People v. Guerra

2020 IL App (1st) 171727

• Court: Appellate Court of Illinois
• Decided: December 18, 2020
• Docket: 1-17-1727
• Status: Published

Opinion

2020 IL App (1st) 171727

FIRST DISTRICT SIXTH DIVISION December 18, 2020

No. 1-17-1727

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 15 CR 20276 ) PEDRO GUERRA, ) Honorable ) Stanley J. Sacks, Defendant-Appellant. ) Judge, presiding.

JUSTICE HARRIS delivered the judgment of the court, with opinion. Justice Cunningham and Justice Connors concurred in the judgment and opinion.

OPINION

¶1 Following a bench trial, defendant Pedro Guerra was convicted of aggravated driving under

the influence (DUI) and sentenced to two years’ probation and 300 hours’ community service,

which the trial court later modified to two years’ probation and 10 days’ imprisonment. He appeals,

contending that trial counsel was ineffective for not asking the trial court to take judicial notice of

the National Highway Traffic Safety Administration’s (NHTSA) manual providing standards for

conducting the horizontal gaze nystagmus (HGN) field sobriety test. We affirm.

¶2 I. JURISDICTION

¶3 Defendant was convicted following a 2016 bench trial and sentenced on May 24, 2017, to

probation and community service. On June 21, 2017, defendant (through counsel) filed both a

notice of appeal and a motion to modify his sentence. On June 23, 2017, the court modified No. 1-17-1727

defendant’s sentence to vacate his community service and impose 10 days’ imprisonment instead.

A notice of appeal was sent on June 30, 2017.

¶4 Accordingly, this court has jurisdiction pursuant to article VI, section 6, of the Illinois

Constitution (Ill. Const. 1970, art. VI, § 6) and Illinois Supreme Court Rule 603 (eff. Feb. 6, 2013)

and Rule 606 (eff. July 1, 2017) governing appeals from a final judgment of conviction in a

criminal case. In particular, the June 21 notice of appeal was rendered of “no effect” (Ill. S. Ct. R.

606(b) (eff. July 1, 2017)) by the motion to modify sentence, but jurisdiction was then vested by

the June 30 filing.

¶5 II. BACKGROUND

¶6 Defendant was arrested on December 4, 2015, and charged with two counts of aggravated

DUI and two counts of driving with a revoked or suspended license. The State proceeded on the

aggravated DUI counts (625 ILCS 5/11-501(a)(2) (West 2014)), which alleged that defendant

drove or was in actual physical control of a vehicle while under the influence of alcohol, and for

purposes of sentencing as a Class 4 offender, at such time that his driving privileges were revoked

(count I) and suspended (count II).

¶7 Lisa Brendel testified that on December 4, 2015, she was driving near the intersection of

Kostner Avenue and Archer Avenue in Chicago at around 6:15 a.m. or 6:20 a.m. when her vehicle

was struck by a vehicle driven by defendant. Brendel’s airbags deployed. She and defendant,

whom Brendel identified in court, exited their vehicles and conversed. Brendel noticed defendant’s

eyes were “glassy.” He asked Brendel what she wanted to do, and she said they should wait for

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the police. The police arrived, and Brendel explained the situation to Officer Castaneda. 1 Brendel

did not go to the hospital, but her vehicle was totaled.

¶8 On cross-examination, Brendel stated that defendant’s vehicle had damage to the “[l]eft

front panel” but she did not know if it was undrivable. She smelled alcohol on defendant during

their conversation, which she told “the officer.” Brendel stood about two feet from defendant when

she smelled the alcohol.

¶9 Castaneda testified that on December 4, 2015, at 6:20 a.m., she responded to a traffic

accident near the 5100 block of Kostner Avenue. When she arrived, defendant, whom she

identified in court, was standing by his vehicle. Castaneda smelled alcohol on his breath and

noticed that his “crotch area was wet with urine.” He had “slurred” speech and glassy eyes.

Castaneda also spoke with Brendel on the scene. The front of Brendel’s vehicle was “smashed,”

and it did not “look drivable.” Defendant’s vehicle had damage to “the front and driver’s side

door.”

¶ 10 Castaneda asked defendant to perform a series of field sobriety tests. First, she performed

the HGN test, using her pen as a stimulus and asking defendant to follow it with his eyes without

moving his head. She noticed defendant made a “jerking” movement and noted a distinct

nystagmus at maximum deviation in both eyes. After refreshing her recollection with People’s

Exhibit No. 1, her alcohol and drug influence report, Castaneda agreed that there was onset prior

to 45 degrees. Castaneda believed these were indications that defendant was possibly intoxicated.

¶ 11 Castaneda next asked defendant to perform the one-leg stand test. She instructed defendant

to hold his foot three inches off the ground for 30 seconds and demonstrated the test for him. He

1 Castaneda’s first name does not appear in the report of proceedings.

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was unsuccessful, bringing his foot down “more than three times.” After reviewing her report,

Castaneda confirmed that defendant also swayed during this test.

¶ 12 She then asked defendant to perform the walk-and-turn test, which she also demonstrated.

During this test, defendant stopped to steady himself, failed to “hit the heel to toe more than three

times,” lost his balance, turned “incorrectly,” and took an incorrect number of steps. Castaneda

believed these failures indicated alcohol intoxication. She had seen intoxicated people in her 18

years as an officer and in her personal life more than 1000 times and opined that on December 4,

2015, defendant was intoxicated and had driven under the influence of alcohol.

¶ 13 Castaneda asked defendant if he would submit to a breath test at the police station.

Defendant refused and was then taken to the hospital. After discharge, defendant was brought to

the police station around 11 a.m. that morning, where he again refused a breath test.

¶ 14 On cross-examination, Castaneda stated that she understood defendant during their

conversation. Defendant told her he had the green light. Castaneda could “immediately smell

alcohol” on his breath. She initially could not recall if she asked defendant if he had consumed

alcohol, though she believed she would have. After reviewing her arrest report and the alcohol and

drug influence report, she testified that she did not ask defendant if he had been drinking.

¶ 15 Castaneda testified that she held her pen “six inches” from defendant’s face during the

HGN test. Defendant’s eyes were glassy but not dilated. She underwent the training for the HGN

test in 2010 or 2011 but could not recall if she had additional training between the initial course

and December 4, 2015. Castaneda agreed there are other reasons besides alcohol consumption that

someone might demonstrate stigmatus. She believed she likely asked defendant whether he had

any medical conditions but did not document this in her report. During the one-leg stand, defendant

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did not raise his arms for balance and was not hopping, nor did he lose his balance or use his arms

to balance during the walk-and-turn. Castaneda could not recall if she went to the hospital with

defendant.

¶ 16 The State entered a certified abstract from the Illinois Secretary of State showing that on

December 4, 2015, defendant’s privilege to drive was suspended and revoked and a certified copy

of defendant’s vehicle registration showing that he owned the vehicle involved in the crash.

¶ 17 Defendant testified that he was coming from his father’s house on the morning of the

accident when Brendel ran a red light and hit his vehicle. Brendel helped defendant exit his vehicle

because of the damage to his driver’s side door. A Chicago police canine unit stopped at the scene,

and defendant approached the officer. The officer said he could not assist, so defendant called 911.

He also called his mother.

¶ 18 Later, Castaneda arrived with another male officer, whom defendant spoke with first.

Defendant told the male officer that his side hurt and his mother was on the way. Afterwards,

Castaneda approached defendant and conducted the field sobriety tests, with which he cooperated.

After defendant completed the tests, the male officer took defendant to the hospital. Neither

Castaneda nor the male officer asked defendant to take a breath test. Defendant did not consume

alcohol on the morning of December 4, 2015, or the night before.

¶ 19 On cross-examination, defendant testified that he did not tell Castaneda that he was injured

prior to the HGN test because he heard the male officer tell her. He might have put his foot down

once or twice during the one-leg stand test, but took the right number of steps during the walk-

and-turn test. He denied urinating on himself, and said his pants may have been wet because water

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spilled on them. On redirect, defendant explained that there was a bottle of water in his cup holder

that may have spilled during the accident.

¶ 20 During closing argument, defense counsel argued that defendant was credible while

Castaneda was not, and the prosecutor responded in rebuttal that defendant’s denial that Castaneda

requested a breath test was incredible. The court found defendant guilty on counts I and II for

aggravated DUI. In so holding, the court stated that defendant’s testimony that Castaneda never

requested a breath test made no sense and found that defendant’s breath test refusal evidenced

consciousness of guilt.

¶ 21 During a hearing on defendant’s motion for a new trial, trial counsel argued that

Castaneda’s testimony was incredible. The court responded that it credited Castaneda’s testimony

that defendant twice refused breath tests, described his refusals as “significant,” and further noted

that defendant did not “do so well” on the “preliminary tests.” The court denied the motion,

concluding that Castaneda was “credible” and that “I didn’t believe [defendant] about the events.”

¶ 22 After a hearing on May 24, 2017, the court merged count II into count I and sentenced

defendant to two years’ probation and 300 hours’ community service. On June 21, 2017, defendant

filed a motion to “[m]odify [p]robation.” On June 23, 2017, the court vacated his community

service and modified his sentence to 10 days’ imprisonment in addition to probation.

¶ 23 III. ANALYSIS

¶ 24 On appeal, defendant contends that trial counsel was ineffective for not asking the trial

court to take judicial notice of a NHTSA manual providing that an officer performing the HGN

field sobriety test should hold the pen 12 to 15 inches from the subject’s face. According to

defendant, had defense counsel introduced the NHTSA standard at trial, Castaneda’s testimony

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regarding the HGN test would have lost probative value, and her other testimony thereby rendered

so questionable that the court would have rejected her opinion that defendant was intoxicated and

found him not guilty.

¶ 25 Criminal defendants are entitled to effective assistance of counsel at trial. Strickland v.

Washington, 466 U.S. 668, 685-86 (1984). “To establish a claim of ineffective assistance of

counsel, [a] defendant must show that his counsel’s performance was deficient and that it resulted

in prejudice.” People v. Staake, 2017 IL 121755, ¶ 47. Matters of trial strategy, including what

evidence to present, are typically immune to claims of ineffective assistance of counsel. People v.

West, 187 Ill. 2d 418, 432 (1999). Respecting prejudice, the defendant must show that there is a

“reasonable probability” the trial result would have been different had the deficient conduct not

occurred. People v. Dupree, 2018 IL 122307, ¶ 44. The defendant must establish both elements,

and if the defendant cannot demonstrate prejudice, the reviewing court need not decide whether

the underlying conduct was deficient. See People v. Evans, 186 Ill. 2d 83, 94 (1999).

¶ 26 To prove defendant guilty of aggravated DUI, the State needed to show that defendant

drove or was in actual control of a vehicle while under the influence of alcohol and while his

privilege to drive was suspended or revoked. 625 ILCS 5/11-501(a)(2) (West 2014). Here,

defendant claims counsel’s conduct was deficient because the NHTSA HGN standard evidence

would have discredited Castaneda’s testimony and thus weakened the State’s evidence that he was

under the influence of alcohol.

¶ 27 To support this claim, defendant’s brief references a NHTSA standard from the “DWI

Detection and Standardized Field Sobriety Testing (SFST) Participant Manual, February 2018

Edition.” Defendant claims that the NHTSA guidelines require an officer performing the HGN test

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to hold the pen 12 to 15 inches from the subject’s face, in contrast to Castaneda’s testimony that

she held her pen 6 inches from defendant’s face.

¶ 28 At the outset, we observe that the NHTSA manual was not introduced at trial and does not

appear in the record on appeal. See People v. Heaton, 266 Ill. App. 3d 469, 477 (1994) (“The

purpose of appellate review is to evaluate the record presented in the trial court, and review must

be confined to what appears in the record.”). Thus, defendant’s argument that counsel was deficient

is based on matters outside of the trial record, making his claim inappropriate for resolution on

direct appeal. See People v. Bew, 228 Ill. 2d 122, 134 (2008) (ineffective assistance of counsel

claims are best raised in collateral proceedings, particularly where the record on direct appeal is

insufficient to resolve the claim (citing United States v. Massaro, 538 U.S. 500, 504-06 (2003))).

¶ 29 Moreover, defendant’s ineffective assistance claim fails because he cannot demonstrate

prejudice from the alleged deficiency. Brendel testified that defendant smelled of alcohol and had

glassy eyes. Castaneda also testified that defendant smelled of alcohol and had glassy eyes and

added that he urinated on himself and slurred his speech. She believed that defendant showed signs

of intoxication during each field sobriety test and detailed his failures to keep his foot off the

ground during the one-leg stand test (which defendant admitted) and to take the correct number of

steps in the correct fashion during the walk-and-turn test. Finally, she testified that defendant twice

refused a breath test. Defendant refuted these accounts. He denied that he drank alcohol that

morning, claimed his pants were wet with water that spilled during the accident, and stated that

the officers never requested that he take a breath test. The trial court found the State’s witnesses

more credible than defendant and stated that defendant’s testimony that Castaneda never asked for

a breath test made “no sense.”

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¶ 30 On this record, there is not a reasonable probability that defendant’s guilty finding would

have been altered by a successful request from trial counsel for the court to take judicial notice of

the NHTSA requirement. This case turned on credibility, which is the province of the fact finder,

and the court here largely based its credibility determination between Castaneda and defendant on

matters unrelated to the HGN test. See People v. Bradford, 2016 IL 118674, ¶ 12 (during a bench

trial, the court is the fact finder, and it is the court’s responsibility to weigh the evidence, make

credibility determinations, and draw reasonable inferences from the evidence). Specifically, the

court found that defendant’s denial that Castaneda requested a breath test was incredible, which

was a reasonable basis from which to resolve the credibility dispute. After concluding that

defendant refused the breath test, the court was then permitted by law to treat defendant’s refusal

as competent evidence of consciousness of guilt. See People v. Johnson, 218 Ill. 2d 125, 140

(2005). Additionally, as described above, Brendel testified that defendant smelled of alcohol and

had glassy eyes, which corroborates Castaneda’s testimony regarding indications of defendant’s

intoxication. It follows that even had the NHTSA evidence removed probative value from

Castaneda’s HGN test testimony, the court’s bases for crediting Castaneda’s testimony over

defendant’s regarding the other field sobriety tests, the indications of defendant’s intoxication, and

whether she requested a breath test would have remained unaffected.

¶ 31 IV. CONCLUSION

¶ 32 In sum, defendant’s ineffective assistance of counsel claim fails because he cannot

establish deficient performance or prejudice, and his conviction is therefore affirmed.

¶ 33 Affirmed.

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Decision Under Review: Appeal from the Circuit Court of Cook County, No. 15-CR- 20276; the Hon. Stanley J. Sacks, Judge, presiding.

Attorneys James E. Chadd, Patricia Mysza, and Benjamin Wimmer, of for State Appellate Defender’s Office, of Chicago, for appellant. Appellant:

Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. for Spellberg and Matthew Connors, Assistant State’s Attorneys, of Appellee: counsel), for the People.

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