People v. Day

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Appellate Court Date: 2020.06.12
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People v. Day, 2019 IL App (4th) 160217-BAppellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption WILLIAM E. DAY, Defendant-Appellant.
District & No. Fourth District
No. 4-16-0217
Filed September 10, 2019
Decision Under Appeal from the Circuit Court of Macon County, No. 15-CF-1123; the
Review Hon. James R. Coryell, Judge, presiding.
Judgment Affirmed in part and remanded with directions.
Counsel on James E. Chadd, Jacqueline L. Bullard, and Jessica L. Fangman of
Appeal State Appellate Defender’s Office, of Springfield, for appellant.
Jay Scott, State’s Attorney, of Decatur (Patrick Delfino, David J.
Robinson, and Kathy Shepard, of State’s Attorneys Appellate
Prosecutor’s Office, of counsel), for the People.
Panel JUSTICE CAVANAGH delivered the judgment of the court, with
opinion.
Justices Knecht and Turner concurred in the judgment and opinion.
OPINION
¶1 A jury found defendant, William E. Day, guilty of driving under the combined influence
of alcohol and cannabis (625 ILCS 5/11-501(a)(5) (West 2014)) and driving while his driver’s
license was revoked (id. § 6-303(d-2)). The Macon County circuit court sentenced him to
concurrent terms of imprisonment.
¶2 Defendant appeals on five grounds.
¶3 First, he argues that the evidence is insufficient to support the convictions. Our deferential
standard of review compels us to disagree.
¶4 Second, defendant claims that the prosecutor committed plain error by repeatedly
attempting to introduce hearsay in the teeth of multiple sustained objections. The transcript of
the jury trial does not bear out that claim.
¶5 Third, defendant complains that the circuit clerk imposed fines upon him that the trial court
never imposed in its sentence. We cannot legitimately take cognizance of the clerk-imposed
fines since they can be found only in a “Payment Status Information” sheet, a document that
(contrary to our earlier ruling, which we rescind) does not belong in the common-law record.
¶6 Fourth, defendant claims he is entitled to an additional day of presentence credit. In part E
of the opinion that we issued in this appeal on January 22, 2019 (People v. Day, 2019 IL App
(4th) 160217, ¶¶ 65-69), we addressed defendant’s claim for the additional day of presentence
credit. On May 22, 2019, the supreme court denied defendant’s petition for leave to appeal but,
in the exercise of its supervisory authority, directed us to vacate part E and remand this case to
the circuit court, where, pursuant to Illinois Supreme Court Rule 472 (eff. May 17, 2019),
defendant may raise his claim for an additional day of presentence credit. In this new version
of our opinion, we comply with the supervisory order.
¶7 Fifth, just as defendant claims he is entitled to an additional day of presentence credit, he
claims that, for the same day, he is entitled to an additional $5 of monetary credit against his
fines. In part F of the previous version of our opinion in this appeal, we addressed that claim
as well. See Day, 2019 IL App (4th) 160217, ¶¶ 70-73. In its supervisory order, the supreme
court directed us to vacate part F and to remand this case to the circuit court for proceedings
pursuant to Rule 472. People v. Day, No. 124518 (Ill. May 22, 2019) (supervisory order).
Accordingly, in this new version of our opinion, we do so.
¶8 Therefore, we affirm the convictions, and we affirm the sentences except for the
presentence credit and the fines; we remand this case for further proceedings on defendant’s
claims for an additional day of presentence credit and an additional $5 of monetary credit
against his fines, after which the circuit court shall either leave the presentence credit and fines
unchanged or make adjustments, as the evidence warrants.
¶9 I. BACKGROUND
¶ 10 A. The Jury Trial (January 20 to 21, 2016)
¶ 11 1. The Testimony of Joseph Herbert
¶ 12 On September 8, 2015, at about 9 p.m., a Macon County deputy sheriff, Joseph Herbert,
drove his squad car to the intersection of Kruse Road and Illinois Route 121, south of Mt. Zion,
Illinois, to investigate a reported single-vehicle accident.
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¶ 13 At the southeast corner of the intersection, a black 1975 Chevrolet pickup truck had come
to rest. Herbert took photographs. The truck had “front[-]end damage to the middle grill,
bumper region,” as if it had “struck a tree or pole or something of that nature,” and leaves were
entangled in the grill. The engine was off, but the headlights were still on, and the key was in
the ignition. Nobody was in the truck or anywhere in sight. “On the driver’s seat floorboard[,]
there was a black cell phone and one orange flip-flop.”
¶ 14 About three-quarters of a mile north, in the 5400 block of Kruse Road, a camper, or
“topper,” was on the ground. It had sustained “extensive damage to the front.” “[O]nce it
became separated from the vehicle,” it had “more or less collapsed on itself.” Herbert inferred
that the 5400 block of Kruse Road was the “original accident scene”—he found the tree that
the truck apparently had struck—and that, “[a]fter the camper became separated from the
vehicle, the vehicle continued [south] from the accident scene.”
¶ 15 About 57 minutes after Herbert arrived at the scene, a call came in from a third party,
requesting a welfare check of “a white male” who was walking south on Illinois Route 121,
south of Herbert’s location. Herbert sent another deputy sheriff, Shane Wendell, to check on
that man and make sure he was all right. After a while, Wendell returned with defendant, whose
last known address was 1770 East Locust Street, Decatur, Illinois, about six to eight miles
away from the intersection of Kruse Road and Illinois Route 121.
¶ 16 Defendant had “red bloodshot eyes.” He was shoeless, and his bare feet were muddy. A
“strong odor of [an] alcoholic beverage [was] coming from his breath,” and he “sway[ed]
[from] side to side” as Herbert talked with him. Wendell handed Herbert “a small white tin,”
which Wendell had “located on [defendant] prior to transporting him back to [the] scene.”
Inside the tin was a “[s]mall amount of green leafy substance,” which field tested positive for
cannabis. Defendant admitted to Herbert that, before the accident, he “consumed beer and
smoked cannabis.”
¶ 17 Because defendant appeared to have a cut on his upper lip, Herbert asked him if he had
suffered any injury in the accident. Defendant answered no and explained that the sore on his
upper lip was herpes, which he had caught, he said, from prostitutes. Herbert asked him if he
had been the driver. Defendant answered he had not. He said that, instead, his friend Buddy
Young had been the driver and that, after the accident, Young had chosen to walk north on
Illinois Route 121 whereas he, defendant, had chosen to walk south. Defendant was unable,
however, to provide any description of Young other than to say he was “a black male.” Herbert
asked defendant how long he had known Young. Defendant answered he did not know. Herbert
asked defendant where Young could be located. Defendant again answered he did not know.
¶ 18 The prosecutor asked Herbert:
“Q. Did you ask him about the cell phone that was located inside the vehicle?
A. Yes, ma’am.
Q. What was his response to that?
A. He said it was his phone.
Q. Did you ask him about the shoe that was found inside the vehicle?
A. Yes, ma’am.
Q. And what was his response?
A. He said it was his flip—shoe.”
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¶ 19 Herbert requested defendant to undergo a field sobriety test. He refused. Herbert then
arrested him for driving under the influence (DUI) and for leaving the scene of an accident.
¶ 20 Herbert “turned the video camera around and filmed [defendant] on the way to jail.” It
appeared from the video footage that defendant now and then leaned over against the interior
of the squad car and fell asleep.
¶ 21 In the jail, before asking defendant to undergo chemical testing to measure his blood
alcohol content—a request that defendant ultimately refused—Herbert was required to read to
him a warning of the penalties he would incur should he refuse to undergo the test. Herbert
testified: “He bec[a]me belligerent, was screaming over me when I was trying to advise him.
And at one point he stood up and took an aggressive posture, and I thought we [were going to]
fight.” Herbert called the jail sergeant, Kristopher Thompson, to come in and stand nearby so
that he, Herbert, would not be attacked.
¶ 22 Herbert had been a deputy for the Macon County Sheriff’s Department since 2005 and
“probably [had] encountered hundreds of intoxicated people while at work.” In his opinion,
defendant was intoxicated that night.
¶ 23 On cross-examination, Herbert testified that potential inmates first were brought to the sally
port of the county jail. The sally port was a large garage with a garage door on each end. Then
they were brought into the prebooking area, or if they were suspected of DUI, they were
required to wait for 20 minutes in the DUI processing room. State rules of procedure for DUI
testing required that before administering a breath test to an arrestee, the arrestee had to be
observed for 20 minutes to ensure the arrestee did not vomit or eat anything during that 20-
minute period.
¶ 24 2. The Testimony of Shane Wendell
¶ 25 On September 8, 2014, at about 10:04 p.m., Wendell saw a man walking south on Illinois
Route 121, about a mile south of the accident site. It was defendant. Defendant told Wendell
who he was, and he presented a state identification card. Defendant was wearing no shoes, and
he appeared to be “highly intoxicated”: his breath smelled like alcohol, and his speech was
slurred. In defendant’s “left front pocket,” Wendell found “a white cannister,” which contained
a “substance *** that had the odor and appearance of cannabis.” Wendell “took him back to
the scene of the accident,” Illinois Route 121 and Kruse Road.
¶ 26 3. The Testimony of Kristopher Thompson
¶ 27 On September 8, 2015, around 11:55 p.m., when Kristopher Thompson was on duty as “an
administrative sergeant” “in charge of the third shift jail,” Herbert “requested assistance
because [an] arrestee was causing him some trouble.” The arrestee was defendant.
¶ 28 In his job, Thompson saw intoxicated people every night, and in his opinion defendant was
“extremely intoxicated.” He was combative, belligerent, and aggressive, and he was not
following commands.
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¶ 29 4. The Sustained Objections to Herbert’s
Testimony Regarding the Registered Ownership of the Truck
¶ 30 The prosecutor asked Herbert on direct examination:
“Q. What did you do to try to figure out who the driver [of the pickup truck] was?
A. I ran their license plate through M.S.O. dispatch[,] and they advised it checked
back to two individuals.
MR. REUTER [(DEFENSE COUNSEL)]: Objection, Your Honor.
THE COURT: Hearsay. Sustained.”
¶ 31 Later in her direct examination, the prosecutor asked Herbert whom Wendell brought with
him to the scene of the accident. Herbert answered:
“A. One of registered owners of the vehicle, [defendant].
MR. REUTER: Objection, Your Honor. You want us to approach, or—
THE COURT: I’m going to ask them to disregard the registered owner part of this
and say he brought back [defendant].”
¶ 32 On redirect examination, the prosecutor asked Herbert:
“[MS. COURI (PROSECUTOR)]: When Deputy Wendell located an individual by
the name of William Day, why did you ask that he be transported back to your scene?
A. The vehicle checked to William Day.
MR. REUTER: Objection, Your Honor.
MS. COURI: Your Honor, I would argue that that is not offered for the truth of the
matter asserted, but why he was proceeding in the investigation in the manner he did.
THE COURT: I think the evidence we have is that he was brought back. I’m going
to leave it at what we have. We have evidence that he was brought back. So[,]
sustained.”
¶ 33 5. Exhibits Admitted
¶ 34 The trial court admitted the photographs Herbert had taken of the truck and the camper
(People’s exhibit No. 1) and the package of cannabis (People’s exhibit No. 2) but decided not
to send the latter exhibit to the jury room. The State also offered a certified copy of defendant’s
driving abstract (People’s exhibit No. 3), which the court admitted, but because the abstract
was “a full listing” and included convictions, the court decided against publishing the abstract
to the jury. Instead, the court instructed the jury: “People’s exhibit [No.] 3 has been received
in evidence. It is a certified copy of the records of the Secretary of State indicating that on
September 8, 2015, [defendant’s] driver’s license was revoked.”
¶ 35 6. The Verdict
¶ 36 On January 21, 2016, the jury found defendant guilty of both DUI and driving while his
driver’s license was revoked.
¶ 37 B. The Sentence
¶ 38 On March 11, 2016, after denying a motion by defendant for a new trial or, alternatively,
for a judgment notwithstanding the verdict, the trial court sentenced him to concurrent terms
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of five years’ imprisonment for DUI and two years’ imprisonment for driving while his driver’s
license was revoked. (Defendant had been convicted of DUI twice before.) The court also
imposed three fines: $1000 for driving under the influence, $100 for the trauma fund, and $5
as a spinal cord fee.
¶ 39 After imposing those fines, the trial court stated: “I have 154 days served,” and the court
asked: “Does anybody else have a chance to calculate that?” Defense counsel responded:
“MR. RUETER: I would say 155 [days], Judge. [Because] you would include the
first day of arrest, the 9th.
MS. COURI: That is fine.
THE COURT: Okay. 155 days. He is given an incarceration credit[,] then[,] on his
fines of $775 dollars [sic]. Anything else we need to—and he is also sentenced to two
years of mandatory supervised release or parole upon his release. Anything else we
need to do before we get to [the Rule] 605 [admonitions], State?
MS. COURI: I don’t believe so. Thank you, sir.
THE COURT: Mr. Rueter?
MR. RUETER: And I’m so sorry, Judge, looking at that again, I think it is 185
[days], actually.
THE COURT: I’ve got—
MR. RUETER: Twenty-two days of September.
THE COURT: Thirty-one [days] in October, [30 days] in November, [31 days] in
December, and you got [31 days] in January, [29 days] in February, and [10 days] in
March.
MR. RUETER: Right. I think, well, I think that comes up to 185 [days].
THE COURT: Let’s just get out the calculator and see what it comes up to.
MR. RUETER: There would be a credit of—Well, actually, 184 [days]. So[,] it
would be a credit of $920.
THE COURT: I think you may be right. [One hundred eighty-four] days. You are
right, 184 [days]. And then $920. Okay. [One hundred eighty-four] days, $920
incarceration credit. Now, we ready for the [Rule] 605 admonitions?
MR RUETER: Yes, sir.”
¶ 40 C. The Motion to Reduce the Sentence
¶ 41 On March 14, 2016, defendant filed a motion to reduce the sentence, which the trial court
denied on March 17, 2016.
¶ 42 This appeal followed.
¶ 43 II. ANALYSIS
¶ 44 A. The Irrelevance of the Corpus Delicti Rule
¶ 45 Defendant invokes the corpus delicti rule, which provides that “the occurrence of a crime
cannot be established solely by a defendant’s uncorroborated confession.” People v. Richmond,
341 Ill. App. 3d 39, 42 (2003). Because defendant never confessed to either of the charged
offenses, the corpus delicti rule that “an uncorroborated confession is insufficient to support a
conviction” is inapplicable. People v. Mendoza, 208 Ill. App. 3d 183, 203 (1991). There is a
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difference between, on the one hand, confessing to a crime and, on the other hand, admitting
facts that, taken with other facts, tend to increase the probability of one’s guilt. People v.
Manske, 399 Ill. 176, 185 (1948).
¶ 46 B. The Sufficiency of the Evidence
¶ 47 According to defendant, the State failed to prove, beyond a reasonable doubt, that he drove
under the combined influence of alcohol and cannabis. When a defendant contends, on appeal,
that the evidence in the trial is insufficient to support his conviction, we do not retry the
defendant. People v. Digirolamo, 179 Ill. 2d 24, 43 (1997). Instead, our “standard of review is
whether, after viewing all the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.” Id. We apply this standard regardless of whether the evidence was direct or
circumstantial. Id. “Circumstantial evidence is proof of certain facts and circumstances from
which the trier of fact may infer other connected facts that human experience dictates usually
and reasonably follow.” People v. White, 2016 IL App (2d) 140479, ¶ 37. “Circumstantial
evidence alone is sufficient to sustain a conviction where it satisfies proof beyond a reasonable
doubt of the elements of the crime charged.” Digirolamo, 179 Ill. 2d at 43.
¶ 48 In count I of the information, the State charged defendant with violating subsection (a)(5)
of the DUI statute (625 ILCS 5/11-501(a)(5) (West 2014)). The elements of count I were that
(1) he drove or was in actual physical control of the pickup truck (2) while he was under the
combined influence of alcohol and cannabis (3) to a degree that rendered him incapable of
driving safely. Id. Defendant does not appear to dispute the latter two elements, and in any
event, we find sufficient evidence that he was too intoxicated by alcohol and cannabis to drive
safely. A field sobriety test and chemical testing were not essential to proving he was drunk.
“A DUI conviction may be sustained based solely on the testimony of the arresting officer, if
credible.” People v. Janik, 127 Ill. 2d 390, 402 (1989). Three police officers who had observed
defendant testified he was highly intoxicated. It would be reasonable to infer that the reason
why he refused to undergo a field sobriety test and a breath test was that he knew these tests
would confirm he was under the influence. See People v. Garstecki, 382 Ill. App. 3d 802, 813
(2008). Looking at such evidence in the light most favorable to the prosecution, we conclude
that a rational trier of fact could find, beyond a reasonable doubt, that defendant was so
intoxicated with alcohol and cannabis that it was dangerous for him to drive. See Digirolamo,
179 Ill. 2d at 43.
¶ 49 Further applying the same deferential standard of review, we find sufficient circumstantial
evidence that defendant drove the pickup truck while he was intoxicated. By his own
admission, his cell phone and flip-flop were on the driver’s-side floorboard of the truck.
Although he told the police that Buddy Young had been the driver, he did not know how long
he had been acquainted with Buddy Young or where Buddy Young could be reached—leading
to a reasonable inference that Buddy Young was a fictitious character and leading, in turn, to
a further reasonable inference that the reason why defendant lied was that he, in fact, had been
the driver. “A false exculpatory statement is probative of a defendant’s consciousness of guilt.”
(Internal quotation marks omitted.) People v. Milka, 211 Ill. 2d 150, 181 (2004). That
defendant, six to eight miles from home, left behind his cell phone and shoes and set out on a
barefooted hike down the highway could be suggestive of a hasty departure, as if he felt a
pressing need to put distance between himself and the scene of his crime. See People v.
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Henderson, 39 Ill. App. 3d 502, 507 (1976) (“The concept of flight embodies more than simply
leaving the scene of the crime. The accused must be attempting to avoid arrest or detection,
actions which impl[ies] a consciousness of guilt.”). And, again, “[a] defendant’s refusal to
submit to chemical testing is relevant circumstantial evidence of his consciousness of guilt.”
Garstecki, 382 Ill. App. 3d at 813. Viewing the evidence in the light most favorable to the
prosecution, we draw the inference that defendant opposed the chemical confirmation of his
intoxication precisely because he had been driving; otherwise, it would not have mattered how
intoxicated he was. See People v. Gray, 2017 IL 120958, ¶ 53 (“[v]iewing all of the evidence
in the light most favorable to the prosecution, coupled with the reasonable inferences that may
be drawn therefrom”).
¶ 50 It would, after all, be a natural inference that defendant, as the registered owner of the truck,
was the person who had driven the truck. See People v. Lurz, 379 Ill. App. 3d 958, 971 (2008).
The jury did not need Herbert to testify that defendant was the registered owner. The jury could
have readily inferred as much from what Wendell and Herbert did in their investigation. See
People v. Gacho, 122 Ill. 2d 221, 248 (1988) (such testimony is not hearsay, even if “the
inference logically to be drawn therefrom is that the information received motivated the
officers’ subsequent conduct” (internal quotation marks omitted)); People v. Risper, 2015 IL
App (1st) 130993, ¶ 40 (testimony “recounting the steps taken in a police investigation” is not
hearsay “even if, as a result of this testimony, a jury might be able to infer” “what nontestifying
witnesses [had] told [the police]” (internal quotation marks omitted)); People v. Leverston, 132
Ill. App. 3d 16, 33 (1985) (“[W]e have often held that testimony which reflects an investigatory
procedure entirely within the personal knowledge of the police officers is properly admissible
as nonhearsay evidence [citations], even though the logical inference drawn therefrom is that
the information they received motivated their subsequent conduct [citation].”). It is commonly
known that the first thing police officers do is run the license plates. There appears to be no
evidence that when Wendell came upon defendant, a mile from the scene of the accident, he
asked defendant if he had been in the accident. Instead, he asked defendant for identification,
and when he looked at defendant’s state identification card, the name he read apparently was
reason enough to take defendant up the road, to the scene of the accident. It was reason enough,
the jury may well have inferred, because Herbert had run the license plates and defendant’s
name had come back as the registered owner of the truck. One might infer that was why, when
Wendell brought defendant to the scene, Herbert talked to defendant as if it already were a
given that he had been in the accident.
¶ 51 For all those reasons, we find sufficient evidence that the driver was defendant.
¶ 52 C. The Claim of Plain Error
¶ 53 Defendant alleges prosecutorial misconduct. According to him, the prosecutor repeatedly
attempted to elicit testimony from Herbert that the pickup truck was registered to defendant,
even though, in response to defendant’s objection, the trial court clearly ruled, from the start,
that such testimony was inadmissible hearsay.
¶ 54 As defendant admits, however, he never raised this issue in his posttrial motion. To
preserve an issue for review, a defendant must make a contemporaneous objection and also
raise the issue in a posttrial motion. People v. Enoch, 122 Ill. 2d 176, 186 (1988). Doing only
one those two things is not enough. Id.-8-
¶ 55 Even so, defendant argues that the doctrine of plain error should avert the procedural
forfeiture. See People v. Thompson, 238 Ill. 2d 598, 613 (2010) (the doctrine of plain error
bypasses forfeiture principles and allows a reviewing court to consider unpreserved claims of
error). He invokes both of the alternative theories, or “prongs,” of plain error. He contends that
(1) the evidence was closely balanced and (2) the error was so serious as to threaten the
integrity of the judicial system. See People v. Herron, 215 Ill. 2d 167, 186-87 (2005).
¶ 56 Because there can be no plain error without an error (People v. Smith, 2016 IL 119659,
¶ 39), we begin by considering whether the error that defendant alleges—prosecutorial
misconduct—really occurred. Defendant argues it is prosecutorial misconduct to “defy the trial
court’s rulings by repeating the same questions after objections have been sustained.” People
v. Larry, 218 Ill. App. 3d 658, 663 (1991). Repeatedly trying to introduce improper evidence
can deprive the trial court’s rulings of their “salutary effect.” Id.¶ 57 Actually, though, there was no repetition of an objectionable question. Only once did the
prosecutor ask Herbert a question calculated to elicit from him who the registered owner of the
pickup truck reportedly was, and in that instance the prosecutor had a good-faith argument that
Herbert’s answer would not be hearsay. The prosecutor asked Herbert: “When Deputy Wendell
located an individual by the name of William Day, why did you ask that he be transported back
to your scene?” Herbert answered: “The vehicle checked to William Day.” In response to
defense counsel’s general objection, the prosecutor stated: “Your Honor, I would argue that
that is not offered for the truth of the matter asserted, but why he was proceeding in the
investigation in the manner he did.”
¶ 58 This was a reasonable argument. Case law teaches: “Statements are not inadmissible
hearsay when offered for the limited purpose of showing the course of a police investigation
where such testimony is necessary to fully explain the State’s case to the trier of fact.” People
v. Jura, 352 Ill. App. 3d 1080, 1085 (2004). In other words, “[a] police officer may testify
about conversations with others to show the steps in his investigation so long as this testimony
is not used to prove the truth of the matter asserted by these other persons.” People v. Williams,
289 Ill. App. 3d 24, 31 (1997); see also Ill. R. Evid. 801(c) (eff. Jan. 1, 2011) (defining
“hearsay” as “a statement, other than one made by the declarant while testifying at the trial or
hearing, offered in evidence to prove the truth of the matter asserted” (emphasis added)). The
prosecutor had a good-faith argument that when she elicited from Herbert the testimony that
“[t]he vehicle checked to [defendant],” her purpose in doing so was to explain to the jury why
Herbert had directed Wendell to transport defendant back to the scene, not to prove that the
vehicle really was registered to defendant. Given that purpose, Herbert’s testimony that “[t]he
vehicle checked to [defendant]” arguably would not have been hearsay because instead of
being offered for its truth (see Ill. R. Evid. 801(c) (eff. Jan. 1, 2011)), the testimony would
have been offered to explain Herbert’s investigatory actions (see Jura, 352 Ill. App. 3d at 1085;
Williams, 289 Ill. App. 3d at 31).
¶ 59 As for the other, previous instance when Herbert testified the truck was registered to
defendant, it was testimony he volunteered, testimony that was nonresponsive to the
prosecutor’s question. We see no basis for accusing the prosecutor of misconduct when, only
once, her witness briefly inserted uncalled-for information in his answer. Therefore, the error
that defendant alleges, prosecutorial misconduct, is nonexistent in this case. We see no
“repetition of objectionable questions” by the prosecutor. Larry, 218 Ill. App. 3d at 663.
Quoting People v. Blue, 189 Ill. 2d 99, 138 (2000), defendant argues that “[i]ntentional and
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pervasive prosecutorial misconduct may *** warrant reversal under the substantial right prong
of the plain error rule, ‘regardless of the strength of the evidence of defendant’s guilt.’ ”
(Emphasis omitted.) But there was no intentional and pervasive prosecutorial misconduct in
this case.
¶ 60 For that matter, defendant has not even identified an error. When Herbert volunteered, in
his testimony, that defendant was the registered owner of the pickup truck, the trial court
sustained not only defense counsel’s objection but immediately instructed the jury to disregard
the testimony. The next time Herbert testified that “[t]he vehicle checked to [defendant],” his
testimony might have been offered for a reason other than its truth, as we have explained—but
the court nevertheless sustained defense counsel’s objection. After the close of evidence, the
court instructed the jury: “You should disregard testimony *** which the court has refused or
stricken.” We presume the jury followed the court’s instructions, including that one. See
People v. Glasper, 234 Ill. 2d 173, 201 (2009). On the strength of that presumption, we find
no error, let alone plain error.
¶ 61 D. Clerk-Imposed Fines
¶ 62 Defendant complains that, in a “Payment Status Information” sheet, the circuit clerk
imposed on him several fines that the trial court never imposed in the sentencing hearing. He
requests that we vacate these clerk-imposed fines, since only a judge can impose fines. See
People v. Smith, 2014 IL App (4th) 121118, ¶ 18.
¶ 63 On December 29, 2017, we granted a motion by defendant to supplement the record with
this “Payment Status Information” sheet. Later, on June 1, 2018, the supreme court held in
People v. Vara, 2018 IL 121823, ¶ 22:
“[T]he payment status information sheet *** is a document that was created outside the
record of the trial court proceedings. Although defendant was granted leave to include
it as a ‘supplement’ to the record, that leave was not warranted. Illinois Supreme Court
Rule 608 (eff. July 1, 2017) details the items that are to be included in the record on
appeal in a criminal case. The payment status information sheet is not part of the
common-law record or the report of proceedings of defendant’s criminal prosecution.
Under Illinois Supreme Court Rule 329 (eff. Jan. 1, 2006), a supplemental record may
be filed to correct material omissions or inaccuracies or if the record is insufficient to
present fully and fairly the question involved. Amendment of the record is not to be
used as a device for inserting extraneous materials into the record on appeal. The
payment status information sheet at issue here cannot be characterized as a ‘material
omission’ or something that should have been included in the record of the proceedings
before the circuit court.”
¶ 64 It follows, from the quoted discussion, that we should not have granted leave to supplement
the record with the “Payment Status Information” sheet. Therefore, we change our ruling of
December 29, 2017, so as to deny, rather than grant, defendant’s motion to supplement the
record with the “Payment Status Information” sheet. Because we are confined to the record on
appeal (People v. Canulli, 341 Ill. App. 3d 361, 367-68 (2003); People v. Wilson, 2013 IL App
(1st) 112303, ¶ 16), the issue of clerk-imposed fines, which are ascertainable only from the
“Payment Status Information” sheet, is not legitimately before us.
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¶ 65 III. CONCLUSION
¶ 66 For the foregoing reasons, we affirm the convictions, and we affirm the sentences except
for the presentence credit and the fines. We remand this case for further proceedings on
defendant’s claims for an additional day of presentence credit and an additional $5 of monetary
credit against his fines, after which the circuit court shall either leave the presentence credit
and fines unchanged or make adjustments, as the evidence warrants.
¶ 67 Affirmed in part and remanded with directions.
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