People v. Jacobs ( 2010 )

NO. 4-09-0878 Filed 11/1/10
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Champaign County
DREW M. JACOBS, ) No. 07DT625
Defendant-Appellant. )
) Honorable
) Charles McRae Leonhard,
) Judge Presiding.
________________________________________________________________
JUSTICE TURNER delivered the opinion of the court:
In May 2009, a jury found defendant, Drew M. Jacobs,
guilty of driving under the influence of alcohol and driving with
an alcohol concentration of 0.08 or more. In October 2009, the
trial court sentenced him to 24 months' conditional discharge.
On appeal, defendant argues (1) evidence of chemical
testing was improperly admitted, (2) the State failed to prove
him guilty beyond a reasonable doubt, (3) the trial court should
have entered judgment on the count of driving under the influ-
ence, (4) the State deprived him of a fair trial, and (5) the
court erred in giving certain jury instructions. We affirm.
I. BACKGROUND
In September 2007, defendant was charged by citation
with two counts of driving under the influence (625 ILCS 5/11-
501(a) (West 2006)). Defendant pleaded not guilty.
In December 2007, defendant filed a petition to rescind
statutory summary suspension and a motion to quash arrest and
suppress evidence. In April 2008, the trial court denied the
petition and the motion. Defendant appealed, and this court
affirmed the trial court's judgment. People v. Jacobs, No. 4-08-
0330 (April 15, 2009) (unpublished order under Supreme Court Rule
23).
In May 2009, defendant filed several motions in limine,
asking the trial court to prohibit the State from proffering
testimony pertaining to the horizontal gaze nystagmus (HGN) test
and a preliminary breath test (PBT). The court allowed the
motion regarding the HGN test and also allowed the motion as to
the PBT, subject to the defense opening the door at trial.
At defendant's jury trial, Monica Strandberg testified
she was a trooper with the Illinois State Police. On September
13, 2007, Strandberg was on routine patrol in Champaign County
when she observed a white Ford with its "bright lights on."
Strandberg stated it was a violation of the Vehicle Code to have
"your high beams on within 500 feet of another vehicle," so she
initiated a traffic stop at 2:50 a.m. As the driver of the Ford
entered a parking lot, "the rear tire hit the curb."
Trooper Strandberg approached the driver, identified as
defendant, and noticed "he had a flush face" and "red and glossy
eyes." She could also "smell a strong odor of an alcoholic
beverage coming from his breath." When she asked defendant
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whether he had been consuming alcohol, he responded he had two
beers. Defendant did not have any trouble producing his driver's
license and proof of insurance.
Strandberg then asked defendant to exit the vehicle to
perform field-sobriety tests. Defendant performed the nine-step-
walk-and-turn test, and Strandberg stated he did "fine." Defen-
dant then performed the one-legged-stand test, and Strandberg
considered his performance a failure because he "swayed slightly"
and "raised his arms more than six inches past his side." She
then placed defendant under arrest for driving under the influ-
ence of alcohol based on the strong smell of alcohol coming from
his breath, his failure on the field-sobriety test, his flush
face and red glassy eyes, and his "driving up over the curb."
Trooper Strandberg transported defendant to the police
station, issued him a citation, and read to him the warning to
motorists. Defendant then agreed to take a Breathalyzer test.
Strandberg testified she was certified to administer the test.
She used the Intox EC/IR and testified to a logbook the police
department maintains on the use of the machine. The test result
showed 0.11 at 4 a.m. Strandberg then issued defendant a second
citation for driving under the influence of alcohol over 0.08.
The State played the tape of the stop to the jury.
After the State rested its case, defense counsel moved for a
directed verdict, which the trial court denied.
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The defense then called Dr. Ronald Henson, who testi-
fied as an expert in impaired-driving enforcement, field-sobriety
testing and blood- and breath-alcohol testing. Dr. Henson
reviewed documents relating to defendant's arrest. After review-
ing the video, Dr. Henson stated he did not notice any recognized
cues that would indicate defendant did not perform the one-
legged-stand test or the walk-and-turn test correctly. He then
opined there existed a "disconnect" between defendant's perfor-
mance and his 0.11 breath-alcohol reading.
On rebuttal, Todd Savage testified he was a breath-
alcohol technician with the Illinois State Police. The trial
court recognized him as an expert in the operation, maintenance,
and repair of the EC/IR instrument. Savage stated he travels
around to police agencies and sheriff's departments to make sure
the EC/IR devices are accurate and working properly. Upon
checking the devices for accuracy, he would note the results in a
logbook. He checked the accuracy of the EC/IR at the Champaign
County satellite jail on September 6, 2007, and again on October
4, 2007.
Following Savage's testimony, defense counsel moved for
a directed verdict at the close of all the evidence, which the
trial court denied. Following closing arguments, the jury found
defendant guilty.
In June 2009, defendant filed a posttrial motion, which
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the trial court denied. In October 2009, the court entered
judgment on the count of driving with a blood- or breath-alcohol
concentration (BAC) of 0.08 or more (625 ILCS 5/11-501(a)(1)
(West 2006)) and sentenced defendant to 24 months' conditional
discharge. This appeal followed.
II. ANALYSIS
A. Chemical Testing
Defendant argues the State improperly introduced the
results of the Breathalyzer test in its case in chief by failing
to provide a proper foundation that the device was tested regu-
larly for accuracy and was working properly. We disagree.
In determining the foundational requirements of breath-
test results, our supreme court has noted as follows:
"Such a foundation will include: (1) evi-
dence that the tests were performed according
to the uniform standard adopted by the Illi-
nois Department of Public Health, (2) evi-
dence that the operator administering the
tests was certified by the Department of
Public Health, (3) evidence that the machine
used was a model approved by the Department
of Health, was tested regularly for accuracy,
and was working properly, (4) evidence that
the motorist was observed for the requisite
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20 minutes prior to the test and, during this
period, the motorist did not smoke, regurgi-
tate, or drink, and (5) evidence that the
results appearing on the 'printout' sheet can
be identified as the tests given to the mo-
torist." People v. Orth, 124 Ill. 2d 326,
340, 530 N.E.2d 210, 216-17 (1988).
Evidence that the Breathalyzer was regularly tested for
accuracy is among the elements of the foundation required for the
admission of the breath-test results. People v. Black, 84 Ill.
App. 3d 1050, 1052, 406 N.E.2d 23, 24 (1980). A "police offi-
cer's testimony about the inspection of the [B]reathalyzer may be
documented by introduction into evidence of the instrument
logbook, which is a public or official record." People v.
Boughton, 268 Ill. App. 3d 170, 173, 644 N.E.2d 471, 473 (1994);
see also People v. Thomas, 200 Ill. App. 3d 268, 281, 558 N.E.2d
656, 665-66 (1990) (finding copies of certification stamps and
logbook entries, along with an officer's testimony of inspection
dates, established proper foundation that Breathalyzer machine
was reliable and accurate); People v. White, 167 Ill. App. 3d
439, 442, 521 N.E.2d 563, 564 (1988) (finding logbook entries
constituted official documents); People v. Hester, 88 Ill. App.
3d 391, 395, 410 N.E.2d 638, 641 (1980) (holding "a page from the
instrument log book is admissible to satisfy a foundation re-
- 6 -
quirement requisite to the admission of breath[-]test results
into evidence, namely, that the [B]reathalyzer was properly
tested for accuracy and in proper working condition").
In the case sub judice, Trooper Strandberg testified
that a logbook was maintained at the jail in relation to the
breath-test device. Every time the device is used, the test
subject's name is written down and the result entered. Over
defense counsel's objections, Strandberg testified the device was
required to be certified every 62 days and the certification
listed in the logbook. She indicated the device had been certi-
fied as accurate by a state trooper on September 6, 2007, and
again on October 4, 2007. The logbook entries were admitted into
evidence. We find the State established a proper foundation
through Trooper Strandberg that the device was tested regularly
for accuracy and was working properly. See Hester, 88 Ill. App.
3d at 395, 410 N.E.2d at 640 (finding even that "personal knowl-
edge, as to the events and procedures summarized in the log, is
not required of the testifying officer").
Defendant, however, argues the foundation testimony
regarding the accuracy of a Breathalyzer instrument violated the
confrontation clause of the United States Constitution in light
of the Supreme Court's decision in Melendez-Diaz v. Massachu-
setts, 557 U.S. , 174 L. Ed. 2d 314, 129 S. Ct. 2527 (2009).
The confrontation clause provides that "[i]n all
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criminal prosecutions, the accused shall enjoy the right *** to
be confronted with the witnesses against him." U.S. Const.,
amend. VI. This sixth-amendment right applies to the states
through the fourteenth amendment. People v. Stechly, 225 Ill. 2d
246, 264, 870 N.E.2d 333, 346 (2007).
In Melendez-Diaz, 557 U.S. at , 174 L. Ed. 2d at
320, 129 S. Ct. at 2530, the defendant was charged with distrib-
uting and trafficking cocaine. At trial, the prosecution "sub-
mitted three 'certificates of analysis' showing the results of
the forensic analysis performed on the seized substances,"
including the weight of the seized bags and that the substance
contained cocaine. Melendez-Diaz, 557 U.S. at , 174 L. Ed. 2d
at 320, 129 S. Ct. at 2531. The certificates were sworn to
before a notary public by state lab analysts as required by
Massachusetts law and were admitted as prima facie evidence of
the composition, quality, and net weight of the contraband
analyzed. Melendez-Diaz, 557 U.S. at , 174 L. Ed. 2d at 320,
129 S. Ct. at 2531.
The defendant objected to the admission of the certif-
icates and argued the Supreme Court's confrontation-clause
decision in Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d
177, 124 S. Ct. 1354 (2004), required the analysts to testify in
person. Melendez-Diaz, 557 U.S. at , 174 L. Ed. 2d at 320,
129 S. Ct. at 2531. The objection was overruled, and a jury
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found the defendant guilty.
The Supreme Court noted the confrontation clause covers
testimonial statements and "[a] witness's testimony against a
defendant is thus inadmissible unless the witness appears at
trial or, if the witness is unavailable, the defendant had a
prior opportunity for cross-examination." Melendez-Diaz, 557
U.S. at , 174 L. Ed. 2d at 320-21, 129 S. Ct. at 2531, citing
Crawford, 541 U.S. at 54, 158 L. Ed. 2d at 194, 124 S. Ct. at
1365-66. Examples of testimonial statements include (1) ex parte
in-court testimony; (2) extrajudicial statements in formal
testimonial materials such as affidavits, depositions, prior
testimony, and confessions; (3) statements made under circum-
stances that would lead an objective witness reasonably to
believe the statements would be available for use at a later
trial; and (4) statements taken by police officers in the course
of interrogations. Crawford, 541 U.S. at 51-52, 158 L. Ed. 2d at
193, 124 S. Ct. at 1364.
The Supreme Court found the certificates were "func-
tionally identical to live, in-court testimony, doing 'precisely
what a witness does on direct examination.'" (Emphasis omitted.)
Melendez-Diaz, 557 U.S. at , 174 L. Ed. 2d at 321, 129 S. Ct.
at 2532, quoting Davis v. Washington, 547 U.S. 813, 830, 165 L.
Ed. 2d 224, 242, 126 S. Ct. 2266, 2278 (2006). The Court held
that "under our decision in Crawford the analysts' affidavits
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were testimonial statements, and the analysts were 'witnesses'
for purposes of the Sixth Amendment. Absent a showing that the
analysts were unavailable to testify at trial and that petitioner
had a prior opportunity to cross-examine them, petitioner was
entitled to '"be confronted with"' the analysts at trial."
Melendez-Diaz, 557 U.S. at , 174 L. Ed. 2d at 321-22, 129 S.
Ct. at 2532, quoting Crawford, 541 U.S. at 54, 158 L. Ed. 2d at
194, 124 S. Ct. at 1365.
In his concurring opinion, Justice Thomas reiterated
his view that "'the Confrontation Clause is implicated by extra-
judicial statements only insofar as they are contained in form-
alized testimonial materials, such as affidavits, depositions,
prior testimony, or confessions.'" Melendez-Diaz, 557 U.S. at
___, 174 L. Ed. 2d at 333, 129 S. Ct. at 2543 (Thomas, J.,
concurring), quoting White v. Illinois, 502 U.S. 346, 365, 116 L.
Ed. 2d 848, 865, 112 S. Ct. 736, 747 (1992) (Thomas, J., concur-
ring in part and concurring in the judgment, joined by Scalia,
J.). Justice Thomas joined the Court's opinion because the
certificates were affidavits and therefore testimonial state-
ments. Melendez-Diaz, 557 U.S. at , 174 L. Ed. 2d at 333, 129
S. Ct. at 2543 (Thomas, J., concurring).
The Supreme Court also stated the analysts' affidavits
did not qualify as official or business records. Melendez-Diaz,
557 U.S. at , 174 L. Ed. 2d at 328, 129 S. Ct. at 2538.
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"Business and public records are generally admissible absent
confrontation not because they qualify under an exception to the
hearsay rules, but because--having been created for the admini-
stration of an entity's affairs and not for the purpose of
establishing or proving some fact at trial--they are not testi-
monial." Melendez-Diaz, 557 U.S. at , 174 L. Ed. 2d at 329,
129 S. Ct. at 2539-40. The Court found the analysts' affidavits
were testimony against the defendant because they were prepared
specifically for use at trial. Melendez-Diaz, 557 U.S. at ,
174 L. Ed. 2d at 329-30, 129 S. Ct. at 2540.
We note the Supreme Court did not hold "that anyone
whose testimony may be relevant in establishing the chain of
custody, authenticity of the sample, or accuracy of the testing
device, must appear in person as part of the prosecution's case."
Melendez-Diaz, 557 U.S. at n.1, 174 L. Ed. 2d at 322 n.1,
129 S. Ct. at 2532 n.1. Thus, in this case, the question becomes
whether the testimony pertaining to the testing of the
Breathalyzer for accuracy was testimonial in nature.
We find the testimony and logbooks provided in this
case as to the certification of the Breathalyzer were not testi-
monial and established a sufficient foundation that it was
regularly tested and accurate. We also find our decision is not
contravened by the Supreme Court's decision in Melendez-Diaz. We
find support for this contention in a recent case from the Oregon
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Court of Appeals. In State v. Bergin, 231 Or. App. 36, 39, 217
P.3d 1087, 1088 (2009), the defendant argued the admission of
certificates attesting to the accuracy of the Intoxilyzer was in
error under Melendez-Diaz. The Oregon Court of Appeals disagreed
and stated, in part, as follows:
"The analyst certificates in Melendez-Diaz
were 'quite plainly affidavits,' that is,
fact statements sworn before an officer au-
thorized to administer oaths, and, for that
reason, within the core class of testimonial
statements described in Crawford. [Cita-
tion.] Intoxilyzer certificates of accuracy,
on the other hand, are not sworn under oath.
Further, the analyst certificates in
Melendez-Diaz served to prove directly a fact
that is an element of the crime that the
defendant was convicted of. Intoxilyzer
certificates bear a more attenuated relation-
ship to conviction: They support one fact
(the accuracy of the machine) that, in turn,
supports another fact that can establish
guilt (blood[-]alcohol level). Finally, the
Melendez-Diaz majority opinion emphasizes
that[,] when an analyst swears to the result
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of a substance test, he or she knows that it
is for use at a specific later trial against
a specific defendant. [Citation.] The sub-
stance that was subjected to analysis was
seized from a particular defendant and the
sole purpose of the test was for use against
that defendant. Although Intoxilyzers pro-
duce evidence that is used only in criminal
prosecutions or administrative hearings, the
person who performs the test of a machine's
accuracy does so with no particular prosecu-
torial use in mind, and, indeed, there is no
guarantee that the machine will ever, in
fact, be used." (Emphases in original.)
Bergin, 231 Or. App. at 40-41, 217 P.3d at
1089.
The certifications of accuracy at issue here differ
from the affidavits in Melendez-Diaz and do not establish an
element of the offenses. The certifications were not compiled
during the investigation of a particular crime and do not
establish the criminal wrongdoing of defendant. Cf. People v.
McClanahan, 191 Ill. 2d 127, 133, 729 N.E.2d 470, 474 (2000)
(finding unconstitutional as violative of confrontation clause a
statute that allowed for the introduction of lab reports in lieu
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of actual testimony as prima facie evidence of the contents of
the substance at issue as the reports, inter alia, were not
business records because they were prepared during the course of
criminal investigations and requested by the State in anticipa-
tion of prosecutions). Instead, the certification does nothing
more than establish the machine had been tested and was working
properly. Thus, the evidence was not testimonial and its intro-
duction did not violate defendant's right to confront witnesses.
B. Sufficiency of the Evidence
Defendant argues the State failed to prove him guilty
beyond a reasonable doubt. We find this issue forfeited.
"'A reviewing court is entitled to have
issues clearly defined with pertinent author-
ity cited and cohesive arguments presented
[citation], and it is not a repository into
which an appellant may foist the burden of
argument and research [citation]; it is nei-
ther the function nor the obligation of this
court to act as an advocate or search the
record for error.'" People v. Williams, 385
Ill. App. 3d 359, 368, 895 N.E.2d 961, 968
(2008), quoting Obert v. Saville, 253 Ill.
App. 3d 677, 682, 624 N.E.2d 928, 931 (1993).
Points not raised in the defendant's initial brief are forfeited
and cannot be raised in the reply brief. People v. Patel, 366
- 14 -
Ill. App. 3d 255, 268, 851 N.E.2d 747, 760 (2006).
In his initial brief, defendant cites the relevant
standard of review and then goes on to summarize eight cases from
the 1960s and 1970s without making an argument on the issue.
Defendant states the prior appellate court decisions would be
helpful as we "independently review" the evidence. However,
defendant has failed to develop his argument and cannot do so in
his reply brief. Thus, defendant has forfeited review of this
issue on appeal.
C. Judgment on the Count of Driving With a BAC of 0.08 or More
Defendant argues the trial court should have entered
judgment on the count of driving under the influence of alcohol
(625 ILCS 5/11-501(a)(2) (West 2006)). Defendant cites this
court's decision in People v. Kizer, 365 Ill. App. 3d 949, 962,
851 N.E.2d 266, 276 (2006), which vacated, without discussion,
the conviction for driving with a BAC of 0.08 or more and af-
firmed the conviction for driving under the influence of alcohol.
Defendant offers no argument on how the trial court erred here
or how the Kizer decision requires this court to grant his
requested relief. We find no error.
D. Prosecutorial Questions and Closing Remarks
Defendant argues he was denied a fair trial as a result
of the prosecutor's improper questioning of witnesses and closing
argument. We disagree.
"Every defendant is entitled to fair trial free from prejudicial comments by
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the prosecution." People v. Young, 347 Ill. App. 3d 909, 924, 807 N.E.2d 1125, 1137
(2004). A prosecutor can also overstep his bounds by conduct, including the improper
questioning of witnesses. Young, 347 Ill. App. 3d at 925, 807 N.E.2d at 1138.
Defendant argues Trooper Strandberg gave testimony on the HGN test in
violation of the motion in limine. During the prosecutor's questioning of Strandberg, the
following colloquy took place:
"Q. What was the first test you asked the [d]efendant
to perform?
A. The horizontal gaze nystagmus--er, the nine[-
]step[-]walk[-]and[-]turn test.
Q. The nine[-]step[-]walk[-]and[-]turn test. Can you
describe for the jury what that is?"
A violation of a ruling on a motion in limine will constitute grounds for a
mistrial "only when the violation effectively deprived the defendant of his right to a fair
trial." People v. Phillips, 383 Ill. App. 3d 521, 547, 890 N.E.2d 1058, 1081 (2008). "On
appeal, the defendant must show that the prejudicial effect on the jury resulting from the
violation of the motion in limine was so great as to constitute reversible error." People v.
Davis, 223 Ill. App. 3d 580, 592, 585 N.E.2d 214, 222 (1992). We find no reversible
error here as the prosecutor did not ask Strandberg about the HGN test and the remark
appears to have been made in passing.
Defendant also argues error occurred when Strandberg testified she "read
Miranda to him." Defense counsel objected. Again, this remark was made in passing
and not at the direction of the prosecutor. We find no error.
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Defendant focuses most of his argument on the prosecutor's cross-
examination of Dr. Henson. During his testimony, the following colloquy took place:
"MR. LARSON [(prosecutor)]: I apologize to the
Court. All right. Have you, yourself, ever been under the
influence of alcohol, Doctor?
MR. KIRCHNER [(defense counsel)]: Objection.
THE COURT: The objection's sustained. The
question's stricken. You may proceed, Mr. Larson.
***
Q. So you have observed other people who you have
known to be under the influence of alcohol before?
A. Yes. It's [a] common tactic to use videotapes in
training. And they do such at the Police Training Institute
today.
Q. And to go along with that, have you, yourself, ever
been under the influence of alcohol?
MR. KIRCHNER: Objection. The Court's already
ruled on this.
THE COURT: The objection's sustained. It's not a
relevant inquiry, and I don't believe the inquiry would be of
any assistance to the jury in resolving the issues in the case.
And accordingly, the question's once again stricken. The
jury's instructed to disregard it. Mr. Larson, you may other-
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wise proceed with your cross-examination."
"Generally, the prompt sustaining of an objection by a
trial judge is sufficient to cure any error in a question or
answer before the jury." People v. Alvine, 173 Ill. 2d 273, 295,
671 N.E.2d 713, 723 (1996). While questions about whether Henson
had ever been under the influence of alcohol were not relevant
here, we find the trial court cured any prejudicial impact at the
time of the objection. Moreover, the court instructed the jury
that it was to disregard testimony that was refused or stricken.
Defendant argues the prosecutor tried to discredit
Henson by asking him if it was true that "other courts in other
counties in this State have not qualified [him] as an expert in
EC/IR breath test matters." Henson stated that was untrue.
After defense counsel objected and requested a bench conference,
the prosecutor stated he had a "reference to Bridgeview Court-
house in Cook County" where Henson was disqualified as an expert
in a specified case. After further discussion, the trial court
sustained the objection, ordered the question stricken, and
instructed the jury to disregard the question. Again, any error
was cured by the court's actions. See People v. Redd, 173 Ill.
2d 1, 28-29, 670 N.E.2d 583, 597 (1996).
Defendant also complains of remarks made by the prose-
cutor during closing arguments. "A prosecutor has wide latitude
in making a closing argument and is permitted to comment on the
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evidence and any fair, reasonable inferences it yields." People
v. Glasper, 234 Ill. 2d 173, 204, 917 N.E.2d 401, 419 (2009). A
reviewing court "will find reversible error only if the defendant
demonstrates that the improper remarks were so prejudicial that
real justice was denied or that the verdict resulted from the
error." People v. Runge, 234 Ill. 2d 68, 142, 917 N.E.2d 940,
982 (2009). "Error is cured by sustaining an objection, admon-
ishments[,] and jury instructions." People v. Alksnis, 291 Ill.
App. 3d 347, 358, 682 N.E.2d 1112, 1120 (1997).
Defendant argues the prosecutor improperly commented on
defendant's decision not to testify when he said Strandberg was
"the only witness [the jury] heard from today that was actually
there" at the time of the field-sobriety tests. "A criminal
defendant has a fifth[-]amendment right not to testify as a
witness in his or her own behalf, and the prosecutor is forbidden
to make direct or indirect comment on the exercise of that
right." People v. Bannister, 232 Ill. 2d 52, 88, 902 N.E.2d 571,
593 (2008); U.S. Const., amend. V. To determine whether a
comment improperly highlights defendant's decision not to tes-
tify, courts look at "whether the reference was intended or
calculated to direct the jury's attention to the defendant's
neglect to avail himself of his legal right to testify." Bannis-
ter, 232 Ill. 2d at 88, 902 N.E.2d at 594.
In looking at the entire arguments, the prosecutor's
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statements regarding Strandberg being the only testifying witness
who observed the field-sobriety tests did not seek to direct the
jury's attention to defendant's decision not to testify.
Strandberg was the State's sole witness in its case in chief, and
Henson was the only witness for the defense. The prosecutor's
remarks sought to highlight that Strandberg was the only one who
observed defendant firsthand after the stop as Henson was not
present. We find no error.
Defendant argues the prosecutor improperly argued
defendant could "clearly hold his liquor," which explained why
there might have been a "disconnect" with his physical actions
during the stop and his blood-alcohol level. However, a prose-
cutor may comment on any inferences the evidence yields. Runge,
234 Ill. 2d at 142, 917 N.E.2d at 982. Moreover, jurors are
often instructed that they are to consider the evidence in light
of their own observations and experiences. See People v. Hopp,
209 Ill. 2d 1, 17, 805 N.E.2d 1190, 1200 (2004), citing Illinois
Pattern Jury Instructions, Criminal, No. 1.01[10] (4th ed. 2000).
The statement here was a legitimate comment on the evidence and
a matter of common knowledge such that the jurors could utilize
their experiences in life to decide whether defendant was guilty
of the offenses. We find no error.
Defendant also argues the prosecutor attacked Dr.
Henson on rebuttal by calling him a "peacock" and a "hired gun."
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Defense counsel objected to the "peacock" characterization, and
the trial court overruled the objection finding it a comment on
demeanor. We find no error. See People v. Nitz, 143 Ill. 2d 82,
120, 572 N.E.2d 895, 912 (1991) (finding it "a fair comment on
the evidence to argue that a witness is believable because of
[his] demeanor while testifying").
During his rebuttal argument, the prosecutor noted the
pay Dr. Henson received for his expert testimony and referred to
him as a "hired gun." While the prosecutor's comment was error
(see People v. Johnson, 208 Ill. 2d 53, 110, 803 N.E.2d 405, 438
(2003) (noting it was "error to refer to defense counsel as a
'hired gun'")), the trial court ordered the comment stricken and
instructed the jury that it should not be considered in arriving
at a verdict. Moreover, the court instructed the jury that
closing arguments are not evidence and arguments not based on
evidence were to be disregarded. Accordingly, the court suffi-
ciently cured the error.
Defendant sets forth other comments or questions that
were either not objected to at trial or were sustained and
stricken by the trial court. We find he was not denied a fair
trial.
E. Jury Instruction
Defendant argues the trial court erred by giving
Illinois Pattern Jury Instructions, Criminal, No. 23.30 (4th ed.
- 21 -
2000) (hereinafter IPI Criminal 4th). We disagree.
The instruction at issue states, in part, as follows:
"If you find that at the time the defen-
dant drove a vehicle that the amount of alco-
hol concentration in the defendant's blood or
breath was 0.08 or more, you may presume that
the defendant was under the influence of
alcohol. You never are required to make this
presumption. It is for the jury to determine
whether the presumption should be drawn. You
should consider all of the evidence in deter-
mining whether the defendant was under the
influence of alcohol. This presumption,
however, has no application to the offense of
driving with an alcohol concentration of 0.08
or more. Therefore, you should not consider
this presumption in your deliberation on the
offense of driving with an alcohol concentra-
tion of 0.10 or more." IPI Criminal 4th No.
23.30.
Our supreme court has found the presumption did not violate a
defendant's constitutional rights as it was a permissive presump-
tion and not a mandatory one. See People v. Hester, 131 Ill. 2d
91, 101, 544 N.E.2d 797, 802 (1989).
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The decision to give certain jury instructions rests
with the trial court, and that decision will not be reversed on
appeal absent an abuse of that discretion. People v. Lovejoy,
235 Ill. 2d 97, 150, 919 N.E.2d 843, 872 (2009). Defendant
argues the trial court should not have given the instruction at
issue here or, if it did, the jury should have been instructed
that it was required to find "beyond a reasonable doubt" that
defendant's BAC was 0.08 or more before it presumed he was under
the influence of alcohol.
We find the instructions given to the jury, taken as a
whole, properly instructed the jury on the State's burden of
proof. The instruction on driving under the influence required
the State to prove defendant was under the influence beyond a
reasonable doubt. Thus, defendant has not shown the trial court
erred in giving the permissive-presumption instruction.
III. CONCLUSION
For the reasons stated, we affirm the trial court's
judgment. As part of our judgment, we award the State its $75
statutory assessment against defendant as costs of this appeal.
Affirmed.
MYERSCOUGH, P.J., and KNECHT, J., concur.
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