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People v. Johnson12/3/2004
Defendant, James S. Johnson, appeals from his conviction for driving under the influence (DUI) November 29, 2004 (625 ILCS 5/11-501(a)(2) (West 2002)). On appeal, defendant argues that (1) the guilty verdict was against the manifest weight of the evidence, (2) the prosecutor's remarks during closing arguments about defendant's refusal to submit to a breath test were prosecutorial misconduct, (3) defense counsel's failure to object to the prosecution's improper references during the trial was ineffective assistance of counsel, and (4) the prosecutor's improper references during opening and closing statements at trial were plain error. We affirm.
At about 9:45 p.m. on April 30, 2003, Mahomet police officer David Parsons stopped defendant's 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's breath. He also noticed that defendant's 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.
Parsons then asked defendant if he would submit to some field sobriety tests. Defendant complied and exited his vehicle. Parsons had defendant complete a "walk and turn" test and a "one-leg stand" test. The "walk and turn" 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 "walk and turn" 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.
Defendant also failed the "one-leg stand" test. The test requires that an individual balance on one leg for approximately 30 seconds. Like the "walk and turn" test, in the "one-leg stand" 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.
Parsons 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 "not that drunk." Parsons read defendant the warning to motorists, which informs individuals of the different penalties that may result from one's 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.
*2 On 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's witnesses had been
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