People v. Blackwood

2019 IL App (3d) 160161

141 N.E.3d 721

435 Ill.Dec. 912

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Justin M. BLACKWOOD, Defendant-Appellant.

Appeal No. 3-16-0161

Appellate Court of Illinois, Third District.

Opinion filed August 12, 2019

Rehearing denied September 3, 2019

James E. Chadd, Peter A. Carusona, and Bryon Kohut, of State Appellate Defender's Office, of Ottawa, for appellant.

John L. McGehee, State's Attorney, of Rock Island (Patrick Delfino, David J. Robinson, and Steven A. Rodgers, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

JUSTICE CARTER delivered the judgment of the court, with opinion.

¶ 1 Following a jury trial, defendant Justin M. Blackwood was found guilty of misdemeanor driving under the influence of alcohol (DUI) ( 625 ILCS 5/11-501(a)(2) (West 2012)). The Rock Island County circuit court sentenced defendant to 14 days in jail and 12 months of probation. Defendant appealed, arguing that his attorney provided ineffective assistance of counsel for failing to request Illinois Pattern Jury Instructions, Civil, No. 5.01 (2011) (hereinafter IPI Civil (2011)), under which jurors would be instructed that an adverse inference may be drawn against the State regarding defendant's performance on field sobriety tests where the arresting officer administered field sobriety testing to defendant outside of the view of the squad car's operable dashboard video camera. We affirm the judgment of the circuit court.

¶ 2 FACTS

¶ 3 Defendant was charged with DUI ( 625 ILCS 5/11-501(a)(2) (West 2012)) and possession of cannabis ( 720 ILCS 550/4 (West 2012) ). At defendant's jury trial, Officer Nick Wade of the City of Moline Police Department testified that at 3 a.m. on March 2, 2012, defendant drove by him. Wade and defendant made eye contact as they passed each other, and then defendant immediately made a left turn into a gas station. Wade thought defendant's abrupt turn was "a little suspicious," so he stopped on the side of the road and waited for defendant to pull out of the gas station. Defendant pulled out of the gas station and then made a right turn on 16th Avenue without signaling. Wade followed defendant's vehicle, intending to initiate a traffic stop because defendant had failed to signal the turn. As Wade turned onto 16th Avenue, defendant abruptly turned left into an alley without signaling and parked on a concrete pad that served as a private driveway. Wade testified, "[i]t seemed like the turn was unplanned" and described the turn as a "fast turn" as if defendant was not sure where he was going.

¶ 4 Wade initiated a traffic stop of defendant's vehicle for failure to signal a turn and parked behind defendant's vehicle at a 45-degree angle to block in defendant's vehicle. Wade was approached by the resident of the home, who informed Wade that he did not know defendant's car or the reason that defendant had parked in his driveway. Wade smelled alcohol on defendant's breath immediately upon contact with defendant. There were three passengers in defendant's vehicle. Defendant had red, watery eyes and mumbled and slurred his speech. Defendant had no explanation for parking in the driveway of a stranger. Defendant did not have any trouble providing his driver's license or getting out of his car. When Wade administered field sobriety tests to defendant, defendant showed signs that he had been consuming alcohol. Defendant's three passengers also appeared intoxicated. Wade believed defendant was intoxicated and unfit to drive because it was bar-closing time, defendant was driving a car full of people, defendant had driven as if he did not know where he was going, defendant had appeared to have attempted to avoid Wade's police vehicle when he pulled into a random driveway with no explanation for doing so, there was an odor of alcohol, defendant's eyes were red and watery, defendant's speech was slurred, and defendant showed signs of impairment on the field sobriety testing. Based on his training and experience, Wade opined that defendant was intoxicated and unfit to drive. Wade placed defendant under arrest.

¶ 5 Wade transported defendant to the police department for further DUI processing. After a 20-minute observation period, defendant refused to take a breath test.

¶ 6 Wade's police car was equipped with video recording equipment, and the traffic stop of defendant's vehicle had been recorded. Wade testified that the video showed him making the traffic stop and showed him having defendant exit the car. The testing was not conducted in front of Wade's vehicle so that it could be captured on the video. Wade explained that the reason the field sobriety tests were not conducted in front of the dashboard camera was because Wade had parked his squad car in a way to block in defendant's vehicle and Wade and defendant went off camera to a "flat area" for the field sobriety testing.

¶ 7 On cross-examination, Wade testified that that he did not reposition his squad car in order to capture the field sobriety testing on video camera because there were three other occupants in the vehicle, "not all of which were being very cooperative with [the officers], and one of [whom] ha[d] a very violent history with [police]." Wade wanted to keep defendant's car blocked in "so nobody could get in it and leave in it." Wade indicated that the main reason he did not reposition his vehicle was out of concern for "an officer-safety and a public safety issue." In addition, the alleyway was "tight" and other officers had arrived on scene. Wade testified that he would have moved his squad car "if it was a reasonable thing to do." On redirect, the prosecutor asked, "how overwhelming was the smell of the alcoholic beverage?" Wade responded, "very strong."

¶ 8 Officer Eric Wells testified that he arrived at the traffic stop to back up Wade. Two other officers also arrived at the traffic stop. Wells began to speak with defendant's passengers. Wells testified that the passengers all "seemed very intoxicated." The passengers had slurred speech, smelled of alcohol, and staggered a little. After defendant was arrested, Wells conducted a tow inventory search of defendant's vehicle and found a plastic bag containing cannabis under the driver's seat.

¶ 9 In closing arguments, defendant's attorney argued, in part:

"There is a video on the officer's squad car. Now, that was not helpful in any way because it did not show these field sobriety tests. Now, if that had been provided, would that show you objectively what happened? Yes. We don't have that today."

¶ 10 The jury found defendant guilty of driving under the influence of alcohol. The jury found defendant not guilty of possession of cannabis.

¶ 11 Defendant filed a posttrial motion "for a verdict of not guilty" or in the alternative for a new trial, arguing, in part, that the evidence was insufficient for the jury to find him guilty of DUI beyond a reasonable doubt because Wade's dashboard video camera, although working at the time of the stop, "did not capture any images of the field sobriety tests." At the hearing on the motion, defendant's attorney argued that, even though a video existed, the video camera was "not utilized in the proper way," so that "a shadow was cast over all of the State's evidence." Defendant's attorney stated:

"[W]e're not talking about a discovery issue here, we're not talking about an admissibility issue, we're talking about an argument that goes to the weight and the thrust of the evidence rather than its admissibility. * * * [Wade] didn't want to move his car because he was trying to keep the defendant's car where it was. However, Judge, if you recall the facts of the case, at this time [defendant] had already been removed from the vehicle. There was no one in the driver's seat, and I believe that the other occupants of the car had already been removed as well. It would have been easy for this officer to maneuver his car in a way that permitted him to keep this car where it was while still being able to get video of the field sobriety tests. And, Judge, that doesn't even touch on whether that need that this officer believed was even backed up by the facts. There was no one there ready to get into the car. Judge, as I said, that casts a shadow over the entirety of the State's evidence presented in this case."

¶ 12 In ruling on defendant's posttrial motion, the trial court noted that, in addition to defendant being out of the vehicle and Wade having an opportunity to reposition his squad car, other officers were present and "could have taken the time and repositioned the squad car so that the field sobriety tests could have been on video." The trial court stated:

"They easily could have [repositioned the squad car]. They chose not to. And I'm sure the jury took that into consideration in addition to the officer's explanation as to why he did not reposition his squad car. So it could have been taken into consideration by the jury the fact that the officer could have but didn't reposition his squad car."

¶ 13 The trial court denied defendant's posttrial motion, noting that there was no basis to overturn the jury's verdict. The trial court sentenced defendant to 14 days in jail and 12 months of probation. Defendant appealed.

¶ 14 ANALYSIS

¶ 15 On appeal, defendant argues that his trial counsel was ineffective for failing to request that the jury be given an adverse inference jury instruction in accordance with IPI Civil (2011) No. 5.01 because Officer Wade failed to record the field sobriety tests. Defendant argues that, where a police encounter was negligently conducted so that no recording was created, the practical effect is that the legislature's intent behind passing a directive to police to record such encounters is wholly frustrated by the missing recording and, therefore, a negative inference instruction is appropriate. Defendant contends his counsel's performance was deficient because counsel failed to tender a jury instruction...