People v. Hruza, No. 2-99-0389
2nd District, 17 March 2000
| THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LOUIS HRUZA, Defendant-Appellant. | Appeal from the Circuit Court of Du Page County. No. 98--CF--112 Honorable Michael J. Burke, Judge, Presiding. |
JUSTICE GALASSO delivered the opinion of the court:
Defendant, Louis Hruza, appeals his conviction of driving under the influence of alcohol (DUI) (625 ILCS 5/11--501(a)(2),(d)(1)(D) (West 1998)) and felony driving while license revoked (625 ILCS 5/6--303(a), (d) (West 1998)). He contends that(1) the trial court should have dismissed the indictment, which allegedly resulted from perjured testimony; (2) the trial courterred in applying retroactively an amended statute (625 ILCS 5/2--123 (West 1998)) regulating the transmission andevidentiary use of driver's license abstracts; and (3) he was not proved guilty beyond a reasonable doubt.
Gregory Compton of the Westmont police department was stopped at a red light at Naperville Road and Cass Avenue onAugust 7, 1997, when he saw a red Taurus make a wide left turn onto Cass Avenue. The car straddled two southbound lanesfor about 100 feet. When the road narrowed to one lane, the car crossed the double yellow line for about 10 feet. The carcontinued weaving within its lane for about five blocks.
Compton followed the red car. He saw it change to the curb lane and continue to weave within that lane. It also straddledthe white fog line for about 40 feet. At 55th Street, the officer activated his emergency lights. The driver of the car turnedonto 56th Street and stopped the car without difficulty.
As Compton approached the car, he noticed that the driver, whom he identified as defendant, had red, bloodshot, and glassyeyes; red cheeks; and a strong odor of an alcoholic beverage. Compton asked defendant for his driver's license and proof ofinsurance. After thumbing through his wallet for several minutes, defendant produced an Illinois state identification card. Inresponse to the officer's question, defendant said that he did not believe his license was currently valid. Defendant also saidthat he had drunk several beers at a golf outing earlier in the day.
Defendant got out of the car, using the top of the door for support. Compton observed that defendant swayed slightly as hewalked to the rear of the car. Defendant correctly recited the alphabet, "stopping briefly" between letters. Comptonadministered the horizontal gaze nystagmus (HGN) test. According to Compton, defendant's eyes did not follow smoothly,indicating a possibility that defendant was under the influence of alcohol.
Compton also administered the finger-to-nose test. Defendant started twice before the instructions were finished. On theleft-handed rotations, he touched his face below the nostril and once he put his arms down. Compton concluded thatdefendant failed the test. Defendant declined to perform the one-leg-stand and walk-and-turn tests, citing a hip injury.Compton then arrested defendant for DUI. Defendant refused to take a breathalyzer test.
Defendant's brother, Alan Hruza, testified that he and defendant played golf from 11 a.m. until 4 or 4:30 p.m. that day.After the round, they each had one beer in the clubhouse. They went to Alan Hruza's house to change clothes and drop offtheir clubs. They proceeded to the Plantation restaurant for a banquet and then played cards. Defendant had beer duringdinner but switched to coffee during the card game. They left the restaurant about 11 p.m., with defendant driving a rentalcar. Defendant's driving, speech, and gait seemed normal.
Defendant corroborated much of his brother's testimony. He testified that he has knee, back, and hip injuries. He denieddriving erratically or being under the influence of alcohol that night.
Over defendant's objection, the State introduced his driver's license abstract, which had been electronically transmitted fromthe Secretary of State's office. The State introduced additional documentation of defendant's prior convictions to support theenhanced DUI charge. The trial court found defendant guilty of DUI and driving while license suspended.
Defendant moved to dismiss the indictment based on a due process violation and later filed a motion for a new trial. Thetrial court denied both motions and sentenced defendant to 15 months' imprisonment. Defendant filed a timely notice ofappeal.
Defendant first contends that the court erred in denying his motion to dismiss the indictment. He argues that he was denieddue process because Officer Compton committed perjury in his grand jury testimony. The factual basis for this claim is asfollows.
At the grand jury hearing, Compton was asked whether defendant failed the field sobriety tests. He responded, "The ones hedid perform for me, he did fail." At trial, Compton testified that defendant correctly recited the alphabet. He said that duringsuch a test he listens to the suspect to determine whether his or her speech is slurred. As defendant performed the tests,Compton noticed some slurring and stuttering, as well as pauses between the letters. However, on cross-examination,Compton testified as follows:
"Q. So he passed the test?
A. Yes."
Defendant contends that Compton perjured himself before the grand jury when he testified that defendant failed all the fieldsobriety tests he took when in fact defendant had passed at least one. He further contends that because of this, all ofCompton's grand jury testimony must be disregarded. He argues that, because Compton was the only witness before thegrand jury, there was no evidence to support the indictment, resulting in a denial of due process.
The State responds that Compton's testimony was not actually false because he clarified that he evaluates the test based onfactors other than the suspect's ability to recite the alphabet correctly. The State also contends that, even if Compton'stestimony was false, the remedy is to disregard only the false testimony and that the remainder of his testimony before thegrand jury amply supports the indictment.
A trial court has the inherent power to dismiss an indictment where a clear denial of due process has occurred. People v.Lawson, 67 Ill. 2d 449, 456 (1977). However, the power should be used with great restraint and only when a violation isclearly established. People v. Torres, 245 Ill. App. 3d 297, 300 (1993).
An indictment based on perjured testimony may be dismissed if a due process violation is established with certainty. Peoplev. DeCesare, 190 Ill. App. 3d 934, 944 (1989); see People v. Creque, 72 Ill. 2d 515, 524 (1978). A court should not dismissan indictment unless all of the testimony upon which the indictment is based is incompetent. DeCesare, 190 Ill. App. 3d at944; People v. Schulz, 154 Ill. App. 3d 358, 367 (1987). Generally speaking, the validity of an indictment is not affected bythe character of the evidence considered. People v. J.H., 136 Ill. 2d 1, 10 (1990).
It appears that Compton's statement to the grand jury that the defendant had failed all the field sobriety tests was incorrect.Compton clearly stated at trial that defendant "passed" the alphabet test. Nevertheless, even if that statement is disregarded,the additional evidence before the grand jury was sufficient to support the indictment. Compton said that he stoppeddefendant after he saw him swerving and described his physical appearance. We emphasize that, according to the above-cited cases, the courts' role in reviewing grand jury proceedings is extremely limited. Courts may dismiss an indictment thatis based solely on perjured or otherwise incompetent evidence, but they are not to scrutinize the proceedings to evaluate theweight and quality of the evidence. Therefore, the trial court did not err in sustaining the indictment.
Defendant next contends that the court erred in applying retroactively amended section 2--123 of the Illinois Vehicle Code(625 ILCS 5/2--123 (West 1998)). He argues that the retroactive application of the statute changed the State's burden ofproof in violation of the ex post facto clauses of the federal and state constitutions (U.S. Const., art. I,