{ "id": 3364926, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES S. JOHNSON, Defendant-Appellant", "name_abbreviation": "People v. Johnson", "decision_date": "2004-12-03", "docket_number": "No. 4\u201404\u20140127", "first_page": "954", "last_page": "960", "citations": [ { "type": "official", "cite": "353 Ill. App. 3d 954" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "625 N.E.2d 780", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1993, "pin_cites": [ { "page": "784", "parenthetical": "refusal to submit to Breathalyzer test is relevant as circumstantial evidence of the defendant's consciousness of guilt" }, { "page": "784" } ], "opinion_index": 0 }, { "cite": "253 Ill. App. 3d 1048", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5423191 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "1052", "parenthetical": "refusal to submit to Breathalyzer test is relevant as circumstantial evidence of the defendant's consciousness of guilt" }, { "page": "1052" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/253/1048-01" ] }, { "cite": "597 N.E.2d 586", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "pin_cites": [ { "page": "602" } ], "opinion_index": 0 }, { "cite": "149 Ill. 2d 355", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5600044 ], "year": 1992, "pin_cites": [ { "page": "392" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/149/0355-01" ] }, { "cite": "804 N.E.2d 116", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 2004, "pin_cites": [ { "page": "129" }, { "page": "129" } ], "opinion_index": 0 }, { "cite": "345 Ill. App. 3d 1064", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3738804 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "1081" }, { "page": "1081" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/345/1064-01" ] }, { "cite": "701 N.E.2d 1190", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1998, "pin_cites": [ { "page": "1192" }, { "page": "1192" } ], "opinion_index": 0 }, { "cite": "299 Ill. App. 3d 779", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 221444 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "784" }, { "page": "784" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/299/0779-01" ] }, { "cite": "752 N.E.2d 410", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 2001, "pin_cites": [ { "page": "425" }, { "page": "425" } ], "opinion_index": 0 }, { "cite": "196 Ill. 2d 236", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 351233 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "259" }, { "page": "259" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/196/0236-01" ] }, { "cite": "811 N.E.2d 620", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 2004, "pin_cites": [ { "page": "625" }, { "page": "625" } ], "opinion_index": 0 }, { "cite": "211 Ill. 2d 192", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 8451281 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "202" }, { "page": "202" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/211/0192-01" ] }, { "cite": "166 N.E.2d 80", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1960, "pin_cites": [ { "page": "86", "parenthetical": "\"it is not for the defendant to establish his innocence, but for the People to establish his guilt\"" } ], "opinion_index": 1 }, { "cite": "19 Ill. 2d 50", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2742008 ], "year": 1960, "pin_cites": [ { "page": "61", "parenthetical": "\"it is not for the defendant to establish his innocence, but for the People to establish his guilt\"" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/19/0050-01" ] }, { "cite": "220 N.E.2d 432", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1966, "pin_cites": [ { "page": "434", "parenthetical": "burden of proving beyond a reasonable doubt all the essential elements of a crime never shifts to the accused but remains the responsibility of the prosecution" } ], "opinion_index": 1 }, { "cite": "35 Ill. 2d 467", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5378433 ], "year": 1966, "pin_cites": [ { "page": "470", "parenthetical": "burden of proving beyond a reasonable doubt all the essential elements of a crime never shifts to the accused but remains the responsibility of the prosecution" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/35/0467-01" ] }, { "cite": "137 N.E.2d 256", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1956, "pin_cites": [ { "page": "259" } ], "opinion_index": 1 }, { "cite": "9 Ill. 2d 169", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5320487 ], "year": 1956, "pin_cites": [ { "page": "174" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/9/0169-01" ] }, { "cite": "584 N.E.2d 1044", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1991, "pin_cites": [ { "page": "1045" }, { "page": "1049" } ], "opinion_index": 1 }, { "cite": "223 Ill. App. 3d 377", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5254039 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "379" }, { "page": "385" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/223/0377-01" ] }, { "cite": "625 N.E.2d 780", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "pin_cites": [ { "page": "784" } ], "opinion_index": 1 }, { "cite": "253 Ill. App. 3d 1048", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5423191 ], "year": 1993, "pin_cites": [ { "page": "1052" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/253/1048-01" ] } ], "analysis": { "cardinality": 775, "char_count": 16727, "ocr_confidence": 0.754, "pagerank": { "raw": 8.453945073664333e-08, "percentile": 0.4849661119238998 }, "sha256": "e01a0e819d1a511dac766442182c04f8912eb5e9c69ebb692f3757a48b12a59d", "simhash": "1:c850b976830a32c1", "word_count": 2755 }, "last_updated": "2023-07-14T16:37:49.624900+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. JAMES S. JOHNSON, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE COOK\ndelivered the opinion of the court:\nDefendant, James S. Johnson, appeals from his conviction for driving under the influence (DUI) November 29, 2004 (625 ILCS 5/11\u2014 501(a)(2) (West 2002)). On appeal, defendant argues that (1) the guilty verdict was against the manifest weight of the evidence, (2) the prosecutor\u2019s remarks during closing arguments about defendant\u2019s refusal to submit to a breath test were prosecutorial misconduct, (3) defense counsel\u2019s failure to object to the prosecution\u2019s improper references during the trial was ineffective assistance of counsel, and (4) the prosecutor\u2019s improper references during opening and closing statements at trial were plain error. We affirm.\nAt about 9:45 p.m. on April 30, 2003, Mahomet police officer David Parsons stopped defendant\u2019s car after he observed defendant cross the centerline of the roadway three times in a short amount of time. When Parsons confronted defendant, he noticed a strong odor of alcohol on defendant\u2019s breath. He also noticed that defendant\u2019s speech was slurred and his eyes were bloodshot. Parsons asked defendant for his license and insurance card, and defendant mistakenly handed him his license and registration. When Parsons pointed out the mistake, defendant provided his insurance card. At this point, Parsons informed defendant that he noticed a strong odor of alcohol on his breath. Defendant admitted that he had been drinking that evening.\nParsons then asked defendant if he would submit to some field sobriety tests. Defendant complied and exited his vehicle. Parsons had defendant complete a \u201cwalk and turn\u201d test and a \u201cone-leg stand\u201d test. The \u201cwalk and turn\u201d test consists of the subject walking heel to toe in a straight line with his arms at his sides, then pivoting and returning in the same manner. Parsons testified that defendant failed the \u201cwalk and turn\u201d test because he displayed four indicators of impairment and individuals are only allowed two. Parsons testified that defendant had to be reminded several times to keep his right foot closely in front of his left foot, failed to perform the test at a normal gait, and raised his arms approximately 14 inches from his body. Parsons also testified that defendant was unable to pivot on his left foot without pausing to regain his balance.\nDefendant also failed the \u201cone-leg stand\u201d test. The test requires that an individual balance on one leg for approximately 30 seconds. Like the \u201cwalk and turn\u201d test, in the \u201cone-leg stand\u201d test, a person is only permitted two indicators of impairment. Defendant displayed three indicators. Parsons testified that defendant swayed while doing the exercise, that his arms were about 10 inches from his sides, and that he put his foot down after only 8 seconds. Parsons determined that defendant was under the influence of alcohol and placed defendant under arrest.\nParsons placed defendant in the back of his squad car, and the two men waited for a tow truck to arrive. While they were sitting in the car, defendant remarked that he was \u201cnot that drunk.\u201d Parsons read defendant the warning to motorists, which informs individuals of the different penalties that may result from one\u2019s refusal to submit to chemical testing as well as the penalties if one submits to the testing. Although officers are required to provide a copy of the warning to motorists to the individual, Parsons did not provide a copy of the warning to defendant until almost an hour later, when defendant was in jail. Defendant informed Parsons that he understood the penalties described in the warning and declined to submit to a breath test.\nOn December 4, 2003, the trial court conducted a jury trial in the matter. Parsons testified on behalf of the State. In addition to himself, defendant had several witnesses testify on his behalf. Defendant\u2019s witnesses had been with him at the Hide-Away of the Woods, and all testified that defendant did not display any signs of impairment or intoxication. On December 5, 2003, the jury convicted defendant. This appeal followed.\nDefendant first argues that the State failed to prove him guilty of DUI beyond a reasonable doubt. \u201cA criminal conviction will not be set aside on appeal unless the evidence is so improbable or unsatisfactory that there remains a reasonable doubt of the defendant\u2019s guilt.\u201d People v. Ehlert, 211 Ill. 2d 192, 202, 811 N.E.2d 620, 625 (2004). \u201cThe question on review is whether, after viewing the evidence in the light most favorable to the prosecution, any rational fact finder could have found defendant guilty beyond a reasonable doubt.\u201d Ehlert, 211 Ill. 2d at 202, 811 N.E.2d at 625. It is the jury\u2019s responsibility to determine the witnesses\u2019 credibility and the weight given to their testimony, to resolve conflicts of the evidence, and to draw reasonable inferences from the evidence. People v. Ortiz, 196 Ill. 2d 236, 259, 752 N.E.2d 410, 425 (2001). We hold that the evidence presented at trial was sufficient for the jury to find defendant guilty beyond a reasonable doubt.\nThe evidence presented by the State showed that Parsons was justified in pulling defendant\u2019s car over. When Parsons approached defendant, defendant had red eyes, slurred speech, and a strong smell of alcohol on his breath. Further, when asked to provide his license and proof of insurance, defendant provided his registration instead of proof of insurance. Defendant admitted that he had consumed alcoholic beverages. Parsons then asked defendant to perform field sobriety tests. Parsons testified that defendant failed both sobriety tests and explained the various factors he used in making his determination. While in the police car, defendant remarked to Parsons that he was \u201cnot that drunk.\u201d Additionally, defendant refused to submit to a breath test when requested by the police.\nDefendant argued at trial that he had a legitimate reason for crossing the centerline, which was to attempt to pass a car in front of him. This does not change the fact that Parsons was still justified in pulling him over. Defendant does not challenge the fact that he did cross the centerline, which is the reason he was initially stopped. Defendant also argued that the field tests were not performed in accordance with the guidelines provided by the United States Department of Transportation, National Highway Traffic Safety Administration, or the Illinois State Police. He argues that the tests were conducted, not on a level surface, but on the side of the roadway where there was a slight slant. Further, he argued that Parsons did not designate a line for defendant to follow while completing the \u201cwalk and turn\u201d test. Defendant provided a video to the jury, showing the condition of the site where the tests took place. The jury was able to view and determine whether the slant of the road was such that a sober driver would have been able to properly perform the field tests.\nThe State\u2019s evidence was sufficient to prove defendant guilty of DUI. Although defendant presented reasonable justifications for most of his actions, the jury obviously gave more weight to Parsons\u2019s observations. As we stated previously, it is the jury\u2019s duty to weigh the evidence presented and draw conclusions from that evidence. Ortiz, 196 Ill. 2d at 259, 752 N.E.2d at 425. The evidence presented by defendant is not so strong that we can conclude that no rational trier of fact could have convicted defendant in this case. The evidence presented by the State was sufficient to convict defendant beyond a reasonable doubt of DUI.\nDefendant next argues that the prosecutor\u2019s remarks during opening and closing statements about defendant\u2019s refusal to submit to a breath test were prosecutorial misconduct. Attorneys are allowed latitude in their closing statements. People v. Castaneda, 299 Ill. App. 3d 779, 784, 701 N.E.2d 1190, 1192 (1998). \u201cA prosecutor may comment on the evidence and draw all legitimate inferences deducible therefrom, even if they are unfavorable to the defendant.\u201d People v. Taylor, 345 Ill. App. 3d 1064, 1081, 804 N.E.2d 116, 129 (2004). \u201cIn reviewing a challenge to remarks made by the prosecutor during closing argument, the comments must be considered in the context of the parties\u2019 closing arguments as a whole.\u201d Taylor, 345 Ill. App. 3d at 1081, 804 N.E.2d at 129. Reversible error results when comments by a prosecutor cause such substantial prejudice against a defendant that it is impossible to say whether or not a verdict of guilt resulted from those comments. Castaneda, 299 Ill. App. 3d at 784, 701 N.E.2d at 1192. There is a similar requirement in opening statements, that reversible error only results when the prosecutor\u2019s statements result in substantial prejudice against defendant. People v. Leger, 149 Ill. 2d 355, 392, 597 N.E.2d 586, 602 (1992).\nHere, the prosecutor told the jury in his opening statement that it would \u201chear that [defendant] was given an opportunity to prove to the officer that he was not overly impaired by being offered to take what is call[ed] a breath alcohol test to determine how much alcohol was on his breath at the time, yet the defendant failed to do so.\u201d During closing arguments, the prosecutor said that Parsons gave defendant \u201can opportunity to prove once and for all that he wasn\u2019t impaired.\u201d The prosecutor summarized Parsons\u2019s testimony by stating:\n\u201cHe said, you know what? I am going to give you one more chance to prove that you\u2019re not guilty of this offense. Take a breath test. You\u2019re aware of the penalties that might result of taking it and passing it or not taking it at all.\u201d\nFinally, the prosecutor summarized defendant\u2019s decision not to take the breath test by telling the jury:\n\u201cHe knew what he was doing. He refused. He didn\u2019t want to take the risk. He took the stiffest penalty right off the bat. He wouldn\u2019t take the chance to prove it once and for all.\u201d\nDefendant argues that these statements are prosecutorial misconduct because they improperly shift the burden of proof, requiring defendant to prove his innocence rather than the prosecution having to prove his guilt. We disagree. Evidence of a defendant\u2019s refusal to take a breath test is relevant and admissible. 625 ILCS 5/11\u2014 501.2(c)(1) (West 2002); see also People v. Garriott, 253 Ill. App. 3d 1048, 1052, 625 N.E.2d 780, 784 (1993) (refusal to submit to Breathalyzer test is relevant as circumstantial evidence of the defendant\u2019s consciousness of guilt). The trier of fact can infer that a defendant refused to submit to the test because it would confirm that he was DUI. Garriott, 253 Ill. App. 3d at 1052, 625 N.E.2d at 784. The prosecutor\u2019s statements drew a legitimate inference from the evidence that was properly admitted during the trial. No prejudice resulted to defendant from the prosecutor\u2019s statements. It was not error for the trial court to allow the prosecutor\u2019s opening and closing statements.\nDefendant also argues that defense counsel\u2019s failure to object to the prosecutor\u2019s remarks during trial was both plain error and ineffectual assistance of counsel. Because we have already stated that the prosecutor\u2019s statements were not error and, further, did not prejudice defendant, no error was made by defense counsel in not objecting to the statements.\nFor the foregoing reasons, we affirm the trial court\u2019s judgment.\nAffirmed.\nMYERSCOUGH, J, concurs.", "type": "majority", "author": "JUSTICE COOK" }, { "text": "JUSTICE TURNER,\ndissenting:\nI respectfully dissent. In my view, the prosecutor\u2019s comments impermissibly shifted the burden of proof, and I would therefore reverse the trial court\u2019s judgment and remand for a new trial.\nHere, the prosecutor in his opening statement and twice in his closing statement referenced defendant\u2019s failure to prove he was not impaired or \u201cnot guilty.\u201d Although the prosecutor\u2019s argument was set forth in the context of defendant\u2019s failure to provide proof to the arresting officer rather than the jury, I believe the multiple references to the term \u201cprove\u201d impermissibly shifted the burden of proof and deprived defendant of a fair trial. In People v. Kane, 223 Ill. App. 3d 377, 379, 584 N.E.2d 1044, 1045 (1991), the State presented evidence of the defendant\u2019s refusal to submit to a test designed to determine whether the defendant was under the influence of alcohol. This court found such evidence helpful to the trier of fact and noted the \u201cjury could have inferred defendant\u2019s actions during the observation period showed he refused the test because he knew it would have confirmed he was driving under the influence.\u201d Kane, 223 Ill. App. 3d at 385, 584 N.E.2d at 1049.\nIn Garriott, 253 Ill. App. 3d at 1052, 625 N.E.2d at 784, this court further elaborated on the admissibility of a defendant\u2019s refusal to submit to a Breathalyzer test as follows:\n\u201cSection 11 \u2014 501.2(c) of the Code, providing that evidence of a refusal shall be admissible at trial of a DUI[,] *** represents a legislative determination that evidence of such a refusal is relevant. In effect, the legislature has determined that a driver\u2019s refusal to submit to a [B]reathalyzer test is relevant as circumstantial evidence of his consciousness of guilt. [Citations.] The evidence of a driver\u2019s refusal exposes him to an inference regarding his state of mind about the likely results of that test. [Citation.] The trier of fact could infer that he refused because he knew the [B]reathalyzer test would confirm he was driving under the influence. [Citation.] This evidence is probative to the issue of intoxication. [Citation.] Thus, a driver\u2019s refusal is relevant because it implies that he believes he is intoxicated, something he is clearly in a prime position to appraise.\u201d (Emphasis in original.)\nHere, the State argues the prosecutor\u2019s remarks, when placed in proper context, were not improper because they refer to defendant\u2019s state of mind in making his decision to refuse to take the test. I could agree with the State if the prosecutor had omitted references to defendant\u2019s failure to prove he was not guilty or not impaired.\nOur supreme court has found that \u201cno rule is more firmly settled than that a defendant in a criminal case is not bound to prove himself innocent, but the State must prove him guilty beyond a reasonable doubt, the defendant being presumed innocent.\u201d People v. Magnafichi, 9 Ill. 2d 169, 174, 137 N.E.2d 256, 259 (1956); see also People v. Weinstein, 35 Ill. 2d 467, 470, 220 N.E.2d 432, 434 (1966) (burden of proving beyond a reasonable doubt all the essential elements of a crime never shifts to the accused but remains the responsibility of the prosecution); People v. Benson, 19 Ill. 2d 50, 61, 166 N.E.2d 80, 86 (1960) (\u201cit is not for the defendant to establish his innocence, but for the People to establish his guilt\u201d).\nThe majority today sets a dangerous precedent, which, in my view, departs from time-honored principles of jurisprudence. Perhaps a jury will not always fully appreciate the subtlety of a prosecutor\u2019s argument relating to a defendant\u2019s guilty state of mind as opposed to a defendant\u2019s failure to prove he is not guilty. Perhaps, as well, a jury may be able to discern a difference between a defendant proving his innocence to a police officer as compared to proving his innocence to the jury itself. Nonetheless, the State should eschew argument that reasonably could confuse the jury regarding the presumption of innocence and burden of proof, and in my view, the majority errs today in condoning such conduct. From this day forward, DUI prosecutors in cases involving a refusal will be totally uninhibited from telling the jury a defendant who refuses a breath test has failed to prove his innocence to the police officer who offered the test. From my perspective, this is shifting the burden of proof to defendant, and even if the majority is correct that such argument does not shift the burden, it is simply too close to doing so for my comfort zone.\nProsecutors most assuredly should be allowed to elicit evidence of a defendant\u2019s refusal and argue such refusal is evidence that defendant must have believed he could not pass the breath test. However, further arguing defendant failed to prove he was \u201cnot guilty\u201d to the officer who offered the test tends to blur the distinction between the defendant\u2019s state of mind and the State\u2019s burden of proof and thus should not be permitted.", "type": "dissent", "author": "JUSTICE TURNER," } ], "attorneys": [ "Gregory L. Ryan, of Gregory L. Ryan Law Offices, of Urbana, for appellant.", "John C. Piland, State\u2019s Attorney, of Urbana (Norbert J. Goetten, Robert J. Biderman, and James C. Majors, 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. JAMES S. JOHNSON, Defendant-Appellant.\nFourth District\nNo. 4\u201404\u20140127\nOpinion filed December 3, 2004.\nTURNER, J., dissenting.\nGregory L. Ryan, of Gregory L. Ryan Law Offices, of Urbana, for appellant.\nJohn C. Piland, State\u2019s Attorney, of Urbana (Norbert J. Goetten, Robert J. Biderman, and James C. Majors, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0954-01", "first_page_order": 974, "last_page_order": 980 }