People v. Morrow

2023 IL App (3d) 210123-U

• Court: Appellate Court of Illinois
• Decided: September 6, 2023
• Docket: 3-21-0123
• Status: Unpublished

Opinion

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

2023 IL App (3d) 210123-U

Order filed September 6, 2023 ____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 14th Judicial Circuit, ) Rock Island County, Illinois, Plaintiff-Appellee, ) ) Appeal No. 3-21-0123 v. ) Circuit No. 18-DT-322 ) DARRELL R. MORROW, ) Honorable ) Carol M. Pentuic, Defendant-Appellant. ) Judge, Presiding. ____________________________________________________________________________

JUSTICE HETTEL delivered the judgment of the court. Justice Davenport concurred in the judgment. Justice McDade partially concurred and partially dissented. ____________________________________________________________________________

ORDER

¶1 Held: (1) The circuit court’s failure to comply with Illinois Supreme Court Rule 431(b) is reversible error, as the evidence is closely balanced. (2) The evidence was sufficient to support defendant’s conviction for driving while under the influence of alcohol.

¶2 Defendant, Darrell R. Morrow, appeals his conviction for driving while under the

influence of alcohol (DUI). Defendant argues, inter alia, that the Rock Island County circuit

court erred by failing to properly question jurors in accordance with Illinois Supreme Court Rule 431(b) (eff. July 1, 2012) and the State failed to prove him guilty beyond a reasonable doubt. We

reverse and remand for further proceedings.

¶3 I. BACKGROUND

¶4 The State charged defendant with DUI (625 ILCS 5/11-501(a)(2) (West 2018)). The

cause proceeded to a jury trial on October 2, 2020. During jury selection, the court asked 11

members of the eventual jury whether they understood and accepted that (1) defendant is

presumed innocent of the charge against him, (2) the State must prove defendant’s guilt beyond a

reasonable doubt, and (3) defendant is not required to offer any evidence on his own behalf. The

court failed to ask these jurors if they understood and accepted that if defendant does not testify

it cannot be held against him. The court asked one juror and the alternate juror whether they

understood and accepted that (1) defendant is presumed innocent of the charge against him,

(2) the State must prove defendant’s guilt beyond a reasonable doubt, and (3) defendant is not

required to “say or testify against himself.” The court failed to ask whether they understood and

accepted that defendant is not required to offer any evidence on his own behalf.

¶5 At trial, Rock Island Deputy Anthony Johnson testified that on August 18, 2018, at

approximately 1:20 a.m., he passed a vehicle driven by defendant. He noticed defendant turned

off the headlights, and the vehicle drifted toward the shoulder. Johnson stopped the vehicle.

Defendant told Johnson that he turned his headlights off because he was “trying to signal a

female he believed he knew in a red Lexus.” Johnson did not see a red Lexus nearby. Johnson

observed that defendant “smelled of metabolized alcohol,” had glassy, watery eyes, and “slurred

his speech a little bit.” Defendant told Johnson that he had consumed a “couple of drinks.” Given

these observations, Johnson requested that defendant perform field sobriety tests. Initially,

defendant indicated that he had no medical conditions that would prevent him from performing

2 the tests. Johnson indicated that he performed the horizontal gaze nystagmus (HGN) test

according to his training and described only two of the possible HGN cues. Johnson did not

explain how many total cues are in the HGN test, how many cues show impairment, what cues

he observed in defendant, or what information he learned from defendant’s showing of six cues.

¶6 Next, Johnson administered the walk-and-turn test. Johnson explained that the walk-and-

turn test is a “divided attention test. It tests balance, your ability to follow instructions ***.”

Johnson generally explained that he demonstrates the test and instructs an individual to take nine

steps. For the jury, Johnson demonstrated how to complete the walking portion of the test.

Johnson did not explain the instructions for the test during or after the demonstration. Johnson

did not explain what the cues of impairment were, how many cues are necessary for a finding of

impairment, or what additional instructions he gave defendant. On the night in question, Johnson

“had to stop [defendant] several times because when [Johnson] was doing the initial part of

putting [defendant] in the starting position [defendant] began to walk on his own” twice. Johnson

observed three cues of impairment. Again, Johnson did not explain which cues defendant

displayed, how many cues show impairment, or what information he gathered from the cues.

¶7 Johnson began instructing defendant on the one-leg stand test. At this point, defendant

indicated that he had a medical condition with his legs that would affect his ability to perform the

test. Based on Johnson’s observations and defendant’s performance on the two field sobriety

tests, Johnson believed that defendant was under the influence of alcohol. Johnson placed

defendant under arrest for DUI.

¶8 Johnson testified that, following defendant’s arrest, defendant made comments to

Johnson that included “several racial epithets, the n-word several times, made reference to

[Johnson] performing [sexual] acts on other males, and calling [Johnson] an Uncle Tom a couple

3 of times too. Said [Johnson] abuse[d] [his] own people.” Defendant was “very irate” and “getting

up against the divider screaming at [Johnson].” Defendant refused to submit to the breathalyzer

test.

¶9 Johnson’s squad car was not equipped with a camera, and Johnson did not have a body

camera. The State introduced into evidence body camera footage captured by another officer on

the scene. 1 The officer arrived at the scene after Johnson finished conducting the HGN test.

While Johnson conducted the walk-and-turn test, the officer with the body camera moved to

different locations and the audio can only be heard sporadically throughout the video. The video

showed Johnson administering parts of the walk-and-turn test to defendant. Johnson spoke to

defendant while defendant stood and listened. The conversation cannot be heard at this point in

the video. Defendant did not appear to be upset. Johnson demonstrated the starting position for

defendant twice. Both times defendant started the walk-and-turn test early. Defendant expressed

frustration with Johnson’s instructions. Johnson demonstrated the starting position again.

Defendant assumed the position. Johnson then told defendant to stand with his right foot in front

of his left foot with his hands at his sides and said, “when I tell you to, I want you to walk the

following way.” At no time prior to this point does the video capture Johnson instructing

defendant to stay in the starting position while he demonstrated the test. Johnson walked heel to

toe while counting out loud. Johnson instructed defendant to take nine steps and “walk 9 steps

back while counting out loud.” Johnson did not tell defendant to walk heel to toe. Defendant

began walking with a normal stride, with his hands at his sides, and in a straight line. Defendant

1 Three videos were submitted on appeal. The State failed to explicitly identify which video it entered into evidence at trial. Comments made by the State during Johnson’s testimony and in its closing argument referenced a single video. By process of elimination, we determined that the State admitted the second video only, and, thus, we limit our consideration to that video on appeal. 4 did not walk heel to toe. Defendant walked out of frame in that manner. Next, the video showed

defendant walking back similarly.

¶ 10 On cross-examination, Johnson testified that he submitted a supplemental report to

correct his misspelling of defendant’s name in his initial report. Johnson clarified that defendant

did not swerve while driving his vehicle. Johnson did not include the word “drifted” in his initial

or supplemental report. Instead, he stated that defendant “pulled to the side as if to park.”

Johnson also failed to note that (1) he observed defendant’s slurred speech and glassy eyes, and

(2) defendant made lewd comments and used racial epithets. Johnson stated that defendant did

not have difficulty exiting his vehicle or walking. Defendant did not stumble, fall, sway, or lean

against a vehicle at any point during the stop. While Johnson did not observe a red Lexus, he

agreed there could have been one.

¶ 11 The jury found defendant guilty of DUI. The court sentenced defendant to 12 months of

conditional discharge. Defendant appealed.

¶ 12 II. ANALYSIS

¶ 13 On appeal, defendant argues that (1) the circuit court failed to strictly comply with

Illinois Supreme Court Rule 431(b) (eff. July 1, 2012), by asking prospective jurors three out of

the four required propositions, and (2) the evidence was insufficient to prove him guilty beyond a

reasonable doubt. Defendant acknowledges that the first issue was forfeited but contends that his

claim is reversible under the plain error doctrine because the evidence is closely balanced.

¶ 14 Under the plain error doctrine, we must first determine whether a “plain error” occurred.

People v. Piatkowski, 225 Ill. 2d 551, 564-65 (2007). “The word ‘plain’ *** is synonymous with

‘clear’ and is the equivalent of ‘obvious.’ ” Id. at 565 n.2. If we determine that the circuit court

committed a plain error, the second step is to determine whether that error is reversible. Id. at

5 565. A plain error is reversible when a clear or obvious error occurred and (1) “the evidence is so

closely balanced that the error alone threatened to tip the scales of justice against the defendant,

regardless of the seriousness of the error,” or (2) “that error is so serious that it affected the

fairness of the defendant’s trial and challenged the integrity of the judicial process, regardless of

the closeness of the evidence.” Id. In the present case, defendant argues only that the court

committed reversible error under the first prong.

¶ 15 Rule 431(b) requires the court to ask whether each juror

“understands and accepts the following principles: (1) that the defendant is

presumed innocent of the charge(s) against him or her; (2) that before a defendant

can be convicted the State must prove the defendant guilty beyond a reasonable

doubt; (3) that the defendant is not required to offer any evidence on his or her

own behalf; and (4) that if a defendant does not testify it cannot be held against

him or her.” Ill. S. Ct. R. 431(b) (eff. July 1, 2012).

¶ 16 Rule 431(b) “mandates a specific question and response process.” People v. Thompson,

238 Ill. 2d 598, 607 (2010). The circuit court must ask each potential juror whether he or she

“understands and accepts” each of the four principles listed in the rule. Ill. S. Ct. R. 431(b) (eff.

July 1, 2012); People v. Wilmington, 2013 IL 112938, ¶¶ 30, 32. The court must then allow each

prospective juror the opportunity to respond regarding their understanding and acceptance of

those principles. Thompson, 238 Ill. 2d at 607. In the present case, we accept the State’s

concession that the court committed plain error by failing to ask each juror whether they

understood and accepted all four principles in compliance with Rule 431(b). See Wilmington,

2013 IL 112938, ¶¶ 30, 32.

6 ¶ 17 To determine if the evidence is closely balanced, “a reviewing court must undertake a

commonsense analysis of all the evidence in context.” People v. Belknap, 2014 IL 117094, ¶ 50.

This “inquiry involves an assessment of the evidence on the elements of the charged offense or

offenses, along with any evidence regarding the witnesses’ credibility.” People v. Sebby, 2017 IL

119445, ¶ 53. The court must take a qualitative approach to the evidence and consider it “within

the context of the circumstances of the individual case.” People v. Adams, 2012 IL 111168, ¶ 22.

Evidence can be closely balanced when each party presents credible witnesses or where the

credible testimony of a witness is countered by evidence that casts doubt on his or her account.

Sebby, 2017 IL 119445, ¶ 63.

¶ 18 As charged in this case, section 11-501(a)(2) of the Illinois Vehicle Code states: “A

person shall not drive or be in actual physical control of any vehicle within this State while: ***

under the influence of alcohol.” 625 ILCS 5/11-501(a)(2) (West 2018). “A person is under the

influence of alcohol when, as a result of drinking any amount of alcohol, his mental or physical

faculties are so impaired as to reduce his ability to think and act with ordinary care.” Illinois

Pattern Jury Instructions, Criminal, No. 23.29 (4th ed. 2000).

¶ 19 The State’s case predominantly derived from Johnson’s testimony about the incident,

which included testimony that defendant appeared drunk and displayed cues on two field

sobriety tests. However, Johnson’s testimony posed substantial issues of credibility and much of

the remaining evidence presented contradicted Johnson’s testimony. See Sebby, 2017 IL 119445,

¶ 63. First, Johnson’s testimony was countered by significant evidence that cast doubt on his

account. See id. Specifically, Johnson failed to note many of his alleged observations in his

report, including defendant’s slurred speech, glassy eyes, belligerent behavior, and that

defendant’s vehicle drifted to the side of the road. Yet, Johnson was purportedly able to recall

7 these specific observations over two years after defendant’s arrest. Second, the video failed to

corroborate Johnson’s testimony that defendant admitted to drinking and Johnson’s observations

of slurred speech. The video evidence also conflicts with Johnson’s testimony regarding

defendant’s demeanor following his arrest. Defendant, at most, appeared to be frustrated with

Johnson’s instructions. In combination with the negligible evidence of defendant’s impairment,

and in light of the evidence showing that defendant committed minor traffic infractions, was able

to communicate with Johnson, and did not lose his balance, stumble, or need assistance at any

time during the investigation, as corroborated by the video, we find that the evidence presented

was closely balanced. See id. ¶ 53; Adams, 2012 IL 111168, ¶ 22.

¶ 20 However, taking the evidence in the light most favorable to the State and giving

deference to the credibility determinations, as we must when considering the sufficiency of the

evidence, we find the evidence sufficient to convict where defendant (1) exhibited slightly

slurred speech and glassy, watery eyes; (2) smelled of an alcoholic beverage; (3) exhibited

belligerent behavior; (4) displayed cues of impairment on two field sobriety tests; (5) admitted to

drinking; and (6) refused the breathalyzer test. See Piatkowski, 225 Ill. 2d at 566 (whether the

evidence is closely balanced is a separate question from a sufficiency of the evidence claim,

where “[t]he relevant inquiry for reasonable doubt purposes 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”). Therefore, double jeopardy

does not bar defendant’s retrial. See People v. Drake, 2019 IL 123734, ¶ 20. Because we reverse

defendant’s conviction, we need not consider defendant’s remaining contentions.

¶ 21 III. CONCLUSION

8 ¶ 22 The judgment of the circuit court of Rock Island County is reversed and remanded for

further proceedings.

¶ 23 Reversed and remanded.

¶ 24 JUSTICE McDADE, specially concurring in part and dissenting in part:

¶ 25 I agree with the majority’s reversal of the matter due to the circuit court’s violation of

Rule 431(b) and the closely balanced evidence. However, I also conclude that the State failed to

present sufficient evidence to sustain defendant’s DUI conviction. Therefore, I would reverse

defendant’s conviction and find that double jeopardy precludes a new trial. See Drake, 2019 IL

123734, ¶ 20.

¶ 26 When a defendant makes a challenge to the sufficiency of the evidence, “ ‘the relevant

question 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 (1985)

(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). However, “ ‘we should not make

random speculations in favor of the [State].’ ” People v. Petty, 2020 IL App (3d) 180011, ¶ 21

(quoting People v. Dye, 2015 IL App (4th) 130799, ¶ 12). When the evidentiary record raises a

reasonable doubt of defendant’s guilt, the reviewing court must reverse the conviction. People v.

Workman, 312 Ill. App. 3d 305, 310 (2000).

¶ 27 To find sufficient evidence to sustain defendant’s conviction in this case would require

wild speculation regarding his impairment. The State submitted no evidence of defendant’s

impairment by way of field sobriety tests. Specifically, the State failed to present any evidence

regarding the relationship between alcohol consumption and an individual’s performance on

field sobriety tests. Of the two tests that defendant performed, Johnson failed to indicate a

9 complete list of which cues he looked for on each test, what cues he observed defendant display,

and what he learned from those observations. The video presented showed Johnson omitting

important instructions during the walk-and-turn test and misleading defendant, which likely

affected his performance. Given the above analysis, I would conclude that the field sobriety tests

provided no evidentiary value.

¶ 28 Moreover, what little evidence the State presented was uncorroborated in any other way.

Notably, Johnson failed to include in his report his observations of defendant’s slurred speech,

glassy eyes, belligerent behavior, and that defendant’s vehicle drifted to the side of the road.

Further, the video presented did not corroborate defendant’s traffic infractions; admission to

drinking; smell of alcohol; bloodshot and glassy eyes; belligerent behavior; and refusal of the

breathalyzer test. See People v. Day, 2016 IL App (3d) 150852, ¶ 37 (while “suspicions of

impairment that may have been raised by the defendant’s admitted consumption of alcohol and

bloodshot and glassy eyes” are probative facts, those facts are insufficient to establish the belief

that defendant committed the crime of DUI without being “corroborated in any significant way

by any other factors”). Importantly, the video showed that defendant had no trouble walking in a

straight line or otherwise balancing during the investigation. I disagree with the majority’s

determination that the evidence presented came down to a question of credibility. Instead, I

would find that the record shows a complete lack of competent evidence of defendant’s

impairment. To sustain a conviction would require extreme conjecture that alcohol consumption

impaired defendant to a degree that would “reduce his ability to think and act with ordinary

care.” Illinois Pattern Jury Instructions, Criminal, No. 23.29 (4th ed. 2000); see Day, 2016 IL

App (3d) 150852, ¶¶ 37-38; see also Petty, 2020 IL App (3d) 180011, ¶ 21; Workman, 312 Ill.

App. 3d at 310.

10 ¶ 29 For the reasons set forth above, I conclude that the State’s evidence was insufficient to

convict defendant of DUI. I would, therefore, reverse his conviction, precluding retrial. See

Drake, 2019 IL 123734, ¶ 20.