People v. Moore

• Decision Date: 29 March 1996
• Docket Number: No. 5-94-0037,5-94-0037
• Citation: 663 N.E.2d 490,279 Ill.App.3d 152
• Parties: , 215 Ill.Dec. 479 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Roger F. MOORE, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 490

663 N.E.2d 490

279 Ill.App.3d 152, 215 Ill.Dec. 479

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Roger F. MOORE, Defendant-Appellant.

No. 5-94-0037.

Appellate Court of Illinois Fifth District.

March 29, 1996.

Appeal from the Circuit Court of Franklin County. No. 93-TR-0307. Honorable Kathleen M. Alling, Judge Presiding.

Daniel M. Kirwan, Deputy Defender; Janet Gandy Fowler, Assistant Defender; Office of the State Appellate Defender, Fifth Judicial District, Mount Vernon, for Appellant.

Hon. Terry M. Green, State's Attorney, Franklin County Courthouse, Benton, Norbert J. Goetten, Director; Stephen E. Norris, Deputy Director; J. Stephen Bennett, Contract Attorney; Office of the State's Attorneys Appellate Prosecutor, Mount Vernon, for Appellee.

Justice KUEHN delivered the opinion of the court:

Defendant, Roger F. Moore, was convicted of driving under the influence of alcohol (DUI) after a jury trial in the circuit court of Franklin County. 625 ILCS 5/11-501 (West 1992). He was sentenced to two years' probation, 14 days of periodic imprisonment, and a $500 fine. Defendant appeals.

The defendant's trouble began on the evening of January 29, 1993, when Officer Glenn Faith (Faith) of the Secretary of State's Office noticed the defendant's car remain stationary after a traffic signal turned green. Playing a hunch that the hesitation at the light was due to alcohol impairment, Faith followed the defendant. He noticed that the defendant's car lacked a front license plate and had a cracked windshield.

Faith followed the defendant's car to a nearby McDonald's restaurant parking lot. En route to McDonald's, Faith looked for, but saw no sign of, alcohol impairment in the defendant's manner of driving.

As soon as defendant and his family pulled onto the McDonald's parking lot, Faith confronted the defendant about his car. Faith immediately saw defendant's bloodshot eyes, smelled his alcohol-laden breath, and heard his slurred speech. Faith's senses confirmed his suspicion that defendant was driving under the influence of alcohol. He demanded to see defendant's performance of a series of field sobriety tests. The defendant's performance evidenced alcohol-like impairment.

Faith advised the defendant that he was under arrest for driving under the influence of alcohol. With consent, Faith searched the defendant's car and found an open can of Budweiser beer under defendant's seat. When Faith turned to confront the defendant with the discovery, he saw the defendant headed south in his flight to freedom. The defendant left his car, his wife, his daughter, and Officer Faith, Budweiser in hand, standing on the parking lot of McDonald's. It was approximately 10:30 p.m., January 29, 1993.

At 1:15 a.m., January 30, 1993, the defendant and his father walked into the West Frankfort police station. The defendant demanded a breathalyzer test, but Faith refused to administer one. Instead, the defendant was immediately placed under arrest. While the defendant was being booked, Officer Donald Watson (Watson) of the West Frankfort Police Department asked defendant why he ran. Defendant answered: "I was scared, I didn't want another DUI--so I just left. It was sort of stupid I know. I shouldn't have been driving. I should have had my wife driving."

Watson saw defendant's bloodshot eyes, smelled his alcohol-laden breath, and heard his slurred speech. At Faith's request, Watson administered a horizontal gaze nystagmus (HGN) test. The result mirrored Faith's HGN test result conducted earlier on the parking lot.

Sometime later, at 2:01 a.m., the defendant was told that he had a constitutional right to remain silent and that anything he said could be used against him. Defendant then refused to answer further questions.

The defendant challenges the sufficiency of the evidence upon which the guilty verdict is based. Our standard of review "is 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 in original.) People v. Collins, 106 Ill.2d 237, 261, 87 Ill.Dec. 910, 920, 478 N.E.2d 267, 277 (1985), quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979).

The defendant's guilt was as evident as the nose on his face--the nose that he could not locate with his finger that night. His guilt was reflected in his bloodshot eyes as they failed to smoothly pursue a pen passed in front of them. His slurred speech emanating from breath that reeked of alcohol spoke of his guilt. He could not stand on one foot or walk a straight line. In a word, his performance was staggering.

The defendant's motor skills evidenced impairment. His judgment was impaired as well. When Faith turned his attention to a search of the car, when discovery of a concealed can of beer was imminent, defendant broke and ran, abandoning his car, his wife, and his daughter. His exit into the night was an action that befit a guilty, and sodden, state of mind.

The defendant later admitted that he ran in fear of "another DUI conviction." He also lamented that his wife should have been driving that night.

Defendant urges that, absent evidence of erratic driving, the State fails in its burden of establishing the elements of the crime. Officer Faith witnessed the defendant driving his car. Thereafter, evidence pointed to the fact that the defendant was under the influence of alcohol. Faith and Watson formed opinions supported by the actions they observed and the tests they conducted. The defendant did not need to drive into a ditch or drive the wrong way on an interstate (or engage in any other gross misdeed in the operation of his car) for the State to prove he was in no condition to drive. Clearly, the guilty verdict was the product of a rational jury, reaching a rational decision based upon the evidence presented. The evidence was sufficient to support the verdict.

It is undeniable that certain evidence upon which this verdict rests could have been successfully challenged and never considered by the jury. The defendant's damaging statements to Watson were subject to suppression, being the product of an in-custody interrogation of the defendant without a knowing waiver of constitutional rights. Miranda v. Arizona, 384 U.S. 436, 467-72, 86 S.Ct. 1602, 1624-27, 16 L.Ed.2d 694, 719-22 (1966). Both HGN tests were admitted without proof of the proper foundation. See People v. Buening, 229 Ill.App.3d 538, 546, 170 Ill.Dec. 542, 547, 592 N.E.2d 1222, 1227 (1992), appeal denied, 146 Ill.2d 634, 176 Ill.Dec. 806, 602 N.E.2d 460 (1992). The prosecutor, in cross-examining the defendant, repeatedly asked his opinion of the credibility of other witnesses. Defendant was improperly compelled to opine that police officers had lied to the jury. See People v. Kokoraleis, 132 Ill.2d 235, 264, 138 Ill.Dec. 233, 237, 547 N.E.2d 202, 216 (1989), cert. denied, 497 U.S. 1032, 111 L.Ed.2d 804, 110 S.Ct. 3296 (1990). The defendant's propensity for crime was introduced when he was improperly cross-examined about an earlier conviction for criminal damage to property. See People v. Williams, 161 Ill.2d 1, 39, 204 Ill.Dec. 72, 88, 641 N.E.2d 296, 312 (1994); People v. Montgomery, 47 Ill.2d 510, 515, 268 N.E.2d 695, 698 (1971). And finally, Faith commented on the defendant's silence after Miranda rights were administered. Faith inferred that the defendant's exercise of his rights constituted evidence of guilt--a decision to conceal damaging information about his activities that night. Doyle v. Ohio, 426 U.S. 610, 618, 96 S.Ct. 2240, 2245, 49 L.Ed.2d 91, 98 (1976).

The defendant decries his lawyer's representation. His condemnation seeks our review of errors in the legal assistance received from appointed counsel. Defendant claims that counsel's performance was deficient to a point of undermining the trial process that produced conviction.

The State urges us to ignore the professional errors raised on appeal. It points to defendant's pro se posttrial motion and argues waiver of the issue. It asserts that the general claim of ineffective assistance of counsel found in defendant's posttrial motion did not articulate, and therefore did not preserve, the various professional errors now raised on appeal. People v. Enoch, 122 Ill.2d 176, 189-90, 119 Ill.Dec. 265, 270-71, 522 N.E.2d 1124, 1129-30 (1988).

This claim raises the issue of the deprivation of a constitutional right essential to the basic fairness of adversarial proceedings. Absent the assistance of a "reasonably effective" lawyer, an accused stands defenseless in the presence of unconstrained prosecutorial power. Effective assistance of counsel functions to assure prosecutions constrained by rules of evidence and procedure designed to assure fairness. A claim of ineffective assistance of counsel, drafted by a disenchanted pro se defendant who casts off and blames his lawyer for receipt of an unfair trial, can find refuge from waiver in the plain error doctrine. 134 Ill.2d R. 615; People v. Rainwater, 207 Ill.App.3d 1096, 1099-1100, 152 Ill.Dec. 945, 947, 566 N.E.2d 822, 824 (1991). The doctrine takes note of errors and defects affecting substantial rights. It draws purpose and meaning from a case such as this. A prosecution that pursued an unfettered path of misconduct on its way to verdict should not go unaddressed. We consider the error substantial and the doctrine appropriate where defense counsel, the keeper of the gate, failed to defend and protect the integrity of the path to verdict; where defense counsel allowed his client to fall prey to prosecutorial excess and absorb penalty for exercise of his constitutional rights. In fact, this case graphically demonstrates that the rules of adversarial trial combat preserve fairness only if the adversary is required to abide by those rules. We will address the merits of the claim.

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