Appeal from Circuit Court of Champaign County No. 09CF1051 Honorable Richard P. Klaus, Judge Presiding.
The opinion of the court was delivered by: Justice McCULLOUGH
JUSTICE McCULLOUGH delivered the judgment of the court, with opinion. Justice Cook concurred in the judgment and opinion.
Justice Appleton specially concurred, with opinion.
¶ 1 On April 6, 2011, a jury found defendant, Bruce Graves, guilty of aggravated driving under the influence of alcohol (DUI) (625 ILCS 5/11-501(d)(1)(A) (West 2008)). The trial court sentenced him to five years in prison. Defendant appeals, arguing the court erred by
(1) having a blanket policy against re-cross-examination, (2) permitting police officer testimony and opinions regarding horizontal gaze nystagmus (HGN), (3) limiting defense counsel's cross-examination regarding non-alcohol-related nystagmus, (4) permitting the State to replay a videotape admitted into evidence during its closing argument, (5) permitting the State to argue during closing that defendant knew he was over the legal limit of 0.08, (6) limiting defendant's argument during closing arguments, (7) admitting portions of a videotape that were obtained in violation of the eavesdropping statute (720 ILCS 5/14-1 through 14-9 (West 2008)) and in violation of his Miranda rights (see Miranda v. Arizona, 384 U.S. 436 (1966)), and (8) sentencing him to five years in prison rather than a term of probation. We affirm.
¶ 2 On June 19, 2009, the State charged defendant with aggravated DUI in violation of section 11-501(a)(2) of the Illinois Vehicle Code (Code) (625 ILCS 5/11-501(d)(1)(A) (West 2008)). It alleged defendant drove a motor vehicle while under the influence of alcohol and had twice previously committed violations of section 11-501(a) of the Code or similar provisions.
¶ 3 On December 22, 2009, defendant filed a motion to quash and suppress evidence. He alleged video and audio recordings had been made at the time of his arrest and maintained that recordings made after his arrest and while he was in the back of a squad car were inadmissible because they were recorded without his consent in violation of the eavesdropping statute. He also asserted statements he made during that time were inadmissible because they were made without the requisite Miranda warnings. Defendant asked the court to quash and suppress those statements and recordings.
¶ 4 On May 25, 2010, the trial court entered a docket entry, stating it had previously heard arguments on defendant's motion to quash and suppress and had taken the matter under advisement. The court then stated it denied the motion. The record on appeal does not contain a transcript of the hearing.
¶ 5 On August 13, 2010, defendant filed a second motion to quash and suppress evidence. He challenged the same video and audio recordings. Defendant asserted the recordings were made without his knowledge and without the benefit of Miranda warnings. A docket entry shows, on August 23, 2010, the matter was called for a hearing on defendant's second motion to suppress and the trial court took the matter under advisement. No transcript of that hearing appears in the appellate record. On October 8, 2010, the court entered a docket entry, stating it denied defendant's motion and finding statements defendant made were voluntary and failed to implicate Miranda.
¶ 6 On April 4, 2011, defendant's jury trial began. The State presented the testimony of three police officers. Its evidence showed Officer Kendric Walls was on routine patrol during the early morning hours of May 2, 2009, when he observed defendant driving. Walls testified he saw defendant fail to make a complete stop at a stop intersection and make a wide right turn that caused his vehicle to go into the oncoming lane of travel. Defendant's vehicle continued in the wrong lane for approximately 25 or 50 feet before going back into the correct lane. Walls continued to observe defendant and noted his vehicle again veered into the oncoming lane of traffic for approximately 50 feet before defendant turned into the driveway of his residence. Walls initiated a traffic stop. During the stop, he observed that defendant's eyes were bloodshot and he was sweating. Walls could also smell an odor of alcohol on defendant's breath. He stated defendant appeared confused when attempting to locate his insurance card and ultimately turned over a card that was expired.
¶ 7 Officer Ryan Rich arrived on the scene along with his field training officer Daniel Ward. Walls explained why he stopped defendant, reported his observations, and asked Rich and Ward to investigate further into whether or not it was safe for defendant to be driving. Rich began speaking with defendant and noticed defendant's eyes were bloodshot and he had an odor of alcohol on his breath. To determine whether defendant had any type of impairment, Rich asked him to perform three tests before exiting the vehicle. Rich requested defendant perform a finger touch test, which defendant completed with no problem. He then asked defendant to recite the alphabet, beginning with letter C and ending with letter Q. Rich testified defendant began the test correctly but incorrectly added an H after letter K and then continued too far into the alphabet, stopping at letter V rather than Q. For the final preexit test, Rich asked defendant to count backwards from 85 to 67. Defendant attempted the test but miscounted. Also, he could not recall the number he was supposed to stop at and, ultimately, was unable to complete the test.
¶ 8 Rich next asked defendant to step out of the car to perform three standardized field sobriety tests. He asked defendant to perform an HGN test, characterized by a jerking of the eye when moving right to left. As a result of that test, Rich found indicators of impairment from alcohol. He next asked defendant to perform the walk-and-turn test. Rich testified defendant failed to perform the test as directed in that he broke position, was off balance, began the test before being asked, stopped before finishing, took an incorrect number of steps, and made an improper turn. Finally, Rich asked defendant to perform a one-legged-stand test. Rich stated defendant also failed to complete this test as instructed. He noted defendant hopped around, raised both arms, and dropped his foot.
¶ 9 Based upon his training and observations, Rich concluded defendant was under the influence of alcohol and arrested him for DUI. Following the arrest, defendant was driven to jail and police conducted a 22-minute observation period. During that time, Rich read defendant the warning-to-motorist, describing the harsher penalties for refusing to take the Breathalyzer test. Rich asked defendant to submit to a breath test but defendant refused. He also asked defendant if he had been drinking and defendant replied "no, not at all." Rich testified that he had noticed an odor of alcohol on defendant's breath and that odor stayed with defendant for the entire time Rich was with him.
¶ 10 Officer Ward testified he was with Rich during the duration of Rich's investigation into whether defendant was impaired. He also observed defendant and noticed defendant had bloodshot eyes and "the extremely strong odor of an alcoholic beverage on his breath." Ward watched as defendant performed the field sobriety tests. He noted defendant immediately lost his balance during the walk-and-turn test. During that test, he also began walking before being instructed to do so, lost his balance on another occasion, improperly counted his steps, raised his arms away from his body for balance, and improperly turned. When defendant performed the one-leg-stand test, Ward observed that he raised his arms, leaned to the left, and began hopping to maintain his balance. Defendant also had to place his foot down during the test. Ward testified he had substantial training in detecting when a person was under the influence of alcohol and he agreed with Rich's decision to arrest defendant.
¶ 11 The State also played a video for the jury, containing video from Walls' squad car immediately prior to and after he initiated the traffic stop of defendant's vehicle and video from Rich's squad car that showed defendant performing the preexit and field sobriety tests. The video also contained approximately one minute of footage of defendant after he was arrested and placed in the back of the squad car. The footage of defendant in the squad car did not contain any audio recordings.
¶ 12 Following deliberations, the jury found defendant guilty of the charged offense. On May 6, 2011, defendant filed a motion for a new trial and raised multiple issues. On May 24, 2011, the trial court conducted a hearing and denied defendant's motion for a new trial. It then conducted defendant's sentencing hearing. The court noted defendant's presentence investigation report, showing defendant had prior convictions for 17 traffic offenses, 5 misdemeanor offenses, and 2 felony offenses. The report also showed he had previously served two sentences of probation and one prison sentence in the Illinois Department of Corrections (DOC). The court sentenced defendant to five years in prison.
¶ 13 On June 13, 2011, defendant filed a motion to reconsider his sentence. He argued the trial court should have imposed a sentence of probation because (1) he was not a threat to the public, (2) a probation sentence would have been consistent with the interests of justice, and (3) a probation sentence would better serve both the public and defendant's rehabilitation. Defendant also noted his strong family ties and his father's poor health. On June 17, 2011, the trial court conducted a hearing on defendant's motion. Although the record contains no transcript of that hearing, the court entered a docket entry, showing the appearance of all the parties and its denial of the motion.
¶ 14 This appeal followed.
¶ 15 On appeal, defendant first argues the trial court erred by refusing to permit re-cross-examination of the State's witnesses. He asserts the court had a blanket policy against re-cross-examination which caused him prejudice in that he was unable to challenge testimony about new matters brought up on redirect. Defendant maintains the court abused its discretion and he was denied a fair trial.
¶ 16 Challenges to a trial court's evidentiary rulings are subject to an abuse-of-discretion standard of review. Adams v. Sarah Bush Lincoln Health Center, 369 Ill. App. 3d 988, 998, 874 N.E.2d 100, 109 (2007). "Clearly, the scope and extent of cross-examination and recross-examination are within the discretion of the court." Adams, 369 Ill. App. 3d at 998, 874 N.E.2d at 109 (citing People v. Kirchner, 194 Ill. 2d 502, 536, 743 N.E.2d 94, 112 (2000)).
" '[C]ross-examination should be kept within fair and reasonable limits, and it is only in a case of clear abuse of such discretion, resulting in manifest prejudice to the defendant, that a reviewing court will interfere.' [Citation.]" Adams, 369 Ill. App. 3d at 998, 874 N.E.2d at 109.
¶ 17 Here, the State presented the testimony of three witnesses. Defendant attempted re-cross-examination with only one of those witnesses, Walls. At trial Walls testified on direct examination and cross-examination regarding his observations of defendant's driving, his initiation of a traffic stop, his observations of defendant during that stop, and his decision not to arrest defendant but to ask Rich to further investigate defendant's intoxication. During redirect, the State questioned Walls about turning the matter over to Rich and asked what field sobriety tests were. Walls responded that field sobriety tests tested a person's ability to multitask. The State then elicited testimony from Walls that field sobriety tests were part of the officers' investigation.
¶ 18 Following the State's redirect examination, defendant sought further inquiry. However, the trial court noted that re-cross was in its discretion and it typically would not allow re-cross-examination unless new ground had been covered by the State on redirect. The court denied defense counsel's request, finding it "heard no new ground." It permitted defendant to make an offer of proof outside of the jury's presence and defense counsel elicited agreement from Walls that field sobriety tests were designed to test matters such as coordination, physical stamina, the ability to follow directions, and balance. Walls also agreed that one's ability to perform such tests could be affected by factors other than being under the influence of alcohol.
¶ 19 Here, defendant mischaracterizes the trial court's re-cross-examination policy. Defendant argues the court had a blanket policy against re-cross-examination and failed to allow re-cross with respect to any of the State's witnesses. However, the record actually shows the court indicated it would permit re-cross-examination where new ground had been covered on redirect. The record further reflects defendant only sought to re-cross-examine one of the State's three witnesses. As the State points out, defendant sets forth arguments with respect to only Walls' testimony and has failed to make any argument that new matters were brought about during redirect examination of either Rich or Ward.
¶ 20 Defendant has also failed to establish either an abuse of discretion by the court or prejudice. First, Walls testified during direct and cross-examination about his decision not to immediately arrest defendant and, instead, have Rich further investigate defendant's condition. The field sobriety testimony the State elicited from Walls on redirect concerned that further investigation. Second, the record shows Walls was not the officer who actually conducted defendant's field sobriety testing. Officer Rich was the individual who asked defendant to perform that testing and defense counsel fully cross-examined Rich regarding those tests. Moreover, he elicited from Rich the precise testimony he sought to elicit from Ward during re-cross-examination. We find no error on this basis.
¶ 21 Defendant next argues the trial court erred by permitting Officer Rich to testify and give opinions regarding HGN. He contends Rich's testimony lacked sufficient foundation under the legal standards set forth in People v. McKown, 236 Ill. 2d 278, 924 N.E.2d 941 (2010).
¶ 22 "Nystagmus is 'an involuntary, rapid, rhythmic movement of the eyeball, which may be horizontal, vertical, rotatory, or mixed, i.e., of two varieties.' " McKown, 236 Ill. 2d at 284, 924 N.E.2d at 945 (quoting Dorland's Illustrated Medical Dictionary 1296 (30th ed. 2003)). In McKown, 236 Ill. 2d at 306, 924 N.E.2d at 957, the supreme court held that "evidence of HGN field-sobriety testing, when performed according to the [National Highway Transportation Safety Administration (NHTSA)] protocol by a properly trained officer, is admissible *** for the purpose of showing whether the subject has likely consumed alcohol and may be impaired." Further, a properly trained officer who followed proper procedures may give expert testimony regarding the results ...