Appeal from the Circuit Court of Jo Daviess County. Nos. 01--CF--45 01--DT--32 Honorable William A. Kelly, Judge, Presiding.
The opinion of the court was delivered by: Justice Kapala
Defendant, William T. Libberton, appeals from his convictions of driving under the influence of alcohol (DUI) (625 ILCS 5/11--501(a)(1), (a)(2) (West 2000)) (two counts, one of which was merged into the other) and false report of a vehicle theft (625 ILCS 5/4--103(a)(6) (West 2000)). We now affirm.
Defendant was charged by indictment with one count of false report of a vehicle theft and two counts of DUI. His case was tried to a jury. The arresting officer, Steven Jahncke of the Warren police, testified that on March 3, 2001, shortly after 2 a.m., he was on routine patrol in his squad car. The night was very cold and the ground was snow-covered. As he was driving, he encountered defendant, who was emerging from a roadside ditch. He stopped his vehicle, approached defendant, and asked him what he was doing. Defendant stated that he was going to a friend's house. When Jahncke asked him why, he said that he needed to use a phone to call the police because his car had been stolen. Jahncke asked defendant for identification and then used the car radio to report a stolen car to the sheriff's department. Right after Jahncke made the report, but during continued radio communication, defendant told Jahncke that he had found his car and that it was stuck in a snowbank by some grain bins.
Jahncke requested that defendant ride with him to the car. On the way, Jahncke asked defendant if there was anyone with him, and defendant said that he was with his girlfriend, who was in the car sleeping. Jahncke noticed that defendant smelled of alcohol. They arrived at the car, which was well back from the street and behind some buildings. Jahncke asked defendant how he found his vehicle, and defendant said that he was walking to his home in another town when he found it.
Jahncke approached the vehicle and saw a woman in the passenger seat slumped over with her head between her legs. (The woman was later identified as Kimberlee Quire (Quire), who, by the time of trial, had married defendant and changed her name to Kimberlee Libberton.) Jahncke attempted to wake her to have her open the locked door, but it took her some time to wake up and, when she did wake, she had difficulty opening the door. After Quire answered several questions posed by Jahncke, Jahncke requested that a wrecker be dispatched. Under cross-examination, he explained that, because defendant was claiming that the car had been stolen, the towing company would store the vehicle indoors so that it was protected from tampering and the State Police crime scene investigators would be brought in to process the vehicle. Jahncke identified a number of the photographs of the interior of the car as having been taken by the State Police.
Deputy Casey Folkes of the Jo Daviess County sheriff's department arrived to assist Jahncke, and both defendant and Quire were questioned further. Defendant told Jahncke that the car had been stolen from the lot at Wally's, a bar and that he had found it because, when he walked past the complex with the grain bins, it had occurred to him that it was a good place to hide a stolen car, and so he had gone to look. Jahncke asked him if he had been driving, and defendant initially denied that he had, but later stated that he had tried to move the car in an attempt to get it unstuck. Jahncke then asked defendant to undergo field sobriety tests. Two of the three tests indicated probable intoxication. Jahncke and Folkes then transported defendant and Quire to the Stockton police department, where defendant was subjected to a Breathalyzer test. By the testimony of the Breathalyzer operator, defendant's breath-alcohol concentration was 0.165. Jahncke also asked Quire to give a statement, which he wrote out and she signed. He admitted that he had done the writing because Quire said that she was too drunk to write.
The State introduced a number of photographs of the area in which the car had been left. The officers called by the State used these to indicate that it would have been difficult to see the car from the road.
Quire, called by the State, testified that she had gone with defendant to at least two bars, and that she and defendant had consumed alcohol at each, but that her memory of that night was poor, and she had no sense of time for that period. She stated that she had no recollection of defendant driving the car from the last bar they had visited, Wally's, to behind the grain bins, but that she remembered being taken to the police station and answering the questions from which the statement was prepared. She said that the statement could not accurately reflect her words because it included the time she left Wally's and the name of the business that had the grain bins, both of which were details that she did not know. Her statement was read into the record. It states:
"Bill [defendant] and I were at Wally's until approximately 12:45-1:00 A.M. Bill and I had both been drinking. Bill and I left Wally's, got into his car and drove up to Custom Grain [the location of the grain bins]. I had no idea where I was. After he got the car stuck I fell asleep and the next thing I remember was someone knocking on the window asking me for my license."
Defendant was the sole defense witness. He testified that he had parked his car near Wally's, leaving the keys in the ignition, but that when he came out after drinking for a while, the car was not where he had left it. Defendant said that he thought that his friends were playing a joke so he began to search for his car. After searching unsuccessfully, defendant and Quire set out walking toward a friend's house in another town. Quire was barely able to walk. As defendant passed the grain bins, he noticed his car behind them. He left Quire with the car and, after remembering that he had a friend in the same town, started walking toward that friend's house. He denied trying to drive the vehicle at any time after leaving Wally's, but admitted that he had been intoxicated. He stated that he had gone back to the police the Monday after he was arrested to give them a list of items that he thought were missing from the vehicle.
The State, in closing argument, asserted that many aspects of defendant's testimony were illogical and commented that it was terrible that defendant persisted in claiming that his car had been stolen in order to escape responsibility for his drunk driving.
Defendant's counsel emphasized defendant's right make the State prove its case:
"It's not a crime, Ladies and Gentlemen, to profess your innocence. It's your constitutional right to have a trial; we all possess that and that's all my client's done. He said 'I'm not guilty of this' and his only choice when that decision is made is to come here and have a trial by 12 of his peers.
Now he does have an option, he could waive jury trial and try for [sic] the Court which is called a bench trial, but that's his decision alone and he made that decision to have the jury trial; and that's why we're here today because he professes his innocence on this."
He then argued that defendant's version of events should be taken to be the truth because, as a lie to avoid trouble, it was much less sensible than other lies defendant could have told. He argued that Quire's statement was discredited by her intoxication. He suggested that the State's photographic exhibits had been deliberately chosen to overstate the difficulty defendant would have had in locating his car from the road. Further, he argued that minor variations in the calibration of the Breathalyzer made the Breathalyzer data unreliable. He stated that there were too many holes in the police evidence for the State to have met its burden of proof.
The State's Attorney, in rebuttal, stated that the case was a very important one to the people of the State of Illinois. He argued that the pictures were accurate and representative, and then asserted that he "[did not] deal in any kinds of attempts to deceive." He then stated:
"[Defendant's counsel] begins his argument by asking you; there's no other choice for this Defendant, right? No other choice. He's got to take this case to trial and profess his innocence. Well, not quite. Okay? There is something that about 80 to 90 percent of Defendants do in this country and that is they be [sic] honest, forthright. They go into the courtroom and plead guilty.
MR. NACK [Defense counsel]: Objection, that's grounds for ...