People v. Libberton

Case Date: 10/20/2003
Court: 2nd District Appellate
Docket No: 2-02-0075 Rel

No. 2--02--0075

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IN THE

 

APPELLATE COURT OF ILLINOIS

 

SECOND DISTRICT

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THE PEOPLE OF THE STATE
OF ILLINOIS,

               Plaintiff-Appellee,

v.

WILLIAM T. LIBBERTON,

               Defendant-Appellant.

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Appeal from the Circuit Court
of Jo Daviess County


Nos.  01--CF--45
          01--DT--32

Honorable
William A. Kelly,
Judge, Presiding.

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JUSTICE KAPALA delivered the opinion of the court:

Defendant, William T. Libberton, appeals from his convictions of driving under the influenceof alcohol (DUI) (625 ILCS 5/11--501(a)(1), (a)(2) (West 2000)) (two counts, one of which wasmerged into the other) and false report of a vehicle theft (625 ILCS 5/4--103(a)(6) (West 2000)). We now affirm.

 

I. BACKGROUND

Defendant was charged by indictment with one count of false report of a vehicle theft and twocounts of DUI. His case was tried to a jury. The arresting officer, Steven Jahncke of the Warrenpolice, testified that on March 3, 2001, shortly after 2 a.m., he was on routine patrol in his squad car. The night was very cold and the ground was snow-covered. As he was driving, he encountereddefendant, who was emerging from a roadside ditch. He stopped his vehicle, approached defendant,and asked him what he was doing. Defendant stated that he was going to a friend's house. WhenJahncke asked him why, he said that he needed to use a phone to call the police because his car hadbeen stolen. Jahncke asked defendant for identification and then used the car radio to report a stolencar to the sheriff's department. Right after Jahncke made the report, but during continued radiocommunication, defendant told Jahncke that he had found his car and that it was stuck in a snowbankby some grain bins.

Jahncke requested that defendant ride with him to the car. On the way, Jahncke askeddefendant if there was anyone with him, and defendant said that he was with his girlfriend, who wasin the car sleeping. Jahncke noticed that defendant smelled of alcohol. They arrived at the car, whichwas well back from the street and behind some buildings. Jahncke asked defendant how he found hisvehicle, and defendant said that he was walking to his home in another town when he found it.

Jahncke approached the vehicle and saw a woman in the passenger seat slumped over withher head between her legs. (The woman was later identified as Kimberlee Quire (Quire), who, by thetime of trial, had married defendant and changed her name to Kimberlee Libberton.) Jahnckeattempted to wake her to have her open the locked door, but it took her some time to wake up and,when she did wake, she had difficulty opening the door. After Quire answered several questionsposed by Jahncke, Jahncke requested that a wrecker be dispatched. Under cross-examination, heexplained that, because defendant was claiming that the car had been stolen, the towing companywould store the vehicle indoors so that it was protected from tampering and the State Police crimescene investigators would be brought in to process the vehicle. Jahncke identified a number of thephotographs of the interior of the car as having been taken by the State Police.

Deputy Casey Folkes of the Jo Daviess County sheriff's department arrived to assist Jahncke,and both defendant and Quire were questioned further. Defendant told Jahncke that the car had beenstolen from the lot at Wally's, a bar and that he had found it because, when he walked past thecomplex with the grain bins, it had occurred to him that it was a good place to hide a stolen car, andso he had gone to look. Jahncke asked him if he had been driving, and defendant initially denied thathe had, but later stated that he had tried to move the car in an attempt to get it unstuck. Jahncke thenasked defendant to undergo field sobriety tests. Two of the three tests indicated probableintoxication. Jahncke and Folkes then transported defendant and Quire to the Stockton policedepartment, where defendant was subjected to a Breathalyzer test. By the testimony of theBreathalyzer operator, defendant's breath-alcohol concentration was 0.165. Jahncke also asked Quireto give a statement, which he wrote out and she signed. He admitted that he had done the writingbecause Quire said that she was too drunk to write.

The State introduced a number of photographs of the area in which the car had been left. Theofficers called by the State used these to indicate that it would have been difficult to see the car fromthe road.

Quire, called by the State, testified that she had gone with defendant to at least two bars, andthat she and defendant had consumed alcohol at each, but that her memory of that night was poor,and she had no sense of time for that period. She stated that she had no recollection of defendantdriving the car from the last bar they had visited, Wally's, to behind the grain bins, but that sheremembered being taken to the police station and answering the questions from which the statementwas prepared. She said that the statement could not accurately reflect her words because it includedthe time she left Wally's and the name of the business that had the grain bins, both of which weredetails that she did not know. Her statement was read into the record. It states:

"Bill [defendant] and I were at Wally's until approximately 12:45-1:00 A.M. Bill andI had both been drinking. Bill and I left Wally's, got into his car and drove up to CustomGrain [the location of the grain bins]. I had no idea where I was. After he got the car stuckI fell asleep and the next thing I remember was someone knocking on the window asking mefor my license." Defendant was the sole defense witness. He testified that he had parked his car near Wally's,leaving the keys in the ignition, but that when he came out after drinking for a while, the car was notwhere he had left it. Defendant said that he thought that his friends were playing a joke so he beganto search for his car. After searching unsuccessfully, defendant and Quire set out walking toward afriend's house in another town. Quire was barely able to walk. As defendant passed the grain bins,he noticed his car behind them. He left Quire with the car and, after remembering that he had a friendin the same town, started walking toward that friend's house. He denied trying to drive the vehicleat any time after leaving Wally's, but admitted that he had been intoxicated. He stated that he hadgone back to the police the Monday after he was arrested to give them a list of items that he thoughtwere missing from the vehicle.

The State, in closing argument, asserted that many aspects of defendant's testimony wereillogical and commented that it was terrible that defendant persisted in claiming that his car had beenstolen in order to escape responsibility for his drunk driving.

Defendant's counsel emphasized defendant's right make the State prove its case:

"It's not a crime, Ladies and Gentlemen, to profess your innocence. It's yourconstitutional right to have a trial; we all possess that and that's all my client's done. He said'I'm not guilty of this' and his only choice when that decision is made is to come here and havea trial by 12 of his peers.

Now he does have an option, he could waive jury trial and try for [sic] the Courtwhich is called a bench trial, but that's his decision alone and he made that decision to havethe jury trial; and that's why we're here today because he professes his innocence on this."

He then argued that defendant's version of events should be taken to be the truth because, as a lie toavoid trouble, it was much less sensible than other lies defendant could have told. He argued thatQuire's statement was discredited by her intoxication. He suggested that the State's photographicexhibits had been deliberately chosen to overstate the difficulty defendant would have had in locatinghis car from the road. Further, he argued that minor variations in the calibration of the Breathalyzermade the Breathalyzer data unreliable. He stated that there were too many holes in the policeevidence for the State to have met its burden of proof.

The State's Attorney, in rebuttal, stated that the case was a very important one to the peopleof the State of Illinois. He argued that the pictures were accurate and representative, and thenasserted that he "[did not] deal in any kinds of attempts to deceive." He then stated:

"[Defendant's counsel] begins his argument by asking you; there's no other choice forthis Defendant, right? No other choice. He's got to take this case to trial and profess hisinnocence. Well, not quite. Okay? There is something that about 80 to 90 percent ofDefendants do in this country and that is they be [sic] honest, forthright. They go into thecourtroom and plead guilty.

MR. NACK [Defense counsel]: Objection, that's grounds for mistrial, Judge.

THE COURT: Overruled. Go ahead.

MR. WEBER [State's Attorney]: It happens every day. You hear about it all the time. Right?

'You know what? That story I gave was pretty stupid and I think it's time for me toaccept responsibility for my stupidity in driving drunk and filing a false police report and I'llplead guilty.' "

He then argued that it is perfectly natural for someone to get tangled in his own lies, statedthat defendant's intoxication was not even at issue because defendant had admitted it, reemphasizedthe physical implausibility of defendant's story, and suggested that Quire's renunciation of herstatement could be the result of her bias in favor of her husband.

He suggested that defense counsel was attempting to sow confusion:

"[T]hat's the defense; that's the tactic, right. Well, Officer Craft did this and themachine did that and blah-blah, blah-blah, blah. Folks, that is not even an issue in this case. I asked him flat out, 'Were you over the legal limit?' 'Yeah, oh yeah.' 'Beyond .08?' 'Yeah.' What do we need a machine for? But see, that's the way. That's the tactic, of course, youknow let's get back in the jury room and let's, convince [sic] about the machine and let'sconvince [sic] about this and dah-dah-dah-dah-dah, and pretty soon there's 12 of you andthere's reasonable doubt all over the place because you're thinking about all sorts of thingsthat have nothing to do with the facts and circumstance and hard evidence in this case."

In arguing against defense counsel's claim that defendant's story was unlikely to be a liebecause it was not in his self-interest, he said:

"I'll tell you why he would [persist in his story], okay? I will answer that question foryou. Because he wants to escape responsibility for his crime; because he wants to escapebecause he wants to walk; because he wants to get back out on the street, back out after theverdict and yuck it up with the officers, 'Hey-hey, you know, hey look at what I did and gotaway with it.' " The jury found defendant guilty on all counts, and defendant moved to arrest judgment, fora new trial, and for a judgment not withstanding the verdict. Issues raised included claims that theindictment for false report of a vehicle theft was inadequate in that it failed to allege that a third partyhad been harmed by the report, that such an allegation was a necessary element of the offense, andthat the State's proof was inadequate because it failed to make any showing of this same purportedelement. Defendant did not raise any issue relating to the State's closing argument. The motions didallege that the State committed a discovery violation by failing to provide information about certainphysical evidence to defendant until just before the trial. During oral argument on the discovery issue,the State's Attorney indicated that the car had been dusted for fingerprints, although none were foundthat could be used for identification. Defendant's motions were denied and defendant was sentencedto 180 days' periodic imprisonment and 2 years' probation.

 

II. ANALYSIS

On appeal defendant contends that (1) his conviction of the false report of a vehicle theftviolated his substantive due process rights under the United States and Illinois Constitutions; and (2)the State's closing arguments were improper and violated his right to a fair trial. We address eachcontention.

A. Substantive Due Process

We begin by noting that defendant has cited provisions of both the Illinois Constitution (Ill.Const. 1970, art. I,