People v. Banks

• Decision Date: 19 December 2007
• Docket Number: No. 2-05-0582.,2-05-0582.
• Citation: 378 Ill. App. 3d 856,883 N.E.2d 43
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Ronnell R. BANKS, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

883 N.E.2d 43

378 Ill. App. 3d 856

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Ronnell R. BANKS, Defendant-Appellant.

No. 2-05-0582.

Appellate Court of Illinois, Second District.

December 19, 2007.

Rehearing Denied March 14, 2008.

Thomas A. Lilien, Deputy Defender, Office of State Appellate defender, Mark G. Levine, Office of State Appellate Defender, Elgin, IL, for Appellant.

Eric C. Weis, Kendall County State's Attorney, Yorkville, Stephen E. Norris, Deputy Director, State's Attorney Appellate Prosecutor, Sharon Shanahan, State's Attorney Appellate Prosecutor, Mt. Vernon, IL, for Appellee.

Justice O'MALLEY delivered the opinion of the court:

Following a bench trial in the circuit court of Kendall County at which defendant, Ronnell R. Banks, was convicted of driving under the influence of alcohol (DUI) (625 ILCS 5/11-501(a)(2) (West 2004)) and driving while his license was suspended (625 ILCS 5/6-303 (West 2004)), defendant appeals. On appeal, defendant contends that the evidence was insufficient to prove him guilty beyond a reasonable doubt of driving while his license was suspended, because there was no evidence that his license was actually suspended on the date of the purported offense. Defend ant also contends that the fact that a videotape of the traffic stop was lost renders the record insufficient for appellate review and thereby deprives him of his constitutional right to a direct appeal. Finally, defend ant asserts that the evidence was insufficient to prove him guilty of DUI. We reject defendant's contentions and affirm.

I. BACKGROUND

We summarize the pertinent facts. On February 1, 2005, a bench trial commenced. A verbatim transcript of the testimony rendered during trial was not prepared. Instead, for purposes of appeal, the parties prepared an agreed statement of facts and attached police reports prepared by Sergeant Terry Klingel of the Yorkville police department and Deputy John Collins of the Kendall County sheriffs department. The parties indicated that the police officers testified consistently with their narrative reports. Additionally, Deputy Mitch Hattan of the Kendall County sheriffs department testified similarly to Klingel and Collins. The following recitation is taken from the police reports attached to the agreed statement of facts. We note that absent from the agreed statement of facts is any indication that defendant objected to the hearsay testimony regarding defendant's suspended license, which was admitted into evidence instead of a certified driver's abstract. Also absent is any best-evidence objection.

Klingel related that, at about 11:30 p.m., on Friday, September 17, 2004, he was dispatched to the area of Route 126 and Minkler Road. There, he observed a red Chevrolet sport utility vehicle (SUV), registered to defendant, with its hazard lights activated. As Klingel approached the vehicle, he observed defendant exit the passenger side of the SUV. Klingel observed that defendant was staggering as he exited the vehicle. Klingel asked defendant if he was okay. Defendant responded that he was fine, but Klingel noted that defendant's speech was "slurred" and "thick-tongued." Klingel also noticed that an odor of an alcoholic beverage was emanating from defendant's face and mouth. Klingel asked if defendant had been drinking that night and defendant stated, in slurred speech, that he had. Klingel asked defendant if he had been driving. Defendant informed Klingel that he had been driving and drinking, but did not want to drive anymore, so he pulled onto the side of the road. As Klingel was speaking to defendant, he noticed a beer bottle protruding from a paper bag that was lying on the floor of the front passenger side of the vehicle. Klingel, who was out side of his jurisdiction, called for a Kendall County sheriff's deputy.

Collins reported that, upon arriving at the scene, Klingel related that defendant appeared to be intoxicated and had admitted that he had been drinking alcohol, and Klingel reported that he had observed a bottle of beer in a paper bag under defendant's feet. Collins related that Klingel had learned defendant's name, and Collins noted in his narrative report that defendant's "driver's license status was that of suspended as of 10/01 for [a previous conviction of] driving under the influence [(625 ILCS 5/] 11-501(a)(2) [(West 2004))]."

Collins related that, when he asked defendant to roll down the passenger window, defendant appeared to have trouble doing so. Collins opened the passenger door for defendant and noticed the odor of alcohol coming from the car. Collins noticed that defendant was disheveled and had glassy, bloodshot eyes. Collins observed a bottle of beer inside a paper bag on the passenger-side floor of the car.

Collins related that defendant said that he ran out of gas and would need help. Collins asked defendant where he was coming from and defendant stuttered and appeared to be confused as he answered. Defendant pointed and appeared to have trouble formulating his answer. Defendant stuttered and told Collins that his wife did not want him to return home. Defendant told Collins that, when he arrived at home, his wife told him to leave and he did so.

Collins related further details about the encounter, in which defendant appeared to be confused and contradicted himself. For example, defendant claimed to be heading toward Aurora, but he was not headed in the direction toward Aurora when he was found by police. Additionally, defendant claimed to have obtained food from a Portillo's restaurant, but instead had food wrapped in McDonald's packaging in his car. Defendant also told Collins repeatedly that he had not been drinking alcohol, which contradicted what he told Klingel.

Collins asked defendant to get out of the car and to come to the rear of his vehicle. Collins smelled a strong alcoholic odor coming from defendant. Collins again asked defendant if he had consumed any alcohol, and defendant replied that he had "had one beer." Defendant refused to take a field sobriety test. Collins then arrested defendant. Collins' search of defendant's car uncovered four unopened bottles of beer, two opened bottles of beer with very little beer remaining, and one opened can of beer with a small amount of beer remaining. Defendant was transported to the county jail and charged with, among other things, DUI and driving while his license was suspended. The beer containers were placed into evidence as well as a videotape of the encounter recorded from Collins' dashboard video camera.

Also attached to the agreed statement of facts was Collins' "Law Enforcement Sworn Report" (sworn report). The report contained check boxes to indicate whether defendant surrendered his driver's license. The "No" box was checked, and Collins recorded that defendant did not surrender his license at the time of the encounter because his "driver[']s license [was] suspended."

During the encounter, Collins requested that a deputy be dispatched to defendant's home to make sure that no violence had occurred between defendant and his wife. Hattan responded to the call. Hattan learned from defendant's wife that defendant had come home drunk and that she told him to leave.

A dashboard video tape of the encounter with defendant was displayed to the trial court. According to the agreed statement of facts, the videotape displays "a portion of the events testified to by Deputy Collins and Sergeant Klingel."

Defendant did not testify at trial. No other evidence was offered on his behalf. The trial court noted that, following "presentation of testimony & video," it found defendant guilty of both charges. For the DUI conviction, defendant was sentenced to a 364-day term of imprisonment, and for the conviction of driving while his license was suspended, defendant was sentenced to a 24-month term of probation. In addition, defendant was assessed fines and costs totaling $750 and required to undergo a level III alcohol treatment program, which was modifiable based upon defendant's evaluation. Defendant's post-trial motions were denied, and defendant timely appeals. At some point while the appeal was pending, the parties discovered that the videotape of the traffic stop and arrest was no longer in the possession of either the circuit court clerk, the State's Attorney, or the public defender. Included in the record on appeal is an affidavit acknowledging that none of those parties had or were able to locate a copy of the videotape of defendant's traffic stop and arrest.

II. ANALYSIS

On appeal, defendant challenges the sufficiency of the evidence of his convictions of driving while his license was suspended and DUI. Defendant also contends that the loss of the videotape of his traffic stop and arrest makes the record insufficiently complete for review and thereby deprives him of his right to appeal his conviction of DUI.

A. Sufficiency of Evidence to Sustain Conviction of Driving While His License Was Suspended

Defendant's initial argument on appeal is that the evidence is insufficient to prove that his license was suspended on the date of the traffic stop. Defendant points to a phrase in Collins' narrative report that related that defendant's "driver's license status was that of suspended as of 10/01 for [a previous conviction of] driving under the influence [(625 ILCS 5/] 11-501(a)(2) [(West 2004))]." Defendant contends that this is ambiguous and could mean that defendant's license was due to be suspended October 1, about two weeks after the date of the traffic stop at issue here, or was suspended in October 2001, three years before the stop. Defendant also notes that there is no driver's abstract or other documentary evidence in the record to show that defendant's license was suspended on September 17, 2004, the date of the stop. However, defendant did not argue the best-evidence rule or inadmissible hearsay below or in this court. Defendant concludes that the...