People v. Lindmark

NO. 4-07-0535 Filed 4/3/08
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Champaign County
ERIKA M. LINDMARK, ) No. 06CF483
Defendant-Appellant. )
) Honorable
) Jeffrey Ford,
) Richard P. Klaus,
) Judges Presiding.
JUSTICE MYERSCOUGH delivered the opinion of the court:
In January 2007, a jury found defendant, Erika M.
Lindmark, guilty of driving under the influence of alcohol (DUI)
while her driver's license was suspended (625 ILCS 11/501(a)(1)
(West 2006)) (count I) and driving with a suspended license (DWS)
(625 ILCS 5/6-303(a) (West 2006)) (count II). The trial court
later vacated count II. In March 2007, the court sentenced
defendant to 180 days in the Champaign County jail plus 30
months' probation on count I. Defendant appeals.
Although defendant raises several substantive arguments
on appeal, the inadequate record provided severely hampers this
court's review. For the reasons that follow, we affirm.
I. BACKGROUND
On March 1, 2006, defendant was arrested for DUI and
DWS. Following her arrest, defendant performed a breath test
showing she had a breath-alcohol concentration (BAC) of 0.167.
On March 22, 2006, the State charged defendant with
driving while her BAC was equal to or greater than 0.08 and while
her license to drive was suspended due to her prior violation of
section 11-501.1 of the Illinois Vehicle Code (Vehicle Code) (625
ILCS 5/11-501(a)(1) (West 2006)). See 625 ILCS 5/11-501(c-1)(1)
(West 2006) (providing that driving under the influence while
one's license is suspended for, among other reasons, a violation
of section 11-501.1 of the Vehicle Code, constitutes a Class 4
felony). On January 5, 2007, the State charged defendant with
count II, DWS (625 ILCS 5/6-303(a) (West 2006)).
Defendant filed numerous pretrial motions. On January
17, 2007, the trial court held a hearing on the pending motions.
Only a partial transcript of the January 17, 2007, hearing is
contained in the record on appeal. An examination of the
pretrial motions relevant to this appeal follows.
A. Pretrial Motions
1. Motion To Suppress the Breath Test
In December 2006, defendant filed a motion to suppress
the breath test. The motion alleged that the protocol for the
operation of a breath test requires the operator observe the
subject for a 20-minute period to ensure the subject does not
regurgitate, burp, belch, or otherwise bring contents from the
stomach or esophagus into the mouth because that will produce an
inaccurate reading. Defendant claimed the results of her breath
test were invalid because the operator did not properly observe
defendant to ensure she did not bring stomach contents up into
her mouth.
- 2 -
At the January 17, 2007, hearing, defendant testified
that she suffered from acid reflux. Defendant claimed she burped
during the observation period. On cross-examination, defendant
admitted the officer asked her if she had any illness prior to
the breath test, and she did not tell him she had acid reflux.
Defendant testified she did tell the officer she was "sick
earlier that day."
The trial court viewed the videotape showing the
observation of defendant. The videotape, which was admitted into
evidence, is not contained in the record on appeal.
The court concluded the observation by the officer complied with
statutory and case-law requirements. The court noted that
defendant yawned, but the court saw nothing that implicated the
guidelines with respect to the breath test. The court denied the
motion to suppress the breath test.
2. Motion To Suppress Statements
In December 2006, defendant filed a motion requesting
the trial court suppress all statements made by defendant during
her custodial interrogation. In the motion, defendant alleged
that the officer failed to make an adequate determination that
defendant understood her Miranda rights (Miranda v. Arizona, 384
U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966)) and failed to
obtain a knowing and voluntary waiver of those rights.
At the January 17, 2007, hearing on the pretrial
motions, patrol sergeant Adam Chacon testified that on March 1,
2006, he stopped defendant's vehicle. After a DUI investigation,
- 3 -
he placed defendant under arrest for DUI and transported her to
the satellite jail in Champaign County.
After defendant performed the breath test, Sergeant
Chacon used his Miranda card and read defendant the Miranda
warnings. Sergeant Chacon told defendant she could choose to
answer or not answer the questions. Defendant appeared to
understand what he was saying. Defendant told Sergeant Chacon
she was 25 years old, a high school graduate, and attended the
"University."
On cross-examination, Sergeant Chacon admitted it was
cold that evening, and defendant exhibited signs of being cold.
After defendant was arrested, Sergeant Chacon noticed defendant
was shivering.
Sergeant Chacon testified he gave defendant the
opportunity to waive her Miranda rights by asking her if she was
willing to discuss the matter further. The trial court admitted
into evidence People's exhibit No. 2, a videotape of the
interrogation. The parties' arguments were not transcribed and
the videotape is not contained in the record on appeal. The
following exchange took place during the hearing:
"Q. [(Defense counsel)]: All right. Did
you ever say to her--
THE COURT: You may resume your seat,
Officer.
Q. --are you willing to waive those
rights and talk to me?
- 4 -
A. No.
Q. You started asking her questions?
A. Yes.
* * *
Q. You never got her to say that she was
willing to waive the right to speak to you,
did you?
A. I didn't see it in that portion of
the video you showed.
Q. Do you want to see another portion?
A. I don't think that it's going to
assist me in any way. I said what was on the
video. I don't remember every word I said on
the video."
The trial court denied the motion to suppress statements.
3. The Horizontal Gaze Nystagmus Test
In December 2006, defendant filed a motion to suppress
the horizontal gaze nystagmus (HGN) test results. Defendant
alleged the results must be excluded because the officer did not
conduct the HGN test as required by this court's decision in
People v. Kirk, 289 Ill. App. 3d 326, 681 N.E.2d 1073 (1997). In
January 2007, defendant also filed a fifth motion in limine
seeking to bar the State from introducing evidence regarding the
results of the HGN test unless the State first established the
reliability of the test at a Frye hearing (Frye v. United States,
293 F. 1013, 1014 (D.C. Cir. 1923)(addressing the standards for
- 5 -
permitting evidence of a scientific test)).
At the January 17, 2007, hearing on posttrial motions,
the trial court asked the State whether it intended to introduce
evidence regarding the HGN test at trial. The assistant State's
Attorney responded, "No, Your Honor." The court stated, "I would
take that to mean that you would simply agree to the motion."
The transcript then reads, "Proceedings not transcribed herein."
The court then stated on the record:
"Well, I wouldn't necessarily have
procedurally couched it that way, [defense
counsel], but the State will be barred from
eliciting or introducing into evidence any
evidence regarding the HGN test. The motion
to suppress the HGN test is moot. The fifth
motion in limine is granted in part and
denied in part. The law does not require me
to--or require the State to have a Frye
hearing. The State can seek a Frye hearing.
The State does not seek a Frye hearing. I
will not order a Frye hearing. However, I
will grant that portion of the fifth motion
in limine which seeks to bar an HGN test,
because absent a Frye hearing, there can be
no entry into evidence of an HGN test. All
right, that resolves those motions."
In response to the trial court, defense counsel argued
- 6 -
the HGN test remained an issue because it was the basis for the
officer's probable cause for arrest. The transcript contains the
following:
"MR. ROBERTS [(Defense counsel)]: Not
quite, because the HGN test was the basis for
the officer's probable cause for arrest.
THE COURT: Well that resolves those
motions. Then we'll address the issue of
whether or not there was probable cause for
the arrest in the other motions. All right.
(Proceedings conducted which are not
transcribed herein.)"
The record is unclear whether the trial court proceeded
to address probable cause. However, on January 18, 2007, the day
following the hearing and the day of trial, defendant filed a
motion to "quash arrest" and suppress evidence. The motion
asserted that absent a showing that the HGN test has scientific
validity, it could not be reasonably relied on in making a
determination of probable cause. Defendant argued that without
probable cause, her arrest was illegal and all evidence that
flowed from the arrest must be suppressed.
Also on January 18, 2007, the State filed a motion to
strike defendant's motion to "quash arrest" and suppress. The
State argued that defendant's motion was untimely because it was
filed more than 35 days after the discovery order was entered and
no just cause existed why the motion could not have been filed in
- 7 -
a timely manner.
The trial court held a hearing on the matter that same
day. The State argued that the circuit court rules required all
motions be filed within 35 days of the discovery order. The
State claimed the defendant was attempting to delay the trial.
Defense counsel noted that the previous day, the State
indicated it would not offer HGN evidence at trial. Defense
counsel argued that this concession did not resolve the issue of
a Frye hearing because the officer used the HGN test as a basis
for probable cause for the arrest. Defense counsel argued that
because the HGN test was not admissible at trial without a Frye
hearing, it could not be used to determine probable cause.
The trial court noted multiple problems with the motion
to suppress, not the least of which was lack of timeliness. The
court observed that defendant's motion "presupposes that the
[HGN] test was the only basis for probable cause, which ignores
the substantial amount of other material." The court found
defense counsel had ample opportunity to address the matter in
pretrial, and that the late-filed motion violated the court's
standing order. The court ordered the motion to suppress
stricken.
4. Bill of Particulars
On January 9, 2007, four days after the State charged
defendant with count II, defendant filed a motion for a bill of
particulars. Defendant sought particulars regarding the offenses
defendant was alleged to have committed, including the date,
- 8 -
time, location, persons present who witnessed the alleged
offenses, and the length of time the alleged conduct continued.
At the hearing on pretrial motions, the trial court
noted that the arraignment occurred on June 1, 2006, and the
State provided defendant with discovery on June 6, 2006. The
court asked how the January 9, 2007, filing could be considered
filed within a reasonable period of time after the arraignment.
The transcript of the hearing does not contain defense counsel's
response. The court denied the motion for a bill of particulars.
B. The Trial
On January 18, 2007, the jury trial commenced.
Sergeant Chacon testified he had been employed with the Urbana
police department for nearly 13 years. He had received
specialized training on how to investigate DUI cases and had been
involved in 100 to 150 DUI investigations.
On March 1, 2006, at approximately 12:55 a.m., Sergeant
Chacon saw a black, four-door Saab turn left on University
Avenue, a well-lit intersection. Sergeant Chacon saw the vehicle
strike the raised median of the roadway with all four tires.
Sergeant Chacon effectuated a traffic stop. He
identified defendant as the driver of the vehicle. Defendant was
wearing a lot of brightly colored beads around her neck.
Sergeant Chacon testified the stop occurred around Mardi Gras and
a lot of bars gave out beads. Sergeant Chacon further testified
that an odor of alcohol emitted from the open driver's window.
Defendant's eyes were watery and red, and her speech was "rather
- 9 -
slowed and slight[ly] slurred." Defendant told him she had three
alcoholic drinks that evening.
Sergeant Chacon asked defendant for her driver's
license and proof of insurance. He returned to his car to
confirm defendant's driver's license status and check for
outstanding warrants. In doing so, Sergeant Chacon learned
defendant's license was suspended.
The trial court admitted, without objection,
defendant's driver's license abstract from the Secretary of State
(exhibit No. 4). Sergeant Chacon testified that the abstract
reflected that on March 1, 2006, the status of defendant's
driver's license was "suspended." Exhibit No. 4 is not contained
in the record on appeal, although a blurry copy of the abstract
is contained in the record as part of the State's discovery.
Sergeant Chacon called for an additional unit. Officer
Chris Darr arrived. Sergeant Chacon asked Officer Darr to
videotape the ensuing investigation.
Sergeant Chacon asked defendant to perform certain
preexit tests that can be performed while sitting in the vehicle.
According to Sergeant Chacon, preexit tests are good indicators
of whether a person is impaired. Sergeant Chacon described the
various preexit tests and defendant's performance on those tests.
The three tests included the alphabet test (reciting the alphabet
from a specific starting point to a specific ending point), the
countdown test (counting backward from a particular number to
another), and the finger-count test (use the thumb to touch the
- 10 -
tip of each finger in a sequence while counting out loud). Based
on defendant's performance on the three pre-exit tests, Sergeant
Chacon felt further investigation warranted and asked defendant
to step out of her vehicle.
Sergeant Chacon testified the outside temperature was
in the mid-40s. Defendant was wearing a "pretty substantial"
leather coat and appeared to be dressed warmly for the weather.
Sergeant Chacon testified about the field-sobriety
tests he asked defendant to perform, including the one-legged-
stand test and the walk-and-turn test.
Sergeant Chacon identified People's exhibit No. 3 as a
copy of the videotape of the field testing. The State moved to
admit the videotape into evidence. Defense counsel did not
object to admission of the videotape or publication of the tape
to the jury. A portion of the videotape was played for the jury.
The videotape is not contained in the record on appeal.
Sergeant Chacon testified that based on the total
circumstances and information gathered, including defendant's
driving behavior, beads, demeanor, speech pattern, the odor of
alcohol, her acknowledgment that she had been drinking, and
defendant's performance on pre-exit and field tasks, he believed
defendant was impaired by alcohol. Sergeant Chacon placed
defendant under arrest.
After defendant's arrest, Officer Darr transported her
to the Champaign County satellite jail. Sergeant Chacon later
joined her there.
- 11 -
Defendant ultimately took a breath test. Sergeant
Chacon testified he was certified to operate the Breathalyzer and
conduct the breath test, the breath test was a model approved by
the Department of State Police, and he followed the standards for
administering it. Sergeant Chacon identified, and the trial
court admitted, (1) the breath-instrument log that showed defen-
dant's result and the certification of accuracy performed on the
machine and (2) the document showing defendant's breath-test
result.
Sergeant Chacon observed defendant for 20 minutes to
allow any alcohol that might still be in her mouth or upper
digestive tract to either be absorbed, metabolized, or dissipated
so that the result would only reflect the alcohol from defen-
dant's breath. During the observation period, defendant did not
eat, drink, smoke, or put a foreign substance in her mouth.
Defendant did not vomit during the observation period.
After the observation period, defendant performed the
breath test. The results indicated a BAC of 0.167. The State
sought and received permission to play the remainder of the
videotape, apparently showing what occurred before and during the
breath test.
On cross-examination, defense counsel played portions
of defendant's exhibit No. 1. That exhibit is not contained in
the record on appeal. Based on the comments made at trial,
defendant's exhibit No. 1 was apparently a digital video disc
(DVD) containing excerpts of the video recording of defendant's
- 12 -
pre-exit and field-sobriety tests.
After watching a portion of the DVD, Sergeant Chacon
agreed defendant performed some aspects of the tests correctly.
Defense counsel questioned Sergeant Chacon about a comment he
made on the tape about not being "totally convinced." Sergeant
Chacon testified he was not convinced at that point that defen-
dant was not impaired by alcohol. Defense counsel also noted
that after defendant finished walking for one of the tests,
Sergeant Chacon said, "[V]ery good." Defense counsel asked
whether Sergeant Chacon thought defendant's performance on the
test was "very good." Sergeant Chacon responded, "That's not
what I meant by very good, sir."
Sergeant Chacon admitted defendant exhibited signs of
being cold. She was still rubbing herself at the jail trying to
warm herself. Sergeant Chacon agreed defendant was never combat-
ive and was always cooperative. Sergeant Chacon testified the
behavior of people under the influence runs the gamut of polite
to combative. Sergeant Chacon described defendant's speech as
showing slight to moderate slurring.
Defense counsel questioned Sergeant Chacon about the
breath test. Sergeant Chacon testified the purpose of the 20-
minute observation period was to allow any alcohol that might
still be in the mouth to evaporate or be absorbed so that it does
not interfere with the test reading. Defense counsel asked
whether the observation included observing whether the subject
regurgitated. Sergeant Chacon stated, "Well, if you mean vomit-
- 13 -
ing, yes." Sergeant Chacon agreed that by vomiting, he meant
material is expelled out of the mouth. Sergeant Chacon also
agreed that the reason he observes for vomiting is because if
material comes up in the mouth from the stomach and has alcohol
in it, that would affect the test result.
Defense counsel asked whether, once the material got
into the mouth, it mattered if it was vomited out or swallowed.
The State objected on the basis that the line of questioning was
irrelevant to what the jury would be asked to determine at the
end of the trial. The court sustained the objection.
Defense counsel questioned Sergeant Chacon about the
observation period, apparently while that portion of the video-
tape was playing. Defense counsel asked Sergeant Chacon what he
was doing at various times during the observation period. At one
point, in response to defense counsel's question, Sergeant Chacon
stated that the videotape showed defendant put her face in her
hands. Defense counsel asked whether anything was coming up from
defendant's stomach when she put her face in her hands. The
State objected, and the court sustained the objection. After the
completion of Sergeant Chacon's testimony, the State rested.
On January 19, 2007, the trial resumed. That same day,
the State filed a motion in limine seeking an order barring
defense counsel from inquiring into or referring to matters
relating to defendant's alleged acid-reflux symptoms, the effect
such symptoms may have on the breath test, the alleged failure of
Sergeant Chacon to properly observe defendant prior to the breath
- 14 -
test, or the effect such alleged failure may have had upon the
breath test results.
The State argued that whether Sergeant Chacon conducted
a proper observation was an issue of foundation as to the admis-
sibility of the breath test and was previously adjudicated by the
court. The State also argued that defendant's alleged acid
reflux was not relevant to any issue the jury would be asked to
decide. Finally, the State argued that defendant did not dis-
close any expert witnesses, and the issue of whether acid reflex
would affect the breath test was a subject that required expert
testimony.
At the hearing on the motion, defense counsel argued
that admissibility and weight were separate questions. Defense
counsel agreed the breath test was admissible because the State
met the foundation requirements: the machine had been tested at
appropriate times before and after defendant's test, the machine
was certified, the officer did a blank check before defendant's
test, the officer was in the room with defendant for 20 minutes
before the test, defendant blew in the machine, and a reading was
produced. Defense counsel argued, however, that the weight to
give the test was for the jury, and the jury did not have to find
the testing credible.
The trial court found that defense counsel was attempt-
ing to show that defendant had acid-reflux syndrome, suffered
from it in the observation room, and that acid reflux could
affect the breath-test results. The court asked defense counsel
- 15 -
how defendant would present competent evidence on that subject.
Defense counsel argued Sergeant Chacon testified about
the importance of not having stomach contents enter the mouth.
Defense counsel further argued that whether Sergeant Chacon's
observation was adequate to determine whether anything came up
out of defendant's stomach was an issue of credibility for the
jury. The trial court barred defendant from any further refer-
ence to acid-reflux disease or the efficacy of the observation
period.
Defense counsel then moved for a directed verdict on
both counts, arguing the State presented no evidence that defen-
dant knew her license was suspended. Therefore, defense counsel
argued, the State failed to prove the requisite mental state.
The trial court denied the motion.
The defense rested without presenting evidence.
Defense counsel sought clarification on the trial court's earlier
ruling barring defendant from any reference to acid-reflux
disease or the efficacy of the observation period. Defense
counsel inquired whether he could (1) tell the jury that it
determines the weight to give the evidence, (2) talk to the jury
about the credibility of the evidence, (3) talk to the jury about
the officer's testimony regarding the purpose of the observation
period, and (4) comment on what was in evidence regarding
factors that interfere with testing. The court confirmed that
such comments were permissible. The court further confirmed that
defense counsel could not comment on whether Sergeant Chacon was
- 16 -
doing an adequate job of making sure that factors that interfere
with testing did not occur.
The jury-instruction conference, closing argument, and
return of the jury verdict are not contained in the transcript in
the record on appeal. The record suggests that defense counsel
sought an instruction that the State had to prove defendant had
notice that her license was suspended. The trial court appar-
ently rejected that instruction.
The January 19, 2007, docket entry reflects the jury
found defendant guilty on both counts.
C. Postrial and Sentencing Motions
On February 20, 2007, defendant filed a motion for a
new trial. Among other things, defendant argued the trial court
erred by (1) denying the fifth motion in limine; (2) denying the
motion to suppress statements; (3) denying the motion to suppress
the HGN test and not allow a Frye hearing; (4) denying the
request for a bill of particulars; (5) denying the motion to
suppress the breath test; (6) granting the State's motion to
strike defendant's motion to suppress for lack of probable cause,
denying defendant a hearing on the motion to suppress, and not
granting the motion to suppress; (7) failing to instruct the jury
that the State had to prove defendant had notice that her license
was suspended; (8) allowing the State's motion in limine with
respect to closing argument and limiting defendant's closing
argument by (a) restricting comment on the quality of the offi-
cer's observation of the defendant, and (b) limiting comment on
- 17 -
what the Breathalyzer was measuring if any stomach contents were
brought up into defendant's mouth during the 20-minute observa-
tion period.
On that same date, defendant also filed motions to
vacate her convictions on count I and count II. Defendant
asserted that count II must be vacated because both convictions
were based on the same conduct. Defendant asserted that count I
should be vacated because the jury made no finding that defen-
dant's license was suspended for a violation of section 11-501.1
of the Vehicle Code (statutory summary suspension).
On March 28, 2007, the trial court held a hearing on
defendant's posttrial motions and the sentencing. The record on
appeal does not contain a transcript of that hearing. The March
28, 2007, docket entry reflects that the court denied the motion
to vacate count I but granted the motion to vacate count II. The
court sentenced defendant to incarceration in the county jail for
180 days plus 30 months' probation on count I.
On April 3, 2007, defendant filed a motion to modify
her sentence. Defendant requested the trial court modify her
sentence to provide that the period of imprisonment be served in
the Comprehensive Home-Incarceration Program (CHIP).
On April 9, 2007, the trial court held a hearing on
defendant's motion to modify sentence. At the hearing, Rolla
Dolph, the courtroom deputy assigned to the courtroom when
defendant was sentenced, testified. Dolph testified he saw
defendant give her counsel some keys and heard her tell counsel
- 18 -
one of the keys belonged to the car in the lot that had to be
moved.
Defense counsel questioned the trial court about
whether he could continue to act as defendant's counsel because
he would have to testify to rebut Dolph's testimony. The court
believed counsel could testify without being disqualified so long
as he was not testifying against his client's interests. The
court agreed to accept counsel's representations or counsel could
testify under oath and be subject to cross-examination.
Defense counsel informed the court that he drove
defendant to court for sentencing. Defendant asked counsel to
give her keys to a man named "Sam," and that Sam would take care
of her animals. Defendant said nothing to counsel about moving a
car. The trial judge took the matter under advisement and
indicated a ruling would be made within 24 hours.
The record does not contain a ruling or docket entry on
defendant's motion to modify sentence. However, on April 20,
2007, defendant filed a motion to vacate an April 11, 2007, order
denying defendant's motion to modify sentence and also asked the
trial judge, Richard Klaus, to recuse himself and refer the case
for reassignment. In particular, defendant noted that once
Dolph's testimony was rebutted by defense counsel, Judge Klaus
had to judge the credibility of someone who worked under his
direct supervision. Defendant also argued she was denied effec-
tive assistance of counsel when defense counsel could not argue
for his own credibility.
- 19 -
On April 30, 2007, defendant filed a motion to recon-
sider sentence. The motion asserted the sentence was excessive.
This motion was arguably untimely because it was filed more than
30 days after sentencing. The record does not contain any
indication that the parties or the trial court ever mentioned the
late filing.
On May 16, 2007, Judge Thomas Difanis held a hearing on
defendant's motion to vacate the order and for recusal. Only a
portion of the hearing is contained in the record on appeal.
Judge Difanis granted the motion for recusal and assigned another
judge to hear the motion to reconsider sentence.
On May 24, 2007, the newly assigned judge, Judge
Jeffrey Ford, held a hearing on defendant's motion to reconsider
sentence. Defense counsel argued the grounds raised in both the
motion to modify sentence and the motion to reconsider sentence.
The court denied the motions.
This appeal followed.
II. ANALYSIS
A. This Court Has Jurisdiction Over the Appeal
Before addressing the merits, this court must first
ensure that it has jurisdiction over the appeal. In its appellee
brief, the State notes that while the April 3, 2007,
postsentencing motion was timely, the April 30, 2007, motion to
reconsider was not. The State further notes it is debatable
whether defendant's April 20, 2007, motion to vacate the April
11, 2007, order denying the motion to modify sentence was a
- 20 -
motion directed against the March 28, 2007, judgment. Therefore,
according to the State, it is unclear whether the motion to
vacate extended defendant's time to file a notice of appeal.
However, the State argues that under the revestment doctrine, an
argument can be made that the parties revested the trial court
with jurisdiction over the April 30, 2007, motion to reconsider.
Pursuant to Supreme Court Rule 606(b), a defendant must
file a notice of appeal within 30 days after entry of judgment
or, if a postjudgment motion is timely filed, within 30 days of
the order disposing of that motion. 210 Ill. 2d R. 606(b).
Moreover, "[a] trial court loses jurisdiction to vacate or modify
its judgment 30 days after entry of the judgment unless a timely
postjudgment motion is filed." People v. Minniti, 373 Ill. App.
3d 55, 65, 867 N.E.2d 1237, 1246 (2007).
In this case, the trial court entered the final judg-
ment on March 28, 2007, when it sentenced defendant. Therefore,
any postjudgment motion had to be filed by April 27, 2007.
Defendant filed a timely postjudgment motion on April 9, 2007,
and an untimely motion on April 30, 2007.
Based on defendant's April 20, 2007, motion, the trial
court apparently denied the April 9, 2007, motion to modify
sentence on April 11, 2007. However, a reasonable conclusion can
be drawn from the record that the April 11, 2007, order denying
the April 9, 2007, motion to modify sentence was vacated when
Judge Difanis granted defendant's April 20, 2007, motion to
recuse Judge Klaus. By vacating the April 11, 2007, order, the
- 21 -
timely April 9, 2007, motion to modify remained pending. In
fact, defense counsel, without objection, argued at the May 24,
2007, hearing on the postjudgment motions the issues raised in
both the timely and untimely postjudgment motions.
Because the April 9, 2007, motion remained pending, the
May 24, 2007, order denying the untimely April 30, 2007, motion
to reconsider can be construed as also denying the April 9, 2007,
pending motion to modify. Consequently, the notice of appeal
filed within 30 days of the May 24, 2007, order was timely, and
this court has jurisdiction.
Alternatively, this court finds the parties revested
the trial court with jurisdiction to consider the untimely motion
to reconsider. Under the revestment doctrine, the parties can
revest a court with jurisdiction so long as (1) the court has
general jurisdiction over the matter and personal and subject-
matter jurisdiction over the particular cause; (2) the parties
actively participate without objection; and (3) the proceedings
are inconsistent with the merits of the prior judgment. Minniti,
373 Ill. App. 3d at 65, 867 N.E.2d at 1246. If a trial court is
revested with jurisdiction, then a notice of appeal filed within
30 days after a ruling on the untimely postjudgment motion vests
the appellate court with jurisdiction. Minniti, 373 Ill. App. 3d
at 67, 867 N.E.2d at 1248.
Those factors are present here. The trial court had
general jurisdiction over the matter, as well as personal and
subject-matter jurisdiction over the case. The parties actively
- 22 -
participated in the hearing on the motion to reconsider without
objection. Finally, the motion to reconsider hearing was incon-
sistent with the prior judgment. That is, by participating and
not objecting to the hearing on the motion to reconsider the
sentence, the prosecutor essentially acknowledged that the prior
sentencing judgment should be revisited. See Minniti, 373 Ill.
App. 3d at 67, 867 N.E.2d at 1248, citing People v. Gargani, 371
Ill. App. 3d 729, 732, 863 N.E.2d 762, 766 (2007). Therefore,
the parties revested the trial court with jurisdiction, and this
court has jurisdiction over the appeal.
B. State Not Required To Prove Defendant
Knew Her License Was Suspended
Defendant argues, citing Morissette v. United States,
342 U.S. 246, 96 L. Ed. 288, 72 S. Ct. 240 (1952), that a culpa-
ble mental state is a necessary element of a felony or any
offense with a significant penalty. As such, defendant argues,
the State was required to prove that defendant had knowledge that
her license was suspended when she drove on March 1, 2006. We
disagree.
In Morissette, the defendant was charged with a federal
crime, theft from government land. Morissette, 342 U.S. at 248,
96 L. Ed. at 292, 72 S. Ct. at 242. The statute in question did
not provide a requisite mental state. The United States Supreme
Court reversed the defendant's conviction. The Court found that
the federal law merely adopted a crime defined at common law
which, at common law, required a mental state. Morissette, 342
U.S. at 260-61, 96 L. Ed. at 299, 72 S. Ct. at 248-49. There-
- 23 -
fore, the Court held that the absence of a mental state from the
statute would not be construed as eliminating the mental state
required. Morissette, 342 U.S. at 261-62, 96 L. Ed. at 299-300,
72 S. Ct. at 249. Nothing in the Morissette decision can be
construed as requiring a mental state in all felonies. In fact,
the Morissette Court specifically declined to "delineate a
precise line or set forth comprehensive criteria for distinguish-
ing between crimes that require a mental element and crimes that
do not." Morissette, 342 U.S. at 260, 96 L. Ed. at 299, 72 S.
Ct. at 248; see also Staples v. United States, 511 U.S. 600, 618-
19, 128 L. Ed. 2d 608, 624, 114 S. Ct. 1793, 1804 (1994) (refus-
ing to adopt a rule that the public-welfare-offense rationale
should not be used to interpret any statute defining a felony
offense as dispensing of a mens rea requirement unless Congress
specifically provides that the offense is a strict-liability
offense; but noting that where dispensing with a mens rea would
require the defendant to have knowledge only of traditionally
lawful conduct and where a penalty is severe, such factors
suggest Congress does not intend to eliminate a mens rea require-
ment).
Whether an offense requires proof of a mental state
depends on whether the offense is a misdemeanor or whether the
legislature clearly indicated the intent to impose absolute
liability for the conduct. 720 ILCS 5/4-9 (West 2006). Specifi-
cally, section 4-9 of the Criminal Code of 1961 provides as
follows:
- 24 -
"A person may be guilty of an offense
without having, as to each element thereof,
one of the mental states described in
[s]ections 4-4 through 4-7 if the offense is
a misdemeanor which is not punishable by
incarceration or by a fine exceeding $500, or
the statute defining the offense clearly
indicates a legislative purpose to impose
absolute liability for the conduct
described." 720 ILCS 5/4-9 (West 2006).
"Section 4-9 applies to all criminal penalty provisions, includ-
ing those outside the Criminal Code of 1961." People v. Molnar,
222 Ill. 2d 495, 519, 857 N.E.2d 209, 223 (2006).
1. Standard of Review
Because the issue defendant raises requires an inter-
pretation of the relevant statutes, this court reviews the issue
de novo. People v. Dunn, 365 Ill. App. 3d 292, 294, 849 N.E.2d
148, 149 (2006). When construing a statute, the primary consid-
eration is to determine and give effect to the legislature's
intent. People v. Skillom, 361 Ill. App. 3d 901, 906, 838 N.E.2d
117, 122 (2005). A court must consider the statute in its
entirety. People v. Davis, 199 Ill. 2d 130, 135, 766 N.E.2d 641,
644 (2002). "The most reliable indicator of legislative intent
is the language of the statute, which, if plain and unambiguous,
must be read without exception, limitation, or other condition."
Davis, 199 Ill. 2d at 135, 766 N.E.2d at 644. A statute will not
- 25 -
be interpreted as imposing absolute liability without a clear
indication the legislature intended absolute liability or unless
an important public policy favors absolute liability. Molnar,
222 Ill. 2d at 519, 857 N.E.2d at 223.
2. Plain Language Indicates The Legislature Intended No Mental
State for DUI With a Suspended License
In this case, the State charged defendant with violat-
ing section 11-501(a)(1) of the Vehicle Code (625 ILCS 5/11-
501(a)(1) (West 2006)), which provides that a person shall not
drive while under the influence of alcohol. Generally, such
offense is a misdemeanor. See 625 ILCS 5/11-501(b-2) (West
2006). In this case, however, the offense was elevated to a
Class 4 felony because defendant's license was suspended at the
time. Section 11-501(c-1)(1) of the Vehicle Code provides as
follows:
"A person who violates subsection (a)
during a period in which his or her driving
privileges are revoked or suspended, where
the revocation or suspension was for a viola-
tion of subsection (a), [s]ection 11-501.1,
paragraph (b) of Section 11-401, or for reck-
less homicide as defined in [s]ection 9-3 of
the Criminal Code of 1961 is guilty of a
Class 4 felony." 625 ILCS 5/11-501(c-1)(1)
(West 2006).
The statute does not contain a mental state. This fact
alone does not per se indicate that no mental state is required.
- 26 -
Molnar, 222 Ill. 2d at 519, 857 N.E.2d at 223 (finding that
section 10 of the Sex Offender Registration Act creates a abso-
lute liability offense). However, given the statute's plain
language, the purpose behind the legislation, and the existing
case law, this court concludes that section 11-501(c-1)(1) does
not require proof of a mental state.
The purpose of the DUI statute is to protect people who
walk and drive on the public way. People v. Avery, 277 Ill. App.
3d 824, 830, 661 N.E.2d 361, 365 (1995). In People v. Ziltz, 98
Ill. 2d 38, 42, 455 N.E.2d 70, 72 (1983), the Illinois Supreme
Court held that section 11-501(a)(1) of the Vehicle Code clearly
imposed strict liability and did not require a mental state. The
court found that "[t]he State has a rational basis for curbing
the incidence of drunk driving." Ziltz, 98 Ill. 2d at 43, 455
N.E.2d at 72.
The question here is whether the aggravating factor
that elevated the offense from a misdemeanor to a Class 4 felony
is evidence of the legislature's intent to require a mental
state. In a similar case, Avery, 277 Ill. App. 3d 824, 661
N.E.2d 361, the court concluded that a similar enhancement did
not indicate such an intent.
In Avery, the defendant was charged with DUI. The
offense was elevated from a misdemeanor offense to a felony
because the defendant was involved in a motor vehicle accident
that resulted in great bodily harm. Avery, 277 Ill. App. 3d at
828, 661 N.E.2d at 364. In determining whether the trial court
- 27 -
properly refused to entertain an insanity defense, the Avery
court concluded that the addition of the aggravating factors--
involvement in a motor-vehicle accident--did not signal an intent
by the legislature to add a mental state to the offense. Avery,
277 Ill. App. 3d at 830, 661 N.E.2d at 365. The court concluded
that the essential crime remained the same, and the evil the
statute intended to remedy remained the same. Avery, 277 Ill.
App. 3d at 830, 661 N.E.2d at 365.
Similarly, the factor in this case that caused the
offense to elevate from a misdemeanor into a Class 4 felony--DWS
--does not change the essential crime. Moreover, the evil the
statute intended to remedy remained the same.
In addition, a conviction for DWS does not require
proof of the defendant's receipt of notice or knowledge of the
suspension. See People v. Johnson, 170 Ill. App. 3d 828, 832,
525 N.E.2d 546, 550 (1988). Because no mental state is required
for DWS or DUI, it follows that no mental state is required for
DUI with the aggravating factor that the driver's driving privi-
leges were suspended. The State was not required to prove that
defendant knew her license was suspended.
C. Failure To Instruct Jury To Find that Defendant's
License Was Suspended Due to Her Prior Violation
of Section 11-501.1 Was Harmless Error
Defendant next argues that the jury was not instructed
to find that defendant's license was suspended due to a statutory
summary suspension. The State concedes that under Apprendi v.
New Jersey, 530 U.S. 466, 490, 147 L. Ed. 2d 435, 455, 120 S. Ct.
- 28 -
2348, 2362-63 (2000), any fact other than a prior conviction
"that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond
a reasonable doubt." The State further concedes that a statutory
summary suspension is not a conviction and that the grounds for
defendant's suspension increased the penalty beyond the pre-
scribed statutory maximum. See People v. Dvorak, 276 Ill. App.
3d 544, 552, 658 N.E.2d 869, 876-77 (1995) (a statutory summary
suspension proceeding is civil in nature and its purpose is not
to convict the defendant of an offense). Therefore, the State
agrees with defendant that the issue should have been submitted
to the jury.
The State argues, however, that a jury instruction that
omits an element of the offense is an error subject to the
harmless-error analysis. The State further argues that the error
here was harmless because the evidence concerning the grounds for
defendant's license suspension was uncontested and overwhelming.
We agree.
A jury instruction that omits an element of an offense
is an error subject to harmless-error review. Neder v. United
States, 527 U.S. 1, 15, 144 L. Ed. 2d 35, 51, 119 S. Ct. 1827,
1837 (1999); People v. Thurow, 203 Ill. 2d 352, 368, 786 N.E.2d
1019, 1028 (2003) (finding that the failure to instruct the jury
as to the element of the crime that the victim was a member of
defendant's household was harmless error). Omitting an element
of the offense from a jury instruction is harmless if the review-
- 29 -
ing court determines, beyond a reasonable doubt, that the error
did not contribute to the verdict. Neder, 527 U.S. at 15, 144 L.
Ed. 2d at 51, 199 S. Ct. at 1837. This can be shown where the
omitted element was uncontested and supported by overwhelming
evidence. Thurow, 203 Ill. 2d at 369, 786 N.E.2d at 1028.
Here, overwhelming evidence supports the conclusion
that defendant's license was suspended due to a statutory summary
suspension. The record contains an undated stipulation signed by
counsel for defendant and the State. However, the record is
incomplete regarding the use of this stipulation. The appellant
has the burden to present a sufficient record and doubts are
resolved against the appellant. See People v. Kamide, 254 Ill.
App. 3d 67, 74, 626 N.E.2d 337, 342 (1993) (holding that without
a sufficient record to reflect the evidence on the missing
element of the charge, the court was unable to determine whether
overwhelming evidence existed and therefore resolved those doubts
against the defendant). Defendant did not provide this court
with an adequate record. Therefore, this court resolves any
doubts against defendant and concludes that the stipulation was
used at trial.
The stipulation provided that defendant "received a
traffic citation for DUI in DuPage County on January 8, 2006."
The stipulation also provided that defendant's "statutory summary
suspension based upon the DUI in DuPage County began on February
23, 2006." This, along with the other evidence admitted at
trial, demonstrates that on March 1, 2006 (five days after the
- 30 -
suspension began), defendant was DWS pursuant to a statutory
summary suspension. Notably, the trial court admitted into
evidence, without objection, defendant's driver's license ab-
stract from the Secretary of State. Sergeant Chacon testified he
checked the status of defendant's driver's license and learned it
was suspended. This evidence demonstrates beyond a reasonable
doubt that defendant's license was suspended due to a statutory
summary suspension. As such, the failure to instruct the jury on
the this element was harmless error.
Alternatively, this court also finds the record sup-
ports the conclusion that defendant affirmatively chose not to
submit this issue to the jury. The stipulation supports that
conclusion. In addition, the statement of the nature of the
case, to which defendant did not object, provided that in count
I, defendant was charged with committing DUI, and in count II,
defendant was charged with DWS. The statement of the case says
nothing about a requirement that the jury find, on count I, that
defendant's license was suspended due to a prior statutory
summary suspension.
Moreover, it appears defendant did not tender an
instruction on count II requesting that the jury find that her
license had been suspended for a prior statutory summary suspen-
sion. The only instruction defendant submitted on the issue was
one requesting that the jury find that defendant had notice of
her suspension. The trial court denied that request. Based on
the record, defense counsel appears to have made a tactical
- 31 -
decision to stipulate to her prior suspension. She cannot now be
heard to complain.
As a final note on this issue, this court notes that--
insofar as the record on appeal shows--the jury instructions in
this case were not marked as "given" or "refused." Section 2-
1107 of the Code of Civil Procedure requires the court mark all
instructions "refused" or "given" and maintain all originals and
copies of the instructions, whether given, modified or refused,
in the record of the proceedings. 735 ILCS 5/2-1107(a),(b) (West
2006). Doing so in this case would have been extremely helpful
to this court's review.
D. Trial Court Did Not Err by Denying Defendant
a Hearing on Her Motion To Suppress Evidence
for Lack of Probable Cause To Arrest
Defendant argues the trial court erred by granting the
State's motion to strike and denying her a hearing on her motion
to suppress evidence for lack of probable cause for the arrest.
Specifically, defendant argues that absent a Frye hearing to
establish the scientific validity of the HGN test, the HGN test
could not be used by the officers to determine probable cause.
Defendant asserts that an arrest made, at least in part, on
probable cause derived from an HGN test is invalid. As such,
defendant asserts that the arrest must be "quashed" and the
evidence flowing from that arrest, including the breath test,
must be suppressed.
The trial court has the authority to control its own
docket and require compliance with its procedural rules. People
- 32 -
v. Garcia, 312 Ill. App. 3d 422, 423, 727 N.E.2d 683, 685 (2000).
This court will not reverse the court's order granting the motion
to strike absent an abuse of that discretion. See, e.g.,
Garcia, 312 Ill. App. 3d 423, 727 N.E.2d at 685.
The Illinois Supreme Court has recently held that
before the results of an HGN test can be admitted into evidence
at trial, HGN testing must meet the Frye standard. People v.
McKown, 226 Ill. 2d 245, 258, 875 N.E.2d 1029, 1037 (2007)
(remanding the cause to the trial court for a Frye hearing to
determine whether the HGN test as been generally accepted as a
reliable indicator of alcohol impairment). However, this court
need not decide whether probable cause can be based on an HGN
test absent a Frye hearing because the record demonstrates
sufficient evidence separate and apart from the HGN test sup-
ported probable cause. See, e.g., Kirk, 289 Ill. App. 3d at 334,
681 N.E.2d at 1078-79 (finding admission of HGN test at trial
without a Frye hearing was harmless in light of the other evi-
dence of the defendant's guilt).
In this case, the trial court did not abuse its discre-
tion by granting the State's motion to strike because the record
demonstrates sufficient probable cause supported defendant's
arrest. Probable cause to arrest exists when the totality of
facts and circumstances within the officer's knowledge would lead
a person of reasonable caution to believe that an offense has
been committed and that the person apprehended has committed the
offense. People v. Gray, 305 Ill. App. 3d 835, 838, 713 N.E.2d
- 33 -
781, 783 (1999). In assessing the existence of probable cause,
an objective inquiry into the police officer's conduct is used.
People v. Smith, 156 Ill. App. 3d 596, 600, 509 N.E.2d 1345, 1348
(1987).
Here, Sergeant Chacon testified he observed defendant's
car turn and strike a raised median with all four tires. Defen-
dant was wearing several colored beads, beads Sergeant Chacon
knew the bars gave out around Mardi Gras. Sergeant Chacon
described defendant's eyes as being watery and red and her speech
as slightly slurred. Defendant admitted having had three drinks.
An odor of alcohol emanated from the open window of defendant's
car. Sergeant Chacon had defendant perform preexit and field-
sobriety tests from which he concluded defendant was impaired by
alcohol. As such, sufficient evidence of probable cause was
shown. See, e.g., People v. Brodeur, 189 Ill. App. 3d 936, 941,
545 N.E.2d 1053, 1056 (1989) (finding probable cause where the
offer testified the driver had bloodshot eyes, slurred speech, a
strong odor of alcohol on the breath, and had been in a motor-
vehicle accident); People v. Cortez, 361 Ill. App. 3d 456, 464,
837 N.E.2d 449, 457 (2005) (odor of alcohol on the defendant's
breath, the defendant's slurred speech, swaying, bloodshot eyes,
and admission to drinking supported finding of probable cause for
arrest for DUI).
E. Trial Court Did Not Abuse Its Discretion by Limiting
Defendant's Cross-Examination and Argument
on the Reliability of the Breath Test
Defendant next argues the trial court erred by limiting
- 34 -
her cross-examination and closing argument regarding the reli-
ability of the breath test as it was administered in this case.
1. Standard of Review
This court reviews a trial court's evidentiary rulings
for an abuse of discretion. People v. Britt, 265 Ill. App. 3d
129, 146, 638 N.E.2d 282, 294 (1994) (the trial court has the
discretion to limit the scope of cross-examination and such
ruling will not be reversed absent an abuse of discretion);
People v. Millighan, 265 Ill. App. 3d 967, 974, 638 N.E.2d 1150,
1156 (1994) (the trial court has the discretion to limit the
character and scope of closing argument).
2. Trial Court Did Not Abuse Its Discretion
Defendant first argues the trial court improperly
limited her cross-examination of Sergeant Chacon. Defendant
sought to cross-examine Sergeant Chacon on whether anything short
of vomiting where the contents of the stomach are brought up into
the mouth would affect the breath test and whether such event
occurred during the observation period.
A court may limit cross-examination of a witness to
prevent minimally relevant questioning or confusion of the
issues. Britt, 265 Ill. App. 3d at 146, 638 N.E.2d at 294.
Defendant must demonstrate not only that the trial court abused
its discretion but must also show the abuse of discretion re-
sulted in "manifest prejudice." Britt, 265 Ill. App. 3d at 146,
638 N.E.2d at 294; see also People v. Jackson, 303 Ill. App. 3d
583, 587, 715 N.E.2d 252, 255 (1999) (finding that even if a
- 35 -
trial court abuses its discretion, a new trial is not warranted
if the error is harmless beyond a reasonable doubt).
Here, the trial court did not abuse its discretion by
limiting defense counsel's cross-examination because the issue
defense counsel intended to raise had no basis in the evidence.
Officer Chacon did not testify that regurgitation would affect
the test, and defense counsel had identified no expert he in-
tended to call to testify in that regard.
Moreover, the applicable regulations no longer prohibit
regurgitation during the 20-minute observation period. Pursuant
to section 11-501.2 of the Vehicle Code, breath-alcohol test
results are admissible if the test is performed according to the
standards promulgated by the Department of State Police. See 625
ILCS 5/11-501.2 (West 2006). Prior to the 2004 amendments, the
applicable regulations provided that the subject shall not have
"regurgitated or vomited" during the 20-minute observation period
and if the subject "regurgitates or vomits," the process will
start again. See 20 Ill. Adm. Code §1286.310(a), adopted at 25
Ill. Reg. 3023, 3042-43 (eff. February 1, 2001); People v.
Bonutti, 212 Ill. 2d 182, 817 N.E.2d 489 (2004) (holding that the
test was valid if the subject did not regurgitate during the 20-
minute observation period regardless of whether the officer saw
the subject regurgitate). However, the regulations now provide
that for a breath test result to be admissible, the subject must
not have vomited during a 20-minute period. 20 Ill. Adm. Code
§1286.310(a), as amended by 28 Ill. Reg. 10017, 10038 (eff. June
- 36 -
30, 2004). Section 1286.310(a) of Title 20 of the Illinois
Administrative Code provides the following standards:
"The following procedures shall be used
to obtain a breath sample to determine a
subject's BrAC with an approved evidentiary
instrument:
a) Prior to obtaining a breath analysis
reading from a subject, the BAO or another
agency employee shall continuously observe
the subject for at least 20 minutes.
1) During the 20[-]minute
observation period the subject
shall be deprived of alcohol and
foreign substances and shall not
have vomited.
2) If the subject vomits dur-
ing the observation (deprivation)
period, the process shall be
started over by having the individ-
ual rinse the oral cavity with
water.
3) If the individual continues
to vomit, alternate testing shall
be considered." 20 Ill. Adm. Code
§1286.310(a), as amended by 29 Ill.
Reg. 10017, 10038 (eff. June 30,
- 37 -
2004).
Defendant, by attempting to ask about actions other
than vomiting, attempted to introduce an issue into the case
without any evidence in support thereof. Therefore, the trial
court's ruling limiting defendant's cross-examination on that
subject was not an abuse of discretion.
Defendant also argues the trial court erred by limiting
her closing argument and not allowing her to comment on the
efficacy of Sergeant Chacon's observation of defendant. Even if
the trial court abused its discretion by not allowing counsel to
comment on the efficacy of Sergeant's Chacon's observation in
closing argument, the lack of a record precludes this court from
concluding that defendant suffered prejudice. Without the
transcript of closing argument, this court cannot determine
whether the court's limitation affected defendant's closing
argument. Because it was defendant's burden to provide this
court with an adequate record, any deficiency in the record is
construed against her. See, e.g., People v. Fernandez, 344 Ill.
App. 3d 152, 160, 799 N.E.2d 944, 951 (2003) (any doubts arising
from an incomplete record on appeal are resolved against the
appellant, who had the responsibility to present a complete
record on appeal). This court, therefore, finds any error by the
court in limiting defendant's closing argument was harmless.
F. Trial Court Did Not Err by Denying
Motion To Suppress Statements
Defendant argues the trial court erred by denying her
motion to suppress statements. Defendant argues "the officer did
- 38 -
not determine the [d]efendant understood the warnings and did not
obtain a waiver." Defendant also argues her will was overborne
"by the thorough chilling over an extended period of time."
1. Standard of Review
Whether a trial court properly decided a motion to
suppress presents questions of both law and fact. In re Christo-
pher K., 217 Ill. 2d 348, 373, 841 N.E.2d 945, 960 (2005). This
court will reverse a trial court's credibility determinations and
findings of fact only if they are against the manifest weight of
the evidence. In re Christopher K., 217 Ill. 2d at 373, 841
N.E.2d at 960. This court reviews de novo the ultimate legal
question of whether the statements should be suppressed. In re
Christopher K., 217 Ill. 2d at 373, 841 N.E.2d 960.
2. Denial of Motion To Suppress Issue Moot
or, Alternatively, Not Error
This court's review is severely hampered by defendant's
brief and the record on appeal. Defendant did not identify in
the trial court or on appeal the specific statements she sought
to suppress. The record is unclear whether the court admitted
any of the statements obtained during custodial interrogation
into evidence at trial. While this court has a portion of the
trial transcript, the record does not contain either a transcript
or the actual videotape or DVD admitted into evidence and pub-
lished to the jury. If the trial court did not admit any of the
statements allegedly received in violation of Miranda, the issue
is moot because those statements could not have formed the basis
for the jury's verdict. Cf., e.g., People v. Savory, 105 Ill.
- 39 -
App. 3d 1023, 1027, 435 N.E.2d 226, 230 (1982) (noting that the
defendant was not collaterally estopped from seeking review of
the denial of a motion to suppress in his second trial, despite
not seeking review of the same motion in his first trial, because
the prosecution did not rely on the statements in the first trial
and the issue would have been considered moot on review in the
first appeal).
Even assuming the issue is not moot, this court finds
no error. Defendant argues she did not understand the waiver.
Her brief does not indicate why she did not understand the
waiver. Evidence of intoxication alone is not sufficient to
render a statement unknowing. See People v. Silas, 278 Ill. App.
3d 400, 405, 663 N.E.2d 443, 447-48 (1996) (statements should be
suppressed only where a defendant is so grossly intoxicated that
she lacked the capacity to knowingly waive her rights). Defen-
dant does not argue she was so grossly intoxicated that she
lacked the capacity to waive her rights. Moreover, Sergeant
Chacon testified that defendant appeared to understand what he
told her.
Defendant also asserts that Sergeant Chacon failed to
obtain from defendant a waiver of defendant's Miranda rights.
Concededly, Sergeant's Chacon's testimony about defendant waiving
her Miranda rights was not clear. He initially testified he gave
defendant the opportunity to waive her Miranda rights by asking
her if she was willing to discuss the matter further. After
watching a portion of the videotape, Sergeant Chacon admitted he
- 40 -
never said, "Are you willing to waive those rights and talk to
me."
While any clear manifestation of a desire to waive is
sufficient, the statements are inadmissible if nothing in the
record shows a clear intent by the defendant to waive Miranda
rights. People v. Landgham, 122 Ill. App. 2d 9, 18, 257 N.E.2d
484, 488 (1970). Here, because defendant failed to provide this
court with the videotape of the interrogation, this court cannot
determine whether defendant manifested a clear desire to waive
her rights. Because defendant bore the burden of providing the
court with an adequate record, this court resolves the issue
against defendant. People v. House, 202 Ill. App. 3d 893, 908,
560 N.E.2d 1224, 1234 (1990); Fernandez, 344 Ill. App. 3d at 160,
799 N.E.2d at 951 (any doubts arising from an incomplete record
on appeal are resolved against the appellant). Given defendant's
failure to provide an adequate record, this court has no basis on
which to reverse the trial court's ruling on the motion to
suppress.
Finally, defendant argues her will was overborne
because she was cold. Whether a defendant's will is overborne
depends upon the totality of the circumstances, the characteris-
tics of the defendant, and the details of the interrogation.
People v. Berry, 123 Ill. App. 3d 1042, 1044, 463 N.E.2d 1044,
1047 (1984). Again, given the absence of the videotape or
transcript thereof on appeal, this court cannot review this
issue. Moreover, nothing in the record before this court sup-
- 41 -
ports the assertion that the temperature of the room created a
coercive environment that rendered any statements involuntary.
See, e.g., Hart v. State, 852 So. 2d 839, 847 (Ala. Crim. App.
2002) (finding that even though the defendant complained about
the temperature and requested additional clothing, nothing in the
record indicated that the cold temperature influenced his deci-
sion to speak or caused his will to be overborne).
G. Trial Court Did Not Err by Denying Bill of Particulars
Defendant next argues the trial court abused its
discretion by denying her motion for a bill of particulars.
Defendant claims her motion was timely because it was filed
within four days of the State charging her with count II.
Defendant asserts, without citation to authority, that discovery
is not a substitute to a motion for a bill of particulars.
Section 114-2(a) of the Code of Criminal Procedure of
1963 provides that a motion for a bill of particulars must be
filed within a reasonable time after arraignment. 725 ILCS
5/114-2(a) (West 2006). "The purpose of a bill of particulars is
to give the defendant notice of the charge and to inform the
defendant of the particular transactions in question, thus
enabling preparation of a defense." People v. Woodrum, 223 Ill.
2d 286, 301-02, 860 N.E.2d 259, 270 (2006). If the indictment
sufficiently informs the defendant of the charged offense, no
need for a bill of particulars exists. Woodrum, 223 Ill. 2d at
302, 860 N.E.2d at 270. Moreover, this court can also consider
any discovery the State furnishes when determining the necessity
- 42 -
of a bill of particulars. See, e.g., People v. Smith, 259 Ill.
App. 3d 492, 497, 631 N.E.2d 738, 742 (1994) (noting that a
defendant who claims that a charging instrument, combined with
any discovery the State furnished, is insufficient to prepare a
defense, she should seek a bill of particulars). A trial court's
ruling on a motion for a bill of particulars will not be reversed
absent an abuse of discretion. Woodrum, 223 Ill. 2d at 302, 860
N.E.2d at 270.
In this case, the trial court arraigned defendant on
June 1, 2006, on count I, and on January 5, 2007, on count II.
Therefore, the motion for a bill of particulars was timely only
as to count II. However, because the trial court vacated count
II after trial, defendant was not prejudiced by the denial of the
motion for a bill of particulars on count II.
In any event, the trial court did not abuse its discre-
tion by denying the request for a bill of particulars because the
information and the State's discovery sufficiently informed
defendant of the charged offenses. Defendant's bill of particu-
lars sought the date, time, and location of the alleged offenses,
the name of any persons present who witnessed the alleged of-
fenses, and the length of time the alleged conduct continued.
The informations gave the date of both offenses, the location
(Urbana), and the nature of the offenses. The discovery fur-
nished by the State in June 2006 gave defendant the date and time
of the alleged offenses, the arresting officer's name, defen-
dant's driving abstract from the Secretary of State, and police
- 43 -
reports that, among other things, identified defendant's front-
seat passenger. Consequently, the court did not abuse its
discretion by denying the motion for a bill of particulars.
H. Defendant Has Forfeited Issue That
Her Sentence Is Excessive
Defendant last argues her sentence was excessive.
However, the record on appeal does not contain a transcript of
the March 28, 2007, sentencing hearing. Without a transcript,
this court cannot determine whether the trial court abused its
discretion because, for example, this court does not know what
factors influenced the court's decision, whether the court
considered mitigating factors, and whether the court considered
certain aggravating factors.
Moreover, defendant fails to cite any authority in
support of her arguments, not even the standard of review.
Points not argued with citation to authority are forfeited. See
210 Ill. 2d Rs. 341(h)(7), 612(i).
III. CONCLUSION
For the reasons stated, we affirm the trial court's
judgment. As part of our judgment, we grant the State's request
that defendant be assessed $75 as costs for this appeal.
Affirmed.
McCULLOUGH and TURNER, JJ., concur.
- 44 -