{ "id": 2498258, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHARLES L. TUCKER, Defendant-Appellant", "name_abbreviation": "People v. Tucker", "decision_date": "1990-01-25", "docket_number": "No. 4\u201489\u20140337", "first_page": "849", "last_page": "858", "citations": [ { "type": "official", "cite": "193 Ill. App. 3d 849" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "150 N.E. 708", "category": "reporters:state_regional", "reporter": "N.E.", "weight": 2, "pin_cites": [ { "page": "712" } ], "opinion_index": 0 }, { "cite": "320 Ill. 205", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5161231 ], "weight": 2, "pin_cites": [ { "page": "212" } ], "opinion_index": 0, "case_paths": [ "/ill/320/0205-01" ] }, { "cite": "372 N.E.2d 656", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "pin_cites": [ { "page": "658-60" } ], "opinion_index": 0 }, { "cite": "69 Ill. 2d 507", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5456536 ], "weight": 4, "pin_cites": [ { "page": "511-16" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/69/0507-01" ] }, { "cite": "298 N.E.2d 705", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "54 Ill. 2d 401", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2932686 ], "opinion_index": 0, "case_paths": [ "/ill-2d/54/0401-01" ] }, { "cite": "31 N.E.2d 938", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "939" } ], "opinion_index": 0 }, { "cite": "375 Ill. 495", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2537345 ], "weight": 2, "pin_cites": [ { "page": "497" } ], "opinion_index": 0, "case_paths": [ "/ill/375/0495-01" ] }, { "cite": "473 N.E.2d 1246", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "104 Ill. 2d 504", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3147214 ], "opinion_index": 0, "case_paths": [ "/ill-2d/104/0504-01" ] }, { "cite": "91 N.E. 112", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "244 Ill. 176", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3410472 ], "opinion_index": 0, "case_paths": [ "/ill/244/0176-01" ] }, { "cite": "374 N.E.2d 957", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "58 Ill. App. 3d 761", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5625490 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/58/0761-01" ] }, { "cite": "279 N.E.2d 735", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "3 Ill. App. 3d 1036", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2836397 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/3/1036-01" ] }, { "cite": "425 N.E.2d 1099", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "99 Ill. App. 3d 593", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3102942 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/99/0593-01" ] }, { "cite": "371 N.E.2d 692", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "762" } ], "opinion_index": 0 }, { "cite": "56 Ill. App. 3d 873", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3414752 ], "weight": 2, "pin_cites": [ { "page": "879" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/56/0873-01" ] }, { "cite": "392 N.E.2d 70", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "73 Ill. App. 3d 585", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3265763 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/73/0585-01" ] }, { "cite": "77 Ill. B.J. 762", "category": "journals:journal", "reporter": "Ill. B.J.", "year": 1989, "opinion_index": 0 } ], "analysis": { "cardinality": 853, "char_count": 19753, "ocr_confidence": 0.764, "pagerank": { "raw": 9.578188477321787e-08, "percentile": 0.5258441708377593 }, "sha256": "73a77e69832e4e8acc364725a50cf70e6f8e853a9b50c5c2426ac9b3890dca43", "simhash": "1:7e7afbd37e873451", "word_count": 3238 }, "last_updated": "2023-07-14T21:36:46.192510+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. CHARLES L. TUCKER, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE SPITZ\ndelivered the opinion of the court:\nDefendant was charged with driving under the influence of alcohol (DUI) (Ill. Rev. Stat. 1987, ch. QSUa, par. 11 \u2014 501), and with disobeying a traffic control device (Ill. Rev. Stat. 1987, ch. 95^2, par. 11 \u2014 305(a)). After a jury trial, defendant was convicted on both charges. However, the trial court granted defendant a new trial for the traffic control device charge. Defendant appeals his conviction for DUI.\nDuring jury selection, Theresa Stadel was interviewed and indicated that she was familiar with defendant, as they both resided in the same small town. However, Stadel indicated there was nothing about her knowledge of defendant that would affect her impartiality as a juror. Neither the State nor defendant\u2019s attorney questioned Stadel about her knowledge of defendant, or objected to her presence on the jury. Stadel was subsequently chosen as a juror in defendant\u2019s trial.\nAt trial, the arresting officer, Trooper Eddie Betts, described defendant\u2019s driving on the night in question and how defendant appeared when pulled over. According to Trooper Betts, defendant\u2019s driving was erratic and, when pulled over, defendant had trouble producing his license and standing up. The testimony continued:\n\u201cQ. *** Based on the results of your observation in the field sobriety tests, did you then make a decision?\nA. Yes, sir; I did.\nQ. And what was that?\nA. I felt that the defendant was under the influence of intoxicating liquor.\u201d\nNext to testify was Trooper Marcus Lucas. Lucas observed defendant at the station house and testified that he could smell the strong odor of alcohol on defendant\u2019s breath. Lucas further testified that defendant\u2019s speech was slurred and that he refused to take the breathalyzer test.\nSandra Tucker (defendant\u2019s wife), John Schrof, and Judy Fansler also testified. These witnesses each stated they saw defendant on the night in question and that he did not appear to be under the influence of alcohol.\nTestimony was also presented by Dr. Homer Parkhill to the effect that, taking into account defendant\u2019s size and the amount he supposedly drank on the night in question, defendant probably was not under the influence of alcohol.\nFinally, defendant testified. Defendant stated the number of drinks he had and at what times he had them. Defendant further described the circumstances of his arrest, his conversations with the arresting officer and the administration of field sobriety tests. At this point in the testimony, defendant\u2019s attorney asked the following question in the presence of the jury:\n\u201cQ. Were you under the influence of alcohol at the time that you were driving a vehicle? I\u2019m not going to ask you about at the time of these tests, but at the time you were driving the vehicle?\nA. No.\u201d\nThe State objected to the question, claiming no foundation. The court sustained the objection and instructed the jury to disregard the response.\nThe case went to the jury and, over defendant\u2019s objection, the trial court gave People\u2019s instruction No. 9, the approved IPI issues instruction on DUI. (See Illinois Pattern Jury Instructions, Criminal, No. 23.04, at 529 (2d ed. 1981) (IPI Criminal 2d No. 23.04).) The People\u2019s instruction No. 9 stated in pertinent part:\n\u201cTo sustain the charge of driving under the influence of alcohol, the State must prove the following propositions: First: that the defendant drove a vehicle; and second: that the defendant then was under the influence of the alcohol.\u201d (Emphasis added.)\nDefendant\u2019s instruction No. 3, which was tendered and refused, stated in pertinent part:\n\u201cTo sustain the charge of driving under the influence of alcohol, the State must prove the following propositions:\nFirst: that the defendant drove a vehicle, and second: that at the time the defendant drove the vehicle, the defendant was under the influence of alcohol.\u201d\nSee IPI Criminal 2d No. 23.04, at 272 (Supp. 1989).\nDefendant was convicted and sentenced to 12 months\u2019 conditional discharge, with conditions including a $400 fine plus court costs, four weekends of homebound detention, no admittance into any establishment whose primary purpose is the sale of alcohol by the glass, and treatment as recommended by the Court Services office.\nAfter the trial, Staddel stated to defendant\u2019s lawyer\u2019s secretary that it was a shame the jury had to convict defendant, but in light of his priors they had to. This statement was part of defendant\u2019s post-trial motion for a new hearing. The trial court denied the motion.\nDefendant raises three issues on appeal: (1) improper jury instructions; (2) trial court error in sustaining the State\u2019s objection to the question concerning defendant\u2019s intoxication; and (3) improper juror conduct. Defendant first argues that the trial court erred when it tendered the People\u2019s instruction No. 9 to the jury. Defendant believes this was error for two reasons: (1) by giving People\u2019s instruction No. 9, the court in effect gave a non-IPI instruction to the jury; and (2) the instruction itself was ambiguous. We disagree.\nDefendant\u2019s first contention in regard to the jury instructions is that the trial court gave a non-IPI jury instruction in violation of Illinois Supreme Court rules. Supreme Court Rule 451(a) states that IPI criminal instructions shall be used in criminal cases unless they do not accurately reflect the law. (107 Ill. 2d R. 451(a).) Defendant argues that because defendant\u2019s instruction No. 3 is a more recent version of the People\u2019s instruction No. 9, the jury received an outdated, non-IPI instruction. There are two errors in defendant\u2019s argument.\nDefendant labeled his instruction \u201cI.P.I. Criminal 2d 1988, 23.04 Modified.\u201d The trial was conducted in November 1988. Defendant\u2019s instruction is not included in the 1987 supplement to the IPI criminal instructions (see IPI Criminal 2d (Supp. 1987)), but does appear in the 1989 supplement (see IPI Criminal 2d No. 23.04, at 272 (Supp. 1989)). There was no 1988 supplement and thus no \u201cI.P.I. Criminal 2d 1988, 23.04 Modified.\u201d New instructions are often circulated in advance to acquaint the judiciary and legal profession with upcoming changes. Thus, the People\u2019s instruction No. 9 was not an outdated version of the DUI instruction at the time of defendant\u2019s trial.\nDefendant\u2019s argument also fails simply because there are no effective dates for IPI instructions such as there are for statutes. While we believe that Supreme Court Rule 451(a) (107 Ill. 2d R. 451(a)) requires a trial court to use the latest version of a particular IPI instruction that may be applicable, use by a trial court of an earlier IPI version of that same instruction is not reversible error as long as the earlier version still correctly states the law. Drafting instructions is somewhat of an art, and changes in IPI instructions may be brought about because the committee believes a new version of an instruction is clearer or better stated. Yet the earlier version may still have been a correct statement of the law. In this analysis, we have taken into consideration the recent article by the chairman of the committee, stating his personal views. See Haddad, The 1989 Supplement to the IPI Criminal: An Overview, 77 Ill. B.J. 762 (1989).\nDefendant\u2019s next contention concerning the instruction given is that it was ambiguous. The Illinois Supreme Court has held that an instruction may not be given if it misleads the jury. (Illinois State Trust Co. v. Walker Manufacturing Co. (1979), 73 Ill. App. 3d 585, 392 N.E.2d 70.) Illinois pattern jury instructions must not be constructed so as to confuse or mislead the jury. (Graves v. Wornson (1978), 56 Ill. App. 3d 873, 371 N.E.2d 692.) Even if an instruction correctly states the law, it may not be given if it misleads the jury. (Graves, 56 Ill. App. 3d at 879, 371 N.E.2d at 762.) However, even though it is improper for a court to instruct the jury in a confusing or misleading manner, if a commonsense interpretation of the challenged instruction would not be misleading or confusing, it may be said that the jury was fairly and comprehensibly informed on that issue. Silverman v. General Motors Corp. (1981), 99 Ill. App. 3d 593, 425 N.E.2d 1099.\nIPI Criminal 2d No. 23.04, as submitted by the State, contains the following proposition: \u201cThat the defendant then was under the influence of alcohol.\u201d However, IPI Criminal 2d No. 23.04 reworded this proposition to read, \u201cthat at the time the defendant drove the vehicle, the defendant was under the influence of alcohol.\u201d Defendant objects to the language \u201cthat the defendant then was under the influence of alcohol.\u201d (Emphasis added.) Defendant argues that this language is ambiguous because the word \u201cthen\u201d can have two meanings: (1) after, later; and (2) at that time. To find that defendant was driving under the influence, the State must prove that defendant drove a motor vehicle at the time he was intoxicated. People v. Williams (1972), 3 Ill. App. 3d 1036, 279 N.E.2d 735.\nDefendant argues that the State\u2019s instruction would allow the jury to enter a finding of guilt even if it concluded that defendant did not drive while intoxicated. Defendant claims that the jury might have convicted him because it found him to be intoxicated at the time the field sobriety tests were given, or at the time the warning to motorist was read to him at the station house, even if it concluded that defendant was not intoxicated at the time he drove. We disagree. Defendant was charged with DUI, not with being intoxicated sometime after he was driving. The jury was aware of this. Trooper Betts testified that defendant\u2019s driving was erratic and, when pulled over, defendant had trouble producing his license and standing up. Moreover, a version of IPI Criminal 2d No. 23.03, the DUI definition instruction, was also given. The instruction provided: \u201cA person commits the offense of driving while under the influence of alcohol when he drives the vehicle while under the influence of alcohol.\u201d (IPI Criminal 2d No. 23.03, at 528.) A commonsense interpretation of the instruction is not confusing or misleading and leads us to conclude that the jury was fairly and comprehensibly instructed on the issue.\nDefendant next argues that his constitutional and statutory rights to testify in his own defense were violated. The court sustained an objection by the State to the following question in the presence of the jury:\n\u201cQ. [By defense counsel:] Were you under the influence of alcohol at the time that you were driving the vehicle? I am not going to ask you about at the time of these tests, but at the time you were driving thevehicle?\nA. [Defendant]: No.\n[Prosecutor]: Objection, without foundation.\nTHE COURT: Sustained. The response is stricken, and the jury is instructed to disregard the response.\u201d\nDefendant argues that the prosecution failed to state the item of foundation lacking and that the court\u2019s ruling prejudiced defendant by denying him his statutory and constitutional right to testify. A defendant in a criminal action has a statutory and constitutional right to testify in his own defense. (Ill. Rev. Stat. 1987, ch. 38, par. 155 \u2014 1; People v. Knox (1978), 58 Ill. App. 3d 761, 374 N.E.2d 957; Ill. Const. 1970, art. I, \u00a78.) Defendant claims he was denied the only opportunity to refute the arresting officer\u2019s testimony and that the court\u2019s denial of this testimony critically injured him by destroying any opportunity he may have had to convince the jury of the truthfulness of his testimony.\nWe agree that the trial court erred when it sustained the State\u2019s objection to this question. A witness may testify directly to his own mental state. (People v. Weil (1910), 244 Ill. 176, 91 N.E. 112.) We believe this applies to testifying about one\u2019s sobriety or lack thereof. However, we find the error to be harmless. Defendant answered questions that provided the same information as the stricken response. Defendant testified that he had no problem making a turn out of the bar; he did not stop and stall across two middle lanes; he neither stumbled nor walked unsteadily for his field sobriety tests; he had no difficulty driving his car when he left the bar\u2019s parking lot; he was not staggering; and denied that he could not hold his leg up for even one second. Defendant also answered three questions that were directly substituted for the question objected to. These three were:\n\u201cQ. [By defense counsel:] Were you having any difficulty driving that vehicle to the point that the trooper stopped you?\nA. [Defendant:] No.\nQ. Had you violated any laws, any traffic laws up to the time that the trooper had stopped you?\nA. I didn\u2019t think I had.\nQ. Were you ever charged with improper lane usage, reckless driving, having your headlights off, driving in the wrong lane?\nA. No.\u201d\nIt appears that these three questions were directly and narrowly directed at defendant\u2019s driving ability up to the time the trooper stopped him. Therefore we cannot say that defendant\u2019s right to testify was violated.\nDefendant also argues that the court\u2019s decision to sustain the objection to the question denied him effective assistance of counsel. This argument is without merit. For a denial of effective assistance of counsel claim, defendant must show that the deficient performance of counsel prejudiced the defense. This means defendant must show a reasonable probability that, but for counsel\u2019s unprofessional errors, the result of the proceeding would have been different. (People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246.) Defendant cannot show that he would have prevailed if allowed to answer the question presented.\nDefendant finally argues that improper juror conduct requires reversal and a new trial. Defendant claims that Theresa Stadel, a juror in defendant\u2019s trial, harbored doubt as to her fairness and impartiality because she knew that defendant had been arrested or convicted for DUI on prior occasions. Defendant further asserts that evidence shows Stadel may have shared this information with other members of the jury.\nEvery person charged with a crime is entitled to a speedy public trial by an impartial jury. (U.S. Const., amend. VI.) To be qualified, a juror must come into a trial with a mind uncommitted on the question of guilt or innocence of the defendant and prepared to weigh the evidence impartially. (People v. Cravens (1941), 375 Ill. 495, 31 N.E.2d 938.) If the existence of certain facts has been established in his mind, touching the guilt or innocence of the accused, to the extent of producing a conviction, he is disqualified, for neither party to the proceeding should be required to adduce proof to remove a preconceived opinion. Such would result in the trial before a juror who had prejudged the case. (Cravens, 375 Ill. at 497, 31 N.E.2d at 939.) However, mere suspicion of bias or partiality is not sufficient to disqualify a juror. (People v. Cole (1973), 54 Ill. 2d 401, 298 N.E.2d 705.) The test used in such cases is whether the conduct involved such a probability that prejudice would result so that due process would be deemed inherently lacking. (People v. Holmes (1978), 69 Ill. 2d 507, 372 N.E.2d 656.) Not every instance in which extraneous or unauthorized information reaches the jury results in error so prejudicial as to require reversal. Holmes, 69 Ill. 2d 507, 372 N.E.2d 656.\nIn the present case, Stadel stated to defendant\u2019s lawyer\u2019s secretary that it was a shame that the jury had to convict defendant, but in light of his prior convictions, they had to. Defendant included this statement in his post-trial motion for a new trial. Six jurors, including Stadel, were subpoenaed to testify at the hearing.\nAttempts to impeach jury verdicts fall into two broad categories. The first category includes attempts to prove by a juror\u2019s testimony or affidavit the motive, method or process by which the jury reached its verdict. These are generally inadmissible in most jurisdictions. (Holmes, 69 Ill. 2d at 511-16, 372 N.E.2d at 658-60.) The second category includes situations in which the testimony or affidavit of a juror is offered as proof of conditions or events brought to the attention of the jury without any attempt to show its effect on the jurors\u2019 deliberations or mental processes. In Illinois, this second category may be used to impeach a jury verdict. Holmes, 69 Ill. 2d 507, 372 N.E.2d 656.\nWe first look at defendant\u2019s argument that the jury received improper information. Defendant cites a juror\u2019s written statement responding to an inquiry from defendant\u2019s counsel. The statement revealed that several members of the jury speculated that defendant could have had previous convictions. Defendant argues that this speculation, along with Stadel\u2019s knowledge of defendant\u2019s prior arrests or convictions, shows that Stadel shared her knowledge with the jury and that the jury was not impartial.\nWe believe the jury was impartial. Stadel testified, and the five other jurors subpoenaed confirmed, that she did not share her knowledge of defendant with the rest of the jury. The five other jurors also testified that they had no knowledge of any prior arrests or convictions of defendant for DUI when they convicted him. The record does not support the argument that Stadel informed the members of the jury of defendant\u2019s past history of DUI.\nWe next turn to defendant\u2019s argument that Stadel was not an impartial juror because she thought defendant had prior convictions for DUI. Defendant cites People v. Ortiz (1926), 320 Ill. 205, 150 N.E. 708, in demanding a reversal and new trial. Ortiz is an extreme example of juror partiality in which one of the jurors stated, before a murder trial: \u201c \u2018[T]hey better not take me on that jury or I will hang that Mexican ***.\u2019 \u201d (Ortiz, 320 Ill. at 212, 150 N.E. at 712.) The Ortiz court had no choice but to reverse and remand for a new trial because the juror misled the court by concealing his partiality during jury selection. Defendant claims that because Stadel knew defendant had been previously arrested or convicted for DUI, she was not impartial.\nStadel knew only that defendant had some prior arrests or convictions that might have been alcohol related. During jury selection, Stadel indicated that she knew nothing that would affect her impartiality as a juror. Defendant\u2019s counsel was aware that Stadel was familiar with defendant, and lived in the same small town, but neither questioned her about such knowledge, nor objected to her presence on the jury. At the post-trial motion hearing Stadel once again indicated that her knowledge of defendant in no way affected her impartiality. The court in Holmes said it would not hold that every instance of extraneous or unauthorized information reaching the jury results in error so prejudicial as to require reversal. We conclude that Stadel\u2019s knowledge of defendant\u2019s prior arrests or convictions did not rise to the level of a due process violation. Defendant\u2019s argument is little more than speculation.\nDefendant's efforts to show Stadel was in fact influenced by her knowledge of defendant\u2019s prior convictions attempt to impeach a juror\u2019s mental process in reaching a verdict and as such will not be allowed. For the foregoing reasons, the judgment is affirmed.\nAffirmed.\nSTEIGMANN and McCULLOUGH, JJ., concur.", "type": "majority", "author": "JUSTICE SPITZ" } ], "attorneys": [ "Robert M. Travers, of Fellheimer, Travers, Luckman & Engelman, Ltd., of Pontiac, for appellant.", "Donald D. Bernardi, State\u2019s Attorney, of Pontiac (Kenneth R. Boyle, Robert J. Biderman, and Gwendolyn W. Klingler, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHARLES L. TUCKER, Defendant-Appellant.\nFourth District\nNo. 4\u201489\u20140337\nOpinion filed January 25, 1990.\nRobert M. Travers, of Fellheimer, Travers, Luckman & Engelman, Ltd., of Pontiac, for appellant.\nDonald D. Bernardi, State\u2019s Attorney, of Pontiac (Kenneth R. Boyle, Robert J. Biderman, and Gwendolyn W. Klingler, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0849-01", "first_page_order": 871, "last_page_order": 880 }