People v. Morris

• Decision Date: 23 July 2014
• Docket Number: No. 1–13–0152.,1–13–0152.
• Citation: 16 N.E.3d 269
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. James MORRIS, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

16 N.E.3d 269

The PEOPLE of the State of Illinois, Plaintiff–Appellee

v.James MORRIS, Defendant–Appellant.

No. 1–13–0152.

Appellate Court of Illinois, First District, Third Division.

July 23, 2014.

Michael A. Ficaro and Maura M. McIntyre, both of Ungaretti & Harris LLP, of Chicago, for appellant.

Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg, Christine Cook, and Monique Patton, Assistant State's Attorneys, of counsel), for the People.

OPINION

Presiding Justice HYMAN delivered the judgment of the court, with opinion.

¶ 1 At around two o'clock in the morning, a Chicago police officer found defendant James Morris passed out in the front seat of a parked car, the ignition off, the driver's side door open, and keys in his right hand. Morris was charged with multiple counts of “actual physical control” of the car while under the influence of alcohol (625 ILCS 5/11–501(a)(2) (West 2012)) and felony driving with a suspended or revoked driver's license (625 ILCS 5/6–303(a) (West 2012)). Convicted after a bench trial, Morris received eight years in prison.

¶ 2 Morris raises three grounds for reversing his convictions: (1) the State failed to prove beyond a reasonable doubt that he was in actual physical control of the vehicle or under the influence of alcohol; (2) the phrase “actual physical control” in sections 11–501(a)(2) and 5/6–303(a) of the Illinois Vehicle Code (Code) (625 ILCS 5/11–501(a)(2), 6–303(a) (West 2012)) is unconstitutionally vague and ambiguous as applied to him; and (3) his counsel's performance denied him his constitutional right to effective counsel. Morris also asserts his status as a Class X felon was improper, and asks for resentencing.

¶ 3 We affirm Morris's conviction and sentence. First, the State proved beyond a reasonable doubt that Morris was under the influence of alcohol and had “actual physical control” of the car under the factors our courts consider and neither Morris's intent nor the fact that the car was parked and the ignition off defines or explains actual physical control. In addition, regarding “actual physical control” as unconstitutionally vague and ambiguous as applied to Morris, he has failed to meet his burden of rebutting the presumption of constitutionality and establishing a constitutional violation. Next, none of the arguments that Morris advances in support of his ineffective assistance of counsel claims satisfy the two-part test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Finally, the trial court properly sentenced Morris and his arguments to the contrary misapprehend his criminal record.

¶ 4 BACKGROUND

¶ 5 On April 22, 2012, a Chicago police officer found defendant, James Morris, passed out in the driver's seat of a parked vehicle with keys in his hand. Morris, who smelled of alcohol, could not produce any identification or an insurance card. A field sobriety test conducted at the police station indicated Morris was impaired. Consequently, he was arrested and charged by indictment with 5 counts of aggravated driving under the influence of alcohol (625 ILCS 5/11–501(a)(2) (West 2012)) and 14 counts of felony driving while driver's license is suspended or revoked (625 ILCS 5/6–303(a) (West 2012)). Before trial, the State elected to proceed on the first seven counts of the indictment—one count of aggravated driving under the influence of alcohol and six counts of felony driving while driver's license is suspended or revoked—and dismissed the remaining counts.

¶ 6 The evidence established that on April 22, 2012, at about 1:55 a.m., Chicago police officer Rick Nigro, while responding to a call of shots fired in the area of the 4800 block of North Kostner, came upon a poorly parked car with its driver's door open. On investigation, Nigro saw Morris slumped over the steering wheel, passed out. Nigro testified he did not see Morris driving the car; in Morris's right hand were the car keys. A bag of groceries sat on the curb. Nigro woke Morris up and noticed Morris had bloodshot eyes and reeked of alcohol. Morris could not produce identification or proof of insurance. Nigro, an 18–year veteran of the department who had made dozens of arrests for driving under the influence, considered Morris to be highly intoxicated and called another police officer to take Morris to the police station.

¶ 7 At the station, officer John Kaporis met with Morris. Kaporis testified he has been a certified Breathalyzer technician for 10 years and gets recertified every 3 years. Kaporis performed only the horizontal gaze nystagmus sobriety test (HGN), because Morris told him he had problems with his knees, and Kaporis did not want to exacerbate the problem. Kaporis explained that the HGN test is one of three standardized field sobriety tests the police conduct on DUI suspects. An officer administers the test by holding a stimulus, like a pen, about 15 inches from the subject's face. The subject focuses on the stimulus and follows it with his or her eyes as it is moved slowly to the side and back to the center. The test checks for smooth, continuous movement of the eyes and nystagmus (involuntary jerkiness of the eyes, a sign of impairment). Kaporis performed three sweeps on Morris and observed “distinct nystagmus, * * * onset nystagmus, * * * involuntary jerkiness of the eyes on all three and vertical nystagmus as well.” After administering the HGN test, Kaporis concluded Morris showed signs of impairment. Kaporis asked Morris if he wanted to take a Breathalyzer test. Morris refused. Kaporis noticed Morris had red, bloodshot eyes and that his breath emitted a strong odor of alcohol.

¶ 8 The parties stipulated to two prior DUI convictions—one in Chicago in 2010 and another from Wisconsin in 1987. Defense counsel moved for a directed finding, which the trial court denied.

¶ 9 After the State rested, Morris called one witness, Jackie Summerlin, who testified that she and Morris were apartment-sitting for a friend that day, and at about 1:30 a.m., she drove her car to the grocery store, stopped for gas and groceries, and went to the liquor store and bought two six-packs of beer and a small bottle of whiskey. On returning to the apartment, Summerlin parked about a block away, took out some beer and the bottle of whiskey and went upstairs. She asked Morris to go out to the car for the rest of the items, which she said were in the front passenger seat. Summerlin said she gave Morris the keys and went to bed.

¶ 10 Summerlin testified she woke up a few hours later and realized Morris and the car were gone. She said she did not call the police because she did not want to get Morris in any trouble if he had taken the car. She later learned that Morris had been arrested and her car impounded. Summerlin admitted that before she went to the liquor store, she had been drinking. A Cook County investigator went to speak with Summerlin, but, after the investigator told her she did not have to speak to him if she did not want to, she refused to answer any questions.

¶ 11 The trial court found Morris guilty of aggravated driving under the influence of alcohol and felony driving on a suspended or revoked license. In reaching its verdict, the trial court reviewed the evidence, noting that the HGN test indicated impairment, both police officers thought Morris was under the influence of alcohol, Morris refused a breathalyzer test, and had two prior DUI convictions. As for defendant's case, the court stated, “Based on the totality of the circumstances, the totality of the evidence, the court does find a bit of bias on Ms. Summerland's [sic ] part * * *. Some of her testimony strains credibility: Not calling the police when the person she sent down to get the remaining groceries didn't come back. She fell asleep or passed out. She admits drinking. The court puts little credence on her testimony for the foregoing reasoning.” The court concluded the State proved the elements of aggravated DUI and driving on a suspended or revoked license beyond a reasonable doubt.

¶ 12 Morris filed a motion for a new trial arguing, in part, that he was not proven guilty beyond a reasonable doubt because the State failed to present credible evidence that he drove the vehicle or had the intention to drive it. The trial court denied the motion. During the sentencing hearing, the circuit court determined Morris was Class X eligible based on his prior Class 2 felony convictions and sentenced him to eight years in prison. Morris filed a motion to reconsider his sentence, which the trial court denied. That same day, Morris filed a notice of appeal.

¶ 13 ANALYSIS

¶ 14 Evidence of Guilt Beyond a Reasonable Doubt

¶ 15 Morris first contends the State failed to prove beyond a reasonable doubt that he was in “actual physical control” of a vehicle while under the influence of alcohol. Morris does not contend the State failed to prove beyond a reasonable doubt that he was driving or “in actual physical control” of a motor vehicle at a time when his driver's license was revoked or suspended as prohibited by section 6–303(a) of the Code (625 ILCS 5/6–303(a) (West 2012)), so that part of the conviction will not be addressed here.

¶ 16 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 State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Cunningham, 212 Ill.2d 274, 279, 288 Ill.Dec. 616, 818 N.E.2d 304 (2004). “In conducting this inquiry, the reviewing court must not retry the defendant.” Id. This standard recognizes the responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the evidence and to draw reasonable inferences from it. People v. Campbell, 146 Ill.2d 363, 375, 166 Ill.Dec. 932, 586 N.E.2d 1261 (1992). A criminal conviction will be reversed only...