1 

2021 IL App (5th) 180224-U 

NO. 5-18-0224 

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT

______________________________________________________________________________ 

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the

 ) Circuit Court of

Plaintiff-Appellee, ) St. Clair County. 

 ) 

v. ) No. 16-CF-1452 

 ) 

ORLANDO LUKE, ) Honorable 

 ) Robert B. Haida, 

Defendant-Appellant. ) Judge, presiding.

______________________________________________________________________________ 

JUSTICE WHARTON delivered the judgment of the court.

Justices Welch and Vaughan concurred in the judgment.

 

 ORDER

¶ 1 Held: This appeal from a judgment of conviction does not present any issue of arguable 

merit, and therefore the defendant’s appointed counsel on appeal is granted leave 

to withdraw, and the judgment of conviction is affirmed.

¶ 2 The defendant, Orlando Luke, was found guilty and sentenced to prison for aggravated 

driving under the influence of a drug, proximately causing the death of another. He now appeals 

from the judgment of conviction. The defendant’s court-appointed attorney on appeal, the Office 

of the State Appellate Defender (OSAD), has concluded that this appeal lacks merit, and on that 

basis OSAD has filed with this court a motion to withdraw as counsel, along with a brief in support 

thereof. See Anders v. California, 386 U.S. 738 (1967). OSAD provided the defendant with a 

copy of its Anders motion and brief. This court provided the defendant with ample opportunity to 

file a pro se brief, memorandum, or other document explaining why OSAD should not be allowed 

NOTICE

Decision filed 09/08/21. The 

text of this decision may be 

changed or corrected prior to 

the filing of a Petition for 

Rehearing or the disposition of 

the same.

NOTICE

This order was filed under 

Supreme Court Rule 23 and is 

not precedent except in the 

limited circumstances allowed 

under Rule 23(e)(1).
2 

to withdraw or why this appeal has substantial merit, but the defendant has not availed himself of 

that opportunity. This court has examined OSAD’s Anders motion and brief and the entire record 

on appeal. For the reasons that follow, this court has concluded that the instant appeal does indeed 

lack merit, obliging this court to grant OSAD’s Anders motion and to affirm the judgment of 

conviction. 

¶ 3 BACKGROUND

¶ 4 In December 2016, a grand jury returned an indictment charging the defendant with 

reckless homicide (720 ILCS 5/9-3(a) (West 2016)) and aggravated driving under the influence of 

a drug, proximately causing the death of another (625 ILCS 5/11-501(a)(6), (d)(1)(F) (West 

2016)). The defendant allegedly drove a truck-tractor recklessly and under the influence of 

cocaine, thereby causing the death of Cheryl Culver.

¶ 5 In July 2017, the State filed a notice of intent to introduce recordings of 911 calls as 

spontaneous declarations or excited utterances. In August 2017, the State filed a notice of intent 

to impeach the defendant, should he choose to testify, with four Georgia felony offenses, namely: 

possession of cocaine, aggravated assault (two counts), and fleeing or attempting to elude a peace 

officer. The defendant was convicted of these Georgia offenses on May 21, 2004; he was released 

on parole on July 12, 2010. 

¶ 6 On September 15, 2017, the State, the defendant, and defense counsel appeared before the 

circuit court for a pretrial hearing. The court inquired as to whether the defendant, who was in 

custody, was receiving medications and whether those medications interfered with his 

understanding of “what’s going on” in court. The defendant answered that he had been given three 

medications—for pain, anxiety, and sleep—and he did not think that they interfered with his 

understanding. Defense counsel indicated that he had not detected any adverse effects from the 
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medications. The court seemed satisfied with these responses. It called a hearing on pretrial 

motions, disposing of or otherwise addressing several issues. Defense counsel then stated that the 

defendant wished to address the court on his written pro se motion for “substitution of attorney.” 

The judge said to the defendant, “I haven’t seen what you’ve prepared,” but he asked whether the 

defendant was dissatisfied with defense counsel. “To a degree, yes, sir,” the defendant answered. 

There followed a discussion about discovery, the viewing of discovery materials in jail, public 

defenders and their heavy caseloads, and defense counsel’s control over legal strategy. During 

this discussion, the defendant described defense counsel as “very capable.” At the end of the 

discussion, the judge said, “I’m going to take it as your oral request for me to appoint someone 

other than [defense counsel],” and the court denied the request. Later that same day, the court 

entered an order stating that the defendant’s “oral motion to substitute counsel” was denied. 

¶ 7 On September 18, 2017, three days after the above-described hearing, the defendant filed 

a pro se “motion for substitution of counsel.” Despite the style of the motion, the defendant did 

not seek to substitute counsel; he sought to represent himself. 

¶ 8 On November 9, 2017, the State, the defendant, and defense counsel appeared before the 

court and addressed the State’s notice of intent to introduce 911 calls, filed in July 2017, and its 

notice of intent to impeach the defendant with the Georgia felonies, filed in August 2017. Defense 

counsel stated that “it’s difficult to determine how much time has passed between when the [911] 

call was made and when this alleged incident occurred,” and he argued that this difficulty would 

make it impossible for the jury to use the calls to determine the case’s “strengths and weaknesses.” 

He also stated that if the 911 calls were admitted into evidence, the defendant would not be able 

to cross-examine the callers, in violation of the confrontation clause. The State stated that the 911 

calls described a truck-tractor’s movements on roadways in Fairview Heights and O’Fallon, 
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Illinois, prior to the truck-tractor’s collision that was at issue here. Under Davis v. Washington, 

547 U.S. 813 (2006), the State argued, 911 calls were not testimonial in nature. Wanting to listen 

to the 911 recordings before ruling, the court took the matter under advisement. Moving on to the 

four Georgia felonies with which the State wanted to impeach the defendant, the State and defense 

counsel disagreed as to whether the probative value of those convictions was substantially 

outweighed by the danger of unfair prejudice to the defendant under People v. Montgomery, 47 

Ill. 2d 510 (1971). In the end, the court admitted only one of the four prior convictions—the 

conviction for cocaine possession—for impeachment purposes. (The defendant’s pro se “motion 

for substitution of counsel” was not mentioned, by anyone.) 

¶ 9 On November 22, 2017, the State, the defendant, and defense counsel attended a pretrial 

hearing. The court stated that it wanted to listen to the 911 recordings again. Relevance was the 

primary issue, according to the court. “[T]he hearsay part of it I’m not focused on,” the court said. 

“I’m focused on the relevance of it.” (The defendant’s pro se “motion for substitution of counsel” 

was not mentioned, by anyone.) 

¶ 10 On November 27, 2017, minutes before the jury trial began, the parties met with the court 

and discussed the 911 calls as evidence. The court ruled that it would bar the use of that portion 

of the 911 recordings that included statements made by Zannia Adkinson, a Georgia resident whom 

both parties had sought to call as a witness but who was unavailable to testify. “I think it’s 

admissible as an exception to the hearsay rule,” the court explained, “but I still feel that there’s a 

balancing between prejudicial effect and probative value.” Adkinson, who was not named in the 

911 calls, is heard stating that she was “thrown” out of “the truck” by “Orlando Luke.” The court 

also barred the playing of any recorded reference to Adkinson’s statement that the driver had 

thrown her from the truck. (The defendant allegedly was driving a truck-tractor, with no trailer
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attached, at the time of the charged offenses.) The court thought that this statement about being 

thrown from the truck could be considered evidence of an uncharged crime, such as attempt 

murder. Other than those Adkinson-related portions, the court allowed the State’s playing of the 

911 recordings. (The defendant’s pro se “motion for substitution of counsel” was not mentioned, 

by anyone.)

¶ 11 With pretrial matters out of the way, the court conducted voir dire. A jury was selected.

¶ 12 During opening statement, defense counsel asked the jury to remember the name Zannia 

Adkinson and the difference between direct evidence and circumstantial evidence. He said that 

Adkinson was alleged to have been in the cab of the truck-tractor, along with the defendant, two 

to three miles before the accident occurred. “Why,” defense counsel asked rhetorically, “are they 

not having this witness testify in front of you to present direct evidence of what happened on 

November 8th, 2016?” Counsel went on to conclude his opening statement. The court then told 

the jury that “some issues [had] arisen” that needed to be addressed outside their presence, and he 

had the jury removed from the courtroom. Outside the presence of the jury, the court addressed 

defense counsel, saying, “you’ve done something here, and I’m very concerned about what you 

did” but that he was “not really sure what to do about it.” The court criticized counsel for 

“improperly taking advantage” of his ruling that the State could not play for the jury that portion 

of the 911 recordings that included statements by Adkinson. In response to the court’s question, 

defense counsel conceded that Adkinson was on his witness list, too. “But the State can’t make 

that argument,” the court stated, “because then that shifts the burden. They can’t do that.” As a 

remedy for defense counsel’s improperly suggesting that “the State is choosing not to call a 

witness,” the court reversed its prior ruling on the 911 recordings and “allow[ed] the State to play 

the complete tape.” Defense counsel objected.
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¶ 13 The State’s trial evidence showed that on November 8, 2016, at approximately 9:15 p.m., 

a white truck-tractor, with no trailer attached, was eastbound on Highway 50, approaching the 

intersection with Scott-Troy Road. The truck-tractor was in the left turn lane, and had a red light, 

as it proceeded straight into the intersection. It was traveling at least 60 miles per hour when it 

collided with a white Ford Ranger pickup truck, which was northbound on Scott-Troy Road, 

approximately halfway through the intersection with Highway 50. The truck-tractor hit the pickup 

truck on the bed of the driver’s side, and the impact sent the pickup truck spinning around multiple 

times before it came to rest in the grass approximately 50 feet northeast of the intersection. The 

bed of the pickup was destroyed, and both of the rear wheels were dislodged from the truck. The 

truck-tractor left no visible skid marks prior to hitting the pickup. After striking the pickup in the 

intersection, the truck-tractor continued eastbound on Highway 50. At a speed of approximately 

60 to 64 miles per hour, it hit a westbound Ford Escape that was moving at approximately 15 miles 

per hour, approaching the red light at the intersection with Scott-Troy Road. The impact pushed 

the Ford Escape backwards approximately 376 feet to the southeast, into the ditch south of 

Highway 50, where it landed upside-down. The Ford Escape’s entire front end—including the 

front axle, the hood, and the engine—were gone. Its engine flew through the rear of a Chrysler 

PT Cruiser, covering the driver’s side with motor oil, before landing in the street. From the driver’s 

seat of the upside-down Ford Escape, Cheryl Culver, age 67, was hanging from her seat belt. She 

showed no signs of life. No passengers were in the Ford Escape. Additional vehicles were 

damaged by flying car parts and debris, which were strewn about Highway 50

¶ 14 After hitting the Ford Escape, the truck-tractor continued eastbound for a short while, in 

the westbound lanes, and came to a stop on the north side of Highway 50, partially in the grass and 

partially in the entrance to Sweetwater Car Wash. The car wash was just to the east of a MotoMart, 
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which was at the northeast corner of the intersection of Highway 50 and Scott-Troy Road. The 

truck-tractor was a 2009 Kenworth. Appearing on the back and the driver’s side of the trucktractor were the logo of “L F Xpress” and the name of the town “Augusta, Ga.” The truck-tractor

was badly damaged, with its front axle dislodged and its hood ripped off and lying about 75 feet 

to the northwest. 

¶ 15 Mikayla Smith testified that on November 8, 2016, around 9 p.m., she was at work in 

O’Fallon, preparing to go to Denny’s on Highway 50 for dinner. Leaving work, she drove east on 

Highway 50, and she was just about to turn right onto the Denny’s parking lot when she saw a 

white truck-tractor, with no trailer attached, “flying right by me. He just about hit the back of my 

car.” She decided to follow the truck-tractor and called 911. She lost sight of the truck-tractor as 

it went around a curve on Highway 50, but she drove on. After approximately one mile in her 

pursuit, Smith stopped for the red light on Highway 50 at Lincoln Street. On the other side of 

Lincoln Street, she saw two cars with their hazard lights on and a woman “leaned over the hood 

of a car” in front of a McDonald’s. When her light turned green, Smith proceeded across Lincoln 

Street, stopped near the cars, and got out of her car. The woman “was distraught, and she looked 

really weak like she couldn’t hold herself up.” She was screaming very loudly and crying. “She 

yelled that he threw her out of the truck,” and when Smith asked who, the woman stated, “Orlando 

Luke.” Smith remained with the woman “until the ambulance took her away.”

¶ 16 For the jury, the State played approximately 10 minutes of recorded 911 calls. These calls

were from various people, were mostly anonymous, and consisted largely of callers describing a 

white truck-tractor, with no trailer attached, as it was driven fast and erratically on eastbound 

Highway 50 in O’Fallon, Illinois, and as it collided with other vehicles as it entered the intersection 

with Scott-Troy Road. Mikayla Smith’s 911 call was included. In it, Smith is heard speaking with 
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an unidentified but very distraught-sounding woman. The woman stated that she had been thrown 

from a truck-tractor by “Orlando Luke.”

¶ 17 Casey Allene Berberich, a college student, testified that on November 8, 2016, at 

approximately 9:15 p.m., she was turning right from Scott-Troy Road onto Highway 50, 

eastbound. She was stopped behind a car waiting to turn left into the MotoMart. As she started to 

move past the stopped car, she heard “an awfully loud noise” and the “clanking of metal.” As she 

moved further, she heard “a roaring sound” and saw “smoke, oil, car parts, [and] tires flying across 

the road in front of me.” She continued driving east on Highway 50, but after realizing that her 

car was dragging something underneath, she pulled over to the side of the road.

¶ 18 Right after Berberich pulled over, she saw to her right a truck-tractor. It was pointing east 

but was sitting in a small grassy area just north of Highway 50. A man got out of the driver’s side

of the truck-tractor. The man was “pretty quick” but “limping” as he headed north in “a sort of 

diagonal veering towards the car wash.” He walked up to a chain-link fence and “follow[ed] it 

back behind the car wash until he hit[ ] a wooden fence.” At that point, he turned a corner and 

disappeared from her view. Due to lighting at the car wash and the MotoMart, Berberich was able 

to see the man. “He was African American,” though not “very dark,” was “probably like middleaged,” and he wore “like a sweatshirt” that was dark in color and “black long pants, maybe like 

work pants.” She did not think he had facial hair; he definitely did not have a full beard, for she 

would have seen that easily. As for the truck-tractor, it was missing its hood. She did not know 

where the truck-tractor had come from, since she had not seen it in the intersection. “It came out 

of nowhere,” she said. Berberich also saw a car that was “completely flipped over” in a ditch.

¶ 19 Berberich further testified that “[m]aybe about two minutes” after the man departed from 

the truck-tractor, police officers arrived and began to search it. As she watched them, Berberich 
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realized that she “totally saw a man get out of the [truck-tractor]” and “make a break for it.” She 

got out of her car and told police all that she had seen. She made a statement on video and gave 

police her telephone number. The police mentioned something about identifying the man in a 

lineup, but they never got back to her. 

¶ 20 Joyce E. Walker testified that on November 8, 2016, at about 9 p.m., she was outside the 

house that was just to the east of the car wash on Highway 50, near Scott-Troy Road. She heard 

“crashes” and saw that all the cars on the road had stopped. A truck-tractor had stopped in front 

of the car wash, and a man in dark clothing stood next to the driver’s door. “He was limping” as 

he “took off” to the rear of the car wash and walked along a chain-link fence. He was heading in 

the direction of Scott-Troy Road at the time Walker lost sight of him.

¶ 21 Samantha Larson, a college student at Southern Illinois University-Edwardsville (SIU-E), 

testified that on November 8, 2016, she was a passenger in a car that was westbound on Highway 

50. As their car approached the intersection with Scott-Troy Road, Larson saw a truck-tractor

“coming quickly” toward them. They stopped. The truck-tractor braked and “swerved across the 

road in front of us. The hood of the [truck-tractor] went one way *** and the [truck-tractor] went 

the other way into a ditch and then into the parking lot.” Just one person was in the truck-tractor, 

“a darker man” who wore “all dark clothes.” The man “jumped out of the semi.” She “couldn’t 

get a good look at him” but “could see like his build.” He “was hopping on one foot” as he “ran 

towards the field” that was behind the car wash. Larson then lost sight of him.

¶ 22 Michael Adamson, an O’Fallon police officer, testified that on November 8, 2016, he was 

on patrol when he responded to radio traffic concerning a collison at Highway 50 and Scott-Troy 

Road. He drove his squad car from State Street, which becomes Old Vincennes Trail, and turned 

right, or south, onto Scott-Troy Road. As he drove south on Scott-Troy Road, Adamson saw “a 
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black male in dark-colored coveralls” on the west side of Scott-Troy Road, approximately 100 

yards north of the intersection with Highway 50. The man was walking north, away from the 

intersection with Highway 50, and with a “very apparent” limp. Adamson pulled over and talked 

to the man. A “large knot” on his forehead, a scratch on his face, and “some cuts on his hands” 

made Adamson think that the man had been involved in the accident. He asked the man for 

identification, and the man produced a Georgia identification card or driver’s license identifying 

him as Orlando Luke. Adamson identified the defendant as the man he encountered on Scott-Troy 

Road. 

¶ 23 Meanwhile, the police asked Larson, the SIU-E college student, whether she could identify 

the driver of the truck-tractor. When she said that she could, an officer drove her in a squad car to 

the place where the defendant had been stopped, for a showup. Adamson had the defendant stand 

near his squad car and shined a spotlight on him. Larson, sitting in the other officer’s squad car, 

looked at the suspect and said that she thought that he was the man she had seen get out of the 

truck-tractor. The police had the suspect “turn to the side” for Larson. At that point, Larson “said 

it was him.” The suspect “had the same build” and “was wearing the same clothes” as the man 

she had seen get out of the truck, Larson said. The officer who drove Larson to the showup testified 

that the suspect whom Larson identified was the defendant. Larson was the only witness who 

participated in a showup identification. Adamson placed the defendant in the back of his patrol 

car. The defendant was driven to a hospital and hence to the county jail.

¶ 24 The defendant’s wallet and contents were admitted into evidence. Inside the wallet were 

two Georgia commercial driver’s licenses for “Orlando Velentino Luke” and a VISA debit card

with the cardholder’s name “Orlando V. Luke” and underneath it, “L.F. XPRESS, Incorporated.”
11 

¶ 25 At approximately 2 a.m. on November 9, 2016, or approximately 43⁄4 hours after the 

collision between the truck-tractor and Cheryl Culver’s Ford Escape, urine and blood samples were 

collected from the defendant, pursuant to a search warrant. Illinois State Police forensic analysis 

showed that in the urine, cocaine and cocaine metabolites were detected. In the blood, no cocaine 

was detected, but benzoylecgonine, a cocaine metabolite, was found at 1440 micrograms per liter. 

¶ 26 An autopsy showed that Cheryl Culver had serious injuries to both the external surfaces 

and the internal organs of her body, including contusions to her head, abrasions on her torso and 

upper chest, lacerations on her liver and left lung, and broken bones in the right arm, right leg, and 

left thigh. Blood was found in both the thoracic and abdominal cavities. The cause of death was 

determined to be blunt thoracic, abdominal, and pelvic trauma.

¶ 27 For the defense, Dr. Sarah Riley, the director of the Forensic Toxicology Laboratory at 

Saint Louis University, testified as an expert that she reviewed the lab work performed by the 

Illinois State Police on the defendant’s urine and blood. In urine, Riley explained, the presence of 

a drug indicates “exposure to a drug at some point in the past.” Cocaine’s presence in the 

defendant’s urine cannot establish that the defendant was impaired. As for the blood, Riley 

testified that the presence of benzoylecgonine, which was found in the defendant’s blood, cannot 

cause any impairment; it has no effect on the body’s physiology. The half-life of cocaine “can be 

anywhere from a half hour to an hour and a half,” and therefore the time lapse from the traffic 

incident to the drawing of the blood could have permitted the cocaine to go through “several half 

lives.” If the blood had been drawn sooner, cocaine may have been detected in the blood. Riley 

could not say whether the defendant had cocaine in his blood at the time of the traffic incident, but 

his blood must have had cocaine in it at some point in order for the benzoylecgonine to be present. 

Under cross-examination by the State, Riley testified that the data showed “a possibility” that the 
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defendant was impaired at the time of the traffic incident, but the data could not prove 

“definitively” that he was impaired. The presence of benzoylecgonine in the blood, she said, “only 

tells me that there had been cocaine ingestion most likely within six hours.” To Riley, 1440 

micrograms of benzoylecgonine per liter of blood did not seem like a “shockingly high number. 

It’s just like, okay, this is a cocaine user.” The State asked, “He is a cocaine user?” Riley 

answered, “Yes.”

¶ 28 The defendant also testified, against the advice of counsel. He testified that he had driven 

his truck-tractor, with a trailer attached, from Augusta, Georgia, to Illinois. Zannia Adkinson was 

his passenger. On November 8, 2016, the two checked into a motel in Fairmont, Illinois. The 

defendant parked his rig on the motel’s parking lot. During their stay at the motel, the defendant 

and Adkinson had several arguments. During the evening of November 8, the defendant went to 

inspect his rig. A system detected that something was wrong with the air pressure, and the 

defendant disconnected the air hoses. In the cab of the truck-tractor, the defendant did some 

paperwork. Feeling exhausted and strange, he locked his door and went to sleep in the cab of the 

truck. The defendant was not sure whether “the shaking of the truck” woke him, but he did awake 

to find two people in the cab—a tall, dark-skinned man with a slender build and dreadlocks who 

was wearing dark clothes, and Adkinson. “There was a strong box in their hand, which was my 

strong box.” The strong box contained more than $3000 that the defendant had allocated for 

expenses during the trip to Illinois. The defendant began to fight the tall, slender man and 

Adkinson. “[T]hings went black” and “[t]hat was the last thing I can remember outside of someone 

buffeting me and having me at the hospital, telling me, you kill people, you kill people.”

¶ 29 On cross-examination by the State, the defendant acknowledged that he owned the trucktractor found at the car wash on Highway 50, and that he had driven it from Georgia to Illinois, 
13 

however, he could not have been the only one driving it on November 8, 2016, and he definitely 

did not drive it on the evening of November 8. To the best of his memory, he last drove the truck 

when he parked it at the motel. As for running from the truck, the defendant said that he had not 

run anywhere in 20 years, due to suffering from reflex sympathetic dystrophy, a disease that 

precludes him from bearing his body weight on his right leg. In rebuttal, the State presented a 

certified copy of the defendant’s May 2004 conviction for felony possession of cocaine in Screven 

County, Georgia.

¶ 30 During closing argument, the main focus of defense counsel was identification. Counsel 

asserted that the State had not proved that the defendant was the driver of the truck-tractor. The 

secondary argument, taking up just two paragraphs in the transcript, was that the State had failed 

to prove that the defendant was impaired.

¶ 31 The jury found the defendant guilty of reckless homicide and aggravated driving under the 

influence of a drug, as charged. 

¶ 32 On January 18, 2018, the court held a hearing in aggravation and mitigation, and sentenced 

the defendant to 14 years of imprisonment, and 2 years of mandatory supervised release, for the 

charge of aggravated driving under the influence of a drug, proximately causing the death of 

another. The charge of reckless homicide was found to have merged with that charge, and 

therefore no sentence was imposed thereon. (The defendant’s pro se “motion for substitution of 

counsel” was not mentioned, by anyone.)

¶ 33 On January 24, 2018, the defendant filed two motions—a motion for new trial and a motion 

to reconsider sentence. In the former motion, he alleged, inter alia, that the State failed to prove 

him guilty beyond a reasonable doubt, and that the court erred in allowing the State to play “all 

911 recordings” for the jury. In the latter, the defendant alleged, inter alia, that the sentence was 
14 

excessive. On April 5, 2018, the court held hearings on those two motions and denied them both. 

(The defendant’s pro se “motion for substitution of counsel” was not mentioned, by anyone.) 

¶ 34 The defendant filed a timely notice of appeal and an amended notice of appeal. The circuit 

court appointed OSAD to represent the defendant on appeal.

¶ 35 ANALYSIS

¶ 36 This appeal is from a judgment of conviction. As previously mentioned, the defendant’s 

appointed attorney on appeal, OSAD, has filed an Anders motion to withdraw as counsel on the 

basis that this appeal lacks merit, and the defendant has not filed a response. This court has 

examined OSAD’s Anders motion and brief, and the entire record on appeal, and shares OSAD’s

overall assessment of the case.

¶ 37 In its Anders brief, OSAD addressed four potential issues in this case, viz.: (1) whether the 

circuit court committed reversible error in failing to act on the defendant’s motion to represent 

himself; (2) whether the circuit court erred in admitting, for purposes of impeachment, evidence 

of the defendant’s prior conviction for cocaine possession; (3) whether the circuit court erred in 

admitting all of the 911 recordings pertaining to the reckless driving of the truck-tractor; and 

(4) whether defense counsel provided ineffective assistance, or whether the evidence was 

insufficient to find the defendant guilty beyond a reasonable doubt. None of these potential issues 

has any merit.

¶ 38 The first of OSAD’s four potential issues is whether the circuit court committed reversible 

error in failing to act on the defendant’s motion to represent himself. A defendant has a 

constitutional right to waive counsel and to represent himself. Faretta v. California, 422 U.S. 806, 

818 (1975); People v. Burton, 184 Ill. 2d 1, 21 (1998). However, a defendant’s invocation of that 

right must be “clear and unequivocal, not ambiguous.” Burton, 184 Ill. 2d at 21. Furthermore, 
15 

even if he makes a clear and unequivocal invocation of the right, he may subsequently abandon

his request to proceed pro se, and acquiesce in representation by counsel, through his own conduct. 

Id. at 23-24 (collecting cases). That is what happened here. The defendant filed his request to 

proceed pro se—incorrectly styled a “motion for substitution of counsel”—on September 18, 

2017. However, in the following months, the court held at least two substantive pretrial hearings, 

a jury trial, and a sentencing hearing, and the defendant, despite being present, never brought the 

motion to the court’s attention. He never requested a ruling on the motion. Indeed, he never even 

mentioned the motion. “A defendant may forfeit self-representation by remaining silent at critical 

junctures of the proceedings.” Id. at 24. Here, the defendant forfeited self-representation through 

his silence. 

¶ 39 The second of OSAD’s four potential issues is whether the circuit court erred in admitting, 

for purposes of impeachment, evidence of the defendant’s prior conviction for cocaine possession. 

The defendant did not raise this issue in his posttrial motion, thereby forfeiting it on appeal. See 

People v. Enoch, 122 Ill. 2d 176, 186 (1988). Even if this issue had been properly preserved, it 

would not have helped the defendant.

¶ 40 Evidence of a prior conviction is admissible to impeach a defendant’s credibility if (1) the 

crime was punishable by death or imprisonment for more than one year, or involved dishonesty or 

a false statement; (2) less than 10 years has elapsed since the defendant was convicted or released 

from confinement, whichever is later; and (3) the risk of unfair prejudice does not substantially 

outweigh the probative value of admitting the convictions. Ill. R. Evid. 609(a) (eff. Jan. 1, 2011); 

People v. Montgomery, 47 Ill. 2d 510, 516 (1971). The circuit court has discretion in deciding 

whether to allow the State to use a prior conviction for impeachment purposes. People v. Mullins, 

242 Ill. 2d 1, 15 (2011). This court will reverse the ruling only if it represents an abuse of 
16 

discretion. People v. Melton, 2013 IL App (1st) 060039, ¶ 17. An abuse of discretion will be 

found only where the circuit court’s ruling is arbitrary, or when it substantially prejudices the 

defendant by exceeding the bounds of reason and ignoring recognized principles of law. Id. ¶ 18. 

¶ 41 Here, it is undisputed that the defendant’s prior Georgia conviction for cocaine possession 

satisfied the first two prongs of Illinois Rule of Evidence 609(a)—it was a crime punishable by 

imprisonment for more than one year, and less than 10 years had elapsed since the defendant was 

released from confinement. Furthermore, the transcript of the November 9, 2017, pretrial hearing 

makes clear that the circuit court engaged in the type of balancing of unfair prejudice and probative 

value that is required by the third prong of Rule 609(a). It could be argued that a cocainepossession conviction increased the danger of unfair prejudice where the defendant was on trial 

for driving under the influence of cocaine. More specifically, the conviction may have created an 

impression that the defendant was a habitual user of cocaine. However, this danger was addressed 

by an instruction that the jury could consider the prior conviction “only as it may affect [the 

defendant’s] believability as a witness,” and could not consider it as evidence that the defendant

was guilty of the crimes charged in the instant case. Also, the impression that the defendant was 

a habitual user of cocaine was created far more strongly by the defendant’s own expert, Dr. Sarah 

Riley, who testified that the defendant was “a cocaine user.” The circuit court did not abuse its 

discretion in admitting, for impeachment purposes, evidence of the defendant’s prior conviction 

for cocaine possession. See also People v. Atkinson, 186 Ill. 2d 450, 463 (1999) (no abuse of 

discretion in allowing defendant, on trial by jury for burglary, to be impeached by his two prior 

convictions for burglary). 

¶ 42 The third of OSAD’s four potential issues is whether the circuit court erred in admitting all 

of the 911 recordings pertaining to the reckless driving of the truck-tractor. The United States 
17 

Constitution and the Illinois Constitution guarantee a criminal defendant the right to confront his 

accusers. U.S. Const., amend. VI; Ill. Const. 1970, art. I, § 8. However, hearsay statements made 

to a 911 operator may be admitted against a defendant without violating the confrontation clause, 

because those statements are not testimonial. Davis v. Washington, 547 U.S. 813, 828-29 (2006). 

“Statements are nontestimonial when made in the course of police interrogation under 

circumstances objectively indicating that the primary purpose of the interrogation is to enable 

police assistance to meet an ongoing emergency.” Id. at 822. Whether a statement was testimonial 

is a question of law, and appellate review is de novo. People v. Sutton, 233 Ill. 2d 89, 112 (2009).

¶ 43 Here, the 911 calls admitted at the defendant’s trial were definitely nontestimonial. Almost 

all of the statements made during those calls, from various callers, were contemporaneous reports 

of where the errant truck-tractor was going (e.g., “headed eastbound on Highway 50”), what it was 

doing (e.g., “he just like flew past me in a turn lane”), and the immediate results (e.g., “there’s 

been a bad accident on Highway 50 *** at Scott-Troy Road”) so as to enable police to understand 

and to meet the emergency.

¶ 44 The 911 recordings were offered into evidence as an excited-utterance, or spontaneousdeclaration, exception to the hearsay rule. Hearsay is an out-of-court statement offered to prove 

the truth of the matter asserted. Ill. R. Evid. 801(c) (eff. Oct. 15, 2015). Generally, it is 

inadmissible. Ill. R. Evid. 802 (eff. Jan. 1, 2011). An exception is made for a statement deemed 

an “excited utterance,” which is defined as “[a] statement relating to a startling event or condition 

made while the declarant was under the stress of excitement caused by the event or condition.” Ill. 

R. Evid. 803(2) (eff. Apr. 26, 2012). The excited-utterance exception to the hearsay rule is 

essentially the same as the spontaneous-declaration exception and is analyzed similarly. See 

Sutton, 233 Ill. 2d at 101; People v. Perkins, 2018 IL App (1st) 133981, ¶ 68. “For a hearsay 
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statement to be admissible under the spontaneous declaration exception, (1) there must be an 

occurrence sufficiently startling to produce a spontaneous and unreflecting statement, (2) there 

must be an absence of time for the declarant to fabricate the statement, and (3) the statement must 

relate to the circumstances of the occurrence.” People v. Williams, 193 Ill. 2d 306, 352 (2000). 

“In determining whether a hearsay statement is admissible under the spontaneous declaration 

exception, courts employ a totality of the circumstances analysis,” examining factors such as the 

nature of the occurrence, the passage of time between the occurrence and the making of the 

statement, the mental and physical condition of the person making the statement, and the presence 

or absence of self-interest. Id. The admission of evidence is reviewed for an abuse of discretion, 

which will be found only if the circuit court’s ruling is arbitrary, fanciful, unreasonable, or where 

no reasonable person would take the view adopted by the court. People v. Herring, 2018 IL App 

(1st) 152067, ¶ 62. 

¶ 45 Here, all of the 911 statements were made contemporaneously with the truck-tractor’s rapid 

and erratic movement on Highway 50—a startling event, to be sure. They were made under the 

stress of excitement caused by the event, and with no time to fabricate. Accordingly, their 

admission was not an abuse of discretion.

¶ 46 The fourth of OSAD’s four potential issues was whether defense counsel provided 

ineffective assistance, or whether the evidence was insufficient to find the defendant guilty beyond 

a reasonable doubt. A claim of ineffective assistance of counsel requires the defendant to 

demonstrate both (1) that counsel’s performance fell below an objective standard of 

reasonableness and (2) that there is a reasonable probability that, but for counsel’s unprofessional 

errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 

668, 687-88, 694 (1984). Here, defense counsel may have erred in his opening statement to the 
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jury, when he asked rhetorically, “Why are they not having this witness [Zannia Adkinson] testify 

in front of you to present direct evidence of what happened on November 8th, 2016?” The court 

found that defense counsel had improperly suggested that the State was choosing not to call a 

witness, and for a remedy the court reversed its prior ruling on the 911 recordings and allowed the 

State to play the recordings in their entirety. However, even if counsel’s performance was 

deficient, there is no reasonable probability that, but for counsel’s error, the result of the trial would 

have been different. The evidence of guilt was simply too great. 

¶ 47 After the horrific crashes in or near the intersection of Highway 50 and Scott-Troy Road 

in O’Fallon, including the one that killed Cheryl Culver, the white truck-tractor came to rest in 

front of a car wash. Three unrelated witnesses testified that they saw one person—and only one

person—get out of that truck-tractor and limp to the back of the car wash. At least one of those 

three witnesses, Joyce E. Walker, testified that she saw the driver head in the direction of ScottTroy Road. On Scott-Troy Road, about 100 yards north of the intersection with Highway 50, 

Officer Michael Adamson stopped the defendant, who had a “large knot” on his head and other 

minor injuries consistent with a vehicular crash, as he limped northward, away from the collisions. 

In a showup, the defendant was promptly identified by another of those three unrelated witnesses, 

Samantha Larson, as the man who had gotten out of the truck-tractor. Perhaps more importantly, 

in terms of tying the defendant to the truck-tractor, the defendant’s wallet contained a VISA debit 

card with the defendant’s own name and the name “L.F. XPRESS, Incorporated,” and the semitruck itself had the logo of “L F Xpress” emblazoned on it. Furthermore, the defendant had a 

commercial driver’s license from the State of Georgia and the truck-tractor’s writing indicated that 

it was from “Augusta, Ga.” It is difficult to imagine a stronger case of identification built on 

circumstantial evidence.
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¶ 48 Also, forensic analysis showed that in the defendant’s urine, cocaine and cocaine 

metabolites were detected, and in his blood, benzoylecgonine, a cocaine metabolite, was found at 

1440 micrograms per liter. The statute for driving under the influence of a drug states that a person 

“shall not drive or be in actual physical control of any vehicle” while there is “any amount of a 

drug, substance, or compound in the person’s breath, blood *** or urine resulting from the 

unlawful use or consumption of a controlled substance.” 625 ILCS 5/11-501(a)(6) (West 2016). 

Impairment was not necessary for a finding of guilt; cocaine or a metabolite in the blood or urine 

was enough. The death of Cheryl Culver, proximately caused by the defendant’s driving under 

the influence, elevated the offense to an aggravated offense. Id. § 11-501(d)(1)(F). Looking at 

the evidence in the light most favorable to the State, any rational trier of fact could have found, 

beyond a reasonable doubt, the essential elements of aggravated driving under the influence of a 

drug, proximately causing the death of another. See People v. Hagberg, 192 Ill. 2d 29, 33-34 

(2000) (standard of review for insufficient-evidence claims).

¶ 49 As if the State’s case against the defendant were not strong enough by itself, the defendant 

disregarded the advice of counsel and testified on his own behalf. The defendant connected 

himself to the truck-tractor by acknowledging that he, in fact, owned it, and he stated that he had 

recently driven it from Augusta, Georgia. After that, the defendant’s testimony quickly veered off 

into the ridiculous, with a tale of his falling asleep in the cab of the truck-tractor, his waking up to 

an attempted robbery of his strong box by an unknown male and Zannia Adkinson, and his 

immediate and sudden loss of consciousness (“things went black”) until he woke up in the hospital. 

There was no explanation of how the defendant ended up on Scott-Troy Road at the time of the 

collisions. The defendant should have listened to his attorney, who generally did a fine job with 

the little he had to work with. 
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¶ 50 CONCLUSION

¶ 51 All four of the potential issues addressed by OSAD are completely without merit. Also, 

this court has not found, on its own, any issue of arguable merit. Accordingly, this court grants 

OSAD’s Anders motion for leave to withdraw as counsel and affirms the judgment of conviction 

entered by the circuit court. 

¶ 48 Motion granted; judgment affirmed.