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12/13/94 PEOPLE STATE ILLINOIS v. CHARLES MCGEE

December 13, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
CHARLES MCGEE, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. The Honorable Sam L. Amirante, Judge Presiding.

Released for Publication February 8, 1995.

Presiding Justice DiVITO delivered the opinion of the court: Hartman, J., concurs. McCORMICK, J., dissents.

The opinion of the court was delivered by: Divito

PRESIDING JUSTICE DiVITO delivered the opinion of the court:

Following a bench trial, defendant Charles McGee was convicted of driving under the influence of alcohol and sentenced to conditional discharge with a 90-day sentence stayed until December 8, 1993, to be vacated on that date conditioned upon attendance and successful completion of an alcohol program. On appeal defendant contends the record does not show an adequate jury waiver, and the circuit court erred in allowing the arresting officer to testify to prior acts of domestic battery and drunkenness on the part of defendant. *fn1

The trial was held on March 8, 1993. Prior to testimony, the following was asked:

"THE COURT: Did you ever give me a jury waiver?

[Defense counsel]: Yes. We tendered it earlier, signed in open court."

The record contains a jury waiver which, except for a signature purporting to be that of defendant, is blank. The half-sheet reflects court dates of April 10, 1992; May 14, 1992; July 21, 1992; August 21, 1992; September 24, 1992; October 28, 1992; January 6, 1993; February 2, 1993; and March 8, 1993. On October 28, 1992, the half-sheet reflects a jury demand.

At trial, Cook County sheriff's police officer Farahat Levy testified that at about 1 a.m. on March 21, 1992, he responded to a call concerning a loud crash in the parking lot at 1514 Silver Lane in Palatine, Illinois. Levy got there at 1:05 a.m. and saw a car with its back end in a deep ditch and its front end pointing straight up. A tube-steel and chain-link fence was immediately behind the ditch. Thearea around where the car was located was paved, and the area around the ditch was grassy. There were about 150 feet of skid marks on the paved area which led to the ditch. The posted speed limit on this road was five miles per hour.

A short time after Levy began his investigation, defendant approached. Officers Caldrone and Beville were also present. Levy asked defendant if it was his car and if he had been driving it, and defendant responded affirmatively to both questions. Levy also noticed a strong odor of alcoholic beverages on defendant's breath. Defendant said that he was not injured, and Levy did not notice any injuries at this time.

Levy testified that beside the strong odor of alcoholic beverages, defendant was stumbling and swaying, his speech was slurred, and he refused to take field-sobriety tests. It was Levy's opinion that defendant was under the influence of alcohol, so he arrested him and transported him to the police station. As defendant walked, he was swaying, loud, and verbally abusive. Levy read defendant the warnings to motorists and defendant said he understood them.

On cross-examination, defense counsel asked, "prior to the date of 3-21 had you had prior contact with Mr. McGee?" Officer Levy stated that he had several contacts with defendant, and when asked if defendant had ever filed a complaint against him, he answered that he had. Levy never saw defendant drive the car, and did not match the skid marks to the tires of the automobile in the ditch.

On redirect examination, Officer Levy testified that the prior contacts he had with defendant were generally domestic batteries, and it was Levy's opinion that on these occasions defendant was under the influence of alcohol. On those occasions, defendant's demeanor was the same as on the night of the occurrence. Defense counsel's objection to this line of ...


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