People v. Graves , 2012 IL App (4th) 110536 ( 2012 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
People v. Graves, 2012 IL App (4th) 110536Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption BRUCE GRAVES, Defendant-Appellant.
District & No. Fourth District
Docket No. 4-11-0536
Filed January 31, 2012
Held Defendant’s conviction and sentence to five years’ imprisonment for
(Note: This syllabus aggravated driving under the influence of alcohol was affirmed over his
constitutes no part of contentions that the trial court erred in having a blanket policy against re-
the opinion of the court cross-examination, admitting an officer’s testimony and opinions on
but has been prepared horizontal gaze nystagmus, limiting defense counsel’s cross-examination
by the Reporter of on non-alcohol-related nystagmus, allowing the State to replay a
Decisions for the videotape admitted in evidence during closing argument, allowing the
convenience of the State to argue that defendant’s refusal to take a breath test was an
reader.)
indication that defendant knew he was over the legal limit, limiting
defendant’s closing arguments, and sentencing him to prison rather than
imposing probation.
Decision Under Appeal from the Circuit Court of Champaign County, No. 09-CF-1051;
Review the Hon. Richard P. Klaus, Judge, presiding.
Judgment Affirmed.
Counsel on James A. Martinkus (argued), of Erwin, Martinkus & Cole, Ltd., of
Appeal Champaign, for appellant.
Julia Rietz, State’s Attorney, of Urbana (Patrick Delfino, Robert J.
Biderman, and Anastacia R. Brooks (argued), all of State’s Attorneys
Appellate Prosecutor’s Office, of counsel), for the People.
Panel JUSTICE McCULLOUGH delivered the judgment of the court, with
opinion.
Justice Cook concurred in the judgment and opinion.
Justice Appleton specially concurred, with opinion.
OPINION
¶1 On April 6, 2011, a jury found defendant, Bruce Graves, guilty of aggravated driving
under the influence of alcohol (DUI) (625 ILCS 5/11-501(d)(1)(A) (West 2008)). The trial
court sentenced him to five years in prison. Defendant appeals, arguing the court erred by (1)
having a blanket policy against re-cross-examination, (2) permitting police officer testimony
and opinions regarding horizontal gaze nystagmus (HGN), (3) limiting defense counsel’s
cross-examination regarding non-alcohol-related nystagmus, (4) permitting the State to
replay a videotape admitted into evidence during its closing argument, (5) permitting the
State to argue during closing that defendant knew he was over the legal limit of 0.08, (6)
limiting defendant’s argument during closing arguments, (7) admitting portions of a
videotape that were obtained in violation of the eavesdropping statute (720 ILCS 5/14-1
through 14-9 (West 2008)) and in violation of his Miranda rights (see Miranda v. Arizona,
384 U.S. 436 (1966)), and (8) sentencing him to five years in prison rather than a term of
probation. We affirm.
¶2 On June 19, 2009, the State charged defendant with aggravated DUI in violation of
section 11-501(a)(2) of the Illinois Vehicle Code (Code) (625 ILCS 5/11-501(d)(1)(A) (West
2008)). It alleged defendant drove a motor vehicle while under the influence of alcohol and
had twice previously committed violations of section 11-501(a) of the Code or similar
provisions.
¶3 On December 22, 2009, defendant filed a motion to quash and suppress evidence. He
alleged video and audio recordings had been made at the time of his arrest and maintained
that recordings made after his arrest and while he was in the back of a squad car were
inadmissible because they were recorded without his consent in violation of the
eavesdropping statute. He also asserted statements he made during that time were
inadmissible because they were made without the requisite Miranda warnings. Defendant
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asked the court to quash and suppress those statements and recordings.
¶4 On May 25, 2010, the trial court entered a docket entry, stating it had previously heard
arguments on defendant’s motion to quash and suppress and had taken the matter under
advisement. The court then stated it denied the motion. The record on appeal does not
contain a transcript of the hearing.
¶5 On August 13, 2010, defendant filed a second motion to quash and suppress evidence.
He challenged the same video and audio recordings. Defendant asserted the recordings were
made without his knowledge and without the benefit of Miranda warnings. A docket entry
shows, on August 23, 2010, the matter was called for a hearing on defendant’s second
motion to suppress and the trial court took the matter under advisement. No transcript of that
hearing appears in the appellate record. On October 8, 2010, the court entered a docket entry,
stating it denied defendant’s motion and finding statements defendant made were voluntary
and failed to implicate Miranda.
¶6 On April 4, 2011, defendant’s jury trial began. The State presented the testimony of three
police officers. Its evidence showed Officer Kendric Walls was on routine patrol during the
early morning hours of May 2, 2009, when he observed defendant driving. Walls testified
he saw defendant fail to make a complete stop at a stop intersection and make a wide right
turn that caused his vehicle to go into the oncoming lane of travel. Defendant’s vehicle
continued in the wrong lane for approximately 25 or 50 feet before going back into the
correct lane. Walls continued to observe defendant and noted his vehicle again veered into
the oncoming lane of traffic for approximately 50 feet before defendant turned into the
driveway of his residence. Walls initiated a traffic stop. During the stop, he observed that
defendant’s eyes were bloodshot and he was sweating. Walls could also smell an odor of
alcohol on defendant’s breath. He stated defendant appeared confused when attempting to
locate his insurance card and ultimately turned over a card that was expired.
¶7 Officer Ryan Rich arrived on the scene along with his field training officer, Daniel Ward.
Walls explained why he stopped defendant, reported his observations, and asked Rich and
Ward to investigate further into whether or not it was safe for defendant to be driving. Rich
began speaking with defendant and noticed defendant’s eyes were bloodshot and he had an
odor of alcohol on his breath. To determine whether defendant had any type of impairment,
Rich asked him to perform three tests before exiting the vehicle. Rich requested defendant
perform a finger touch test, which defendant completed with no problem. He then asked
defendant to recite the alphabet, beginning with letter C and ending with letter Q. Rich
testified defendant began the test correctly but incorrectly added an H after letter K and then
continued too far into the alphabet, stopping at letter V rather than Q. For the final preexit
test, Rich asked defendant to count backwards from 85 to 67. Defendant attempted the test
but miscounted. Also, he could not recall the number he was supposed to stop at and,
ultimately, was unable to complete the test.
¶8 Rich next asked defendant to step out of the car to perform three standardized field
sobriety tests. He asked defendant to perform an HGN test, characterized by a jerking of the
eye when moving right to left. As a result of that test, Rich found indicators of impairment
from alcohol. He next asked defendant to perform the walk-and-turn test. Rich testified
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defendant failed to perform the test as directed in that he broke position, was off balance,
began the test before being asked, stopped before finishing, took an incorrect number of
steps, and made an improper turn. Finally, Rich asked defendant to perform a one-legged-
stand test. Rich stated defendant also failed to complete this test as instructed. He noted
defendant hopped around, raised both arms, and dropped his foot.
¶9 Based upon his training and observations, Rich concluded defendant was under the
influence of alcohol and arrested him for DUI. Following the arrest, defendant was driven
to jail and police conducted a 22-minute observation period. During that time, Rich read
defendant the warning-to-motorist, describing the harsher penalties for refusing to take the
Breathalyzer test. Rich asked defendant to submit to a breath test but defendant refused. He
also asked defendant if he had been drinking and defendant replied “no, not at all.” Rich
testified that he had noticed an odor of alcohol on defendant’s breath and that odor stayed
with defendant for the entire time Rich was with him.
¶ 10 Officer Ward testified he was with Rich during the duration of Rich’s investigation into
whether defendant was impaired. He also observed defendant and noticed defendant had
bloodshot eyes and “the extremely strong odor of an alcoholic beverage on his breath.” Ward
watched as defendant performed the field sobriety tests. He noted defendant immediately lost
his balance during the walk-and-turn test. During that test, he also began walking before
being instructed to do so, lost his balance on another occasion, improperly counted his steps,
raised his arms away from his body for balance, and improperly turned. When defendant
performed the one-leg-stand test, Ward observed that he raised his arms, leaned to the left,
and began hopping to maintain his balance. Defendant also had to place his foot down during
the test. Ward testified he had substantial training in detecting when a person was under the
influence of alcohol and he agreed with Rich’s decision to arrest defendant.
¶ 11 The State also played a video for the jury, containing video from Walls’ squad car
immediately prior to and after he initiated the traffic stop of defendant’s vehicle and video
from Rich’s squad car that showed defendant performing the preexit and field sobriety tests.
The video also contained approximately one minute of footage of defendant after he was
arrested and placed in the back of the squad car. The footage of defendant in the squad car
did not contain any audio recordings.
¶ 12 Following deliberations, the jury found defendant guilty of the charged offense. On May
6, 2011, defendant filed a motion for a new trial and raised multiple issues. On May 24,
2011, the trial court conducted a hearing and denied defendant’s motion for a new trial. It
then conducted defendant’s sentencing hearing. The court noted defendant’s presentence
investigation report, showing defendant had prior convictions for 17 traffic offenses, 5
misdemeanor offenses, and 2 felony offenses. The report also showed he had previously
served two sentences of probation and one prison sentence in the Illinois Department of
Corrections (DOC). The court sentenced defendant to five years in prison.
¶ 13 On June 13, 2011, defendant filed a motion to reconsider his sentence. He argued the trial
court should have imposed a sentence of probation because (1) he was not a threat to the
public, (2) a probation sentence would have been consistent with the interests of justice, and
(3) a probation sentence would better serve both the public and defendant’s rehabilitation.
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Defendant also noted his strong family ties and his father’s poor health. On June 17, 2011,
the trial court conducted a hearing on defendant’s motion. Although the record contains no
transcript of that hearing, the court entered a docket entry, showing the appearance of all the
parties and its denial of the motion.
¶ 14 This appeal followed.
¶ 15 On appeal, defendant first argues the trial court erred by refusing to permit re-cross-
examination of the State’s witnesses. He asserts the court had a blanket policy against re-
cross-examination which caused him prejudice in that he was unable to challenge testimony
about new matters brought up on redirect. Defendant maintains the court abused its
discretion and he was denied a fair trial.
¶ 16 Challenges to a trial court’s evidentiary rulings are subject to an abuse-of-discretion
standard of review. Adams v. Sarah Bush Lincoln Health Center, 369 Ill. App. 3d 988, 998,
874 N.E.2d 100, 109 (2007). “Clearly, the scope and extent of cross-examination and
recross-examination are within the discretion of the court.” Adams, 369 Ill. App. 3d at 998,
874 N.E.2d at 109 (citing People v. Kirchner, 194 Ill. 2d 502, 536, 743 N.E.2d 94, 112
(2000)). “ ‘[C]ross-examination should be kept within fair and reasonable limits, and it is
only in a case of clear abuse of such discretion, resulting in manifest prejudice to the
defendant, that a reviewing court will interfere.’ [Citation.]” Adams, 369 Ill. App. 3d at 998,
874 N.E.2d at 109.
¶ 17 Here, the State presented the testimony of three witnesses. Defendant attempted re-cross-
examination with only one of those witnesses, Walls. At trial Walls testified on direct
examination and cross-examination regarding his observations of defendant’s driving, his
initiation of a traffic stop, his observations of defendant during that stop, and his decision not
to arrest defendant but to ask Rich to further investigate defendant’s intoxication. During
redirect, the State questioned Walls about turning the matter over to Rich and asked what
field sobriety tests were. Walls responded that field sobriety tests tested a person’s ability to
multitask. The State then elicited testimony from Walls that field sobriety tests were part of
the officers’ investigation.
¶ 18 Following the State’s redirect examination, defendant sought further inquiry. However,
the trial court noted that re-cross was in its discretion and it typically would not allow re-
cross-examination unless new ground had been covered by the State on redirect. The court
denied defense counsel’s request, finding it “heard no new ground.” It permitted defendant
to make an offer of proof outside of the jury’s presence and defense counsel elicited
agreement from Walls that field sobriety tests were designed to test matters such as
coordination, physical stamina, the ability to follow directions, and balance. Walls also
agreed that one’s ability to perform such tests could be affected by factors other than being
under the influence of alcohol.
¶ 19 Here, defendant mischaracterizes the trial court’s re-cross-examination policy. Defendant
argues the court had a blanket policy against re-cross-examination and failed to allow re-
cross with respect to any of the State’s witnesses. However, the record actually shows the
court indicated it would permit re-cross-examination where new ground had been covered
on redirect. The record further reflects defendant only sought to re-cross-examine one of the
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State’s three witnesses. As the State points out, defendant sets forth arguments with respect
to only Walls’ testimony and has failed to make any argument that new matters were brought
about during redirect examination of either Rich or Ward.
¶ 20 Defendant has also failed to establish either an abuse of discretion by the court or
prejudice. First, Walls testified during direct and cross-examination about his decision not
to immediately arrest defendant and, instead, have Rich further investigate defendant’s
condition. The field sobriety testimony the State elicited from Walls on redirect concerned
that further investigation. Second, the record shows Walls was not the officer who actually
conducted defendant’s field sobriety testing. Officer Rich was the individual who asked
defendant to perform that testing and defense counsel fully cross-examined Rich regarding
those tests. Moreover, he elicited from Rich the precise testimony he sought to elicit from
Ward during re-cross-examination. We find no error on this basis.
¶ 21 Defendant next argues the trial court erred by permitting Officer Rich to testify and give
opinions regarding HGN. He contends Rich’s testimony lacked sufficient foundation under
the legal standards set forth in People v. McKown, 236 Ill. 2d 278, 924 N.E.2d 941 (2010).
¶ 22 “Nystagmus is ‘an involuntary, rapid, rhythmic movement of the eyeball, which may be
horizontal, vertical, rotatory, or mixed, i.e., of two varieties.’ ” McKown, 236 Ill. 2d at 284,
924 N.E.2d at 945 (quoting Dorland’s Illustrated Medical Dictionary 1296 (30th ed. 2003)).
In McKown, 236 Ill. 2d at 306, 924 N.E.2d at 957, the supreme court held that “evidence of
HGN field-sobriety testing, when performed according to the [National Highway
Transportation Safety Administration (NHTSA)] protocol by a properly trained officer, is
admissible *** for the purpose of showing whether the subject has likely consumed alcohol
and may be impaired.” Further, a properly trained officer who followed proper procedures
may give expert testimony regarding the results of the HGN test and “may use the HGN test
results as a part of the basis for his opinion that the defendant was under the influence and
impaired.” McKown, 236 Ill. 2d at 306, 924 N.E.2d at 957.
¶ 23 Here, defendant asserts NHTSA protocol required Rich to check for resting nystagmus.
He further maintains that, according to NHTSA standards, the presence of resting nystagmus
renders an individual unsuitable for further HGN testing because it is indicative of a medical
disorder or injury. Defendant contends Rich’s testimony shows he did not know the
difference between resting nystagmus and nystagmus that indicated alcohol consumption. He
complains that Rich performed further HGN testing and formed opinions about defendant’s
alcohol consumption even after observing resting nystagmus. To support his position,
defendant cites an NHTSA publication referenced in McKown entitled “DWI Detection and
Standardized Field Sobriety Testing” (manual) (cited therein as DOT HS 178 R2/06) (see
http://www.isp.state.il.us/docs/2006dwisfst.pdf). As noted in McKown, the manual devotes
six pages to the subject of nystagmus and “outlines a 10-step procedure for performing a
field test for HGN.” McKown, 236 Ill. 2d at 296-97, 924 N.E.2d at 951-52 (citing DOT HS
178 R2/06, at VIII-7).
¶ 24 The manual defines nystagmus as an involuntary jerking of the eyes and states alcohol
and certain other drugs cause HGN. DOT HS 178 R2/06, at VIII-3. It states HGN occurs as
the eyes move to the side while resting nystagmus is defined “as a jerking of the eyes as they
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look straight ahead.” DOT HS 178 R2/06, at VIII-4. The manual notes that the presence of
resting nystagmus “usually indicates a pathology or high doses of a Dissociative Anesthetic
drug such as PCP.” DOT HS 178 R2/06, at VIII-4.
¶ 25 The manual also provides the procedures for conducting the HGN field test. It provides
that prior to administration of the test, an officer should assess an individual’s possible
medical impairment and states as follows:
“Prior to administration of HGN, the eyes are checked for equal pupil size, resting
nystagmus, and equal tracking (can they follow an object together). If the eyes do not
track together, or if the pupils are noticeably unequal in size, the chance of medical
disorders or injuries causing the nystagmus is present.” DOT HS 178 R2/06, at VIII-5.
The manual instructs that there are then three clues to HGN testing: (1) lack of smooth
pursuit, (2) distinct and sustained nystagmus at maximum deviation, and (3) onset of
nystagmus prior to 45 degrees. DOT HS 178 R2/06, at VIII-5. It also provides details with
respect to each clue. DOT HS 178 R2/06, at VIII-7. Finally, the manual lists specific
procedures for officers to follow, including having the suspect remove eyeglasses, giving
instructions from a safe position, and positioning the stimulus 12 to 15 inches from the
suspect’s nose and slightly above eye level. DOT HS 178 R2/06, at VIII-6.
¶ 26 First, defendant incorrectly sets forth the HGN testing protocol as stated in the manual
he cites on appeal. While the manual provides that an officer should check for resting
nystagmus, it indicates only that the presence of such “usually indicates a pathology or high
doses of a Dissociative Anesthetic drug such as PCP.” DOT HS 178 R2/06, at VIII-4. The
manual does not state that an individual with resting nystagmus is unsuitable for further
testing nor does it require that an officer cease further testing.
¶ 27 Second, a close review of Rich’s testimony shows he was in compliance with NHTSA
protocol as described in the manual when conducting the HGN test on defendant. Evidence
at trial showed, at the time of defendant’s arrest, Rich was a probationary officer and working
under the supervision of Ward, his field training officer. Rich had recently been to the Police
Training Academy, where he underwent approximately 12 hours of training on conducting
DUI investigations and, in particular, field sobriety tests. He received training about the HGN
test and had watched videos about the test, practiced performing the test, and observed the
test performed in real life outside of his training. Rich testified his arrest of defendant was
his first DUI arrest.
¶ 28 Rich further testified he had passed a practical skills exam for the nystagmus test. He
described the HGN as “when the eye shimmys [sic] back and forth.” He acknowledged that
there was a standard way in which the HGN test was to be administered. Rich testified he
first asked if the suspect had contacts. He then checked for equal pupil size. Rich noted than
unequal pupil size could mean the suspect had a physiological disorder that could cause
nystagmus.
¶ 29 Rich testified he was aware of something called resting nystagmus and defined it as
“when the eye would go back and forth, left and right.” Although Rich testified he was
unsure how resting nystagmus differed from HGN, his further testimony shows he did, in
fact, testify that his HGN testing included a check of whether the eyes jerked as they looked
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straight ahead, i.e., resting nystagmus. The following colloquy occurred between the State
and Rich:
“Q. Okay. Do you check to see–you said nystagmus is a shaking of the eye. Is that
right?
A. Yes.
Q. Do you check to see if the eyes do that without following a stimulus?
A. Yes.
Q. When do you do that?
A. While looking at it. Just while doing the pre-test.
Q. Okay. Officer, speak up.
A. Sorry.
Q. Okay.
A. While looking at to [sic] see if pupil size, you look to see if there’s a resting
nystagmus.”
Rich went on to testify that he would then check for equal tracking of the eyes to see if they
moved at the same pace. When actually performing the test, he looked for a lack of smooth
pursuit, meaning any jerking while the eye moved left to right. Rich used his finger as the
stimulus and positioned it 12 to 15 inches from defendant’s face. He stated he next checked
for nystagmus at maximum deviation, meaning the farthest that the suspect could look left
or right, and held the eye in that position for four seconds. Finally, Rich testified he checked
for nystagmus onset to 45 degrees.
¶ 30 Rich also testified he performed the HGN test on defendant in accordance with his
training. He stated that, when performing the HGN test on defendant, defendant’s eyes jerked
when looking straight ahead and prior to being moved side to side. Rich went on to perform
the remainder of the test and found defendant’s eyes lacked smooth pursuit, jerked at
maximum deviation, and shook prior to 45 degrees. Rich testified he determined from
defendant’s performance on the test that there were indicators that defendant was impaired
from alcohol. Additionally, Ward stated he received training on conducting DUI
investigations and learned how to perform the HGN and other field sobriety tests. He
observed Rich conduct those tests in accordance with his training.
¶ 31 The trial court overruled defense counsel’s foundational objections to Rich’s HGN
testimony. We note, “[t]he admission of evidence is within the sound discretion of a trial
court, and a reviewing court will not reverse the trial court absent a showing of an abuse of
that discretion.” People v. Becker, 239 Ill. 2d 215, 234, 940 N.E.2d 1131, 1142 (2010). “An
abuse of discretion occurs where the trial court’s decision is arbitrary, fanciful or
unreasonable [citation] or where no reasonable person would agree with the position adopted
by the trial court [citations].” Becker, 239 Ill. 2d at 234, 940 N.E.2d at 1142. Here, the trial
court committed no abuse of discretion in permitting Rich to testify regarding his HGN
testing of defendant. As discussed, defendant mischaracterizes the NHTSA protocol he relies
upon and the record shows Rich followed the proper procedures. Finally, we agree with the
court’s finding that defendant’s objections to Rich’s lack of knowledge about causes for
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nystagmus other than alcohol or Rich’s finding of resting nystagmus concern matters of the
weight to be given Rich’s testimony rather than matters of foundation and admissibility. See
Duncan v. State, 699 S.E.2d 341, 345 (Ga. Ct. App. 2010) (finding the fact that an officer
observed resting nystagmus before he administered the HGN test went to the weight of the
evidence rather than to admissibility).
¶ 32 Additionally, we agree with the State that the evidence against defendant was
overwhelming and any error would be harmless. “Error will be deemed harmless and a new
trial unnecessary when ‘the competent evidence in the record establishes the defendant’s
guilt beyond a reasonable doubt and it can be concluded that retrial without the erroneous
admission of the challenged evidence would produce no different result.’ [Citation.]”
McKown, 236 Ill. 2d at 311, 924 N.E.2d at 959.
¶ 33 Here, the State’s evidence showed Walls initiated a traffic stop on defendant’s vehicle
after observing defendant fail to completely stop at a stop intersection, make a wide right
turn, and twice drive in the oncoming lane of traffic. All three officers who testified for the
State observed defendant with bloodshot eyes and an odor of alcohol on his breath.
Defendant failed two preexit tests by incorrectly reciting a portion of the alphabet and being
unable to count backwards as directed by Rich. Even excluding evidence of the HGN testing,
evidence showed defendant failed two field sobriety tests due to his inability to follow
directions and maintain proper balance. The jury had the opportunity to observe defendant’s
performance on video. This evidence was more than sufficient for the jury to find defendant
guilty beyond a reasonable doubt and a new trial without evidence of HGN testing would not
produce a different result.
¶ 34 On appeal, defendant next argues the trial court erred by limiting his cross-examination
of Rich regarding non-alcohol-related nystagmus. He maintains he was prejudiced by the
court’s action because he was not permitted to challenge Rich’s knowledge or lack of
knowledge on that subject.
¶ 35 “The scope of cross-examination rests in the discretion of the trial court ***.” People v.
Williams, 317 Ill. App. 3d 945, 951, 742 N.E.2d 774, 779 (2000). “A court may limit cross-
examination of a witness to prevent minimally relevant questioning or confusion of the
issues.” People v. Lindmark, 381 Ill. App. 3d 638, 659, 887 N.E.2d 606, 624 (2008) (finding
no abuse of discretion in the limiting of cross-examination where the defendant attempted
to introduce an issue during cross-examination without any evidence in support thereof). On
review, “[d]efendant must demonstrate not only that the trial court abused its discretion but
must also show the abuse of discretion resulted in ‘manifest prejudice.’ ” Lindmark, 381 Ill.
App. 3d at 659, 887 N.E.2d at 624.
¶ 36 During cross-examination, defense counsel elicited testimony from Rich that he did not
know how many non-alcohol-related causes for nystagmus there were. Rich also
acknowledged he did not know that nystagmus could be caused by the flu, vertigo, arterial
sclerosis, muscular dystrophy, multiple sclerosis, hypertension, motion sickness, sunstroke,
eye strain, eye muscle fatigue, glaucoma, caffeine consumption, nicotine consumption, or
aspirin. Further, defense counsel elicited testimony that Rich did not know or remember the
differences between alcohol-related nystagmus, nonalcohol nystagmus, rotational nystagmus,
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caloric nystagmus, natural nystagmus, optokinetic nystagmus, or physiological nystagmus.
¶ 37 The trial court sustained the State’s objection to defense counsel’s inquiry into whether
Rich could have mistaken, “for example,” optokinetic nystagmus for nystagmus caused by
alcohol consumption. It sustained a second objection by the State to defense counsel’s
question as to whether Rich knew the indicators for optokinetic nystagmus. During a side
bar, the court asked whether defense counsel was “going to prove this up” and “the
foundational basis” for his cross-examination.
¶ 38 Here, the record refutes defendant’s contention that he was not permitted to challenge
Rich’s knowledge or lack of knowledge of the causes of nystagmus that are unrelated to
alcohol. It shows defense counsel asked Rich numerous questions in that regard and elicited
Rich’s ignorance of the subject. Moreover, the trial court sustained the State’s objections to
only two questions, both relating specifically to optokinetic nystagmus. The record supports
no connection between that specific condition and defendant. Again, as discussed, the
evidence against defendant was more than sufficient to sustain his conviction and any error
would be deemed harmless.
¶ 39 Defendant next argues the trial court erred in permitting the State to replay portions of
the videotape introduced at trial during its closing argument, unduly emphasizing that
evidence. He argues the court further erred by denying his request to replay the entire tape
rather than have the State pick and choose which portions of the tape to play.
¶ 40 “[P]roperly admitted evidence may be displayed during closing argument.” People v.
Forcum, 344 Ill. App. 3d 427, 446, 800 N.E.2d 499, 514 (2003). More specifically, courts
have found no error in the replaying of properly admitted videotaped or audiotaped evidence.
See People v. Gross, 265 Ill. App. 3d 74, 77, 637 N.E.2d 789, 791-92 (1994) (Second
District) (no error in the replaying of videotaped evidence where limited excerpts were
played that comprised a small fraction of the entire tape and record and were presented to
demonstrate inconsistencies); Forcum, 344 Ill. App. 3d at 446, 800 N.E.2d at 515 (Fifth
District) (finding no error in the court allowing the State to replay a taped message and read
portion of a letter during its closing argument where items had been admitted into evidence,
jurors had the opportunity to examine the letter, and reading of the letter was accurate and
constituted only a small portion of the State’s closing argument). We review the trial court’s
decision to allow replaying of videotape evidence for an abuse of discretion. Gross, 265 Ill.
App. 3d at 77, 637 N.E.2d at 791-92.
¶ 41 Here, the trial court allowed the State to replay portions of the videotape during its
closing argument. The videotape had been properly admitted into evidence and only limited
excerpts were played by the State. Also, the videotaped evidence constituted only a small
part of the State’s closing. Defendant complains that he was not permitted to replay the
whole tape due to time constraints the court placed on closing arguments. However, the court
limited closing arguments for both parties and stated defense counsel also had the option of
replaying the videotape during closing argument. Although replaying the entire videotape
would have taken up all of defense counsel’s time for argument, defendant could have played
only those excerpts helpful to his defense. Under the circumstances presented, we find no
error.
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¶ 42 On appeal, defendant further argues the trial court erred by allowing the State to make
improper argument during closing. Specifically, he complains that the court permitted the
State to argue, over objection, that defendant’s refusal to take a breath test was proof that he
knew he was over the legal limit.
¶ 43 Generally, the State is accorded wide latitude in the content of its closing arguments and
it “may comment on the evidence and on any fair and reasonable inference the evidence may
yield.” People v. Runge, 234 Ill. 2d 68, 142, 917 N.E.2d 940, 982 (2009). “[E]vidence of a
person’s refusal to take a test designed to determine the person’s blood-alcohol content is
admissible and may be used to argue the defendant’s consciousness of guilt.” People v.
Johnson, 218 Ill. 2d 125, 140, 842 N.E.2d 714, 723 (2005). However, argument is
impermissible when it goes beyond this legitimate purpose and “ ‘blur[s] the distinction
between the defendant’s state of mind and the State’s burden of proof ***.’ [Citation.]”
Johnson, 218 Ill. 2d at 140, 842 N.E.2d at 723. In Johnson, 218 Ill. 2d at 140-41, 842 N.E.2d
at 723, the supreme court found argument “which implied that [the] defendant might have
proven his innocence by submitting to a breath test” was “in conflict with the constitutional
principle that a defendant is innocent until proven guilty.”
¶ 44 Here, during closing, the State pointed out that police officers gave defendant the
opportunity to submit a breath sample. It argued that defendant knew that if he submitted a
breath sample and his blood-alcohol content was over the legal limit of 0.08 his license
would be suspended for a period of time. The State further argued that defendant was told
by police that, if he refused the breath test, his license would be suspended for a longer
period of time. The State continued its argument, noting as follows: “[Defendant] chose the
longer suspension. Why? Because he knew he would be over the legal limit.” Finally, during
rebuttal, the State argued as follows:
“We know that the Defendant refused to submit to chemical testing. I maintain that is
because he knew he would be over the legal limit. He was told the ramifications of this.
He chose not to submit that breath test.”
¶ 45 Clearly, a prosecutor may argue that a defendant’s refusal to submit to chemical testing
shows consciousness of guilt and that is precisely what occurred in the present case. At trial,
the State presented evidence that showed defendant refused to submit to a Breathalyzer test
even though he had been informed by police that his refusal would result in a lengthier
suspension period. During closing, the State argued defendant refused a breath test “because
he knew he would be over the legal limit.” Unlike in Johnson, the case relied upon by
defendant, the State did not improperly shift the burden of proof to defendant by suggesting
he missed the opportunity to prove his innocence by refusing the breath test. The facts
presented are dissimilar from those presented in Johnson and the State’s argument in this
case was proper.
¶ 46 Defendant next argues the trial court erred by refusing to permit him to argue during
closing argument that a person’s age could affect performance on field sobriety tests. He
maintains that the court’s refusal to allow such argument was particularly harmful to his case
because portions of the videotape that were played for the jury showed Rich, who was much
younger than defendant, performing parts of the field sobriety testing as an example for
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defendant.
¶ 47 The trial court has broad discretion with respect to limits placed on closing argument.
People v. Faria, 402 Ill. App. 3d 475, 483, 931 N.E.2d 742, 750 (2010); Lindmark, 381 Ill.
App. 3d at 659, 887 N.E.2d at 624 (noting “the trial court has the discretion to limit the
character and scope of closing argument”). Here, the court committed no error.
¶ 48 First, the record refutes defendant’s contention that the court refused to permit argument
about age and its affect on field sobriety testing. Specifically, during closing, defense counsel
argued without objection that it was unfair to compare the performances of 23-year-old Rich
with the middle-aged defendant. Second, while the court sustained objections to argument
about what defense counsel could have done when he was 23 years old and the general
physical capabilities of a 23-year-old person, such argument was not relevant to defendant’s
particular situation and also concerned matters that were not in evidence. The trial court did
not abuse its considerable discretion.
¶ 49 On appeal, defendant also challenges the trial court’s denial of his motions to quash and
suppress portions of the videotaped evidence that showed him in the back of a squad car
following his arrest. He argues the videotape and accompanying audio recordings were
obtained in violation of the eavesdropping statute and in violation of Miranda. He
acknowledges that the videotape played at his trial contained only video recordings of him
in the back of the squad car but, nevertheless, maintains the video is inadmissible because
it “derived from an audio recording process in violation of the eavesdropping statute.”
¶ 50 In the context of a motion to suppress, a circuit court’s factual findings may be rejected
only if they are against the manifest weight of the evidence. People v. Bartelt, 241 Ill. 2d 217,
226, 948 N.E.2d 52, 57 (2011). “[T]he circuit court’s ultimate ruling as to whether
suppression is warranted is reviewed de novo.” Bartelt, 241 Ill. 2d at 226, 948 N.E.2d at 57.
¶ 51 A person commits eavesdropping when he “[k]nowingly and intentionally uses an
eavesdropping device for the purpose of hearing or recording all or any part of any
conversation” without the consent of all parties to the conversation. 720 ILCS 5/14-2(a)(1)
(West 2008). The term “conversation” refers to “any oral communication between 2 or more
persons.” 720 ILCS 5/14-1(d) (West 2008). Certain activities are exempt from the provisions
of the eavesdropping statute. 720 ILCS 5/14-3 (West 2008). At the time of defendant’s arrest
in May 2009, one such exemption included “[r]ecordings made simultaneously with a video
recording of an oral conversation between a peace officer, who has identified his or her
office, and a person stopped for an investigation of an offense under the Illinois Vehicle
Code.” 720 ILCS 5/14-3(h) (West 2008). Additionally, any evidence obtained in violation
of the eavesdropping statute is inadmissible in a criminal trial. 720 ILCS 5/14-5 (West 2008).
¶ 52 Here, videotaped evidence of defendant’s traffic stop included audio and video
recordings of defendant while driving immediately prior to being stopped, immediately after
he was stopped and performing various field sobriety tests, and immediately following his
arrest while in the back of a squad car. As noted, defendant objected to the recordings of him
in the police vehicle but his motions to suppress that evidence were denied. A portion of the
videotape showing defendant in the back of a police vehicle was played for the jury. That
video was edited down to approximately one minute of footage and had no accompanying
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audio recordings.
¶ 53 Here, we find no violation of the eavesdropping statute. First, as the State points out,
Walls informed defendant at the beginning of the traffic stop that he was being audio and
video recorded. Defendant did not object to those recordings, giving his implied consent. See
People v. Ceja, 204 Ill. 2d 332, 349, 789 N.E.2d 1228, 1240 (2003) (finding consent under
the eavesdropping statute may be either express or implied). Defendant argues that his
consent when initially stopped should not extend to the period of time after his arrest and
when he was placed in the back of the squad car. However, the record reflects that all of the
recordings occurred within a relatively short period of time and throughout the duration of
the traffic stop. The recordings of which defendant complains began at the scene of the stop.
Once defendant was aware that he was being recorded, there was no reason for him to believe
that the recording had ceased. Under these circumstances, we find consent.
¶ 54 Additionally, the exemption found in section 14-3(h) of the eavesdropping statute applies
to the facts presented. The record shows the audio recordings at issue were made
simultaneously with video recordings, conversations on the recordings occurred between
defendant and identified police officers, and defendant was stopped for investigation of an
offense under the Code. Defendant argues that the exemption does not apply to postarrest
recordings because the police were no longer conducting an investigatory stop. We disagree
and find that defendant’s arrest did not necessarily signal the end of the police officer’s
investigation.
¶ 55 Defendant also argues amendments made to section 14-3 after his arrest are relevant to
show the statute was expanded to include previously “privileged” utterances such as those
to which he now objects. Shortly after defendant’s arrest, the eavesdropping statute’s
exemption provisions were amended to provide as follows:
“(h) Recordings made simultaneously with the use of an in-car video camera
recording of an oral conversation between a uniformed peace officer, who has identified
his or her office, and a person in the presence of the peace officer whenever (i) an officer
assigned a patrol vehicle is conducting an enforcement stop; or (ii) patrol vehicle
emergency lights are activated or would otherwise be activated if not for the need to
conceal the presence of law enforcement.
For the purposes of this subsection (h), ‘enforcement stop’ means an action by a law
enforcement officer in relation to enforcement and investigation duties, including but not
limited to, traffic stops, pedestrian stops, abandoned vehicle contacts, motorist assists,
commercial motor vehicle stops, roadside safety checks, requests for identification, or
responses to requests for emergency assistance;
(h-5) Recordings of utterances made by a person while in the presence of a uniformed
peace officer and while an occupant of a police vehicle including, but not limited to, (i)
recordings made simultaneously with the use of an in-car video camera and (ii)
recordings made in the presence of the peace officer utilizing video or audio systems, or
both, authorized by the law enforcement agency[.]” 720 ILCS 5/14-3(h), (h-5) (West
2010).
Defendant maintains there would have been “no cause to amend the statute to expressly add
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language granting an exemption to utterances made while detained in a police vehicle if those
same utterances were not privileged prior to the amendment.”
¶ 56 To support his position, defendant cites legislative history, stating the amendment
“expands the eavesdropping exemption.” However, the entire portion of legislative history
to which defendant refers states as follows:
“House Bill 1057 expands the eavesdropping exemption for simultaneous audio and
video recordings by identified officers, requiring the audio recording to be made together
with an in-car video camera, in the presence of the police officer whenever the officer
reasonably believes recordings may assist with prosecution and enhance safety.” 96th Ill.
Gen. Assem., Senate Proceedings, May 20, 2009, at 62 (statements of Senator
Hutchinson).
We find nothing in these comments that would preclude application of the preamended
exemption at issue to the facts of defendant’s case.
¶ 57 As discussed, defendant also challenged admission of the videotape on Miranda grounds.
“However, Miranda warnings apply only to custodial interrogations.” In re Tyler G., 407 Ill.
App. 3d 1089, 1092, 947 N.E.2d 772, 775 (2010). Here, although defendant was in custody,
the record fails to reflect that he was being interrogated. As the trial court determined, the
record shows defendant’s statements while being recorded in the back of the squad car were
voluntary and did not implicate Miranda.
¶ 58 Finally, on appeal, defendant argues the trial court erred in not considering probation and,
instead, sentencing him to five years in prison. “The trial court has broad discretionary
powers in imposing a sentence, and its sentencing decisions are entitled to great deference.”
People v. Alexander, 239 Ill. 2d 205, 212, 940 N.E.2d 1062, 1066 (2010). On review, the
imposed sentence will not be altered absent an abuse of discretion by the trial court. People
v. Hauschild, 226 Ill. 2d 63, 90, 871 N.E.2d 1, 16 (2007). “We recognize that it is the
function of the trial court to balance the relevant factors and make a reasoned decision as to
the appropriate sentence, and we will not substitute our own judgment for that of the trial
court.” People v. Rathbone, 345 Ill. App. 3d 305, 313, 802 N.E.2d 333, 340 (2003).
¶ 59 Here, the record shows defendant had a significant criminal history, including 17
convictions for traffic-related offenses, 5 misdemeanor convictions, and 2 felony convictions.
He had previously served two sentences of probation and one term of imprisonment in DOC.
The trial court noted defendant’s lengthy criminal history and that many of his convictions
carried with them an indication of substance abuse. It also considered the circumstances
surrounding the offense and, as a factor in mitigation, the poor health of defendant’s father.
Contrary to defendant’s contention on appeal, the record does not show the court considered
any matters not in evidence. Instead, the court appropriately weighed the evidence. It did not
abuse its discretion.
¶ 60 Here, the record does not support defendant’s contention that reversible error occurred
during his trial or that the court abused its discretion during sentencing.
¶ 61 For the reasons stated, we affirm the trial court’s judgment. We remand for issuance of
a corrected sentencing judgment showing defendant’s conviction with the correct statutory
citation (625 ILCS 5/11-501(d)(1)(A) (West 2008)). As part of our judgment, we award the
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State its $75 statutory assessment against defendant as costs.
¶ 62 Affirmed.
¶ 63 JUSTICE APPLETON, specially concurring:
¶ 64 I concur with the majority’s result as to two issues for different reasons.
¶ 65 First, during the redirect examination of Officer Rich, the State exceeded the scope of its
direct examination as well as the scope of cross-examination by defense counsel, without
objection from defendant. The trial court’s refusal to allow re-cross-examination concerning
the new material brought forth during redirect was an abuse of discretion (see People v.
Williams, 161 Ill. 2d 1, 44 (1994)) and a violation of defendant’s right of confrontation (see
People v. Davis, 185 Ill. 2d 317, 337 (1998)).
¶ 66 Upon denial of re-cross-examination, defense counsel made an offer of proof outside the
hearing of the jury, which the court heard. Because the additional information elicited in the
offer of proof concerned field sobriety testing and because the only “new” information on
that topic from the redirect examination of Officer Walls was de minimus, I would find the
technical error to be harmless beyond a reasonable doubt. See Davis, 185 Ill. 2d at 338.
¶ 67 Second, when the State replayed selected portions of the video of the roadside testing,
it cherry-picked for maximum impact. Defense counsel sought leave to play the entire tape.
The trial court agreed to permit defense counsel to do so but noted that the full tape would
exhaust most of counsel’s time for closing argument. Because the parties had agreed that
each side would be allowed 30 minutes for closing arguments, defendant cannot now
complain for opting to argue rather than replay the full tape recording.
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