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People v. Day

Court of Appeals of Illinois, Fourth District

September 10, 2019

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
WILLIAM E. DAY, Defendant-Appellant.

          Appeal from the Circuit Court of Macon County No. 15CF1123 Honorable James R. Coryell, Judge Presiding.

          Attorneys for Appellant: James E. Chadd, Jacqueline L. Bullard, and Jessica L. Fangman of State Appellate Defender's Office, of Springfield, for appellant.

          Attorneys for Appellee: Jay Scott, State's Attorney, of Decatur (Patrick Delfino, David J. Robinson, and Kathy Shepard, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

          JUSTICE CAVANAGH delivered the judgment of the court, with opinion. Justices Knecht and Turner concurred in the judgment and opinion.

          OPINION

          CAVANAGH JUSTICE

         ¶ 1 A jury found defendant, William E. Day, guilty of driving under the combined influence of alcohol and cannabis (625 ILCS 5/11-501(a)(5) (West 2014)) and driving while his driver's license was revoked (id. § 6-303(d-2)). The Macon County circuit court sentenced him to concurrent terms of imprisonment.

         ¶ 2 Defendant appeals on five grounds.

         ¶ 3 First, he argues that the evidence is insufficient to support the convictions. Our deferential standard of review compels us to disagree.

         ¶ 4 Second, defendant claims that the prosecutor committed plain error by repeatedly attempting to introduce hearsay in the teeth of multiple sustained objections. The transcript of the jury trial does not bear out that claim.

         ¶ 5 Third, defendant complains that the circuit clerk imposed fines upon him that the trial court never imposed in its sentence. We cannot legitimately take cognizance of the clerk-imposed fines since they can be found only in a "Payment Status Information" sheet, a document that (contrary to our earlier ruling, which we rescind) does not belong in the common-law record.

         ¶ 6 Fourth, defendant claims he is entitled to an additional day of presentence credit. In part E of the opinion that we issued in this appeal on January 22, 2019 (People v. Day, 2019 IL App (4th) 160217, ¶¶ 65-69), we addressed defendant's claim for the additional day of presentence credit. On May 22, 2019, the supreme court denied defendant's petition for leave to appeal but, in the exercise of its supervisory authority, directed us to vacate part E and remand this case to the circuit court, where, pursuant to Illinois Supreme Court Rule 472 (eff. May 17, 2019), defendant may raise his claim for an additional day of presentence credit. In this new version of our opinion, we comply with the supervisory order.

         ¶ 7 Fifth, just as defendant claims he is entitled to an additional day of presentence credit, he claims that, for the same day, he is entitled to an additional $5 of monetary credit against his fines. In part F of the previous version of our opinion in this appeal, we addressed that claim as well. See Day, 2019 IL App (4th) 160217, ¶¶ 70-73. In its supervisory order, the supreme court directed us to vacate part F and to remand this case to the circuit court for proceedings pursuant to Rule 472. People v. Day, No. 124518 (Ill. May 22, 2019) (supervisory order). Accordingly, in this new version of our opinion, we do so.

         ¶ 8 Therefore, we affirm the convictions, and we affirm the sentences except for the presentence credit and the fines; we remand this case for further proceedings on defendant's claims for an additional day of presentence credit and an additional $5 of monetary credit against his fines, after which the circuit court shall either leave the presentence credit and fines unchanged or make adjustments, as the evidence warrants.

         ¶ 9 I. BACKGROUND

         ¶ 10 A. The Jury Trial (January 20 to 21, 2016)

         ¶ 111. The Testimony of Joseph Herbert

         ¶ 12 On September 8, 2015, at about 9 p.m., a Macon County deputy sheriff, Joseph Herbert, drove his squad car to the intersection of Kruse Road and Illinois Route 121, south of Mt. Zion, Illinois, to investigate a reported single-vehicle accident.

         ¶ 13 At the southeast corner of the intersection, a black 1975 Chevrolet pickup truck had come to rest. Herbert took photographs. The truck had "front[-]end damage to the middle grill, bumper region," as if it had "struck a tree or pole or something of that nature," and leaves were entangled in the grill. The engine was off, but the headlights were still on, and the key was in the ignition. Nobody was in the truck or anywhere in sight. "On the driver's seat floorboard[, ] there was a black cell phone and one orange flip-flop."

         ¶ 14 About three-quarters of a mile north, in the 5400 block of Kruse Road, a camper, or "topper," was on the ground. It had sustained "extensive damage to the front." "[O]nce it became separated from the vehicle," it had "more or less collapsed on itself." Herbert inferred that the 5400 block of Kruse Road was the "original accident scene"-he found the tree that the truck apparently had struck-and that, "[a]fter the camper became separated from the vehicle, the vehicle continued [south] from the accident scene."

         ¶ 15 About 57 minutes after Herbert arrived at the scene, a call came in from a third party, requesting a welfare check of "a white male" who was walking south on Illinois Route 121, south of Herbert's location. Herbert sent another deputy sheriff, Shane Wendell, to check on that man and make sure he was all right. After a while, Wendell returned with defendant, whose last known address was 1770 East Locust Street, Decatur, Illinois, about six to eight miles away from the intersection of Kruse Road and Illinois Route 121.

         ¶ 16 Defendant had "red bloodshot eyes." He was shoeless, and his bare feet were muddy. A "strong odor of [an] alcoholic beverage [was] coming from his breath," and he "sway[ed] [from] side to side" as Herbert talked with him. Wendell handed Herbert "a small white tin," which Wendell had "located on [defendant] prior to transporting him back to [the] scene." Inside the tin was a "[s]mall amount of green leafy substance," which field tested positive for cannabis. Defendant admitted to Herbert that, before the accident, he "consumed beer and smoked cannabis."

         ¶ 17 Because defendant appeared to have a cut on his upper lip, Herbert asked him if he had suffered any injury in the accident. Defendant answered no and explained that the sore on his upper lip was herpes, which he had caught, he said, from prostitutes. Herbert asked him if he had been the driver. Defendant answered he had not. He said that, instead, his friend Buddy Young had been the driver and that, after the accident, Young had chosen to walk north on Illinois Route 121 whereas he, defendant, had chosen to walk south. Defendant was unable, however, to provide any description of Young other than to say he was "a black male." Herbert asked defendant how long he had known Young. Defendant answered he did not know. Herbert asked defendant where Young could be located. Defendant again answered he did not know.

         ¶ 18 The prosecutor asked Herbert:

"Q. Did you ask him about the cell phone that was located inside the vehicle?
A. Yes, ma'am.
Q. What was his response to that?
A. He said it was his phone.
Q. Did you ask him about the shoe that was found inside the vehicle?
A. Yes, ma'am.
Q. And what was his response?
A. He said it was his ...

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