Appeal from Circuit Court of Jersey County. No. 92CF93. Honorable James W. Day, Judge Presiding.
As Corrected March 16, 1994.
Honorable James A. Knecht, J., Honorable John T. McCULLOUGH, P.j., Honorable Carl A. Lund, J.
The opinion of the court was delivered by: Knecht
JUSTICE KNECHT delivered the opinion of the court:
The defendant, Maurice E. Depper, was charged by information in the circuit court of Jersey County with obstructing Justice (Ill. Rev. Stat. 1991, ch. 38, par. 31-4(a)), resisting a peace officer (Ill. Rev. Stat. 1991, ch. 38, par. 31-1), and driving under the influence of alcohol (DUI) (Ill. Rev. Stat. 1991, ch. 95 1/2, par. 11-501(a)(2)), and careless driving, a Jerseyville city ordinance violation. Following a jury trial, defendant was found guilty of DUI and resisting a peace officer. Defendant received concurrent sentences of 364 days' imprisonment for resisting a peace officer and two years' probation for DUI. On appeal, defendant argues (1) he was not proved guilty of DUI beyond a reasonable doubt; (2) he was not proved guilty of resisting a peace officer; (3) the State committed reversible error in cross-examining him on his prior convictions; and (4) the prosecutor's comments in closing argument deprived him of a fair trial. We agree error occurred when defendant was cross-examined as to his prior convictions, and reverse and remand for a new trial.
We need only briefly summarize the evidence. On August 7, 1992, the defendant was observed driving by a Jerseyville police officer. The defendant's vehicle turned in front of an oncoming car, almost causing an accident, and then drove away weaving in his lane. The officer pulled him over and noted the defendant smelled of alcohol, and had slurred speech and bloodshot eyes. He was also unsteady on his feet. The officer discovered an empty can and an empty bottle of beer in the car as well as two closed bottles and two closed cans. He also found a cool, open beer bottle containing two inches of liquid. Defendant refused to take field sobriety tests and was placed under arrest for DUI.
Defendant whirled about before being handcuffed. The officer called for back-up, and defendant started to walk away. The officer then blocked his path. Defendant became argumentative, tried to reenter his vehicle and hurled the open bottle of beer containing liquid onto the pavement. Other officers arrived at the scene and defendant was handcuffed and transported. He kicked out at one officer on arrival at the sheriff's office and was again uncooperative. Later that evening defendant refused a breathalyzer.
Several days later defendant admitted to the arresting officer he had some beers on the day of the incident, and stated he did not know what had happened but it must have been a combination of alcohol and pain medication he was taking for a back injury.
Defendant called several witnesses, including himself, to show he had been released from Logan Correctional Center (Logan) on the day of the incident, and from early afternoon until his arrest he had only four or five beers, and did not appear intoxicated. Defendant was taking both Tylenol 3 and Indocin for the pain from a back condition and both drugs had been prescribed for him at Logan. Shortly before he was stopped by police, he felt nauseous and dizzy. Defendant's theory of the case was the combination of alcohol and medication caused his appearance and dizziness. He offered the testimony of a pharmacist who opined that based on the information as to defendant's food intake, sleep, height and weight, alcohol consumption and his prescription drug intake, defendant would not have been intoxicated from alcohol but could have appeared intoxicated with the combination of the alcohol and the Indocin and Tylenol.
Defendant's contention the State committed reversible error on cross-examination is dispositive of the case. The State argues this issue has been waived because not included in any post-trial motion. An issue must be included in a post-trial motion to be preserved for review ( People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1130), but the plain error rule (see 134 Ill. 2d R. 615(a)) permits a reviewing court to consider issues waived for purposes of review in two circumstances: where the evidence is closely balanced, or where the error is so fundamental and of such a magnitude that the accused was denied a fair trial. People v. Lucas (1992), 151 Ill. 2d 461, 482, 603 N.E.2d 460, 469.
Cross-examining a defendant about his prior convictions may invoke the plain error rule. In People v. Cassman (1973), 10 Ill. App. 3d 301, 293 N.E.2d 710, the defendant did not testify to any convictions on direct examination but did so on cross-examination. Defense counsel neither objected to the cross-examination nor raised the issue in a post-trial motion. The court in Cassman noted it is improper to cross-examine a defendant as to prior convictions. The proper way to impeach is with the introduction into evidence of the certified record of convictions; therefore, when the State did question the defendant on cross-examination, it was error of such magnitude as to constitute plain error. ( Cassman, 10 Ill. App. 3d at 303, 293 N.E.2d at 711, citing People v. Flynn (1956), 8 Ill. 2d 116, 120-21, 133 N.E.2d 257, 259, and People v. Bey (1969), 42 Ill. 2d 139, 246 N.E.2d 287.) We find plain error in this case. The issue is not waived and we will discuss the merits.
Defense counsel filed a motion in limine prior to trial concerning which of defendant's numerous prior convictions would be admissible to impeach him if he chose to testify. The court and the parties identified three convictions appropriately available for such use: a 1983 residential burglary conviction in Jersey County, a 1986 conviction for conspiracy to bring contraband into a penal institution in Johnson County, and a 1990 aggravated assault conviction in Jersey County.
On direct examination, defendant testified on the date of the incident in question he was released from Logan. He did not mention his other convictions, nor did he state for what offense he was incarcerated at Logan.
Defendant's defense involved his assertions he had improperly mixed alcohol and prescription drugs which made him appear intoxicated. He testified the medical personnel who dispensed the Indocin and Tylenol 3 with codeine to him in the prison failed to warn him to refrain from drinking alcohol when taking the medicine. He asserted he was unaware of the synergistic effect of combining alcohol with the medicine because "in a correctional institute you cannot just go buy a beer."
On cross-examination, the prosecutor questioned defendant concerning the medication he claimed to be taking, but quickly got to the subject of prior ...