People v. Gordon

• Decision Date: 28 December 2007
• Docket Number: No. 1-06-1663.,1-06-1663.
• Citation: 378 Ill. App. 3d 626,881 N.E.2d 563
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Patrick GORDON, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

881 N.E.2d 563

378 Ill. App. 3d 626

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Patrick GORDON, Defendant-Appellant.

No. 1-06-1663.

Appellate Court of Illinois, First District, Fifth Division.

December 28, 2007.

Rehearing Denied January 24, 2008.

Michael J. Pelletier, Office of State Appellate Defender, Chicago (Rebecca I. Levy, of counsel), for Appellant.

Richard A. Devine, Cook County State's Attorney, Chicago (James E. Fitzgerald, Matthew Connors, Mary P. Needham and Angela Z. Ordway, of counsel), for Appellee.

Justice FROSSARD delivered the opinion of the court:

Defendant, Patrick Gordon after a bench trial was convicted of three counts of aggravated driving under the influence of alcohol, aggravated possession of a stolen motor vehicle, felony driving while his license was suspended or revoked and aggravated fleeing or attempting to elude the police. Defendant was sentenced to 8 years in the Illinois State Penitentiary for aggravated possession of a stolen motor vehicle and 3 years concurrent on all the other felony convictions. Defendant appeals and contends as follows: (1) that the State did not prove defendant guilty beyond a reasonable doubt based on witness testimony and a horizontal gaze nystagmus (HGN) sobriety test; (2) the circuit court erred in admitting the HGN test without a proper foundation and without conducting a hearing to determine that the test is scientifically reliable pursuant to Frye v. United States, 293 F. 1013 (D.C.Cir.1923) (Frye hearing); (3) defendant is entitled to a credit of $ 1,744 toward the $1,000 DUI fine, the $1,000 DUI subsequent offense fine, and the $100 Trauma Fund fine; (4) the mittimus should reflect a conviction for misdemeanor, not felony aggravated fleeing or attempting to elude the police; and (5) the mittimus should be corrected to reflect that the three felony aggravated driving under the influence convictions should merge under the one act/one crime rule. We affirm.

BACKGROUND

On June 28, 2005, Bedford Hayes drove his car to work. Mr. Hayes parked his car in front of his place of work, put the keys in the car's ashtray, and left the car unlocked. When Mr. Hayes returned to his parking space around 12 p.m. that same day, he noticed that his vehicle was gone and immediately notified the Evanston police department.

Mr. James DeClet was at his parent's house on June 28, 2005, in Skokie, Illinois, when he noticed defendant's vehicle. Mr. DeClet noticed that the defendant was driving erratically: first driving slowly, then accelerating quickly, and then stopping suddenly. Mr. DeClet decided to follow this vehicle and call 911 to report that defendant was possibly driving under the influence. Mr. DeClet was able to see in the front seat of defendant's car and testified that he believed that defendant was drunk because defendant's head was bobbing up and down and his eyes were bloodshot. Mr. DeClet then made a second call to 911 to report that defendant's car was zigzagging. Mr. DeClet also gave the 911 dispatcher the license plate number of the vehicle he was following and the dispatcher confirmed that the license plate number matched that of a vehicle that had been reported stolen earlier that day.

Officer Panizo, a police officer for 4½ years, was on street patrol on the date of the incident. Officer Panizo received a radio call from the police dispatcher about a possibly intoxicated driver in a car that had been reported stolen in Evanston earlier that day. Officer Panizo looked for the stolen car and located it stopped at a traffic light. He positioned his car behind defendant's vehicle and, after activating his lights, exited his squad car and approached the defendant's vehicle from the driver's side. Officer Panizo was dressed in his ordinary police uniform with his badge clearly visible. He ordered the defendant out of this vehicle, but the defendant did not listen. The defendant then proceeded to make a right turn and drive away from Officer Panizo. Officer Panizo immediately returned to his squad car and pursued the defendant with his siren sounding. The pursuit lasted for approximately one mile. Office Panizo testified that, during this chase, the defendant drove the speed limit and obeyed whatever traffic signals, if any, were present.

After Officer Panizo caught up with the defendant, Officer Panizo curbed the defendant's car and stopped in front of defendant's vehicle. By this time, Officer Olkowski had joined Officer Panizo and pulled up behind the defendant's vehicle. Just when Officer Panizo was about to exit his squad car, the defendant accelerated his vehicle and struck the right rear quarter panel of the squad car. After this impact, Officer Panizo exited his squad car and ordered the defendant out of his car. The defendant remained in his car, forcing Officer Panizo and Officer Olkowski to physically remove the defendant from the car. The officers then handcuffed the defendant and confirmed from the license plate of the defendant's vehicle that it had been reported stolen. Officer Panizo noticed that defendant's eyes were bloodshot and watery, he had a strong odor of alcoholic beverage about him, he swayed back and forth when he tried to walk toward the squad car, and his speech was mumbled when he talked to the officers. Officer Panizo then noticed empty beer cans on the floor of the defendant's car. Officer Panizo then took defendant to the Skokie police station and performed the HGN test.

During the trial, Officer Panizo testified that he had administered the HGN test at least 25 to 30 times and that he had received hands-on training as to the proper way to administer the test. He then explained how an officer performs the HGN test on a person who is suspected of being intoxicated. The test is performed by having the suspect focus on a stimulus, usually a pen, placed 12 to 15 inches in front of the suspect's face. The officer then moves the stimulus in different directions and has the suspect follow the movement with his eyes. The object of this test is to detect nystagmus, or jerking of the eyes, and whether the eyes track equally. A suspect is regarded as failing the test if he receives a score of four or more decision points (nystagmus or jerking points).

When Officer Panizo gave the defendant the HGN test, the defendant scored six decision points. The defendant then refused to take any other field sobriety tests. Defendant did agree to take a Breathalyzer test to determine his blood alcohol level, but Officer Olkowski was not able to register a reading because the defendant would not blow into the Breathalyzer long enough for the machine to obtain a reading.

During his career as a police officer, Officer Panizo has witnessed between 50 and 100 people under the influence of alcohol. He has made between 10 and 15 arrests for driving under the influence. Based on his extensive experience, the observations that he made when he pulled over the defendant, and the defendant's failure of the HGN test, Officer Panizo determined that the defendant was under the influence of alcohol.

Defendant did not testify or present any witnesses to rebut the evidence introduced by the State. Defendant was found guilty of three counts of aggravated driving under the influence of alcohol, aggravated possession of a stolen motor vehicle, felony driving while his license was suspended or revoked and aggravated fleeing or attempting to elude the police. Defendant was sentenced to 8 years for the aggravated possession of a stolen motor vehicle charge and concurrent terms of three years on each of the remaining felonies.

ANALYSIS

I. Sufficiency of Evidence

Defendant's first contention on appeal is that the State failed to prove him guilty beyond a reasonable doubt of felony aggravated driving under the influence of alcohol. In support of that contention, defendant argues that the, court found that Officer Panizo's observations of defendant alone were "borderline" in terms of being adequate proof of defendant's intoxication, the only sobriety test performed was the horizontal gaze nystagmus test, and James DeClet, the only other witness who testified defendant was under the influence of alcohol, did not have sufficient time or ability to observe defendant and did not identify defendant in court.

When reviewing a conviction to determine whether the prosecution has satisfied the reasonable doubt standard, the court must determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Emphasis omitted.) Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979). The Jackson standard applies in all criminal cases, regardless of the nature of the evidence. People v. Pollock, 202 Ill.2d 189, 217, 269 Ill.Dec. 197, 780 N.E.2d 669 (2002). "In conducting this inquiry, the reviewing court must not retry the defendant." People v. Cunningham, 212 Ill.2d 274, 279, 288 Ill.Dec. 616, 818 N.E.2d 304 (2004). Rather, the reviewing court must examine the record, keeping in mind that it was the trier of fact who saw and heard the witness. Cunningham, 212 Ill.2d at 280, 288 Ill.Dec. 616, 818 N.E.2d 304. Testimony may be found insufficient under the Jackson standard only where it is clear from the record that no reasonable person could have found the elements of the crime proven beyond a reasonable doubt. Cunningham, 212 Ill.2d at 280, 288 Ill.Dec. 616, 818 N.E.2d 304.

Section 11-501(a)(2) of the Illinois Vehicle Code provides that an individual "shall not drive or be in actual physical control of any vehicle within this State while" such individual is "under the influence of alcohol." 625 ILCS 5/11-501 (a)(2) (West 2004). Accordingly, the prosecution was required to establish that defendant "was in actual physical control" of his car while he was "under the influence." See People v....