{ "id": 3387037, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT WALKER, Defendant-Appellant", "name_abbreviation": "People v. Walker", "decision_date": "1977-09-08", "docket_number": "No. 76-53", "first_page": "510", "last_page": "516", "citations": [ { "type": "official", "cite": "52 Ill. App. 3d 510" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "358 N.E.2d 1150", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "1154" } ], "opinion_index": 0 }, { "cite": "44 Ill. App. 3d 770", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2814673 ], "pin_cites": [ { "page": "775" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/44/0770-01" ] }, { "cite": "294 N.E.2d 288", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "54 Ill. 2d 51", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2933119 ], "opinion_index": 0, "case_paths": [ "/ill-2d/54/0051-01" ] }, { "cite": "244 N.E.2d 182", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "41 Ill. 2d 401", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2853933 ], "opinion_index": 0, "case_paths": [ "/ill-2d/41/0401-01" ] }, { "cite": "290 N.E.2d 214", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "53 Ill. 2d 122", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2925937 ], "opinion_index": 0, "case_paths": [ "/ill-2d/53/0122-01" ] }, { "cite": "340 N.E.2d 300", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "34 Ill. App. 3d 767", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2961257 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/ill-app-3d/34/0767-01" ] }, { "cite": "82 S. Ct. 651", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "7 L. Ed. 2d 555", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "369 U.S. 808", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6181569, 6181418, 6181770, 6180908, 6181262, 6180593, 6180760, 6181085 ], "opinion_index": 0, "case_paths": [ "/us/369/0808-07", "/us/369/0808-06", "/us/369/0808-08", "/us/369/0808-03", "/us/369/0808-05", "/us/369/0808-01", "/us/369/0808-02", "/us/369/0808-04" ] }, { "cite": "178 N.E.2d 389", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1962, "opinion_index": 0 }, { "cite": "23 Ill. 2d 280", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2797074 ], "year": 1962, "opinion_index": 0, "case_paths": [ "/ill-2d/23/0280-01" ] }, { "cite": "276 N.E.2d 364", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "2 Ill. App. 3d 1001", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2756200 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/2/1001-01" ] }, { "cite": "329 N.E.2d 266", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "28 Ill. App. 3d 641", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5411123 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/28/0641-01" ] }, { "cite": "251 N.E.2d 290", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "113 Ill. App. 2d 1", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1589938 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/113/0001-01" ] }, { "cite": "265 N.E.2d 505", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "47 Ill. 2d 183", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2903528 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/ill-2d/47/0183-01" ] }, { "cite": "91 S. Ct. 49", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "27 L. Ed. 2d 54", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "400 U.S. 825", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12060513, 12060898, 12060996, 12060679, 12060775, 12061422, 12060599, 12061528, 12061181, 12061086 ], "opinion_index": 0, "case_paths": [ "/us/400/0825-01", "/us/400/0825-05", "/us/400/0825-06", "/us/400/0825-03", "/us/400/0825-04", "/us/400/0825-09", "/us/400/0825-02", "/us/400/0825-10", "/us/400/0825-08", "/us/400/0825-07" ] }, { "cite": "255 N.E.2d 897", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "44 Ill. 2d 407", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2887477 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/ill-2d/44/0407-01" ] }, { "cite": "312 N.E.2d 267", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "57 Ill. 2d 279", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5407591 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/ill-2d/57/0279-01" ] } ], "analysis": { "cardinality": 648, "char_count": 13356, "ocr_confidence": 0.898, "pagerank": { "raw": 6.135432583323292e-08, "percentile": 0.38185623949504394 }, "sha256": "b02bff19ac85f110b7a9590bcfab2e5678b5f340f3e90355542a3c0f1cdeca4d", "simhash": "1:870313b71f3287e5", "word_count": 2269 }, "last_updated": "2023-07-14T20:29:20.985264+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. ROBERT WALKER, Defendant-Appellant." ], "opinions": [ { "text": "Mr. JUSTICE BOYLE\ndelivered the opinion of the court:\nRobert Walker, defendant-appellant, hereinafter referred to as the \u201cdefendant,\u201d was convicted by a Kendall County jury of driving while under the influence of intoxicating liquor in violation of section 11\u2014 501(a) of the Illinois Vehicle Code (Ill. Rev. Stat. 1975, ch. 95\u00bd, par. 11\u2014501(a)). Defendant was fined *200. He has appealed.\nOn appeal, defendant mak\u00e9s five contentions: (1) That the traffic citation he was given did not charge him with an offense; (2) That he was denied equal protection of the law by the State\u2019s failure to properly admonish him concerning a request that he take a breathalizer test; (3) That the trial court improperly denied the defendant\u2019s motions for a mistrial; (4) That the jury was improperly instructed; and (5) That the defendant was not proved guilty beyond a reasonable doubt.\nAfter reviewing the record and weighing the arguments presented, we have concluded that defendant\u2019s contentions are without merit, and we therefore affirm the judgment of the trial court.\nThe principal witness for the State was Officer Patrick Pierce of the Kendall County sheriff\u2019s department. At trial, Officer Pierce testified that at approximately 4 a.m. on July 13, 1975, he was on patrol in a marked squad car with Officer Richard Schredder of the Kendall County sheriff\u2019s office. At that time they were on Route 47 approximately 1/2 miles north of the intersection of Routes 47 and 34 in Kendall County, when they came upon a parked car. The car was partially on the road, and the officers stopped to investigate. Officer Pierce testified that he got out of the squad car and approached the parked car. As he did so, he noticed that the car\u2019s engine was running and that the car was covered with dew except for the hood, which was dry. Officer Pierce further testified that when he reached the driver\u2019s window, he attempted to question the defendant, who was seated behind the steering wheel. However, he could not hear the defendant\u2019s response to his questions over the noise of the engine, so he (Officer Pierce) reached inside the car and turned off the ignition. When reaching into the car to turn off the ignition, Officer Pierce testified that he noticed a strong alcoholic odor on the defendant\u2019s breath. Officer Pierce\u2019s testimony continued to the effect that he requested the defendant to step out of his car and attempt to walk a straight line. When the defendant failed to perform this test to Officer Pierce\u2019s satisfaction, the defendant was placed under arrest.\nOfficer Schredder also testified. His testimony was largely consistent with that of Officer Pierce. While there were some discrepancies between the testimony of the two officers, we find those discrepancies to be minute in nature and insufficient to materially detract from Officer Pierce\u2019s testimony.\nThe defendant testified that he had been at a birthday party earlier that evening. At the party he had had only three beers and left at approximately 1 a.m. On his way home he became drowsy, so he pulled off the road to take a nap. Defendant\u2019s testimony continues to the effect that he was awakened by the flashing lights of the squad car. He asserts that he was able to walk the white line when Officer Pierce requested that he do so, and finally he asserts that he was not intoxicated.\nWe deal first with the defendant\u2019s contention that the traffic citation he was given did not charge him with an offense. The traffic citation the defendant was given charged him with \u201coperating a motor vehicle while under the influence of intoxication [sic] beverage in violation of Illinois Vehicle Code 11. Section No. 501.\u201d We hold that the above traffic citation sufficiently charged defendant with an offense.\nA charge is sufficient if it states the elements of an offense with sufficient particularity to inform the defendant of the charge against him, enables the defendant to prepare a defense and permits a conviction or acquittal to act as a bar to further prosecution for the same offense. (People v. Mahle (1974), 57 Ill. 2d 279, 312 N.E.2d 267; People v. Grieco (1970), 44 Ill. 2d 407, 255 N.E.2d 897, cert. denied (1970), 400 U.S. 825, 27 L. Ed. 2d 54, 91 S. Ct. 49.) The traffic citation in the case at hand meets these criteria.\nDefendant argues that the words \u201cintoxication beverage\u201d do not inform him as to whether he is charged with driving while under the influence of intoxicating liquors in violation of section 11 \u2014 501(a) of the Illinois Vehicle Code (Ill. Rev. Stat. 1975, ch. 95\u00bd, par. 11\u2014501(a)) or with driving while under the influence of a narcotic drug in violation of section 11 \u2014 501(b) of the Illinois Vehicle Code (Ill. Rev. Stat. 1975, ch. 95\u00bd, par. 11\u2014501(b)). We must disagree.\nCitations charging a defendant with driving while under the influence of intoxicating beverages have repeatedly been upheld. (People v. Sirinsky (1970), 47 Ill. 2d 183, 265 N.E.2d 505; People v. Casa (1969), 113 Ill. App. 2d 1, 251 N.E.2d 290.) Therefore it is clear that the word \u201cbeverage\u201d is an acceptable substitute for the word \u201cliquor.\u201d The grammatical error in using the word \u201cintoxication\u201d instead of \u201cintoxicating\u201d was harmless in that both words connote being under the influence of alcohol or drugs. Therefore, the phrase \u201cintoxication beverage\u201d was sufficient to inform the defendant that he was being charged with driving under the influence of intoxicating liquor in violation of section 11 \u2014 501(a) of the Illinois Vehicle Code (Ill. Rev. Stat. 1975, ch. 95\u00bd, par. 11\u2014501(a)) and not with driving while under the influence of a narcotic drug in violation of section 11 \u2014 501(b) of the Illinois Vehicle Code (Ill. Rev. Stat. 1975, ch. 95\u00bd, par. 11\u2014501(b)).\nThe fact that the traffic citation sufficiently informed the defendant of the charge against him is further indicated by the fact that defense counsel was satisfied with the State\u2019s response to his motion for a bill of particulars.\nThe defendant\u2019s second contention is that he was deprived of equal protection of the law by the State\u2019s failure to give him a breathalizer test. The defendant reasons that the State\u2019s failure to give him the test denied him the opportunity to gather evidence in his own behalf. We find this contention to be without merit.\nIt is clear from the record before us that the defendant was asked to submit to a breathalizer test, although the admonishments required by section 11 \u2014 501.1(a) of the Illinois Vehicle Code (Ill. Rev. Stat. 1975, ch. 95\u00bd, par. 11\u2014501.1) were not given to the defendant. The failure to properly admonish the defendant did not constitute a deprivation of the equal protection of the law, but merely precluded the State from automatically suspending the defendant\u2019s driver\u2019s license under section 11 \u2014 501.1(a) of the Illinois Vehicle Code (Ill. Rev. Stat. 1975, ch. 95\u00bd, par. 11\u2014501.1(a)).\nWhile the State may not suppress evidence, it is under no obligation ;to gather evidence for the defendant. (People v. Mankowski (1975), 28 Ill. App. 3d 641, 329 N.E.2d 266.) By refusing to take the breathalizer test, the defendant relieved the State of any obligation to perform any additional tests as required by section 11 \u2014 501.1(a) of the Illinois Vehicle Code (Ill. Rev. Stat. 1975, ch. 95\u00bd, par. 11\u2014501.1(a)), since that section only requires the State to have the additional tests performed on behalf of a defendant who has submitted to the breathalizer test. People v. Bies (1971), 2 Ill. App. 3d 1001, 276 N.E.2d 364.\nThe defendant\u2019s third contention is that the trial court committed reversible error when it allowed into evidence the following testimony:\n\u201cMR. NELSON [Assistant State\u2019s Attorney]: Okay. What, if anything, did you do at that point in time?\nA: [Officer Pierce]: At that time, I advised the defendant, Mr. Walker, that I was placing him under arrest for driving while under the influence of intoxicating beverages.\nQ: Then what did you do?\nA: At that time, I advised him of his rights and asked him if h\u00e9 would like to take a breathalizer [sic] test..\nQ: Okay. And did you\u2014\nMR. DE HART [Defense Counsel]: We\u2019ll have a motion to make when we recess.\nTHE COURT: Okay. I\u2019ll let you make it then.\nMR. NELSON: Did you place the defendant in your squad car at that time?\nA: Yes, sir, I did.\n\u00ab e e\nQ: [Mr. Nelson, Assistant State\u2019s Attorney]: And who was present besides yourself?\nA: [Officer Schredder]: Officer Pierce and Mr. Walker.\nQ: Okay. And do you recall the substance of that conversation.\nA: The first part of the conversation in the car, Mr. Pierce informed\u2014\nMR. DE HART [Defense Counsel]: I\u2019m going to object on the grounds of relevancy, your Honor.\nTHE COURT: Overruled. He may answer.\nA: Officer Pierce informed Mr. Walker that he would like him to take a sobriety test.\nQ: Did you say anything with regard to\u2014\nMR. DE HART: I would like to repeat the objection. I have to make the comment which I will speak later about [sic].\nTHE COURT: AH right.\nMR. NELSON: Did he [Officer Pierce] make any reference to the removal of the vehicle.\nA: Definitely did.\u201d\nThe defendant contends that the above testimony had the effect of informing the jury in violation of sections 11 \u2014 501(h) and 11 \u2014 501.1(c) of the Illinois Vehicle Code (Ill. Rev. Stat. 1975, ch. 95\u00bd, pars. 11\u2014501(h) and 11 \u2014 501.1(c)) that the defendant had refused to submit to a breathalizer test and that such information was so prejudicial as to require, as defendant twice moved, that a mistrial be declared.\nIn the case at hand, we hold that the defendant was not so prejudiced by the references to the request that he take a breathalizer test so as to justify the granting of a mistrial.\nDefendant\u2019s first motion for a mistrial followed the direct testimony of Officer Pierce. We agree with the trial court\u2019s assessment that the reference by Officer Pierce to his request that defendant take a breathalizer test was harmless. The remark was made in response to a question concerning the procedure Officer Pierce followed in placing the defendant under arrest. The remark was made in passing, the State\u2019s Attorney immediately steered Officer Pierce away from the topic, and Officer Pierce\u2019s response concerned only the request that the defendant take a breathalizer test and not the defendant\u2019s refusal to take it.\nThe defendant\u2019s second motion for a mistrial came at the close of his defense. In the interim between the two motions for mistrial, Officer Schredder made his passing reference to the request that the defendant take a breathalizer test, and the defendant made a similar reference in his direct testimony. Again, we find Officer Schredder\u2019s comment to have been harmless. It was made in passing as a response to a question concerning a conversation that had several aspects, and again the State\u2019s Attorney immediately steered the witness away from the topic. Furthermore, by making reference to the same topic in his direct testimony, the defendant acquiesced to the references to the request that he take a breathalizer test. People v. Burage (1961), 23 Ill. 2d 280, 178 N.E.2d 389, cert. denied (1962), 369 U.S. 808, 7 L. Ed. 2d 555, 82 S. Ct. 651.\nDefendant next asserts that the jury was not properly instructed. However, in his abstract the defendant failed to include all instructions given and refused. This failure constitutes a waiver of this argument. People v. Mostert (1976), 34 Ill. App. 3d 767, 340 N.E.2d 300; People v. Bell (1972), 53 Ill. 2d 122, 290 N.E.2d 214.\nFinally, defendant contends he was not proved guilty beyond a reasonable doubt. The essence of his argument is that the testimony of Officers Pierce and Schredder was not credible enough to justify a conviction.\n\u201cIn this regard, it is neither the duty nor the privilege of a reviewing court to substitute its judgment as to the weight of disputed evidence or the credibility of witnesses for that of the trier of fact who heard the evidence presented and observed the demeanor of the witnesses. (People v. Novotny (1968), 41 Ill. 2d 401, 244 N.E.2d 182.) It is peculiarly the province of the jury to weigh the evidence, judge the credibility of witnesses, and determine the facts. A reviewing court will not set aside a jury\u2019s verdict of guilty unless the evidence is so palpably contrary to the verdict or so unreasonable, improbable or unsatisfactory as to cause a reasonable doubt as to the guilt of the accused. (People v. Reese (1973), 54 Ill. 2d 51, 294 N.E.2d 288.)\u201d (People v. Barksdale (1976), 44 Ill. App. 3d 770, 775, 358 N.E.2d 1150, 1154.)\nIn the case at hand, the testimony of Officer Pierce was clear, positive and credible. Furthermore, his testimony was largely corroborated by that of Officer Schredder. Therefore we find no reason to set aside the jury\u2019s verdict of guilty.\nHaving found all the defendant\u2019s contentions to be without merit, we affirm the judgment of the circuit court of Kendall County.\nJudgment affirmed.\nRECHENMACHER, P. J., and GUILD, J., concur.", "type": "majority", "author": "Mr. JUSTICE BOYLE" } ], "attorneys": [ "Gordon F. DeHart, of Aurora, for appellant.", "Dallas C. Ingemunson, State\u2019s Attorney, of Yorkville (James E. Hinterlong, Michael B. Weinstein, Phyllis J. Perko, and Martin Moltz, all of Illinois State\u2019s Attorneys Association, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT WALKER, Defendant-Appellant.\nSecond District\nNo. 76-53\nOpinion filed September 8, 1977.\nGordon F. DeHart, of Aurora, for appellant.\nDallas C. Ingemunson, State\u2019s Attorney, of Yorkville (James E. Hinterlong, Michael B. Weinstein, Phyllis J. Perko, and Martin Moltz, all of Illinois State\u2019s Attorneys Association, of counsel), for the People." }, "file_name": "0510-01", "first_page_order": 532, "last_page_order": 538 }