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People v. McKinley

Court of Appeals of Illinois, Third District

March 21, 2017

JAMES W. McKINLEY, Defendant-Appellant.

         Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois, Appeal No. 3-14-0752 Circuit No. 13-CF-2454 Honorable Edward A. Burmila, Jr., Judge, Presiding.

          JUSTICE CARTER delivered the judgment of the court, with opinion. Justice O'Brien specially concurred, with opinion. Presiding Justice Holdridge dissented, with opinion.



         ¶ 1 Defendant, James W. McKinley, appeals from his conviction for aggravated driving under the influence of alcohol (DUI) arguing that, during jury deliberations, the circuit court erred in allowing the jury to view the videotape of defendant's traffic stop and field sobriety tests in the courtroom instead of the jury room. We affirm.

         ¶ 2 FACTS

         ¶ 3 Defendant was charged with aggravated DUI (625 ILCS 5/11-501 (a)(2), (d)(2)(B) (West 2012)). The case proceeded to a jury trial. The only evidence presented at trial was the State's presentation of testimony from two troopers and the patrol vehicle dash camera videotape of the incident.

         ¶ 4 Jeremy Kunken testified that he had been a trooper for the Illinois State Police since February 2013. During his training at the Illinois State Police Academy, he was trained on DUI detection and enforcement, specifically "[d]etecting the odor of alcohol, the administration of field sobriety tests, and the use of the Intoxilyzer." He was also trained to detect certain "cues and clues" in someone under the influence of alcohol, including red, glassy eyes, the odor of alcohol, slurred speech, and a particular gait.

         ¶ 5 Kunken stated that on November 10, 2013, he was assigned patrol on Interstate 55. At approximately 1:20 a.m., Kunken observed a black Kia vehicle "driving at a high rate of speed." He clocked the vehicle's speed at 99 miles per hour in a 55-mile-per-hour zone. After he determined the vehicle's speed, he initiated a traffic stop. The vehicle pulled over to the right lane, partially on the fog line. Kunken's vehicle was equipped with video recording equipment, which recorded the traffic stop. He agreed that the videotape was a true and accurate depiction of the traffic stop. Kunken approached the passenger side of the vehicle and identified defendant as the driver. He then asked defendant for his driver's license and proof of insurance. During the encounter, defendant's speech was not slurred, and Kunken did not have any difficulty understanding him. Kunken did not immediately smell alcohol. Defendant handed Kunken his insurance and his work driving permit. Kunken then asked defendant where he was coming from. Defendant stated that he was on his way home from work. Kunken said defendant had first stated that he was coming from work in Burr Ridge and then said Romeoville. Kunken asked defendant if he had been drinking. Kunken asked defendant to exit the vehicle. After defendant exited the vehicle, Kunken observed that defendant's eyes were red and glassy. As Kunken spoke with defendant, he detected a strong odor of alcohol on his breath. Defendant denied consuming alcohol multiple times but then admitted to having two shots of Grey Goose. Defendant ultimately admitted he was coming from a bar in Romeoville, but Kunken did not remember which bar.

         ¶ 6 Kunken administered field sobriety tests. He first administered the horizontal gaze nystagmus (HGN) test. Based on the HGN test, Kunken determined that defendant had consumed alcohol. He observed, "[t]he lack of smooth pursuit in his eyes, the distinctive and sustained nystagmus and maximum deviation, and [defendant] had nystagmus prior to 45 degrees." While administering the test, Kunken again noticed a strong smell of alcohol. Kunken then administered the walk-and-turn test. Kunken determined that defendant failed the test because "[h]e started before [Kunken] finished giving the instructions. He lost his balance during the instruction phase. He stepped off the line, and he missed heel-to-toe steps. He made an incorrect turn, and he also used his arms for balance during the test. And he also stopped walking during the test for balance." Kunken also determined that defendant failed the one-leg stand test because "[h]e put his foot down multiple times. He was swaying, and he also used his arms for balance." Based on defendant's performance on the field sobriety tests, the strong odor of alcohol, the admission of drinking, and the red, glassy eyes, Kunken determined that defendant was under the influence of alcohol and unable to operate a motor vehicle. Kunken then arrested defendant. Defendant refused to submit to a breathalyzer test.

         ¶ 7 Nathan Schramka then testified that he was also a trooper with the Illinois State Police, had been employed as such for seven years, and had undergone specialized training in alcohol and DUI detection, including field sobriety tests. He had made between 275 and 300 DUI arrests. On the night in question, he stopped to assist Kunken. At the scene, he approached the car with Kunken. Schramka also stated that the videotape fairly and accurately depicted the events of the evening. Schramka agreed that defendant stated both that he was coming from Burr Ridge and Romeoville. Once defendant exited the vehicle, Schramka detected a strong odor of alcohol coming from defendant's breath and noticed that his eyes were bloodshot. Defendant first said he had not been drinking and then admitted that he drank two shots of Grey Goose. Schramka stated that he never had a hard time hearing Kunken's instructions to defendant regarding the field sobriety tests. Based on Schramka's observations of defendant, he determined that defendant had failed the field sobriety tests, was under the influence of alcohol, and was unable to safely operate a motor vehicle. Schramka did not make a report, as it was not typical for backup officers.

         ¶ 8 The videotape showed Kunken pulling defendant over. Kunken then approached defendant's vehicle. Once Kunken was outside the police car, the background noise from the wind and the traffic was a little loud, though the majority of the officer's interaction with defendant could be heard. Kunken told defendant he was speeding, and defendant stated, "I'm just trying to get home, because I know I'm a little late. I'm a little late. I'm trying to get home from work." Defendant said he got off work at 9 p.m. He said he worked in Burr Ridge. Kunken then asked where defendant was coming from at that time. Defendant said he was coming from Romeoville. Schramka noticed that defendant was wearing a wristband and asked where he had been that required wristbands. Kunken said that he did not believe defendant was telling him the truth about being at work. Kunken then had defendant step out of the vehicle. Defendant stated multiple times that he was coming from work. Schramka asked how much alcohol he had to drink, stating that he could smell the alcohol on defendant. Defendant stated that he had not had any. He then admitted to having two shots of Grey Goose about 30 minutes prior. He said he had stopped at the Brunswick Zone after work, which was where he had gotten the wristband.

         ¶ 9 The videotape then showed Kunken initiating the field sobriety tests. Kunken first had defendant perform the HGN test. Next, Kunken initiated the walk-and-turn test. Kunken told defendant to hold the starting position until he told him to start. Defendant had a hard time remaining in the starting position. Defendant practiced a couple of times to make sure that he was doing it right. He then said that he was having a hard time hearing Kunken. Kunken moved closer and explained. Defendant demonstrated the turn to Kunken to make sure that he was doing it correctly. Kunken showed defendant again. Defendant said he wanted to see Kunken do the whole thing, but Kunken said no because he would then be out in the road, but Kunken showed some steps and turns. Defendant stated he understood what Kunken was telling him to do. Defendant started once, stepped out, and was not counting the steps. He then started again. Instead of leaving his front foot planted and taking small steps to turn with his back foot, as he was instructed to do, defendant planted his back foot and took small steps with his front foot. Lastly, Kunken administered the one-leg stand test. Defendant started before Kunken told him to. Once he began, defendant forgot to count out loud. He then started and stopped three times. After 12 seconds, defendant again put his foot down, saying that Kunken could "have him count to 100." Kunken said he would not have him count to 100. Defendant started again but again stopped before Kunken told him to. Defendant was then arrested.

         ¶ 10 The State rested, and defendant did not present any evidence.

         ¶ 11 While in deliberations, the jury sent a question to the judge asking if jurors could see the videotape again. The judge brought the jury back into the courtroom and said:

"You can see the video again. You can see that we brought the equipment here, and we are going to play that for you momentarily.
Two things that you need to know, however. No one will make any additional comments about the video, and there won't be any questioning of any of the attorneys or anything along those lines. We'll simply play the video, and then you can make whatever observations you would choose to make.
*** The other thing that I need for you to know is graciously Judge David Carlson has agreed to sit in here and monitor the playing of the video. As I told you, we have two court calls in process. I am going to be across the hall in that courtroom, but you can never have anything occur in a case without a judge being present. And as I said, Judge Carlson has graciously agreed to monitor this for us.
So they are going to set the video up. Judge Carlson will be here in my stead. And, of course, if you have any other questions, provide them to the bailiff and ...

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