Roselle DUI Lawyers Appeal Brief on Roselle DUI Arrest in DuPage County

POINTS AND AUTHORITIES

PAGE

STANDARD OF REVIEW

THE DE NOVO STANDARD OF REVIEW APPLIES HERE .................................... 5

People v. Krueger , 175 Ill.2d 60, 64, 675 N.E.2d 604 (1996)...........................................5

People v. Mattis , 367 Ill.App.3d 432, 854 N.E.2d 1149, (Ill. App. 2 nd Dist., 2006) .......................5

ARGUMENT

I. THE TRIAL COURT ERRED WHEN IT DENIED THE DEFENDANT'S MOTION TO DISMISS THE DEFENDANT'S INDICTMENT BECAUSE THE DEFENDANT'S DUE PROCESS RIGHTS WERE VIOLATED WHEN OFFICER KRUEGER COMMITTING PERJURY BEFORE THE GRAND JURY

People v. Barton, 190 Ill.App.3d 701 546 N.E.2d 1091 (Ill. App. 5 th Dist., 1989) .......................16

People v. DiVincenzo, 183 Ill.2d 239, 700 N.E.2d 981, 990, (Il. S. Ct. 1998)..............16, 17, 21

People v. Fassler, 153 Ill.2d 49, 605 N.E.2d 576 (Il. S. Ct., 1992)....................................16

People v. Holmes , 397 Ill.App.3d 737, 922 N.E.2d 1179 (Ill. App. 2 nd Dist., 2010) ..............16

People v. J.H., 136 Ill.2d 1, 544 N.E.2d 961 (Ill. S. Ct. 1990)....................................16, 17

People v. Linzy, 78 Ill.2d 106, 109-10, 398 N.E.2d 1, 2 (Il. S. Ct. 1979).............................16

People v. Mattis , 367 Ill.App.3d 432, 854 N.E.2d 1149 (Ill. App. 2 nd Dist., 2006) ...............17, 20

People v. Oliver, 368 Ill.App.3d 690, 859 N.E.2d 38 (2006)..........................................16

United States v. Hogan, 712 F.2d 757 (2 nd Cir., 1983) .................................................16

II. THE TRIAL COURT ERRED WHEN IT DENIED THE DEFENDANT'S MOTION TO RECONSIDER THE DENIAL OF HIS MOTION TO SUPPRESS EVIDENCE BECAUSE THE OFFICER GAVE SUBSTANTIALLY DIFFERENT AND INCREDIBLE TESTIMONY AT THE TRIAL THAN HE DID DURING THE PREVIOUS MOTION TO SUPPRESS HEARING

People v. Caballero, 102 Ill.2d 23, 464 N.E.2d 223 (Ill. S. Ct. 1984)................................21

People v. Reese, 92 Ill.App.3d 1112, 416 N.E.2d 692 (Ill. App. 4 th Dist., 1981) ...............21, 23

III. THE TRIAL COURT ERRED WHEN IT DENIED THE DEFENDANT'S MOTION FOR JUDGMENT NOTWITHSTANDING VERDICT BECAUSE THE STATE'S ONLY WITNESS COMMITTED PERJURY, GAVE CONTRADICTORY TESTIMONY, AND WAS SIGNIFICANTLY IMPEACHED

Chamberlain v. Pennsylvania Railroad Co 59 F.2d 986 (2 nd Circuit, 1932) .........................24

Mapp v. Ohio , 367 U.S. 643 (1961)........................................................................27

Miranda v. Arizona 384 U.S. 436 (1966).................................................................28

People v. LaBoy , 227 Ill.App.3d 654, 592 N.E.2d 179 (Ill. App. 1 st Dist., 1992) ...................24

People v. Perkins , 292 Ill.App.3d 624, 686 N.E.2d 663 (Ill. App. 1 st Dist., 1997) ..................25

People v. Roberts , 115 Ill. App. 3d 384, 450 N.E.2d 451 (Ill App. 2 nd Dist., 1983) ................25

People v. Thurman , 337 Ill.App.3d 1029, 787 N.E.2d 263 (Ill. App. 4 th Dist., 2003) .........24, 26

Sperl v. C.H. Robinson Worldwide, Inc , 408 Ill.App.3d 1051,

946 N.E.2d 463 (Ill. App. 3 rd Dist., 2011) .......................................................24

SUPREME COURT RULES

Supreme Court Rule 301, 155 Ill.2d R. 301...............................................................7

STATUTES

720 ILCS 5/32-2(a)..........................................................................................17

NATURE OF THE CASE

This is an appeal by the Defendant from a jury trial verdict of guilty on one count of DUI. (C. 110). The facts are undisputed. The Defendant was arrested on April 4, 2009 and charged with Driving Under the Influence of Alcohol, Operating in Violation of Restriction, Failure to Notify Secretary of State of Address Change, and Improper Lane Usage (C. 3, see Appendix 2 and 3). The Defendant was indicted on one count of DUI by the Grand Jury after Officer Krueger was the sole witness who testified. (C. 97 - 99; C. 3). Officer Krueger testified that the Defendant possessed his driver's license on the night of the arrest, had difficulty finding it, dropped it, and almost fell down while attempting to pick it up. (C. 97 - 99).

On September 8, 2009, a hearing was held on the Defendant's Motion to Quash Arrest and Suppress Evidence. (C. 22; Report of Proceedings C. 1). At the hearing, Officer Krueger again testified to his observations about the Defendant's driver's license and other observations that led him to believe that the Defendant was under the influence of alcohol. (Report of Proceedings C. 1 - 19). Initially, Officer Krueger testified that he found the Defendant asleep in his car at a gas station, did not arrest him, and told him to wait to "sober up" before the Defendant drives home. (Report of Proceedings C. 7). At the hearing on September 8, 2009, Officer Krueger did not testify that he asked the Defendant to take field sobriety tests at the gas station, did not testify that the Defendant asked if he could leave, and did not testify that he ordered the Defendant to move his car to a different parking place at the gas station. (Report of Proceedings C. 1 - 19). The Trial Court denied the Defendant's motion. (Report of Proceedings C. 20).

The Defendant's jury trial began and concluded on December 15, 2010. (Report of Proceedings C. 40 - 220). At the Defendant's trial, Officer Krueger was the sole witness for the State. (Report of Proceedings C. 62 - 150). Officer Krueger testified to multiple additional facts that he did not testified to during the Defendant's Motion to Suppress and were not contained in his police report. (Report of Proceedings C. 70). Based on these additions, which were undisclosed to the Defendant prior to trial, the Trial Court was prepared to grant a mistrial without prejudice. (Report of Proceedings C. 80). The Defendant chose to continue with the trial because he had already revealed the theory of his defense to the State. (Report of Proceedings C. 81).

During the Defendant's cross-examination, the Defendant proved that the Defendant could not have had his driver's license on his person on the night of the arrest because it was being held by the Clerk of the Circuit Court of Cook County in Rolling Meadows. (Report of Proceedings C. 105). At the close of the State's case, the Defendant made a motion for a directed finding based on perjury Officer Krueger had committed. (Report of Proceedings C. 151). The Trial Court denied the Defendant's motion. (Report of Proceedings C. 154). At the conclusion of the trial, the jury found the Defendant guilty of one count of DUI. (Report of Proceedings C. 219).

On January 14, 2011, the Defendant filed a Motion to Reconsider the Denial of Motion to Suppress Evidence, Motion to Dismiss Indictment, and Motion for Judgment Notwithstanding the Verdict. (C. 89). The crux of the Defendant's motion was that the Defendant was indicted on the perjured Grand Jury testimony that the Defendant had his driver's license on the night of the arrest and that Officer Krueger's new testimony at trial warranted a revisiting of the Officer's testimony during the Motion to Suppress. (C. 90 - 95). The Defendant also argued that the perjury, combined with the Officer's impeachment and substantial concerns about his credibility, all warranted a judgment notwithstanding the verdict. (C. 90 - 95). The Trial Court denied all three of the Defendant's motions. (Report of Proceedings C. 252 - 253). The Defendant filed a timely Notice of Appeal on February 18, 2011. (C. 121, Appendix 1).

ISSUE PRESENTED FOR REVIEW

I. WHETHER THE TRIAL COURT ERRED BY NOT DISMISSING THE DEFENDANT'S INDICTMENT WHEN IT WAS PREMISED ON PERJURED TESTIMONY THAT WAS MATERIAL TO THE INDICTMENT

II. WHETHER THE TRIAL COURT ERRED BY NOT REVISITING AND GRANTING THE DEFENDANT'S MOTION TO SUPPRESS WHEN THE WITNESS COMMITTED PERJURY, SIGNIFICANTLY CHANGED HIS TESTIMONY AT TRIAL FROM HIS TESTIMONY AT THE MOTION TO SUPPRESS, AND LOST ALL CREDIBILITY

III. WHETHER THE TRIAL COURT ERRED BY DENYING THE DEFENDANT'S MOTION FOR A JUDGMENT NOTWITHSTANDING THE VERDICT WHEN THE STATE PRESENTED PERJURED, INCREDIBLE, AND IMPEACHED TESTIMONY OF ONE WITNESS IN THEIR CASE IN CHIEF

JURISDICTIONAL STATEMENT

This appeal is taken pursuant to Supreme Court Rules 604(b) which governs appeals after a Defendant has been found guilty and sentenced to imprisonment. 155 Ill.2d R. 604(b). The Defendant was found guilty of one count of driving under the influence of alcohol. (Report of Proceedings C. 220). The judgment denying the Defendant's Motion to Dismiss the Indictment, Motion to Reconsider the Denial of Motion to Suppress, and Denial of Judgment of Notwithstanding the Verdict was entered on January 26, 2011 and the Defendant was sentenced on January 26, 2011. (Report of Proceedings C. 253). The Notice of Appeal was timely filed with the Clerk of the Circuit Court on February 18, 2011. (C. 121, Appendix 1).

STANDARD OF REVIEW

Because the facts are not in dispute, whether the Trial Court erred in denying the Defendant's Motion to Dismiss the Indictment, Motion to Reconsider the Denial of Motion to Suppress, and Denial of Judgment of Notwithstanding the Verdict, is wholly a question of law and should be reviewed de novo. People v. Krueger , 175 Ill.2d 60, 64, 675 N.E.2d 604 (1996); People v. Mattis , 367 Ill.App.3d 432, 435-436, 854 N.E.2d 1149, 1152 (Ill. App. 2 nd Dist., 2006) . Thus, this appeal should be reviewed under the de novo standard.

STATEMENT OF FACTS

On April 4, 2009, the Defendant-Appellant Raymond Anderson was arrested for Driving Under the Influence of Alcohol, Operating in Violation of Restriction, Failure to Notify Secretary of State of Address Change, and Improper Lane Usage (C. 3, see Appendix 2 and 3). On May 21, 2009, Officer Michael Krueger, from the Roselle Police Department, was the sole witness to testify before the Grand Jury. (C. 97 - 99). During the hearing, the Officer testified about his observations that led him to believe that the Defendant was under the influence of alcohol on April 4, 2009. (C. 97 - 98). Officer Krueger testified that, upon the request of Officer Krueger, the Defendant fumbled through some paperwork two times before retrieving his driver's license. (C. 98). He also testified that once the Defendant found his driver's license, he dropped it and almost fell down when he went to pick it up. (C. 98). The Grand Jury ultimately indicted the Defendant. (C. 3).

The Defendant filed a "Motion to Quash Arrest and Suppress Evidence" on September 8, 2009 and a hearing was held on the Defendant's motion on January 11, 2010. (C. 22; Report of Proceedings C. 1). At the hearing, the Defendant called Officer Krueger to testify. (Report of Proceedings C. 1 - 19). Officer Krueger testified that on April 4, 2009 at approximately 1:45 AM, he was dispatched to Thornton's Gas Station on 1330 West Lake Street. (Report of Proceedings C. 4). When he arrived, he observed a white Lincoln (the subject of the dispatch call) parked across two or three parking spaces on the east side of the building. (Report of Proceedings C. 4). Officer Krueger approached the Lincoln's driver-side door and observed the Defendant inside the car, leaning towards the passenger's side with his pants down, and appeared to be sleeping. (Report of Proceedings C. 4 - 5). The Officer knocked on the window, woke the Defendant up, and asked him to step out of the car. ((Report of Proceedings C. 5). When Officer Krueger asked what the Defendant was doing there, the Defendant stated that that he had just stopped and was sleeping because he was tired. (Report of Proceedings C. 5). The Officer observed that the Defendant smelled like alcohol, told the Defendant that he did not think the Defendant was fit to drive, and offered to get him a cab ride home. (Report of Proceedings C. 6). The Defendant stated that he could not afford a cab, that the Lincoln was his friend's car, and asked to sleep in the vehicle. (Report of Proceedings C. 6). Officer Krueger told the Defendant that "it would take quite a while for him to sober up and he should not drive the car, and if he parked it right here and slept in it and had a few hours of sleep, that would be fine." (Report of Proceedings C. 7).

While they were speaking, Officer Krueger testified that he observed that the Defendant had slurred speech, his eyes were bloodshot and "kind of" glassy, and his eyes were a little droopy. (Report of Proceedings C. 8). During their conversation, Officer Krueger asked the Defendant to produce his identification. (Report of Proceedings C. 8). He testified that when the Defendant looked through his wallet he "passed his license a couple of times, pulled it out, dropped it to the ground. When he went to retrieve it, he almost fell. He had to grab onto the car door to, for support" (Report of Proceedings C. 8). Officer Kruger further testified that when he was talking to the Defendant, the Defendant was leaning on the car. (Report of Proceedings C. 8). Officer Krueger also learned that the car keys for the Lincoln were in the Defendant's pocket while they were speaking outside of the Lincoln. (Report of Proceedings C. 7). After their conversation, Officer Krueger left the gas station. (Report of Proceedings C. 7). At the Motion to Suppress Evidence hearing, Officer Krueger did not testify that he asked the Defendant to take field sobriety tests, he did not testify that he ordered the Defendant to start and move his car to a regular parking space during his first contact with the Defendant, nor did he testify that the Defendant asked to leave. (Report of Proceedings C. 3 - 8). In addition, these three facts were not included in his police report regarding their initial encounter (C. 102).

At approximately 1:45 AM, Officer Krueger observed the same white Lincoln from Thornton's gas station driving eastbound on Lake Street, approaching Summerfield Road. (Report of Proceedings C. 8 - 10). He observed the vehicle "traveling over the divided white marker lines back and forth." (Report of Proceedings C. 11). He further saw the vehicle use his left turn signal before reaching Bloomingdale Road and watched it drive through the intersection without signaling, but admitted that this conduct was not a vehicle code violation. (Report of Proceedings C. 11). The Defendant traveled another block east to Fairfield, made a U-turn, and began to drive westbound on Lake Street. (Report of Proceedings C. 11). Officer Krueger followed the Defendant as the Defendant turned right on Bloomingdale, then turned right on Foster, and then activated his emergency lights to stop the Defendant. (Report of Proceedings C. 14). As the Defendant pulled over the right, Officer Krueger testified that the Defendant's vehicle struck the curb right before he stopped. (Report of Proceedings C. 14).

Officer Krueger walked up to the Defendant's driver's side window, asked the driver for his identification, told him that he had seen him earlier and told him not to drive, and asked the Defendant to exit his car. (Report of Proceedings C. 15). The Defendant complied with the order and exited his vehicle. (Report of Proceedings C. 16). Officer Krueger directed the Defendant to walk between his car and the Defendant's vehicle. (Report of Proceedings C. 16). As the Defendant walked towards the back of his car, Officer Krueger testified that the Defendant leaned on his vehicle and also leaned on his trunk with his buttocks when they got to the back of the Defendant's vehicle. (Report of Proceedings C. 16 - 17). Officer Krueger asked the Defendant if he would perform some field sobriety tests and the Defendant said no. (Report of Proceedings C. 17). Subsequently, Officer Krueger placed the Defendant under arrest for driving under the influence of alcohol based on the Defendant's driving, and his observations of a strong odor of alcohol, slurred speech, and bloodshot eyes. (Report of Proceedings C. 17). Officer Krueger further testified that these were all observations (made during the second encounter) that led him to believe that the Defendant was under the influence of alcohol. (Report of Proceedings C. 17).

On December 15, 2010, the Defendant proceeded by way of a jury trial. (Report of Proceedings C. 23). The State called one witness to testify, Officer Krueger (Report of Proceedings C. 62 - 150). Officer Krueger testified similarly as he did during the Defendant's Motion to Suppress Evidence, except that he added facts about his first encounter with the Defendant; some of which were undisclosed to the Defendant prior to his testimony at trial. (Report of Proceedings C. 11). During the first encounter with the Defendant, Officer Krueger added that when the Defendant exited the vehicle, his pants were still down and that he was missing one shoe. (Report of Proceedings C. 66). Officer Krueger testified that he asked the Defendant why his pants were down and the Defendant responded, "you know why." (Report of Proceedings C. 67). Similar to the Motion to Suppress, Officer Krueger testified that the Defendant passed over his driver's license twice, dropped it while handing to the Officer, and almost fell when reaching down to pick it up. (Report of Proceedings C. 68 - 67). Furthermore, Officer Krueger testified that the Defendant asked to leave and that he asked the Defendant to perform field sobriety tests. (Report of Proceedings C. 70).

After Officer Krueger testified to the fact that the Defendant asked to leave and that he asked the Defendant to perform field sobriety tests, the Defendant's attorney requested a side bar and the jury was excused. (Report of Proceedings C. 70). The Defendant moved for a mistrial based on the fact that these two statements were not previously disclosed to the Defendant, thus violating the Defendant's Motion in Limine made prior to trial (C. 33; Report of Proceedings C. 73). Neither of these two facts were contained in Officer Krueger's police report. (C. 102). While still under oath, the Trial Court asked Officer Krueger if he had included these facts in his police report and Officer Krueger stated "no." (Report of Proceedings C. 75). The Trial Court also asked the Officer if he told the State's Attorney about these facts prior to testifying and he also said "no." (Report of Proceedings C. 75). After some discussion with the State's Attorney regarding whether or not the State's Attorney asked Officer Krueger if the Defendant had made any other statements that were not previously disclosed, the Trial Court was prepared to grant a mistrial based on the fact that the Officer's statements about the Defendant were not disclosed to the Defendant prior to trial. (Report of Proceedings C. 81). The Defendant requested that the Trial Court rule that it was a mistrial with prejudice because he had suffered irreparable prejudice to his defense. (Report of Proceedings C. 81). The Defendant revealed this theory of the defense in opening statements and another trial would give the State the opportunity to indict the Defendant on another count of DUI from Officer Krueger's first encounter with the Defendant. (Report of Proceedings C. 81 - 82). Before the Trial Court ultimately ruled, the Defendant's attorney spoke with the Defendant and the Defendant decided to continue with the trial if the Trial Court would not grant a mistrial with prejudice (Report of Proceedings C. 83).

After the jury returned, Officer Krueger continued testifying. (Report of Proceedings C. 85). At trial, he now testified that he told the Defendant that if he did not wait several hours before driving, then he "would be subject to arrest or may be subject to arrest." (Report of Proceedings C. 86). Officer Krueger further testified that when he saw the Defendant's Lincoln on eastbound Lake Street that it was driving ten miles under the speed limit of 40 miles per hour. (Report of Proceedings C. 88). After asking the Defendant to exit the car and having him walk to the rear of his vehicle, Officer Krueger testified that he saw that the Defendant's address was in Elk Grove Village on the Defendant's driver's license. (Report of Proceedings C. 95). Officer Krueger asked if the Defendant lived in Elk Grove Village and the Defendant stated that he lived in Schaumburg with his parents. (Report of Proceedings C. 95). At the end of the initial direct examination, Officer Krueger testified that he took into account the fact that the Defendant fumbled through his pile of papers for his license, dropped it, and almost fell down to pick it up as one of the factors that led him to believe that the Defendant was under the influence of alcohol during their first encounter at Thornton's Gas Station. (Report of Proceedings C. 96).

On cross examination, the Defendant's attorney pointed out to the jury that Officer Krueger did not include the fact that he asked the Defendant to take field sobriety tests, and that the Defendant subsequently refused those tests, in his police report regarding his first encounter with the Defendant at the gas station. (Report of Proceedings C. 108 - 109). The Defendant's attorney also showed that, despite speaking with the State's Attorney twice before testifying, that Officer Krueger did not tell the State's Attorney that he asked the Defendant to perform field sobriety tests and that the Defendant refused those tests. (Report of Proceedings C. 109 - 110). Also on cross examination, Officer Krueger testified for the first time that prior to leaving Thornton's Gas Station, he ordered the Defendant to properly park his car in a parking space. (Report of Proceedings C. 112 - 113). He continued to testify that he did not include the fact that the Defendant swayed while standing at Thornton's Gas Station. (Report of Proceedings C. 115). Officer Krueger did not testify to this fact during the Defendant's motion to suppress either.

During cross examination, Officer Krueger testified that he was "certain" that the Defendant dropped his driver's license and not a credit card. (Report of Proceedings C. 113 - 114). Officer Krueger also testified that he was sure it was the Defendant's driver's license and not a State ID. (Report of Proceedings C. 114). After stopping the Defendant on Lake Street, Officer Krueger testified that the Defendant handed him his driver's license without fumbling with it, but was impeached by his Grand Jury testimony when he testified that the Defendant missed his driver's license while fumbling through paperwork on two separate occasions. (Report of Proceedings C. 127; C. 98). The Defendant then introduced Officer Krueger's Law Enforcement Sworn Report that showed, under penalty of Section 1-109 of Illinois Code of Civil Procedure, that the Defendant did not have his driver's license on his person. (Report of Proceedings C. 129; see Appendix 5). Subsequently, the Defendant introduced the Defendant's bond slip from the night of the arrest. (Report of Proceedings C. 131; Appendix 4). Officer Krueger testified that if a person is arrested for DUI, then the arresting officer must capture their driver's license and mark it as such on the bond slip. (Report of Proceedings C. 131). He then testified that the bond slip did not show that the Defendant's driver's license had been captured. (Report of Proceedings C. 131; Appendix 4). The Defendant's driver's license was actually in possession of the Clerk of the Circuit Court of Cook County in Rolling Meadows at the time of the arrest (April 4, 2009) and at the time of trial. (C. 105).

After the Defendant effectively proved that the Defendant did not have his driver's license on his person on the night of the arrest, Officer Krueger changed his testimony and stated that the Defendant had a form of ID that "could have been a State ID." (Report of Proceedings C. 133). Officer Krueger reconfirmed that he was able to tell the difference between a driver's license and a state ID, and that he made a "mistake."

The Defendant crossed Officer Krueger on other aspects of the case, including the fact that the Officer chose to not ask the Defendant for a blood test after he refused the breath test. (Report of Proceedings C. 139 - 140). On Re-Direct, Officer Krueger testified that the Defendant showed him a "picture ID" that he "thought" was a driver's license. (Report of Proceedings C. 144). On Re-Cross, Officer Krueger then testified that the ID "looked like a license." (Report of Proceedings C. 147).

After Officer Kruger finished testifying, the State introduced and published an in-squad video of the Defendant, and then rested. (Report of Proceedings C. 150). The Defendant made a motion for a directed finding based on the perjured testimony and the significant impeachment of the State's single witness. (Report of Proceedings C. 151 - 152). Regarding the perjury claim, the Trial Court did not rule on whether the Officer's statements constituted perjury ("But I don't know that part has been proven of any potential perjury in front of me on January 11th"). (Report of Proceedings C. 151 - 152). The Trial Court denied the Defendant's motion for a directed finding. (Report of Proceedings C. 154).

For the Defendant's case in chief, the Defendant called Michael Francq, a co-worker of the Defendant at his real estate office. (Report of Proceedings C. 155 - 156). Mr. Francq testified that he was with the Defendant during the night of the arrest, that he did not see the Defendant consume any alcohol, and that the Defendant was not under the influence of alcohol when they both left the office at approximately 12:30 AM to 1:00 AM. (Report of Proceedings C. 156 - 159). On cross examination, Mr. Francq testified that it would not bother him if something bad happened to the Defendant because he would actually benefit if the Defendant was convicted. (Report of Proceedings C. 162). After Mr. Francq's testified, the Defendant chose to not testify, and the Defense rested. (Report of Proceedings C. 170). After closing arguments, the jury found the Defendant guilty of driving under the influence of alcohol. (Report of Proceedings C. 219).

ARGUMENT

I. THE TRIAL COURT ERRED WHEN IT DENIED THE DEFENDANT'S MOTION TO DISMISS THE DEFENDANT'S INDICTMENT BECAUSE THE DEFENDANT'S DUE PROCESS RIGHTS WERE VIOLATED WHEN OFFICER KRUEGER COMMITTING PERJURY BEFORE THE GRAND JURY

The introduction of Officer Krueger's perjured testimony regarding the possession and mishandling of the Defendant's driver's license before the Grand Jury constitutes a denial of due process. A defendant may challenge an indictment that is procured through prosecutorial misconduct. People v. Fassler, 153 Ill.2d 49, 58, 605 N.E.2d 576, 581 (Il. S. Ct., 1992); People v. Rodgers, 92 Ill.2d 283, 287, 442 N.E.2d 240, 242 (Il. S. Ct., 1982); People v. Linzy, 78 Ill.2d 106, 109-10, 398 N.E.2d 1, 2 (Il. S. Ct. 1979); People v. DiVincenzo, 183 Ill.2d 239, 255, 700 N.E.2d 981, 990, (Il. S. Ct. 1998). Furthermore, a trial court may dismiss an indictment if the defendant establishes that he has suffered a prejudicial denial of due process. People v. Oliver, 368 Ill.App.3d 690, 694, 859 N.E.2d 38, 44 (2006). In order to show that the Defendant's due process rights were violated, the defendant must establish that the denial of due process is "unequivocally clear" and that the prejudice is "actual and substantial." Oliver, 368 Ill.App.3d at 695.

The due process rights of a defendant may be violated if the prosecutor deliberately or intentionally misleads the grand jury, uses known perjured or false testimony, or presents other deceptive or inaccurate evidence. People v. Holmes , 397 Ill.App.3d 737, 741, 922 N.E.2d 1179, 1184 (Ill. App. 2 nd Dist., 2010) ; People v. J.H., 136 Ill.2d 1, 12-13, 544 N.E.2d 961 (Ill. S. Ct. 1990); United States v. Hogan, 712 F.2d 757, 759-62 (2 nd Cir., 1983) ; People v. Barton, 190 Ill.App.3d 701, 708-09, 546 N.E.2d 1091 (Ill. App. 5 th Dist., 1989) . People v. DiVincenzo, 183 Ill.2d at 257. Perjury is when a person "under oath or affirmation, in a proceeding or in any other matter where by law such oath or affirmation is required, makes a false statement, material to the issue or point in question, which he does not believe to be true." 720 ILCS 5/32-2(a). if deceptive or inaccurate evidence is presented, it may justify the dismissal of the indictment if the defendant can show that the misconduct affected the grand jury's deliberations. DiVincenzo , 183 Ill.2d at 257; People v. Mattis , 367 Ill.App.3d 432, 435, 854 N.E.2d 1149, 1152 (Ill. App. 2 nd Dist., 2006); J.H., 136 Ill.2d at 13.

The Grand Jury testimony in the Defendant's case consisted of one witness, Officer Krueger, and was a very brief examination. (C. 98). Specific to the issue of probable cause, Officer Krueger testified to his observations (odor of alcohol, bloodshot/glassy eyes slurred speech), that the Defendant leaned on his vehicle, that he refused field sobriety tests, and that the Defendant dropped his driver's license after fumbling through his paperwork, and almost fell while reaching down to pick it up. (C. 98). Of those preliminary observations, the issue about the Defendant's driver's license is the most damaging to the Defendant because it concerns the Defendant's inability to complete a very simple task. However, any testimony regarding the Defendant's driver's license is significantly questionable because it was indisputably proven during the Defendant's trial that the Defendant could not have possessed his driver's license during the night of the arrest; it was being held at the Clerk of the Circuit Court of Cook County in Rolling Meadows. (C. 105).

Although it may be appealing to dismiss Officer Krueger's testimony as a "mistake" made at trial, a closer look at the circumstances demonstrates that Officer Krueger knew that the Defendant was not in possession of his driver's license long before he testified in front of the Grand Jury, before the Defendant's Motion to Suppress, and before the Defendant's trial. After arresting the Defendant and completing a "Law Enforcement Sworn Report," Officer Krueger checked the box "no" to the answer as to whether the Defendant's driver's license was surrendered. (Report of Proceedings 129; see Appendix 5). He also wrote in on the "reason" line that it was "not on person." (Report of Proceedings C. 129; see Appendix 5). In addition, when the Defendant posted bond, his bond slip did not indicate that his driver's license was "seized for enforcement of Summary Suspension Law" (Report of Proceedings C. 131; Appendix 4). At the Defendant's trial, Officer Krueger testified that he was certain it was a driver's license. (Report of Proceedings C. 113). The Defendant asked the Officer, "Are you sure it wasn't a State ID? That's why he passed it up twice?" and Officer Krueger answered "It was a driver's license, sir." (Report of Proceedings C. 114). Even when the Defendant gave the Officer the perfect opportunity to admit that the Defendant had a driver's license and not a State ID, he was sure it was a driver's license. (C. Report of Proceedings C. 114). These examples represent evidence that Officer Krueger knew that the Defendant did not possess his driver's license at the time of the Defendant's arrest and lied about it during his testimony.

Despite this knowledge, Officer Krueger swore under oath that the Defendant fumbled through his driver's license and almost fell over while trying to pick it up. (C. 98). How could the Defendant have almost fallen from picking up an item that he didn't even possess? The fact that Officer Krueger was aware that the Defendant did not possess a driver's license on his person, combined with the undisputed evidence that the Defendant's driver's license was being held by the Clerk of the Circuit Court of Cook County in Rolling Meadows, is unequivocal proof that Officer Krueger committed perjury when he testified in front of the Grand Jury. Although Officer Krueger attempted to downplay the lie during the Defendant's trial, the fact that he recorded that the Defendant's driver's license was not on his person is proof that he knew before testifying in front of the Grand Jury that the Defendant did not have his driver's license. How else can one prove up a lie besides looking at all the surrounding circumstances from which the statement was made?

The implication that the Defendant was so intoxicated that he could not perform the simple function of finding a driver's license, holding it in his hand, and maintain his balance when bending over to pick it up was a substantial and material fact in the indictment process of the Defendant. Since the Defendant was not given a breath or blood test, and declined to perform field sobriety tests, the issue of the driver's license must have stuck out like a sore thumb in the Grand Jury's mind. In DUI cases where there is no chemical evidence or field sobriety tests, every other aspect of the arrest is substantially polarized. Given the evidence that the Defendant did not have his driver's license on the night of his arrest, and the repeated insistence that the Defendant did have it (Officer Krueger testified on three separated occasions that the Defendant did have it), it is not a far leap to presume that Officer Krueger created the issue to buttress a finding of probable cause in order to indict the Defendant. In addition, Officer Krueger testified that the Defendant fumbled with his driver's license in front of the Grand Jury on the second stop of the Defendant. (C. 98). However, at trial, he only testified that the Defendant fumbled with his license during the first stop. (Report of Proceedings C. 127). Therefore, it is reasonable to infer that Officer Krueger's confusion as to when the Defendant was fumbling with his driver's license was the result of simply inventing the fact since he was unable to keep his recollection of the event consistent.

The only other observations made by Officer Krueger were the standard DUI "devil words" (i.e. bloodshot, glassy eyes, slurred speech, odor of alcohol) which all have other reasonable explanations for their cause besides intoxication. If one were to present the same set of facts to the Grand Jury, but excluded the testimony about the driver's license, Officer Krueger's testimony paints a much different picture. Simply, the issue of the driver's license was most likely the "straw that broke the camel's back" and led the Grand Jury to indict the Defendant. Officer Krueger's knowingly perjured testimony denied the Defendant due process and clearly affected the Grand Jury's deliberations. Therefore, the Defendant's indictment should be dismissed. DiVincenzo , 183 Ill.2d at 257.

II. THE TRIAL COURT ERRED WHEN IT DENIED THE DEFENDANT'S MOTION TO RECONSIDER THE DENIAL OF HIS MOTION TO SUPPRESS EVIDENCE BECAUSE THE OFFICER GAVE SUBSTANTIALLY DIFFERENT AND INCREDIBLE TESTIMONY AT THE TRIAL THAN HE DID DURING THE PREVIOUS MOTION TO SUPPRESS HEARING

The Trial Court was incorrect by not revisiting its ruling on the Defendant's Motion to Suppress after Officer Krueger committed perjury regarding the Defendant's driver's license. If new evidence is introduced which might affect its original ruling, a reviewing court may consider the evidence at trial to determine whether it was proper to deny a motion to suppress. People v. Reese, 92 Ill.App.3d 1112, 1113-14, 416 N.E.2d 692, 693 (Ill. App. 4 th Dist., 1981) . A pretrial ruling on a motion to suppress is not final and may be changed or reversed at any time prior to final judgment. People v. Caballero, 102 Ill.2d 23, 35-36, 79 Ill.Dec. 625, 464 N.E.2d 223, 229 (Ill. S. Ct. 1984).

In a DUI case where the State calls one witness, does not provide evidence of a chemical test, and the Defendant does not perform field sobriety tests, the credibility of the witness and his observations must be a crucial concern for the court. In the Defendant's case, Officer Krueger testified much differently during the Motion to Suppress Evidence than he did during the Defendant's trial. (see Report of Proceedings C. 3 - 20; C. 23 - 150). However, Officer Krueger did not testify differently about a de minimus fact like the color of the Defendant's shoes or the day of the week. Instead, he added many new material facts to his testimony that were previously undisclosed to the Defendant at the Motion to Suppress Evidence. First, Officer Krueger testified that the Defendant asked to leave Thornton's gas station during their initial encounter. (Report of Proceedings C. 70). Second, he testified that he requested field sobriety tests and the Defendant refused. (Report of Proceedings C. 70). Third, he testified that before leaving Thornton's gas station, he ordered the Defendant to start his engine and move the car to another parking space at the gas station. (Report of Proceedings C. 112 - 113). Fourth, he testified that the Defendant had one shoe off at Thornton's gas station. (Report of Proceedings C. 66). Fifth, Officer Krueger testified that the Defendant's pants were still down when he exited the car and he was missing a shoe. (Report of Proceedings C. 66). Sixth, he testified that the Defendant swayed outside of the gas station. (Report of Proceedings C. 69 - 70). Seventh, Officer Krueger testified that he asked the Defendant why his pants were down and the Defendant stated "you know why." (Report of Proceedings C. 67).

The two facts that the Defendant asked to leave and that he refused field sobriety tests at Thornton's gas station are substantial in the context of a motion challenging a 4 th Amendment search and seizure. Furthermore, these two facts completely alter the nature of the Defendant and Officer Krueger's first encounter. At the Motion to Suppress, when Officer Krueger did not mention these two facts, it gave him the appearance that he was cutting the Defendant a break by not arresting him and letting him sleep it off. He found a man sleeping in his car and gave him the opportunity to "sleep it off" since the Defendant was safely sleeping in his car and not driving. However, by asking the Defendant to perform field sobriety tests, Officer Krueger essentially crossed the line from performing a consensual, community caretaking encounter, into actively investigating a DUI. Similarly, by testifying that the Defendant asked to leave and denying that request, Officer Krueger is now asserting his authority over the Defendant and giving commands. This new information, alone, warranted the Trial Court to re-visit the Defendant's Motion to Suppress.

In addition, the fact that Officer Krueger, who believed that the Defendant was too intoxicated to drive home, let the Defendant start his car and drive to a new parking spot is a curious contradiction. Why would Officer Krueger let the Defendant start his car (which was previously off), put his car in gear, and drive it to a new spot in an area with thousands of gallons of flammable gasoline, if he believed that the Defendant was so intoxicated? Also, why was this fact testified to for the first time during the cross examination of Officer Krueger during the trial and why it is not contained in his police report? (Report of Proceedings C. 112 - 113; C. 102). In reality, the biggest difference between Officer Krueger's testimony at the Motion to Suppress and at Trial may have been who was asking the questions. Is it coincidental that the Officer, during a direct examination by the State's Attorney at a jury trial, provides much more incriminating facts about the Defendant than when the Defendant's attorney is questioning him in front of the Trial Judge only? The Appellant in this case strongly suggests that it is not a coincidence.

These new facts, combined with the significant impeachment about the Defendant's lack of driver's license, present a much different recollection of events than what was previously heard at the Defendant's Motion to Suppress. Taken altogether, they seriously call into question the credibility of Officer Krueger. If a person tells the same story three seperate times and tells the story differently three seperate times, how can one believe one version over the others? The Appellant urges this court to direct the Trial Court to reconsider the Defendant's Motion to Suppress in light of the new evidence obtained at trial and the lack of credible testimony from Officer Krueger. (Report of Proceedings C. 253); Reese, 92 Ill.App.3d at 1113-14.

III. THE TRIAL COURT ERRED WHEN IT DENIED THE DEFENDANT'S MOTION FOR JUDGMENT NOTWITHSTANDING VERDICT BECAUSE THE STATE'S ONLY WITNESS COMMITTED PERJURY, GAVE CONTRADICTORY TESTIMONY, AND WAS SIGNIFICANTLY IMPEACHED

A Judgment Notwithstanding the Verdict (i.e. J.N.O.V.) is proper when the evidence, viewed in the light most favorable to the opponent, so overwhelming favors the moving party that no contrary verdict based on that evidence could ever stand. Sperl v. C.H. Robinson Worldwide, Inc , 408 Ill.App.3d 1051, 1056 946 N.E.2d 463, 469 - 470 (Ill. App. 3 rd Dist., 2011) . Justice Learned Hand's eloquent explanation of this standard in Chamberlain v. Pennsylvania Railroad Co . was such: "The most that has been said-probably all that be-is that there comes a point where the evidence no longer justifies any verdict but one." [emphasis added] 59 F.2d 986, 987 (2 nd Circuit, 1932) .

Allowing a conviction to stand based on false testimony is contrary to the basic principles in a civilized society. People v. LaBoy , 227 Ill.App.3d 654, 662, 592 N.E.2d 179, 185 (Ill. App. 1 st Dist., 1992) . In addition, a conviction obtained by the use of false testimony, even if unsolicited by the State, must be set aside if there is a reasonable likelihood that the false testimony could have affected the verdict and the State allows it to go uncorrected. People v. Thurman , 337 Ill.App.3d 1029, 1032, 787 N.E.2d 263, 266 (Ill. App. 4 th Dist., 2003) . It does not matter that the witness' false testimony only goes to credibility because the resulting conviction is nonetheless tainted. People v. Perkins , 292 Ill.App.3d 624, 631, 686 N.E.2d 663, 668 (Ill. App. 1 st Dist., 1997) . This is so because the "jury's estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence, and it is upon such subtle facts as the possible interest of the witness in testifying falsely that a defendant's life or liberty may depend." Perkins , 292 Ill.App.3d at 631, citing People v. Olinger, 176 Ill.2d 326, 345, 680 N.E.2d 321, 344 (Il S. Ct 1997) .

Although questions of credibility are traditionally left to the trier of fact, it goes against our basic principles of due process and fundamental fairness to allow a conviction to be tainted by perjured testimony. While it may be easier to defer to the jury's finding of guilt, it does not necessarily mean that the jury found Officer Krueger credible. It is equally possible that the jury chose to forgive Officer Krueger's perjuries and convict a "guilty man." However, a violation of due process is not forgivable, which is why the Court needs to intervene and cure the poisonous process of presenting perjured testimony to the trier of fact.

In the Defendant's trial, the State actually capitalized on one of the new facts that Officer Krueger did not testify to at the Defendant's Motion to Suppress or include his police report: the fact that the Defendant refused the field sobriety tests on the first encounter. The State is allowed to argue that the refusal of field sobriety tests is consciousness of guilt. People v. Roberts , 115 Ill. App. 3d 384, 450 N.E.2d 451 (Ill App. 2 nd Dist., 1983) . By adding a new refusal of the field sobriety tests, the State was then allowed to argue an additional consciousness of guilt. (i.e. "The reason why the Defendant didn't take those standardized field sobriety tests is because he had a guilty mind. He knew he wouldn't perform well on those tests." (Report of Proceedings C. 184 - 185)). It goes against the principles of due process to highlight and push forward Officer Krueger's "mistakes" as an additional reason to find the Defendant guilty.

In regards to Officer Krueger's false testimony, even if it was unsolicited, the State must correct the false testimony. Thurman , 337 Ill.App.3d at 1032. Throughout the Defendant's trial, the State did not correct his false testimony. Instead, it merely tried to explain away or minimize the perjury. When the State questioned Officer Krueger on re-direct, after the Defendant had confronted Officer Krueger with the uncontroverted evidence that the Defendant's driver's license was at the Clerk of the Circuit Court of Cook County in Rolling Meadows, the exchange went as such:

Q. Would you, please, describe what the form of identification looked like?

A. It was a picture ID. I thought it was a driver's license.

(Report of Proceedings C. 144).

This single question and answer is not sufficient to cure the material impeachment of the State's single witness. Officer Krueger was not asked, "Why did you mark that he did not have his driver's license on his person on the Law Enforcement Sworn Report?" or "Why did you testify before the Grand Jury that he had his driver's license?" or "Why did you testify at the Defendant's Motion to Quash Arrest and Suppress Evidence that he had his driver's license" or even, "How was it that you remembered him having a driver's license?" Furthermore, the State addressed the Officer Krueger's perjury by arguing during closing arguments:

"Now Mr. Ramsell [Defendant's Attorney] spoke to you about the officer's testimony and the fact the officer couldn't recall whether or not it was a driver's license or a state ID. Who cares? That's not what's paramount as far as testimony is concerned. It does not matter."

(Report of Proceedings C. 210 - 211).

This type of argument did not correct Officer Krueger's testimony. Instead, the State just argued that the perjury should just be ignored.

The unreliability of Officer Krueger's testimony reaches farther than his perjured statement about the Defendant's driver's license. The combination of perjury and impeachment rendered his testimony so incredible and unreliable, that the only verdict should have been an acquittal for the Defendant. First, Officer Krueger was certain that the Defendant had a driver's license and not a State ID, only to later change his mind and testify "It wasn't a driver's license." (Report of Proceedings C. 113; Report of Proceedings C. 148). Second, the Officer introduced, for the first time, that he asked the Defendant to take field sobriety tests and the Defendant refused during their first encounter. (Report of Proceedings C. 70). Third, Officer Krueger introduced, for the first time, the Defendant's statement that he asked to leave the gas station. (Report of Proceedings C. 70). These two new pieces of evidence were substantial enough for the Trial Court to grant a mistrial based on their lack of pre-trial disclosure. (Report of Proceedings C. 80). Fourth, Officer Kruger introduced, for the first time, that he directed an individual that he believed was too intoxicated to drive to actually drive his car to a different parking space. (Report of Proceedings C. 112 - 113). Fifth, the Officer could not accurately even remember which time it was that the Defendant fumbled through this driver's license. (Report of Proceedings C. 127). The aggregation of these additions, impeachments, and perjured statements, which all came from the State's only witness, simply rendered his testimony incredible and the Trial Court erred in not granting the Defendant's JNOV.

Our system of government is founded on the principals of due process. If this were not the case, then the exclusionary rule would not allow the suppression of incriminating evidence because a person was illegally searched and seized. see Mapp v. Ohio , 367 U.S. 643 (1961). If this were not the case, then confessions would never be suppressed based on Miranda violations or coercion. see Miranda v. Arizona 384 U.S. 436 (1966). If this were not the case, then the burden of proof of reasonable doubt would not be set in such a manner that it would rather have ten guilty men go free instead of convicting one innocent man. In the Defendant's case, Officer Krueger's perjuries about the driver's license, his addition of new facts at the trial level, and his significant impeachment all point to due process violations. If the State had more than one witness, or chemical evidence of the Defendant, perhaps Officer Krueger's incredible testimony might not have been so unconscionable. But given the fact that the State's only witness is rife with perjury and inconsistencies, the evidence justifies only one verdict: not guilty. Accordingly, the Defendant's motion for a judgment notwithstanding the verdict should have been granted to avoid the violation of the Defendant's due process rights.

CONCLUSION

The Defendant prays that this honorable Court grant the Defendant's motion to dismiss the indictment based on Officer Krueger's perjured Grand Jury Testimony. In the alternative, the Defendant prays that this honorable Court direct the Trial Court to revisit and grant the Defendant's Motion to Quash Arrest and Suppress Evidence based on Officer Krueger's new testimonial evidence that was introduced for the first time at the Defendant's jury trial. If this Court denies the Defendant's aforementioned prayers, then the Defendant prays this honorable Court to reverse the Defendant's conviction because the Defendant's due process rights were violated from the State's use of perjured, incredible, and impeached testimony to obtain a tainted conviction.

INDEX TO THE RECORD

C0000001 Placita

C0000002 Certificate of Impaneling of the Grand Jury

C0000003 05-21-09 Indictment

C0000003a 05-21-09 Indictment Id info

C000003b 05-21-09 Arrest Warrant

C0000004 05-22-09 Notice of Motion

C0000005 05-22-09 Motion to Reduce Amount of Bail

C0000006 05-22-09 Appearance

C0000007 05-27-09 Arrest Warrant

C0000008 05-27-09 Bail Bond

C0000009 05-27-09 Discovery Order

C0000010 05-27-09 Disclosure to Defendant

C0000012 06-26-09 Order

C0000013 07-01-09 Supplemental Disclosure to Defendant #1

C0000015 07-01-09 Supplemental Disclosure to Defendant #2

C0000017 07-01-09 Supplemental Disclosure to Defendant #3

C0000019 07-30-09 Order

C0000020 09-03-09 Order

C0000021 09-08-09 Notice of Filing

C0000022 09-08-09 Motion to Quash Arrest and Suppress Evidence

C0000024 10-05-09 Order

C0000025 11-23-09 Order

C0000026 12-14-09 Subpoena

C0000027 01-11-10 Order

C0000028 02-02-10 Defendant's Supplemental Disclosure to Defendant

C0000029 02-02-10 Notice of Filing

C0000030 02-22-10 Order

C0000031 03-31-10 Order

C0000032 04-06-10 Notice of Filing

C0000033 04-06-10 Motion in Limine

C0000041 05-05-10 Order

C0000042 05-05-10 Amended Disclosure to Defendant

C0000043 05-19-10 Order

C0000044 05-19-10 Notice of Filing

C0000045 05-19-10 Amended Motion in Limine

C0000053 05-26-10 Order

C0000054 06-09-10 Subpoena

C0000055 06-09-10 Subpoena

C0000056 08-10-10 Order

C0000057 08-24-10 Subpoena

C0000058 08-24-10 Order

C0000059 08-31-10 Subpoena

C0000060 12-10-10 Notice of Filing

C0000061 12-10-10 Defendant's Supplemental Disclosure to State

C0000064 12-14-10 Order

C0000065 12-15-10 Guilty Finding By Jury - DUI

C0000066 12-15-10 Order

C0000067 12-15-10 Order

C0000068 12-15-10 Probation Paperwork

C0000069 12-15-10 Jury Selection

C0000070 12-15-10 Waiver

C0000071 12-15-10 People's Motion in Limine

C0000073 12-15-10 Jury Instructions

C0000088 12-16-10 Evidence Receipt

C0000089 01-14-10 Notice of Filing

C0000090 01-14-11 Motion to Reconsider Denial of Motion to Suppress/Dismiss

C0000106 01-25-11 Presentence Report

C0000107 01-26-11 DNA Order

C0000108 01-26-11 Order for Bond Refund

C0000109 01-26-11 Inmate Court Dispo

C0000110 01-26-11 Judgment - Sentenced to IDOC

C0000111 02-14-11 Notice of Motion

C0000112 02-14-11 Motion to Reduce Sentence

C0000114 02-14-11 Notice of Filing

C0000115 02-14-11 Write of Praecipe

C0000117 02-14-11 Notice of Appeal

C0000118 02-17-11 Order

C0000119 02-17-11 Order

C0000120 02-18-11 Notice of Filing

C0000121 02-02-10 Notice of Filing

C0000122 02-18-11 Writ of Praecipe

C0000124 02-23-11 Letter

C0000125 02-24-11 Statement of Facts

C0000126 03-09-11 Letter

C0000127 03-11-11 Appellate Court Order

Clerk's Certification of Trial Court Record

INDEX TO THE REPORT OF PROCEEDINGS

PAGE

Witness: Officer Michael Krueger

C0000096 05-21-09 Report of Proceedings from 05-21-09 (Grand Jury Testimony)

C0000104 05-21-09 1. Direct Examination.....................................................2

C0000130 09-04-08 Report of Proceedings from 01-11-10 (Motion to Suppress)

C0000001 01-11-10 1. Direct Examination.....................................................3

C0000018 01-11-10 2. Cross Examination....................................................18

C0000023 12-15-10 Report of Proceedings from 12-15-10 (Trial)

C0000062 12-15-10 1. Direct Examination...................................................40

C0000102 12-15-10 2. Cross Examination....................................................80

C0000140 12-15-10 3. Re-direct Examination..............................................118

C0000147 12-15-10 4. Re-cross Examination...............................................125

Witness: Michael Francq

C0000155 12-15-10 Report of Proceedings from 12-15-10 (Trial)

C0000155 12-15-10 1. Direct Examination..................................................133

C0000161 12-15-10 2. Cross Examination...................................................139

C0000169 12-15-10 3. Re-direct Examination..............................................147

APPENDIX

ITEM EXHIBIT

Notice of Appeal (02-18-2011) 1

Uniform Citation Tickets for Operation in Violation of Restriction

And Improper Lane Usage (04-04-2009) 2

Uniform Citation Ticket for Failure to Notify Secretary of State of

Change of Address (04-04-2009) 3

Defendant's Bail Bond (04-04-2009) 4

Law Enforcement Sworn Report (04-04-09) 5