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People v. Curry

Court of Appeals of Illinois, Fourth District

June 11, 2013

DAVID CURRY Defendant-Appellant.

Appeal from Circuit Court of Schuyler County Nos. 12CF7, 12TR161, 12TR163, Honorable Alesia A. McMillen, Judge Presiding.

JUSTICE HOLDER WHITE delivered the judgment of the court, with opinion. Presiding Justice Steigmann and Justice Pope concurred in the judgment and opinion.



¶ 1 Following a January 28, 2012, encounter with police, defendant, David Curry, was arrested and subsequently prosecuted for (1) aggravated driving under the influence (DUI) (625 ILCS 5/11-501(d)(1)(A) (West 2010)) (Schuyler County case No. 12-CF-7), (2) driving with an expired registration (625 ILCS 5/3-413(f) (West 2010)) (case No. 12-TR-161), and (3) improper lane usage (625 ILCS 5/11-709(a) (West 2010)) (case No. 12-TR-163).

¶ 2 On the scheduled jury trial date, defendant filed a motion to continue, seeking to obtain new counsel. The trial court denied defendant's motion as untimely, and defendant's trial commenced the following day. During voir dire, the court admonished the potential jurors pursuant to Illinois Supreme Court Rule 431(b) (eff. May 1, 2007) and concluded its admonition by asking each juror individually whether he or she "agreed or disagreed." The jurors all indicated they agreed.

¶ 3 Following defendant's July 2012 trial, the jury found defendant guilty of operating a motor vehicle with an expired registration, improper lane usage, and DUI. In August 2012, during defendant's sentencing hearing, the State presented defendant's certified driving abstract showing defendant had the necessary prior convictions to elevate his DUI conviction to aggravated DUI. The court entered judgment on aggravated DUI, driving with an expired registration, and improper lane usage. The court sentenced defendant to four years in the Illinois Department of Corrections on the Class 2 felony of aggravated DUI.

¶ 4 Defendant appeals, arguing (1) the trial court abused its discretion by denying him his right to counsel of choice, (2) the court failed to comply with Illinois Supreme Court Rule 431(b) (eff. May 1, 2007) during voir dire, (3) the State committed reversible error by making several improper remarks during closing argument, (4) the court erred by instructing the jury to continue deliberating after the jury indicated it had reached an impasse, and (5) defendant received ineffective assistance of trial counsel.

¶ 5 We affirm.


¶ 7 A. Pretrial Proceedings

¶ 8 Following a January 28, 2012, encounter with police, defendant was arrested and subsequently prosecuted for (1) aggravated DUI (625 ILCS 5/11-501(d)(1)(A) (West 2010)), (2) driving with an expired registration (625 ILCS 5/3-413(f) (West 2010)), and (3) improper lane usage (625 ILCS 5/11-709(a) (West 2010)).

¶ 9 On February 23, 2012, Sharp and Harmon Law Office entered an appearance on behalf of defendant. At the March 21, 2012, preliminary hearing, Michael Harmon appeared for defendant. Following a preliminary hearing, the trial court found probable cause shown to believe defendant committed the felony offense of aggravated DUI. When asked whether he preferred to "go ahead with the arraignment today" or continue the matter, Harmon requested the court continue the case past the first two weeks of April.

¶ 10 On April 18, 2012, the trial court arraigned defendant on the aggravated DUI charge and set the case "on the June jury." On May 23, 2012, the parties appeared for a pretrial hearing, during which the trial court scheduled defendant's case for its June 11, 2012, trial call. The court indicated all trials would start on that date to avoid having 60 jurors present without a case to try. The court also admonished defendant if he answered ready for trial, the court would not accept any plea agreement entered into after the May 23, 2012, pretrial hearing.

¶ 11 On June 11, 2012, Harmon filed a motion to continue. The motion asserted defendant contacted the Sharp and Harmon Law Office on May 30, 2012, and informed the office he had hired new counsel. On June 1, 2012, Sharp and Harmon learned defendant had hired attorney Richard D. Frazier. Although Harmon's office made "numerous attempts" to reach Frazier, it was unable to do so; thus, Harmon requested a continuance to ascertain "the exact nature of the attorney-client relationship in this matter." Harmon did not attach an affidavit to his motion.

¶ 12 Harmon, defendant, and the State appeared before the trial court on the June 11, 2012, trial call. Noting it had received Harmon's motion, the court asked Harmon whether he wished to add anything to his written motion. Harmon explained to the court, Frazier indicated, due to a scheduling conflict, he would be willing to try defendant's case only if the case was continued. According to Harmon, defendant paid Frazier a retainer that Frazier deposited in a trust account "late last week." Harmon went on to indicate, Frazier "put conditions on his employment, and the condition were [sic] we had to come over here and basically beg the Court for a continuance."

¶ 13 Harmon asserted if the trial court chose to deny the motion for continuance, he was ready to try defendant's case, which he described as "rather uncomplicated." He noted defendant stated for the first time on June 11, 2012, that Frazier was "definitely" his choice. Harmon filed the motion to continue to allow the trial court to decide whether the motion was timely and let the prosecutor "weigh in" on the motion.

¶ 14 The prosecutor objected to the motion, arguing it was untimely. The prosecutor indicated she spoke to Frazier a few days earlier, and Frazier told her he received money for a retainer Thursday night but he was not going to enter his appearance unless the case was continued because he had a scheduling conflict during the scheduled trial week. According to the prosecutor, defendant was "playing some kind of games" to try to get his case continued.

¶ 15 The trial court denied the motion for continuance, stating as follows:

"This is not a timely motion. You don't come in the morning of juries and file a motion for a continuance because you just decided [the] Friday before that you wanted a different attorney. And I don't know whether it's game playing or not, but it's certainly last-minute, not fair to anyone, and if I didn't have another case, I mean, and I would grant your motion, I'd have 55 Schuyler County citizens out here who want to be anywhere in the world but here. They want to be at their jobs, with their families, whatever, but they're going to be inconvenienced and come here and do their civic duty. And you know, we just don't inconvenience them in this way. So I'm perfectly willing, you know, attorneys get in and out of cases all the time, and I have no problem with that at all. I've tried cases with Mr. Frazier, tried cases with Mr. Harmon. They're both excellent attorneys. But we don't do motions to continue on the morning of the jury trial."

The court also agreed if Frazier was "going to get in this case, he should have been here this morning making the Motion to Continue."

¶ 16 Harmon and defendant then engaged in an off-the-record discussion, after which Harmon stated to the court, "Judge, I think Mr. Frazier told my client that he needs to make a statement about his desire to express to the Court that he wants to retain Mr. Frazier as his lawyer." The trial court responded it was "not going to accept any pro se statement by a defendant who is here represented by counsel." The court confirmed defendant's trial would likely commence that week.

¶ 17 B. Defendant's Jury Trial

¶ 18 1. Voir Dire

¶ 19 On June 12, 2012, defendant's jury trial commenced. During voir dire, the trial court explained it was going to ask the jury "a series of questions and propositions of law" and ask the jurors if they agreed or disagreed with those propositions. Thereafter, the court stated as follows: (1) "Do you understand the presumption of innocence?"; (2) "That is, that the defendant is presumed innocent until and unless proven guilty beyond a reasonable doubt"; (3) "The defendant is not required to prove his innocence"; (4) "Do you understand that it is the burden of the State to prove guilt beyond a reasonable doubt?"; (5) "If the State fails to prove guilt beyond a reasonable doubt, you must enter a verdict of not guilty"; (6) "You must remember that the defendant is not required to testify, to call any witness, or present any evidence"; (7) "The presumption of innocence remains with the defendant throughout the course of the trial and is not overcome unless, after listening to all the evidence and retiring to the jury room, you have determined that the State has met its burden of proof of guilt beyond a reasonable doubt"; (8) "Do you understand that the defendant in a criminal case has an absolute right guaranteed by the Constitution of the United States not to testify?"; and (9) "[T]hat if a defendant does not testify that is in no way any indication of guilt or that his failure to testify cannot be held against him in any way." The court then asked each juror individually if he or she agreed or disagreed with those propositions, and all of the jurors indicated they agreed.

¶ 20 2. Opening Statements

¶ 21 The parties then delivered opening statements. Defense counsel's opening statement did not address the substantive issues of the case and was able to be transcribed in less than two pages. Remarking on the State's opening statement, defense counsel asked, "if that's all that there is to this case, why are we here?" Defense counsel then answered, "Because there's more to this case. And you need to listen very closely to everything that you're going to be hearing, and you need to watch very closely to everything you're going to be seeing."

¶ 22 3. The Evidence Presented at Trial

¶ 23 Rushville police officer Bill Thompson testified on January 28, 2012, at around 1 a.m., he was on patrol, driving on Clinton Street, when a red, full-sized pickup truck turned from South Congress Street onto Clinton. Defendant, who was identified as the driver of the truck, cut across the centerline, completely into Thompson's lane. Thompson swerved into a yard, at which point defendant's truck swerved back into its lane and continued on Clinton.

¶ 24 Thompson made a U-turn and followed the truck, which crossed the centerline approximately five more times. As he followed the truck, Thompson observed the truck's registration was expired. Thompson activated his lights, but defendant continued driving, turning northbound on Highway 67. Thompson contacted dispatch and another on-duty officer, Officer Chris Edwards, to report the vehicle did not appear to be stopping. Thompson then activated his audible siren, but defendant did not stop, instead making a right turn onto Lafayette Street. Immediately thereafter, defendant turned into a parking lot at the Green Gables Motel, and Thompson followed. Edwards arrived at the motel around the same time.

¶ 25 Thompson asked defendant to provide his license, registration, and insurance information. After looking through the console of his truck, defendant indicated he could not find his registration or insurance. Thompson told defendant the documents were normally in the glove box, at which point defendant opened the glove box and "dug through a few papers." According to Thompson, defendant acted "uncoordinated, " and his speech was slurred and slow. Thompson and Edwards could also detect the smell of alcohol on defendant's breath. Defendant stated he did not have his registration or insurance.

¶ 26 Thompson left defendant in the truck and ran defendant's driver's license information through dispatch. Edwards "took over from there, " initiating a DUI investigation of defendant.

¶ 27 On cross-examination, Thompson acknowledged on the date of defendant's traffic stop he was not a certified police officer. Thompson testified such certification was not required by state law. Thompson also acknowledged he failed to include in his report the following details: (1) he drove into a yard to avoid defendant's pickup truck, and (2) defendant made a statement to Edwards. Likewise, Thompson's report indicated only that defendant crossed the centerline "multiple times, " not five times, and did not detail how much of defendant's vehicle crossed the line or near which landmarks the vehicle swerved.

ΒΆ 28 Chris Edwards, a police officer with the Rushville police department, testified on January 28, 2012, he responded to Thompson's call for assistance. Prior to that date, Edwards had made six or seven DUI arrests. When he arrived at the Green Gables Motel, Edwards exited his car and approached the passenger side of defendant's truck. Edwards observed defendant acting "confused, " having difficulty opening the papers he had removed from his glove box. When he spoke to defendant, Edwards could ...

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