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People v. Killian

OPINION FILED OCTOBER 21, 1976.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

FRANCIS J. KILLIAN, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of McLean County; the Hon. IVAN D. JOHNSON, Judge, presiding.

MR. JUSTICE REARDON DELIVERED THE OPINION OF THE COURT:

Defendant was charged and found guilty in a jury trial of driving while under the influence of intoxicating liquor in violation of section 11-501 of the Motor Vehicle Code (Ill. Rev. Stat. 1973, ch. 95 1/2, par. 11-501). Judgment was entered on the verdict and defendant was fined $250 and costs. Defendant appeals his conviction. On appeal defendant raises the following issues: (1) whether he was deprived of a fair trial by reason of the prosecutor's reference to his alleged refusal to take a blood test; (2) whether the evidence established his guilt beyond a reasonable doubt; (3) whether he was denied his right to a fair trial by virtue of the prosecutor's references to an admission which he purportedly made; (4) whether he was denied his right to confrontation and cross-examination of witnesses by virtue of the prosecutor's statements during closing argument; (6) whether defendant was denied his fifth amendment privileges against self-incrimination and right to a fair trial due to the failure of the police officers to advise him of his right to remain silent.

The facts giving rise to this appeal concern an incident which occurred around 7 p.m. on August 24, 1974. The arresting officer, Stephen P. Brienen, testified at trial that he observed the defendant driving in an erratic manner. Brienen stated he was on his way home for a dinner break and upon observing the defendant he followed him, eventually turning on his red light and siren and blinking his headlights. After traveling several blocks, the defendant pulled his car to the curb. Defendant had difficulty in exiting from his vehicle and providing identification to the officer. The defendant voluntarily went to the police station with the officer. During their ride to the station, defendant and the officer engaged in conversation. At the station, defendant was required to perform certain physical tests — such as walking a straight line, touching his nose and picking up coins — all of which he failed. After completing the performance tests defendant was given Miranda warnings and questioned by the officers in attendance. Brienen testified that he was of the opinion that defendant was in an intoxicated state at the time of his arrest.

Next, Officer John Marshall Rhoda testified. He stated that he was present at the station when the defendant was brought in. He stated that he smelled intoxicating beverages on defendant's breath. It was his opinion that the defendant was intoxicated. He reached this conclusion based upon defendant's mannerisms, but on cross-examination admitted these mannerisms may have been normal for the defendant. He further stated that the defendant was unable to complete the breathalyzer test because pre-existing physical handicaps prevented him from sealing his lips around the mouthpiece.

The defendant took the stand and testified that on the day in question he had been playing cards at a Knights of Columbus hall from approximately 2:30 p.m. to 6:30 or 6:45 p.m. He stated that he drank approximately two to four beers during that time. The defendant denied that he drove his automobile in an erratic manner and contended that he observed each and every required stop. He said that the street was being repaired and that he was required to drive in a weaving manner to avoid manhole covers that were raised several inches above the surface of the street. He admitted that he did not hear the sirens but he noted that he was hard of hearing and that he did pull his vehicle over when he saw the red flashing light. Defendant contended that at no time was his ability to walk, speak, or drive impaired in any fashion whatsoever. Furthermore, defendant denied apologizing to the officer for his driving when he accompanied the officer to the police station.

Defendant, a hemiplegic, testified that he had been in an automobile accident in 1947, suffering a skull fracture and nerve injuries to the left side of his face. The accident also caused him to suffer a loss of hearing in his left ear, pain in his legs and arms, and occasional numbness in one leg. Defendant stated that he consented to taking the breathalyzer exam but failed to complete the test due to the fact that the nerve injury to his face prevented him from being able to properly blow into the apparatus. Defendant also stated that he occasionally slurred his words as a result of his injury.

Defendant called Dr. George W. France to testify. He corroborated the fact of defendant's involvement in a serious automobile accident wherein he suffered permanent motor damage to his nerves. The defendant also called Dale Ballinger, a Bloomington city engineer, who testified that at one time during construction at the intersections of Oakland and Mercer there were three manhole covers above the surface of the road. However, Ballinger had no precise knowledge of the particular dates on which the manhole covers were not flush with the street surface. Also testifying for defendant were a bartender and three Knights of Columbus members who had been with defendant during his stay at the Knights of Columbus hall that afternoon. Each was of the opinion that defendant was not intoxicated when he left the hall. Defendant propounded a motion for directed verdict at the close of all the evidence which the court denied. Counsel presented their closing arguments and the cause was submitted to the jury which returned a verdict of guilty.

As noted above, defendant urges six separate grounds for reversal. We have reviewed the record herein and find that none of the alleged errors standing alone constitute reversible error. We find, however, that all of these errors had a cumulative effect that deprived the defendant of a fair trial. We must therefore reverse and remand for a new trial.

Defendant submits that he was denied a fair trial by the State's reference to his alleged refusal to submit to a blood test. This alleged error occurred when the State asked Officer Brienen the following question:

"Q. At the time you gave the defendant the breathalyzer test, or tried to give him one, did you explain to the defendant that he had the opportunity to take a blood test?

A. Yes.

Q. Did he offer to take the blood test?"

The defendant objected to the question and the objection was sustained. Defendant then moved for a mistrial which was not granted. The court then ordered the questions and answer stricken. The jury was also instructed to disregard them.

• 1 Now, on appeal, defendant argues that failure to take the blood test is not admissible under any circumstances and that the prosecutor's questions constituted prejudicial error. The People urge that defendant waived this issue by virtue of the form of the objection made at trial, i.e., defendant did not question the right of the State to bring out his refusal to submit to blood analysis. A refusal to submit to a blood test is not admissible in evidence. (Section 11-501 of the Motor Vehicle Code, Ill. Rev. Stat. 1973, ch. 95 1/2, par. 11-501(h).) It is, therefore, certain that the prosecutor interjected error into the proceedings by virtue of his colloquy with Officer Brienen concerning the blood test. Such error ...


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