People v. Hollahan

• Decision Date: 20 June 2019
• Docket Number: Appeal No. 3-15-0556
• Citation: 432 Ill.Dec. 730,2019 IL App (3d) 150556,129 N.E.3d 1273
• Parties: PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Joseph A. HOLLAHAN, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

2019 IL App (3d) 150556

129 N.E.3d 1273

432 Ill.Dec. 730

PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Joseph A. HOLLAHAN, Defendant-Appellant.

Appeal No. 3-15-0556

Appellate Court of Illinois, Third District.

Opinion filed June 20, 2019

JUSTICE HOLDRIDGE delivered the judgment of the court, with opinion.

¶ 1 After a jury trial, the defendant was convicted of aggravated driving while under the influence of alcohol (Aggravated DUI) ( 625 ILCS 5/11-501(a)(2), (d)(1)(A), (d)(2)(A) (West 2008) and sentenced to a one-year term of imprisonment. He appeals his conviction, arguing that the trial court committed reversible error when, in response to the jury's request during deliberations to view the videotape of the defendant's field sobriety tests for a second time, the trial court had the jury watch the video in the courtroom while the court, the defendant, the attorneys for the defendant and the State, and two alternate jurors were present. The defendant also argues that the trial court improperly assessed a $ 500 public defender fee under section 113-3.1 of the Illinois Code of Criminal Procedure (750 ILCS 5/113-3.1 (West 2008)) without conducting a hearing on the defendant's ability to pay, as required by the statute, and without giving the defendant proper notice and an opportunity to be heard on the issue.

¶ 2 FACTS

¶ 3 The defendant was charged by indictment with aggravated DUI, a class 4 felony. The offense was alleged to have occurred in Kankakee on August 29, 2009. Private counsel entered an appearance for the defendant on January 19, 2010. However, on October 24, 2011, the trial court appointed a public defender to represent the defendant because the defendant claimed he had no money.

¶ 4 The defendant's first trial ended in a mistrial. His subsequent jury trial commenced on April 21, 2015. Illinois State Police Trooper Timothy Davis was the State's only witness. Davis testified that, at about midnight on August 29, 2009, he was in Kankakee traveling northbound on Washington Avenue near Hickory Street when he saw a vehicle ahead of him start to enter a left turn lane and then jerk back into its lane. The vehicle later stopped at a red light. At that time, Davis observed that the vehicle's rear license plate light was not operational and that the rear license plate had a plastic cover on it. When the stoplight turned green, the vehicle proceeded northbound, drove onto a double yellow line, then straddled a lane divider line, and then failed to yield to a fire truck that was traveling southbound with its emergency lights flashing.

¶ 5 At that time, Davis effected a traffic stop. Davis testified that the vehicle did not initially pull over even though there was a stretch along the street where the driver could have done so. After the vehicle stopped, Davis spoke to the defendant, who was the driver of the vehicle, and to a passenger who was in the front seat. When he spoke with the defendant, Davis detected a strong odor of an alcoholic beverage on the defendant's breath and noticed that the defendant had glassy, bloodshot eyes and slightly slurred speech. Davis testified that the defendant told him that he had drunk four beers.

¶ 6 Davis asked the defendant to perform three field sobriety tests: the Horizontal Gaze Nystagmus test, the "walk and turn" test, and the "one leg stand" test. The defendant's performance of these tests were recorded on videotape. A redacted version of the recording was copied to a DVD and played to the jury during the defendant's trial without objection from the defendant. Based on his scoring of the defendant's performance on the three field sobriety tests, and on his observations of the defendant's driving and conduct, Davis concluded that there was alcohol in the defendant's system and that the defendant was impaired. Davis arrested the defendant for DUI. Davis stated that, after the defendant was taken to jail, he refused to take a breathalyzer and became belligerent.

¶ 7 Following Davis's testimony, the State introduced an abstract of the defendant's driving record into evidence outside of the presence of the jury. The abstract showed numerous prior traffic violations by the defendant, including a suspension of the defendant's license in 1998 for DUI in violation of section 11-501(a)(2) of the Illinois Vehicle Code ( 625 ILCS 5/11-501(a)(2) (West 1998), and another conviction for the same offense in 2000.

¶ 8 The defendant testified that, shortly before he was pulled over by Davis on August 29, 2009, he jerked his car back from the left turn lane because he was giving his passenger a ride to an unfamiliar address and he realized that he was about to make a wrong turn. He stated that he did not yield to the fire truck because it had just "whipped" around the corner, giving the defendant no time to react. The defendant claimed that he pulled over right away when he saw the police lights. He stated that he refused to take the breathalyzer test at the jail because he was already under arrest.

¶ 9 After closing arguments, the trial court instructed the jury on the applicable law. The court admonished the jurors that "[l]awyers, parties, and witnesses are not permitted to speak with you about any subject, even if unrelated to the case, until after the case is over and you are discharged from your duties as jurors." After the jury instructions, but prior to the start of the jury's deliberations, the trial court informed the jury that the bailiff could not discuss the case with the jurors, offer his opinion as to the facts or the law, or demonstrate the use of any exhibit, and he admonished the jurors not to ask the bailiff to do any of these things.

¶ 10 The jury then retired to deliberate. Shortly thereafter, the jury asked to watch the videotape of the defendant's traffic stop again. The trial court decided to show the video to the jury in the courtroom because the court did not have the "arrangement" necessary to allow the jury to view the video in the jury room. The court also decided to allow the defendant, the attorneys for the defendant and the State, and two alternate jurors to remain in the courtroom while the jury watched the video. The defendant's counsel did not object to this procedure. Before the jury was brought back into the courtroom, the trial court admonished the defendant, the attorneys, and the alternate jurors that the jury would be watching the video and that "[n]o one will have any conversation." After the jury was brought back into the courtroom, the trial court addressed the jurors, stating:

"Please come in and have a seat, we will not be talking to you other than to get the video, period. * * * The jury has requested to see the video again. We do not have an arrangement to show it to you in your deliberation room. I have instructed everyone to not say a word and we will play the video for you. If you need to have the sound adjusted or anything that we can do, all right?"

¶ 11 After watching the video, the jury returned to the jury room to resume deliberations. Less than an hour later, the jury found the defendant guilty.

¶ 12 During the sentencing hearing, the State asked that the defendant be assessed a $ 500 public defender fee under section 113-3.1 of the Illinois Code of Criminal Procedure (750 ILCS 5/113-3.1 (West 2008)). The trial court imposed the fee requested by the State without conducting a hearing on the defendant's ability to pay such a fee. The trial court sentenced the defendant to a one-year term of imprisonment. The defendant filed a timely motion to reconsider his sentence, which the trial court denied.

¶ 13 This appeal followed.

¶ 14 ANALYSIS

¶ 15 1. The jury's viewing of the video during deliberations

¶ 16 The defendant argues that the trial court committed reversible error when, in response to the jury's request during deliberations to see the video a second time, the trial court had the jury watch the video in the courtroom while the court, the defendant, the attorneys for the defendant and the State, and two alternate jurors were present.

¶ 17 Because the defendant did not object to the procedure employed by the trial court or raise the issue in a posttrial motion, he asks us to review the issue under the plain error doctrine. The State argues that plain error review is unavailable here because the defendant "acquiesced to" the procedure chosen by the trial court, thereby inviting any error resulting from that procedure and forfeiting appellate review of any such error. As the State correctly notes, where a party acquiesces in proceeding in a given manner, "he is not in a position to claim he was prejudiced thereby." People v. Villarreal , 198 Ill. 2d 209, 227, 260 Ill.Dec. 619, 761 N.E.2d 1175 (2001). However, plain-error review is forfeited only if the defendant invites the error or affirmatively agrees to the procedure he later challenges on appeal. People v. Harding , 2012 IL App (2d) 101011, ¶ 17, 359 Ill.Dec. 116, 966 N.E.2d 437.¹ Merely failing to object to a procedure proposed by the trial court or by the opposing party does not amount to invited error. People v. Coan , 2016 IL App (2d) 151036, ¶ 24, 405 Ill.Dec. 184, 57 N.E.3d 1282 (rejecting the State's invited error argument where the State tendered the jury instruction at issue and the defendant failed to object); Harvey , 211 Ill. 2d at 384–87, 286 Ill.Dec. 124, 813 N.E.2d 181 (rejecting the State's argument that one of the defendants invited error by failing to object to the use of certain evidence at trial). If the mere failure to object amounted to invited error, plain error review would never be available and the plain error rule would be rendered a nullity.

¶ 18 In this case, although defense counsel failed to object when the video was shown to the jury in the presence of the trial court, the parties and their counsel, and the alternate jurors, he did not request or expressly agree to that procedure. Accordingly, we may review the procedure employed by the trial court for...