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People v. Neidhofer

OPINION FILED DECEMBER 15, 1986.

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

v.

DONALD E. NEIDHOFER, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Du Page County; the Hon. James W. Jerz, Judge, presiding.

PRESIDING JUSTICE NASH DELIVERED THE OPINION OF THE COURT:

After a jury trial, the defendant, Donald E. Neidhofer, was convicted of the offense of driving with a blood-alcohol concentration of .10% or more (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 11-501(a)(1)), and he appeals, contending: (1) that the prosecutor committed reversible error in referring to defendant's post-arrest silence; and (2) that the trial court erred in polling the jury outside the presence of the defendant.

Defendant was charged with the offenses of driving under the influence of alcohol, driving with a blood-alcohol concentration of .10% or more, and improper lane usage (Ill. Rev. Stat. 1985, ch. 95 1/2, pars. 11-501(a)(2), 11-501(a)(1), 11-709). The improper-lane-usage charge was nol-prossed before trial.

At defendant's trial, Glen Ellyn police officer Richard Combs testified that on December 29, 1984, at about 3:44 a.m., he was on patrol driving eastbound on Roosevelt Road when he saw a vehicle driven by the defendant turn onto Roosevelt from Briar Street. The vehicle accelerated, swerved towards the oncoming traffic, and returned to the center lane. As Combs followed it, the vehicle swerved again, and at one point, defendant's right turn signal was activated, but no turn was made. Several times, defendant crossed the white line dividing the two eastbound lanes and returned to the curb lane. As they approached Main Street, the officer activated his overhead lights and pulled defendant over.

When he approached the vehicle, Officer Combs detected a slight to moderate odor of alcohol from the defendant. When he asked defendant for his driver's license, defendant fumbled through his wallet, at first producing a traffic ticket. Officer Combs then asked the defendant to perform two sobriety tests. Defendant told the officer that he had a bad knee. In the standing balance test, defendant swayed from side to side and was unable to elevate his foot for the full 30 seconds. Next, the officer asked defendant to walk a straight line, wherein defendant swayed and stumbled. The officer placed defendant under arrest and advised him of his Miranda rights. When they arrived at the police station, defendant swayed as he walked. Officer Combs readvised defendant of his rights and questioned defendant who told the officer that he had consumed one beer. The officer administered a breathalyzer test to the defendant which indicated a blood-alcohol level of .10%. The officer testified that the breathalyzer machine was operating properly and that before he administered the test, he "purged" the machine, producing a reading of .88% and then tested a sample of room air, producing a reading of .00.

Daniel Hembree testified that about 10 p.m. that evening, he and the defendant went to a video arcade and then to Connie's Pizza where they ordered pizza and a pitcher of cola. About 12:30 they went to the home of some friends where defendant drank about three beers. Defendant drove home, Hembree eating pizza and defendant looking for a cassette tape. When defendant dropped the tape and bent down to look for it, the car swerved a little.

Defendant testified that he worked that day from 12 noon to 9 p.m. He watched television at Hembree's from 10 to 10:25, then he and Hembree went to Connie's Pizza. Although Connie's serves beer, he did not have any. About 12:30 they went to a friend's apartment where he had a couple of beers. On the way home, defendant dropped a cassette tape and jerked the car trying to retrieve it. On cross-examination, defendant agreed that when the officer stopped him he did not explain that the reason he had jerked his car was because he dropped a tape.

Defendant testified that he lost his balance during the field sobriety tests because it was windy and that he walked with a limp because he had previously broken his kneecap. Although he had more than one beer, he told the officer that he only had one. Defendant also testified that he was given two breathalyzer tests, on the first test, the results were .88% and the officer stated that the machine was not functioning properly, and on the second test, the results were .10%. On rebuttal, Officer Combs testified that he administered only one breathalyzer test to the defendant.

At the close of all the evidence, the parties entered into a written stipulation whereby they agreed to a sealed verdict and waived polling of the jury. The jury returned a guilty verdict as to the charge of driving with a blood-alcohol concentration of .10% or more and as it was unable to agree as to the charge of driving under the influence of alcohol, a mistrial was declared as to that charge.

• 1 Defendant first contends that the prosecutor committed reversible error in referring to defendant's post-arrest silence. On cross-examination, the prosecutor had elicited defendant's admission that when the officer stopped him he did not explain that his car swerved because he was reaching for a cassette tape. Then, during closing argument the prosecutor commented on this testimony and argued that it would have been reasonable for defendant to offer such an explanation. No objection was raised at trial by defense counsel.

As a general evidentiary and constitutional principle, evidence of a defendant's post-arrest silence is inadmissible. (People v. McMullin (1985), 138 Ill. App.3d 872, 876, 486 N.E.2d 412.) Defendant relies on the evidentiary rule only, and does not contend that his constitutional rights were violated.

• 2 A rule of evidence not invoked by timely objection is waived. (People v. Akis (1976), 63 Ill.2d 296, 299, 347 N.E.2d 733; People v. Griggs (1982), 104 Ill. App.3d 527, 531, 432 N.E.2d 1176, appeal denied (1982), 91 Ill.2d 562.) Since defendant failed to object during cross-examination or closing argument, he waived the issue for purposes of appeal. In any event, any error was harmless since the defendant's failure to explain his erratic driving was irrelevant to the charge of driving with a blood-alcohol concentration of .10% or more.

• 3 Defendant also contends that he was denied the right to be present during polling of the jury. The State responds that the defendant waived this right by entering into a stipulation whereby he agreed to a sealed verdict and waived polling of the jury.

The record shows that before the jury retired to consider its verdict, the prosecutor and defense counsel signed a stipulation which was premised upon section 115-4(l) of the Code of Criminal Procedure of 1963 (Ill. Rev. ...


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