People v. Cruz

         Appeal from the Circuit Court of Cook County. No. 16 CR 6375 Honorable James Karahalios, Judge, presiding.

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          James E. Chadd, Patricia Mysza, and Elizabeth A. Botti, of State Appellate Defender's Office, of Chicago, for appellant.

          Kimberly M. Foxx, State's Attorney, of Chicago ( Alan J. Spellberg, Noah Montague and Justin R. Erb, Assistant State's Attorneys, of counsel), for the People.

         JUSTICE HARRIS delivered the judgment of the court, with opinion. Justice Cunningham and Justice Connors concurred in the judgment and opinion.

         OPINION

         HARRIS, JUSTICE.

         ¶ 1 Following a jury trial, defendant Jose Cruz was convicted of aggravated driving under the influence of alcohol (DUI) and driving while his license was revoked or suspended (DWR). He was sentenced to concurrent prison terms of 16 years for aggravated DUI and 6 years for DWR. Defendant now appeals, arguing that (1) he was denied a fair trial because the State's closing argument mentioned facts not in evidence, (2) his aggravated DUI sentence was excessive, (3) the trial court erred by imposing an extended term sentence for DWR, and (4) the case should be remanded to the circuit court so that he may challenge the imposition of certain fines and fees and the calculation of his per diem credit. We affirm defendant's conviction and sentence for aggravated DUI, reduce his sentence for DWR, and remand the matter so that defendant may file a motion raising his fines and fees arguments.

         ¶ 2 JURISDICTION

         ¶ 3 Defendant filed a motion to reconsider his sentence, which the trial court granted. Defendant was resentenced on April 3, 2017. He filed his notice of appeal that same day. Accordingly, this court has jurisdiction pursuant to article VI, section 6, of the Illinois Constitution (Ill. Const. 1970, art. VI, § 6) and Illinois Supreme Court Rule 603 (eff. Feb. 6, 2013) and Rule 606 (eff. Dec. 11, 2014), governing appeals from a final judgment of conviction in a criminal case entered below.

         ¶ 4 BACKGROUND

         ¶ 5 After a traffic stop in April 2016, defendant was charged by indictment with aggravated DUI (625 ILCS 5/11-501(a)(2) (West 2016)) and DWR ( id. § 6-303(a)). Based on previous convictions for similar offenses, the State sought to sentence defendant as a Class X offender for aggravated DUI and as a Class 4 offender for DWR.

         ¶ 6 Prior to trial, defendant agreed to participate in a plea discussion conference pursuant to Illinois Supreme Court

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Rule 402 (eff. July 1, 2012). The court admonished defendant on the nature and potential consequences of a Rule 402 conference, which, through a Spanish interpreter, defendant stated he understood. After the conference, which was conducted off the record, defense counsel informed the court that defendant claimed he had not understood the court's preconference admonishments because he did not receive his medication in jail that morning. Personally addressing the court, defendant then explained that he normally took sleeping pills at night and the antidepressant Zoloft in the morning but did not receive his Zoloft that morning because he left for court before the jail nurse arrived.

         ¶ 7 The court issued an order requesting defendant's medication records, which showed that defendant was prescribed to take acetaminophen twice a day and the antidepressant Mirtasapiner at night. The records also indicated that defendant had received all of his prescribed doses on the day of and the day preceding the Rule 402 conference. When confronted with the records, defendant apologized to the court and claimed that the jail staff sometimes dispensed his medications incorrectly. The court stated for the record that defendant addressed the court in "perfect" English and that the Spanish interpreter was "absolutely not needed." However, defendant continued to use an interpreter throughout the proceedings.

         ¶ 8 The State next filed a motion in limine requesting the court to take judicial notice of and instruct the jury on section 1286.40 of Title 20 of the Illinois Administrative Code (20 Ill. Adm. Code 1286.40 (2015)), which explains that the concentration of alcohol in a person's blood serum should be divided by 1.18 to calculate that person's whole blood alcohol concentration (BAC). Defense counsel objected, arguing that the State should be required to have an expert witness testify to the calculation because it was "not something that the average individual knows and could calculate properly."^[1] The court granted the State's motion over the objection.

         ¶ 9 At trial, Elk Grove police officer Christopher Palmese testified that he was on patrol in a marked squad car on the morning of April 3, 2016. At around 2:30 a.m., Palmese stopped at a red traffic light at the intersection of Elmhurst and Higgins Roads. He was in the innermost of two left turn lanes and was directly behind another driver, later identified as defendant. When defendant made the left turn, Palmese observed "[t]he majority, if not [all]" of his vehicle drift into the outermost turn lane before veering back into its original lane. Palmese followed defendant, who was "swerving within in [his] lane," for another 200 feet before activating his emergency lights. Defendant activated his right turn signal and, although there was space on the right shoulder, pulled left into the "median" separating directions of traffic. Palmese approached defendant's vehicle and noticed that his eyes were "glassy." Defendant informed Palmese that he was coming from an alcohol-serving establishment and that he had been drinking there. Palmese requested defendant's driver's license, but he was unable to produce one. Instead, defendant provided Palmese with his name and date of birth. Palmese returned to his squad car, called for assistance, and entered defendant's information into a computer database.

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          ¶ 10 When another officer arrived, Palmese requested that defendant submit to field sobriety testing. As defendant exited his vehicle for the tests, Palmese noticed that he smelled of alcohol and was "unsure" and "very hesitant" in his gait. Palmese first administered the horizontal gaze nystagmus test, which required defendant to track a pen with his eyes without moving his head. During the first phase of the test, defendant was unable to smoothly follow the pen and exhibited a "distinct and sustained" nystagmus in his left eye. During the second phase of the test, defendant simply "stare[d] straight ahead" each time despite Palmese's repeated instructions to follow the pen with his eyes. Palmese concluded the test after several unsuccessful attempts. Based on defendant's performance, Palmese concluded that he had been drinking.

         ¶ 11 Palmese next administered the "walk-and-turn test," which required defendant to take nine quick, heel-to-toe steps in a straight line while counting them aloud. After the nine steps, defendant was to turn around and repeat the process in the opposite direction. Palmese explained and demonstrated how to perform the test properly. When defendant attempted the test, he instead took 14 slow "baby steps" without counting aloud or turning around.

         ¶ 12 Finally, Palmese administered the "one-legged stand test," which required defendant to stand on one leg with the other raised in front of him while counting aloud for 30 seconds. Palmese explained and demonstrated how to perform the test. After several attempts, defendant was only able to hold his leg in the air for three to four seconds.

         ¶ 13 After the testing, Palmese handcuffed defendant, who "kind of resisted at first" and "plead[ed]" with the officers not to arrest him. The officers then had to assist defendant into the back of Palmese's squad car. Once inside, defendant stated that he "only had three beers" and that the officers were "killing [him]." Palmese informed defendant of the Miranda rights (see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)), and defendant "quieted down." On the 10-minute drive to the police station, Palmese noticed that defendant "wobbl[ed] around" in the backseat, "kept putting his head down," and "almost * * * fell asleep." Palmese testified that defendant spoke English throughout the encounter and was understandable despite having "slurred and delayed" speech.

         ¶ 14 The State published footage of the traffic stop captured by cameras within Palmese's squad car. The video begins after defendant's lane violation and does not clearly show the results of the nystagmus test, but it corroborates Palmese's testimony in all other material aspects.

         ¶ 15 At the police station, Palmese read defendant a warning form explaining that the refusal to submit to a breath test would result in a longer suspension of his driver's license than if the test determined him to be intoxicated. Even so, defendant refused the breath test.

         ¶ 16 On cross-examination, Palmese acknowledged that it was cold, dark, and windy outside at the time of the stop. Defendant was not wearing a coat and repeatedly put his hands in his pockets to stay warm. Palmese did not ask defendant whether he had any physical impairments or whether he was on medication ...