People v. Day
| Decision Date | 22 January 2019 |
| Docket Number | NO. 4-16-0217,4-16-0217 |
| Citation | 431 Ill.Dec. 375,127 N.E.3d 908,2019 IL App (4th) 160217 |
| Parties | The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. William E. DAY, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
James E. Chadd, Jacqueline L. Bullard, and Jessica L. Fangman, of State Appellate Defender’s Office, of Springfield, for appellant.
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.
¶ 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influence of alcohol and cannabis ( 625 ILCS 5/11-501(a)(5) (West 2014) ) and driving while his driver's license was revoked (id.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—and in his petition for rehearing, he reminds us of that claim. We hold that the doctrine of invited error bars defendant from claiming, on appeal, an additional day of presentence credit.
¶ 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—a claim he reiterates in his petition for rehearing. We hold that the doctrine of invited error likewise bars that claim. And, besides, apart from invited error, defendant fails to establish from the record that he was incarcerated on the day for which he claims the additional $5 of monetary credit. Being incarcerated, not merely being in custody, is the statutory condition of the monetary credit.
¶ 8 We affirm the judgment, and we deny defendant's petition for rehearing from our prior order, which also affirmed the circuit court judgment.
¶ 10 A. The Jury Trial (January 20-21, 2016)
¶ 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:
¶ 19 Herbert requested defendant to undergo a field sobriety test. He refused. Herbert then arrested him for driving under the influence (DUI) and for leaving the scene of an accident.
¶ 20 Herbert "turned the video camera around and filmed [defendant] on the way to jail." It appeared from the video footage that defendant now and then leaned over against the interior of the squad car and fell asleep.
¶ 21 In the jail, before asking defendant to undergo chemical testing to measure his blood alcohol content—a request that defendant ultimately refused—Herbert was required to read to him a warning of the penalties he would incur should he refuse to undergo the test. Herbert testified: Herbert called the jail sergeant, Kristopher Thompson, to come in and stand nearby so that he, Herbert, would not be attacked.
¶ 22 Herbert had been a deputy for the Macon County Sheriff's Department since 2005 and "probably [had] encountered hundreds of intoxicated people while at work." In his opinion, defendant was intoxicated that night.
¶ 23 On cross-examination, Herbert testified that potential inmates first were brought to the sally port of the county jail. The sally port was a large garage with a garage door on each end. Then they were brought into the prebooking area, or if they were suspected of DUI, they were required to wait for 20 minutes in the DUI processing room. State rules of procedure for DUI testing required that before administering a breath test to an arrestee, the arrestee had to be observed for 20 minutes to ensure the arrestee did not vomit or eat anything during that 20-minute period.
¶ 25 On September 8, 2014, at about 10:04 p.m., Wendell saw a man walking south on Illinois Route 121, about a mile south of the accident site. It was defendant. Defendant told Wendell who he was, and he presented a state identification card. Defendant was wearing no shoes, and he appeared to be "highly intoxicated": his breath smelled like alcohol, and his speech was slurred. In defendant's "left front pocket," Wendell found "a white cannister," which contained a "substance * * * that had the odor and appearance of cannabis." Wendell "took him back to the scene of the accident," Illinois Route 121 and Kruse Road.
¶ 27 On September 8, 2015, around 11:55 p.m., when Kristopher Thompson was on duty as "an administrative sergeant" "in charge of the third shift jail," Herbert "requested assistance because [an] arrestee was causing him some trouble." The arrestee was defendant.
¶ 28 In his job, Thompson saw intoxicated people every night, and in his opinion defendant was "extremely intoxicated." He was combative, belligerent, and aggressive, and he was not following commands.
To continue reading
Request your trial
-
People v. Day, 4-16-0217
...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, 431 Ill.Dec. 375, 127 N.E.3d 908), we addressed defendant's claim for the additional day of presentence credit. On May......