{ "id": 2516786, "name": "The People of the State of Illinois, Plaintiff-Appellee, v. Marvin E. Ash, Defendant-Appellant", "name_abbreviation": "People v. Ash", "decision_date": "1974-01-10", "docket_number": "No. 72-337", "first_page": "633", "last_page": "637", "citations": [ { "type": "official", "cite": "16 Ill. App. 3d 633" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "345 Ill.App. 456", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2429574 ], "pin_cites": [ { "page": "458" } ], "opinion_index": 0, "case_paths": [ "/ill-app/345/0456-01" ] }, { "cite": "48 Ill.App.2d 27", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5272570 ], "year": 1952, "pin_cites": [ { "page": "36" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/48/0027-01" ] }, { "cite": "17 Ill.App.2d 251", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5182159 ], "weight": 2, "pin_cites": [ { "page": "258" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/17/0251-01" ] }, { "cite": "126 Ill.App.2d 379", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1576597 ], "pin_cites": [ { "page": "383" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/126/0379-01" ] }, { "cite": "125 Ill.App.2d 30", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1577227 ], "year": 1970, "pin_cites": [ { "page": "38-39" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/125/0030-01" ] }, { "cite": "117 Ill.App.2d 436", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1586043 ], "year": 1970, "pin_cites": [ { "page": "443" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/117/0436-01" ] }, { "cite": "14 Ill.App.3d 622", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2680552 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/14/0622-01" ] }, { "cite": "480 F.2d 785", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1313151 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/f2d/480/0785-01" ] }, { "cite": "338 N.Y.S.2d 313", "category": "reporters:state", "reporter": "N.Y.S.2d", "year": 1973, "pin_cites": [ { "page": "316-7" } ], "opinion_index": 0 }, { "cite": "40 App. Div. 2d 117", "category": "reporters:state", "reporter": "A.D.2d", "case_ids": [ 3277874 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/ad2d/40/0117-01" ] }, { "cite": "479 F.2d 983", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1310539 ], "year": 1972, "pin_cites": [ { "page": "985" } ], "opinion_index": 0, "case_paths": [ "/f2d/479/0983-01" ] }, { "cite": "5 Ill.App.3d 429", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2525618 ], "pin_cites": [ { "page": "430" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/5/0429-01" ] } ], "analysis": { "cardinality": 602, "char_count": 9767, "ocr_confidence": 0.745, "pagerank": { "raw": 4.565170110192638e-08, "percentile": 0.28602323919270967 }, "sha256": "c45570f7cc605661385079a1a748d13666cc2aaf2d10be4772ae249d4460e567", "simhash": "1:87ca4c94d6e1768c", "word_count": 1621 }, "last_updated": "2023-07-14T16:47:04.631682+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "The People of the State of Illinois, Plaintiff-Appellee, v. Marvin E. Ash, Defendant-Appellant." ], "opinions": [ { "text": "Mr. JUSTICE SEIDENFELD\ndelivered the opinion of the court:\nDefendant was convicted after a jury trial of driving while under the influence of intoxicating liquor (Ill. Rev. Stat. 1971, ch. 95\u00bd, par. 11\u2014 501(a)). He appeals from the judgment and the fine imposed in the amount of $150. The admission of an audio-video tape, a portion of which had been erased after a preliminary viewing by the court, out of the jury\u2019s presence, is urged as a basis for outright reversal. Defendant also argues that the instruction defining intoxication was erroneous and justifies a new trial.\nAt trial the arresting officer testified that he observed defendant\u2019s car approaching in the opposite lane, then crossing the center line with all four wheels, forcing the officer\u2019s patrol car off the road and continuing in the wrong lane for one-eighth to one-quarter of a block. The officer' then made a U-tum and pursued defendant, activating an audio-video camera installed in his car. Defendant made a left turn onto an intersecting road, narrowly missing a telephone pole approximately twenty feet from the roadway. Defendant\u2019s vehicle then returned to the road and stopped some seventy-five or eighty-five feet from the intersection.\nThe officer further testified that when defendant got out of his car he smelled the strong odor of alcohol on defendant\u2019s breath. Defendant took one-half step toward him and fell back against the car. Subsequently defendant was placed under arrest for driving in the wrong lane and informed that he would be taken to the station for further investigation.\nWhen a second patrol car arrived to take him to the station, defendant weaved and swayed as he walked to the patrol car and was helped into the car by two officers. The arresting officer also went to the station and continued to tape the proceedings with the same unit after removing it from his vehicle. In his opinion, defendant was intoxicated.\nPrior to its admission at trial the video tape was first viewed in its entirety by the court and both counsel out of the presence of the jury, and the court ordered the deletion of the audio portion of the station house taping concerning defendant\u2019s refusal to take a breathalyzer test in compliance with Ill. Rev. Stat. 1971, ch. 95\u00bd, par. 11 \u2014 501(h).\nHowever, the entire portion of the station house proceedings including the preliminary occurrences to the performance test was erased by the State.\nAs a result defense counsel objected to showing the tape to the jury and moved for a mistrial. The court overruled the objection and denied the motion but permitted defendant to cross-examine the officers concerning what happened during the portion of the tape which was erased.\nIn addition, the court recalled for the record his observations of the portion of the tape which had been erased:\n\u201cAt the time the police officer asked the defendant to take the performance tests, he also asked the defendant if he was willing to take a Breathalyzer test. At that time the defendant said he did not wish to take any tests. He would not take a Breathalyzer test. He would not cooperate in any way. Would not answer any questions or cooperate in any way.\nNow, he later changed his mind. The police went back to the question of taking tests a couple of more times. I do not believe, and I so ruled that they did not use any undue duress. He never changed his mind on the Breathalyzer test.\nHe did change his mind on the performance tests. He said, \u2018All right. If this is what you want me to do, I will do it.\u2019 Or words to that effect. And he did it. He did take the performance tests as could be seen from the tape.\u201d\nOn cross-examination, relating to the erased portion of the tape, the arresting officer testified that he became \u201cemotionally upset with the defendant\u201d in response to defendant\u2019s statement that he was a good person and never hurt anybody. He told defendant that he was lucky he did not hurt anybody because he was on the wrong side of the road. He testified that defendant said \u201cNo argument there\u201d when he was asked whether he remembered almost hitting the officer head-on and almost hitting the telephone pole.\nDefendant testified in his own behalf that he drank a small amount of beer prior to the arrest; and that his car crossed the center line when he took his eyes off the road to light a cigarette. He claimed he did not know that a squad car was pursuing him until the blinking lights came on shortly before he stopped. He stated that he refused to take the breathalyzer test but volunteered to take the physical tests.\nThe defendant contends that the erasure of the video tape deprived him of favorable evidence. He does not argue that the tests were involuntary but maintains that the jury would have been favorably influenced by the showing of coercion and police anger evinced in the deleted portion. Defendant concludes that the State\u2019s erasure of that segment was such a deprivation that he is entitled to a reversal.\nWe cannot agree with defendant\u2019s analysis. The issue may not be properly framed in terms of the withholding of evidence (cf. People v. Smith (1972), 5 Ill.App.3d 429, 430) since the erased portions were seen by the court and counsel. Although the deletion exceeded the order, the court exercised its discretion by allowing admission of the video tape. The court predicated its ruling on the fact that the complete tape had been seen prior to the erasure and the court had found no police duress.\nTrial judges have been accorded great latitude in exercising their discretion to impose conditions upon the admissibility of taped demonstrative evidence. (See United States v. Frazier (2d Cir. 1973), 479 F.2d 983, 985; People v. Mitchell (1972), 40 App. Div. 2d 117, 338 N.Y.S.2d 313, 316-7; United States v. Bryant (2d Cir. 1973), 480 F.2d 785.) Recently, in People v. Pension (1973), 14 Ill.App.3d 622, we upheld the discretion of the trial court, sitting without a jury, to exclude from consideration the audio portion of the video tape obtained without compliance with the rule of Miranda. The admission of the film as edited showing the performance of coordination tests was upheld as physical evidence. Fenelon, however, involved no erasure and the complete tape was available on review.\nWe are, of course, concerned that due to no fault of the defendant, we do not have the same complete video tape observed by the trial court. However, on the facts revealed by the record before us, we are sufficiently assured that the trial court properly exercised its discretion. We also note that defendant has failed to establish prejudice resulting from the erasure.\nThe court and both counsel viewed the tape before it was edited by partial erasure. The court stated its recollection of the substance of the omitted portion on the record. Defense counsel was also permitted to examine the officer as to all aspects of the erased portion.\nIn addition, the trial court\u2019s finding that the omitted portion would not evidence any coercion with respect to the tests is further supported by defendant\u2019s own testimony at trial that he voluntarily took the performance test. We also deem significant defendant\u2019s failure to testify concerning any adverse affect of the officer\u2019s verbal outburst upon him.\nIn our view the record so clearly supports the verdict that defendant was guilty of driving while intoxicated that the deleted portion of the video tape could not have resulted in any other conclusion than that reached below. (People v. Dickman (1969), 117 Ill.App.2d 436, 443.) Therefore, any error in the editing or admission of the film must be viewed as harmless beyond a reasonable doubt. People v. Jones (1970), 125 Ill.App.2d 30, 38-39; People v. Owens (1970), 126 Ill.App.2d 379, 383.\nThe following instruction was given to the jury over defendant\u2019s objection:\n\u201cUnder the influence of intoxicating liquor means a condition in which a person finds himself after having consumed some intoxicating beverage in such quantity that its effect on him adversely affects his actions, reactions, conduct, movement or mental processes or impairs his reactions to an appreciable degree thereby lessening his ability to operate a motor vehicle as a reasonably prudent person.\u201d\nDefendant contends that the language unnecessarily misled and confused the jury because \u201cadversely\u201d, \u201cimpairs\u201d, \u201cappreciable degree\u201d, and \u201creasonably prudent person\u201d are included without further definition. Further,defendant cites People v. Knutson (1958), 17 Ill.App.2d 251, in support of his contention that the instruction defines symptoms; and that such symptoms may be manifest in one not under the influence.\nWe do not agree that the instruction is misleading or otherwise erroneous. It is substantially in the form which has been approved in dram shop cases. (See I.P.I. \u2014 Civil No. 150.15; Navarro v. Lerman (1964), 48 Ill.App.2d 27, 36.) Further, an instruction substantially similar to the one before us was approved in People v. Stebbins (1952), 345 Ill.App. 456, 458; and it is not subject to Knutson\u2019s condemnation.\nThe Stebbins instruction was expressly approved in People v. Knutson (1958), 17 Ill.App.2d 251, 258. Knutson condemned an additional instruction equating certain symptoms with the effects of being under the influence of intoxicating liquor. The present case involves no such instruction.\nFor the aforementioned reasons, we affirm the judgment below.\nAffirmed.\nT. MORAN, P. J., and GUILD, J., concur.", "type": "majority", "author": "Mr. JUSTICE SEIDENFELD" } ], "attorneys": [ "Edward F. Zahour, of Chicago, for appellant.", "William V. Hopf, State\u2019s Attorney, of Wheaton (Malcolm F. Smith, Assistant State\u2019s Attorney, of counsel), for the People." ], "corrections": "", "head_matter": "The People of the State of Illinois, Plaintiff-Appellee, v. Marvin E. Ash, Defendant-Appellant.\n(No. 72-337;\nSecond District\nJanuary 10, 1974.\nEdward F. Zahour, of Chicago, for appellant.\nWilliam V. Hopf, State\u2019s Attorney, of Wheaton (Malcolm F. Smith, Assistant State\u2019s Attorney, of counsel), for the People." }, "file_name": "0633-01", "first_page_order": 655, "last_page_order": 659 }