie’s

credibility. The important point is that producing her FOID card for the first time at trial would

not have rebutted the State’s charge that her testimony was a recent fabrication.

¶ 34 Defendant points to the split verdicts as evidence that the jury believed Susie’s testimony

about the cannabis, and thus found her generally credible, but nonetheless rejected her testimony

about the guns—no doubt, says defendant, because counsel failed to corroborate it with her

FOID card.

¶ 35 This argument is based on no small amount of speculation. It is impossible to divine from

the jury’s verdicts how much, if any, of Susie’s testimony the jury believed. For example, the

jury could have found defendant guilty of AHC because he admitted that the guns were his, but

not guilty on the cannabis charge because he did not make the same admission about the drugs,

and because the jury did not think that the State otherwise proved a knowing possession of the

cannabis beyond a reasonable doubt. In that circumstance, the jury may not have found any of

Susie’s testimony particularly credible. To be sure, there are other possibilities for making sense

of the jury’s verdicts (putting aside the ever-present possibility of jury nullification), but it

suffices to say that the verdicts do not automatically imply any particular credibility findings

about Susie. So we will leave the matter at that.

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No. 1-18-1198

¶ 36 Third, Susie’s testimony did not establish a complete defense to the AHC charge. To be

guilty of that charge, defendant only needed to possess at least one of the two guns, not both. A

juror who believed Susie’s testimony may well have found that he did not constructively possess

the shotgun (or the cannabis). But for reasons we will now explain, that same juror would also

find it difficult, if not impossible, to avoid the conclusion that he possessed the .357 revolver.

Thus, bolstering Susie’s testimony with her FOID card—if it would have had that effect—still

would not have changed the verdict.

¶ 37 Susie testified that she agreed to store the guns temporarily, to get them out of Maxine’s

house and out of the kids’ path, until Venita could come pick them up. Susie took the guns to the

vacant ground-floor unit at the Green Street property and put them in a bedroom closet. She was

expecting Venita imminently, but before Venita arrived, defendant went to the property to tend

to some maintenance tasks. And in short order, the police arrived with a search warrant.

¶ 38 When the police searched the property, they found one of the guns—the shotgun—in the

bedroom closet, along with defendant’s prescription medication. But the .357 revolver was not in

the closet, where Susie said she left it. It was on an open shelf in the bedroom, with defendant’s

mail, some of which had been opened, and more of his medication.

¶ 39 Assuming, for the sake of argument, that the jury believed Susie, there seems to be only

one rational inference that it could draw: Defendant took the .357 from the closet.

¶ 40 Who else could have put the .357 on that shelf? Not Susie, according to her testimony.

(In any event, why would she, when she said the whole point was to keep the guns away from

defendant, given his prior felony convictions? And is this a detail she might have innocently

overlooked or misremembered? Not impossible, of course, but also not likely.) And not Venita,

either; she had not yet made it to the Green Street property. That leaves only defendant.

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¶ 41 Susie testified that the ground-floor unit was vacant and had a separate entrance from the

occupied unit upstairs. Defendant was alone when the police arrived, and there was no evidence

that anyone other than defendant had access to the unit since Susie dropped off the guns.

¶ 42 And it bears emphasis that the .357 was found on an open shelf with defendant’s mail—

his recent, opened mail—and medication. More of his medication was found in the closet, where

the gun was said to be left without his knowledge or consent. In light of these facts, an inference

that he took the .357 from the closet and put a loaded gun in an easily accessible location with

his other personal effects was all but inevitable—if, that is, the jury credited Susie’s testimony in

the first place, as we are supposing it did.

¶ 43 Defendant’s admission to Sergeant McInerney aside, this inference also establishes that

he (constructively) possessed the .357. Whether or not Susie told him about the guns, he clearly

knew they were present, and he intended to exercise control over the .357, albeit not necessarily

the shotgun. See People v. McCurine, 2019 IL App (1st) 160817, ¶¶ 21-22 (AHC requires proof

of knowledge and possession, either actual or constructive); People v. Frieberg, 147 Ill. 2d 326,

361 (1992) (constructive possession present where defendant has “intent and capability to

maintain control and dominion” over contraband).

¶ 44 Thus, however credible the jury may have found Susie, her testimony did not present a

complete defense to the AHC charge. Susie may have possessed the guns, as she claimed, but

defendant also possessed one of them. See People v. Schmalz, 194 Ill. 2d 75, 82 (2000) (two or

more people may have “joint” possession of same item of contraband). At least that is what a

rational juror would almost certainly conclude, if the juror found Susie credible and sought to

reconcile her testimony with the other available evidence, namely, the officers’ testimony and

accompanying crime-scene photographs establishing where the guns were found.

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¶ 45 To be clear, we are not saying that the jury made these findings or convicted defendant of

AHC based on this theory of possession. Our point, again, is simply that these findings are all but

inevitable if one believes Susie’s testimony about her plans for the guns. Hence, there is little or

no chance that producing Susie’s FOID card would have changed the verdict, even if we assume

that the FOID card would have bolstered her testimony.

¶ 46 For all these reasons, defendant has not shown that he was prejudiced by counsel’s failure

to introduce Susie’s FOID card at trial. The ineffectiveness claim cannot prevail.

¶ 47 II. Defendant’s “post-Miranda conduct”

¶ 48 According to the testimony of Sergeant McInerney, defendant admitted the guns were his

in an unprompted, pre-Miranda statement made during the search. Part of the defense strategy

was to challenge the credibility of the sergeant’s testimony and convince the jury that defendant

made no such admission. To this end, the defense sought to elicit testimony from Sergeant

McInerney, and later from Officer Kirner, about defendant’s “post-Miranda conduct,” as he calls

it—namely, that after he was read his rights, defendant asked for his attorney, said “I’ve been

through this sh-- before,” and otherwise remained silent. The trial court barred the defense from

eliciting any of this proposed testimony.

¶ 49 Defendant says that ruling was (plain) error, and it precluded him from presenting a key

aspect of his defense—that Sergeant McInerney was lying about a pivotal, and damning, piece of

evidence. In a nutshell, defendant wanted to argue that, because he had been arrested before, he

already understood his rights, including his right to remain silent. And so he did not

spontaneously admit guilt and would never have done so. Having been down this road—having

been “through this sh-- before”—he knew better.

¶ 50 Two preliminary points. First, defendant received his Miranda warnings in the car, on the

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way to the station, from Officer Zattair. Officer Kirner was in the car, but Sergeant McInerney

was not. Thus, the sergeant had no personal knowledge of what defendant may or may not have

said after his warnings, and he could not have testified to anything other than (double) hearsay

statements, if any, that other officers made to him about what transpired in the car. So we can

leave Sergeant McInerney aside. The only question is whether the defense should have been

permitted to elicit this proposed testimony from Officer Kirner, whom the defense called as a

witness primarily for this purpose.

¶ 51 Second, although the parties lump them together, there are two analytically distinct pieces

of testimony that the defense sought to elicit. First, defendant invoked his right to remain silent,

or more precisely, his right not to speak to the police without his lawyer, and said nothing about

the guns or cannabis seized during the search. Second, at the same time, he did make a statement

to the police: “I’ve been through this sh-- before.” Whatever its import or intended use at trial—

questions that are more subtle than they may seem at first glance—that statement was something

beyond a mere invocation of his rights. So unlike the parties, we will separately analyze each

piece of testimony.

¶ 52 We begin with defendant’s invocation of his Miranda rights. Or, to put the point another

way, his refusal to speak to the police—about the guns or cannabis—after he was read his rights.

There is no dispute that the State would not have been allowed to elicit testimony about his post-

arrest silence. Doyle v. Ohio, 426 U.S. 610, 618-19 (1976). The trial court evidently thought that

Doyle applies equally to the defense: “You’re going to try to bring out that after he was given his

rights, he didn’t say anything? How can you bring that out? The State couldn’t bring it out. How

could you bring it out?”

¶ 53 The rule of Doyle is a limitation on the prosecution, not the defense. Miranda warnings

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are a prophylactic means of safeguarding the fifth-amendment right against self-incrimination.

Id. at 617. Thus, “implicit” in the warnings is an “assurance” “that silence will carry no penalty.”

Id. at 618. If that assurance is to have any meaning, a defendant’s post-arrest silence (or other

invocation of his Miranda rights) cannot be used against him at trial. Id. In other words, it cannot

be invoked by the prosecution for purposes adverse to the defense.

¶ 54 But when a defendant introduces the fact of his post-arrest silence at trial, for whatever

benefit he may perceive, that fact is not being used against him. He is not, so to speak, violating

his own right against self-incrimination. This constitutional guarantee is not, as the trial court

evidently thought, a two-way street: Only the State, or a ruling in the State’s favor, can violate it.

A defendant, for his own part, is free to waive his constitutional protections if he perceives some

strategic advantage in doing so. (It is rare that a defendant will find it to his advantage to tell the

jury he refused to speak to the police, but this case happens to be one such example.) To the

extent that the trial court barred defendant, on this basis, from eliciting evidence of his own post-

arrest silence or his request for a lawyer, its ruling was clear and obvious error.

¶ 55 The State does not contend that Doyle is a limitation on the defense. It makes no attempt

to defend the trial court’s basis for the ruling. But we can affirm an evidentiary ruling on any

basis that is supported by the trial record. People v. Rudd, 2020 IL App (1st) 182037, ¶ 61. And

the State argues that anything defendant said after receiving his Miranda warnings—including

his request for an attorney—was inadmissible as hearsay.

¶ 56 Hearsay is an out-of-court “statement”—which is to say, an “assertion” of fact—offered

to prove the truth of the matter it asserts. Ill. R. Evid. 801(a), (c) (eff. Oct. 25, 2015).

¶ 57 In seeking to introduce the fact that he invoked his rights—by asking for his attorney and

otherwise remaining silent after his warnings—defendant was not seeking to prove the truth of

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any assertion. He was simply offering the statement to show that he made it. He did not need to

demonstrate to the jury that he wanted a lawyer or wanted to remain silent, only that he told the

police he did.

¶ 58 Invoking one’s right to remain silent and demanding counsel is not hearsay but a verbal

act carrying legal consequences, just as the verbal act of giving or refusing consent to the police

to search one’s premises is not hearsay. See United States v. Moreno, 233 F.3d 937, 940 (7th Cir.

2000). And just as the giving of Miranda warnings themselves is not hearsay. See State v.

Lassor, 555 A.2d 339, 348 (R.I. 1989) (“The giving of Miranda admonitions is a verbal act.

Testimony of a declarant who heard the Miranda admonitions is not introduced for the truth of

the matter asserted but only to indicate that the words of admonition were given”); State v.

McClain, 551 P.2d 806, 807–08 (Kan. 1976) (“Clearly the state was not attempting to prove the

truth of the matter stated, viz., the Miranda warnings. The evidence was offered for the purpose

of establishing that the warnings were stated and explained to the defendant prior to the

interview.”). Such verbal statements “carry legal significance independent of the assertive

content of the words used.” Moreno, 233 F.3d at 940.

¶ 59 So the testimony that defendant invoked his rights to silence and counsel should have

been allowed. It did not violate Doyle, as the trial court believed, nor was it hearsay, as the State

now contends.

¶ 60 That brings us to the second piece of testimony, evidence that defendant, after invoking,

told the police, “I’ve been through this sh—before.” Defendant offered this evidence to show

that he already knew his rights, even before he was Mirandized, and hence that he knew better

than to spontaneously admit his crime to the police. Thus, the argument would go, the sergeant’s

testimony that defendant blurted out a spontaneous admission was not believable.

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¶ 61 Was this a hearsay use of defendant’s post-arrest statement? Defendant argues that even

if it was, the statement was still admissible to rebut Sergeant McInerney’s testimony that he had

spontaneously confessed during the search. To this end, defendant cites People v. Johnson, 271

Ill. App. 3d 962, 965 (1992), for the proposition that an excited utterance may be impeached by

the declarant’s later inconsistent statement.

¶ 62 We can dispose of this argument quickly, on two grounds. First, we don’t have enough

detail about the precise circumstances of defendant’s admission to determine whether it qualified

as an excited utterance. Because the issue was not litigated below, the record is not adequately

developed on this point. Second, even if defendant’s admission that the guns belonged to him

did, indeed, qualify as an excited utterance, his later statement that he had “been through this sh--

before” was not inconsistent with his admission. Inconsistent statements contradict each other—

as in, defendant admits that the guns were his, and later denies that the guns were his. But

defendant did not deny that the guns were his. His statements did not contradict one another.

¶ 63 Rather, defendant offered his post-arrest statement for a more subtle purpose. As we

understand his argument, he wanted to prove his state of mind—that he already knew his rights,

and that he knew better than to talk to the police—and then use that proof of his state of mind as

the basis for an inference that he acted in a certain way, namely, that he did not admit anything to

the police spontaneously, and Sergeant McInerny was lying.

¶ 64 Statements offered to prove the declarant’s state of mind present some of the most vexed

questions in all of hearsay law, questions that the briefs do not address in their full complexity.

But we can leave these questions for another day, since the outcome of this case does not depend

on them. To reiterate, the trial court erred in excluding any testimony that defendant invoked his

Miranda rights. But even if we assume, for the sake of argument, that the trial court further erred

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in excluding any testimony about his post-arrest statement, reversal is still not warranted. We say

this because defendant could not prevail under either prong of plain-error review.

¶ 65 Initially, defendant says plain-error review is inappropriate, that his objections should be

deemed properly preserved, even though he failed to raise this issue in a post-trial motion. We

are sympathetic to his argument. It is one thing when the issue before us was the subject of a

single, unargued objection at trial. A post-trial motion may well be necessary to give the trial

court a full opportunity to address the defense’s contentions in the first instance.

¶ 66 But here, the defense tried time and again to elicit the testimony at issue. The State

lodged numerous objections. And the trial court sustained them all, without fail, even after

extensive, pages-long colloquies with defense counsel about the matter at hand. Through it all,

the trial judge believed—erroneously but in no uncertain terms—that the testimony was

inadmissible under Doyle. After all these objections and sidebars, it feels unfair to say that

defendant forfeited the issue because he didn’t raise the issue for the tenth or twelfth time in a

post-trial motion.

¶ 67 But at least since its decision in People v. Enoch, 122 Ill. 2d 176, 186 (1988), our

supreme court has firmly insisted that trial errors must be raised in a post-trial motion, no matter

if—or how many times—they were raised during the trial itself. See also People v. Cregan, 2014

IL 113600, ¶¶ 17-20. Defendant’s sole citation to the contrary, People v. Jones, 81 Ill. 2d 1, 7

(1979), pre-dates Enoch. We are thus bound to treat this error as forfeited and review it under the

plain-error rule. And under either prong of that rule, defendant cannot establish plain error.

¶ 68 First, the evidence on the AHC charge was not closely balanced. Defendant argues that it

was, principally because “the verdict turned on the credibility of witnesses.” We disagree. Let’s

assume, as we did in defendant’s ineffective-assistance argument, that the jury believed Susie’s

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testimony. And let’s assume that the excluded testimony, about defendant’s invocation of his

rights and his post-arrest statement, would have shaken the jury’s confidence that he admitted

anything to the police.

¶ 69 For reasons we have already discussed, even without that spontaneous admission, any

rational juror would almost certainly find that defendant possessed the .357 revolver. Whether

defendant admitted it or not, there was no other rational explanation for the location of that gun,

given where Susie said she put it (in the closet) and where the police found it during the search

(out of the closet and on a shelf, atop opened mail addressed to defendant). In other words, we

can grant defendant both of the key elements of his defense, and yet an inference of possession,

with respect to one of the guns, remains all but impossible to avoid. Evidence like that cannot

reasonably be called closely balanced.

¶ 70 Defendant also asserts that the error denied him his “right to present a defense,” and

because this right is “a fundamental component of a fair trial,” the second prong of the plain-

error rule applies.

¶ 71 True, the trial court erred in excluding evidence that the defense sought to introduce. But

a defendant is not automatically deprived of his constitutional right to present a defense any time

the trial court erroneously excludes a piece of evidence that would have favored his case. That

rule would collapse the necessary distinction, on which the United States Supreme Court has

long insisted, between the vast run of ordinary evidentiary errors, and those few that are of

genuine constitutional significance. See Crane v. Kentucky, 476 U.S. 683, 689 (1986) (noting the

Court’s “traditional reluctance to impose constitutional constraints on ordinary evidentiary

rulings by state trial courts”).

¶ 72 Take the error in Crane, cited here by defendant. In Crane, the trial court ruled that the

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defense could not introduce any testimony—including from the defendant himself—describing

the circumstances under which his custodial confession was obtained. Id. at 685-86. As a result

of that ruling, he had no means of presenting his defense, namely, that the circumstances at issue

rendered his confession, the principal evidence against him, inherently unreliable. Id. at 691. And

that left him all but powerless to defend against the charge: A defendant who is thus “stripped of

the power to describe to the jury the circumstances that prompted his confession” is “effectively

disabled from answering the one question every rational juror needs answered: If [he] is

innocent, why did he previously admit his guilt?” Id. at 689.

¶ 73 Unlike in Crane, defendant here was by no means powerless to argue his theory about the

spontaneous admission to the jury. Recall, for example, that the State introduced (by way of

stipulation) that defendant had been convicted of two previous qualifying felonies, part of the

elements of proof for the AHC charge. So the jury already had evidence that defendant “had

been through this sh-- before.” And while the jury had not been told specifically that defendant

invoked his right to counsel and silence, the jury certainly knew by omission that the State was

not offering any other incriminating statements made by defendant, besides the spontaneous,

voluntary one.

¶ 74 In a real sense, then, trial counsel already had the information needed to make this

argument—the facts and the logical inferences that flowed from those facts. He’d been arrested

at least twice previously (you can’t be convicted if you’re not first arrested), he thus knew his

rights, and the State hadn’t introduced any other incriminating statements from him—so it’s not

believable that he would have been so careless as to spontaneously admit his guilt in his house.

¶ 75 Would this argument have been stronger with the excluded evidence? Yes. But not so

much, in our view, that we could plausibly conclude that defendant was denied a fair chance to

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articulate this theory and defend himself against these charges. Defendant could have more or

less articulated the same argument, either way.

¶ 76 Thus, the error in excluding this evidence was an ordinary evidentiary error, reversible as

plain error in a closely balanced case (though this case was not), but not an error that implicates

the sixth amendment, the basic fairness of the trial, or the second prong of the plain-error rule.

¶ 77 We would add here that if plain error did not apply and we instead applied a harmless-

error analysis for a preserved issue, our outcome would be the same, for the reasons we have

given above. The evidence against defendant was strong even without the spontaneous

admission, and defendant could have argued essentially his same theory about that spontaneous

admission with or without the excluded testimony.

¶ 78 Lastly, in light of our conclusions on the two issues defendant has raised, we reject his

cumulative-error argument.

¶ 79 CONCLUSION

¶ 80 For these reasons, we affirm defendant’s conviction.

¶ 81 Affirmed.

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