No. 03-07-0259
______________________________________________________________________________
Filed May 16, 2008
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2008
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS ) for the 12th Judicial Circuit,
) Will County, Illinois,
Plaintiff-Appellee, )
)
v. ) 06-DT-1869
)
DANIEL GARSTECKI, )
) Honorable Sarah Jones
Defendant-Appellant. ) Judge, Presiding.
)
______________________________________________________________________________
PRESIDING JUSTICE McDADE delivered the opinion of the court:
______________________________________________________________________________
Defendant, Daniel Garstecki, was convicted of driving a vehicle while under the
influence of alcohol (DUI) (625 ILCS 5/11-501(a)(2) (West 2006)) by a jury in the circuit court
of Will County. Defendant raises as issues for review whether (1) the circuit court committed
reversible error when it refused to permit defendant to directly question prospective jurors; and
(2) defendant was proven guilty beyond a reasonable doubt. We affirm.
FACTS
The record indicates that in the early morning hours of October 19, 2006, Lockport police
officer Vince Vitacco arrested defendant for driving under the influence of alcohol. The reports
filed by the officer reflected that defendant emitted an odor of alcohol, had glassy, bloodshot eyes
and failed the field-sobriety tests which were given to him. Defendant subsequently refused
Vitacco’s request to submit to chemical testing to determine blood alcohol content.
Consequently, defendant was informed that his driving privileges would be suspended in 46
days, and this information was later confirmed in a letter to him from the Secretary of State.
Prior to trial, defendant filed a motion requesting that defense counsel be allowed to pose
oral questions to the jury venire. Defendant’s reasoning was that jurors are less intimidated by
questions from counsel as opposed to questions from a trial judge. At the hearing on defendant’s
motion, the circuit court inquired into what questions defendant wanted to personally ask the
prospective jurors. Defendant stated that he wanted to ask two specific questions concerning: (1)
whether any prospective juror had any personal beliefs regarding the consumption of alcohol and
the operation of a motor vehicle; and (2) whether any prospective juror would view a police
officer’s testimony as more credible than an ordinary citizen. The court subsequently denied
defendant’s motion on the grounds that it was already going to ask defendant’s proposed
questions and that the nature of the charges and the legal issues involved were not complicated or
complex. The court advised defendant, however, that he could proffer written questions, which it
would then ask the prospective jurors.
Defendant submitted two questions to the court for further inquiry of the prospective
jurors. The two questions related to any personal beliefs regarding the consumption of alcohol
and whether any of the potential jurors had donated any money to anti-drunk-driving
organizations, such as Mothers Against Drunk Driving, or advocated for a change in the DUI
laws. The court then began the voir dire process by informing the venire about the nature of the
case, the names of the parties and their counsel, and the names of potential witnesses. The court
proceeded, explaining to the venire that defendant is presumed innocent of the charge against
2
him, that before defendant can be convicted the State must prove him guilty beyond a reasonable
doubt, that defendant is not required to offer any evidence on his behalf, and that defendant’s
failure to testify cannot be held against him.
After informing the venire of the applicable law, the court then began its own individual
questioning of the prospective jurors. The court asked each juror whether he or she had any
personal beliefs regarding the consumption of alcohol, whether he or she had any friends or
relatives in law enforcement or the prosecutor’s office, and whether he or she donated money to
anti-drunk-driving organizations or advocated for any change in the DUI laws. If a prospective
juror answered any of these questions in the affirmative, the court asked further questions to
uncover the nature and extent of the belief or relationship. The court then asked whether that
belief or relationship would prevent the prospective juror from giving the parties a fair trial.
Upon the conclusion of the general voir dire, the court permitted additional questioning of some
potential jurors by defendant. While defendant was allowed to select which jurors he wanted to
pose additional questions to, his request to ask additional questions to the entire venire was
denied.
Upon the empaneling of the jury, the matter proceeded to trial. The State called two
witnesses, Officers Vince Vitacco and Joe Dziatkiewicz. Vitacco testified that he has been
trained to identify behavior evidencing driver intoxication. He indicated that he had been a
police officer for five years and had processed approximately 20 DUIs during that time. Vitacco
testified that on October 19, 2006, he observed defendant’s vehicle traveling northbound on State
Street in Lockport Village. Vitacco testified that he observed defendant’s vehicle swerve back
and forth between the two lanes on his side of the concrete median. Vitacco activated his video
3
camera and emergency lights. The video was admitted into evidence and played for the jury.
After Vitacco initiated a traffic stop, he noted that defendant had an odor of alcohol on
his breath and his eyes were bloodshot and glassy. Vitacco asked defendant if he had been
drinking and defendant replied that he had had a “couple beers.” Vitacco requested defendant to
perform some field sobriety tests. Defendant consented. Vitacco conducted four tests. The first
test was the horizontal gaze nystagmus (HGN) test. Vitacco testified that he explained how to
perform the HGN test to defendant. Vitacco administered the test by moving a pen from side-to-
side at defendant’s eye level. Vitacco testified that defendant’s eyes jerked while following the
pen and when they were at maximum deviation, which led him to believe that defendant was
under the influence of alcohol.
The next test was the walk-and-turn test. During the test, defendant missed some heel-to-
toe steps, used his arms for balance, and stepped off the line. The next test was the one-leg-stand
test. Vitacco instructed defendant to place his legs together with his arms at his side and then
raise his right leg in the air and count to 30. During the test, defendant almost fell over, put his
foot down several times, and used his arms for balance. For the final test, Vitacco instructed
defendant to recite the alphabet from the letter B to Z without singing it. Defendant recited the
alphabet correctly; however, he did sing it.
Based on the results of these tests, Vitacco believed defendant was under the influence of
alcohol and not fit to operate a motor vehicle. Vitacco subsequently arrested defendant and took
him to the police station for processing. Vitacco requested defendant to submit to chemical
testing to determine blood alcohol content, but defendant refused.
Officer Joe Dziatkiewicz testified that he had been a Lockport police officer for over
4
three years and had also been trained to identify behavior evidenced by intoxicated drivers.
Dziatkiewicz stated that he assisted Vitacco in conducting the traffic stop. Dziatkiewicz
corroborated Vitacco’s testimony and opined that defendant was under the influence of alcohol.
Defendant presented no evidence and did not testify on his own behalf. The jury
subsequently found defendant guilty of driving a vehicle while under the influence of alcohol.
The circuit court denied defendant’s motion for a new trial. Defendant filed a timely notice of
appeal.
ANALYSIS
On appeal, defendant first argues that the circuit court committed reversible error when it
refused to permit defendant’s attorney to directly question prospective jurors. To resolve this
issue, we must interpret whether Supreme Court Rule 431 (177 Ill. 2d R. 431), which governs
voir dire examination of jurors in criminal trials, requires that the circuit court allow the parties
to pose oral questions to prospective jurors during voir dire. We interpret supreme court rules
the same way we interpret statutes: de novo, giving the language of the rule its plain meaning.
People v. Hinton, 362 Ill. App. 3d 229, 232, 839 N.E.2d 124, 126 (2005).
Prior to 1997, Rule 431 provided that voir dire examination of jurors in criminal trials
would be conducted in accordance with its civil companion Supreme Court Rule 234 (177 Ill. 2d
R. 234). Prior to 1997, Rule 234 stated as follows:
“The court shall conduct the voir dire examination of
prospective jurors by putting to them questions it thinks
appropriate touching their qualifications to serve as jurors in the
case on trial. The court may permit the parties to submit additional
5
questions to it for further inquiry if it thinks they are appropriate, or
may permit the parties to supplement the examination by such
direct inquiry as the court deems proper. Questions shall not
directly or indirectly concern matters of law or instructions. The
court may acquaint prospective jurors with the general duties and
responsibilities of jurors.” (Emphasis added.) 103 Ill. 2d R. 234.
Effective May 1, 1997, Rule 431 was amended. Rule 431 as amended, now states as
follows:
“(a) The court shall conduct voir dire examination of
prospective jurors by putting to them questions it thinks
appropriate, touching upon their qualifications to serve as jurors in
the case at trial. The court may permit the parties to submit
additional questions to it for further inquiry if it thinks they are
appropriate and shall permit the parties to supplement the
examination by such direct inquiry as the court deems proper for a
reasonable period of time depending upon the length of
examination by the court, the complexity of the case, and the
nature of the charges. Questions shall not directly or indirectly
concern matters of law or instructions. The court shall acquaint
prospective jurors with the general duties and responsibilities of
jurors.
***
6
(b) [T]he court shall ask each potential juror, individually
or in a group, whether the juror understands and accepts the
following principles: (1) that the defendant is presumed innocent of
the charges against him or her; (2) that before a defendant can be
convicted the State must prove the defendant guilty beyond a
reasonable doubt; (3) that the defendant is not required to offer any
evidence on his or her behalf; and (4) that the defendant’s failure to
testify cannot be held against him or her; however, no inquiry of a
prospective juror shall be made into the defendant’s failure to
testify when the defendant objects.
The court’s method of inquiry shall provide each juror with
an opportunity to respond to specific questions concerning the
principles set out in this section.” (Emphasis added.) 177 Ill. 2d
R. 431.
In arguing that the circuit court committed reversible error when it refused to permit
defendant’s attorney to directly question prospective jurors, defendant calls our attention to the
fact that the amended Rule 431 provides that the court “shall” rather than “may” permit the
parties to supplement the voir dire examination. Defendant relies upon Grossman v.
Gebarowski, 315 Ill. App. 3d 213, 732 N.E.2d 1100 (2000), for the proposition that Rule 431
requires that the circuit court allow the parties to pose oral questions to prospective jurors during
voir dire. The State, relying upon People v. Allen, 313 Ill. App. 3d 842, 730 N.E.2d 1216 (2000),
counters by asserting that the circuit court acted within its discretion when it denied defendant’s
7
request to directly question the jury venire.
The Allen court examined both the original and amended versions of Rule 431 to
determine if the use of the term “shall” in the amended version required the circuit court to allow
the parties to directly question prospective jurors. The court construed the term “shall” as
directory and not mandatory. Specifically, the court stated:
“[w]e conclude that the portion of Rule 431 providing that
the court “shall” permit the parties to ask questions directly of
prospective jurors is directory in nature. However, that does not
end our inquiry.
The fact that the supreme court saw fit to replace “may”
with “shall” indicates that the supreme court intended to effect a
change in how a trial court exercises its discretion in ruling on
attorneys’ requests to directly question jurors. Prior to the 1997
amendment, the rule merely authorized direct inquiry of jurors by
attorneys; the trial court’s discretion was unfettered in determining
whether it would permit such questioning. Under the amended
Rule 431, however, the trial court is to exercise discretion in favor
of permitting direct inquiry of jurors by attorneys, subject to the
factors set forth in the rule.
Therefore, we conclude that Rule 431 does not create an
absolute right of attorneys in every case to ask questions directly of
prospective jurors. It does, however, require that a trial court
8
exercise its discretion in favor of allowing an attorney’s direct
questioning of prospective jurors in accordance with the factors
listed in Rule 431.” Allen, 313 Ill. App. 3d at 847, 730 N.E.2d at
1221.
The court in Allen determined that the circuit court abused its discretion in denying
defendant’s request to directly question the jury venire. Specifically, the court stated:
“In this case, the trial court did not comply with Rule 431.
When asked by the defense counsel for a reasonable period of time
within which to ask questions directly of the prospective jurors, the
trial court merely responded that it did not feel that it was
necessary in a case of this nature. The trial court’s rather
abbreviated comment gave no indication that it had, in fact,
considered the complexity of the case or the nature of the charges
in determining to deny the defense attorneys the right to question
the prospective jurors directly. Nor did the trial court question the
defense attorneys as to the potential questions or areas of
questioning they would pursue in questioning the jury. Finally, at
the time the trial court denied the attorneys the right to question the
jurors directly, it had not yet commenced its own questioning and
had not indicated to the attorneys that its questioning would be so
lengthy or so thorough as to preclude their questioning of the
prospective jurors.” Allen, 313 Ill. App. 3d at 847, 730 N.E.2d at
9
1221.
The Grossman court examined not Rule 431 but its civil companion, Rule 234. Rule
234, which governs the voir dire examination of jurors in civil proceedings also states that the
trial court “shall” permit the parties to supplement the examination. (177 Ill. 2d R. 234). In
finding that the circuit court erred in refusing to allow counsel to directly question the jury
venire, the Grossman court rejected the Allen court’s holding that the term “shall” should be
construed as directory and not mandatory. Grossman, 315 Ill. App. 3d at 221, 732 N.E.2d at
1106. Specifically, the court stated:
“In view of the manner and context in which Rule 234 was
amended, it is evident to us that the supreme court intended a
mandatory construction of