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People v. Tatera

Court of Appeals of Illinois, Second District

May 15, 2018

MICHAEL G. TATERA, Defendant-Appellant.

          Appeal from the Circuit Court of McHenry County. No. 12-CF-1122 Honorable Sharon L. Prather, Judge, Presiding.

          JUSTICE BIRKETT delivered the judgment of the court, with opinion. Presiding Justice Hudson and Justice Jorgensen concurred in the judgment and opinion.



         ¶ 1 Following a brief jury trial in the circuit court of McHenry County, defendant, Michael G. Tatera, was convicted of the offense of aggravated driving under the influence of alcohol (DUI) (625 ILCS 5/11-501(a)(2), (d)(1)(A) (West 2012)), and he was sentenced to an eight-year term of imprisonment. Defendant appeals, arguing that (1) the evidence was insufficient to convict him of the offense beyond a reasonable doubt, (2) the trial court erred in allowing the jury to view a part of the video of defendant's arrest that depicted an improperly conducted field sobriety test, (3) the State shifted the burden of proof in its rebuttal closing argument, and (4) the trial court improperly used a double enhancement in fashioning his sentence. We affirm.

         ¶ 2 I. BACKGROUND

         ¶ 3 We summarize the pertinent facts appearing in the record. Officer Rich Kresen of the Spring Grove Police Department, the sole witness presented at trial, testified that, on October 6, 2012, at about 8:57 p.m., he was on duty in a marked police car. The car's video-recording system was on and operating. The audio-recording system was partially working; the microphone inside the cabin of the car was fully working, but Kresen's body microphone was not functioning. Kresen's car was parked on the side of the road, facing east, at the intersection of Main Street and Blivin Road in Spring Grove. At that time, Blivin Road was completely blocked due to a large hole that opened in the westbound lane. The blockade of Blivin Road extended from Main Street to Lorraine Street. A number of orange and white reflective barricades had been erected around the hole, along with barricades marked with signs indicating "road closed to through traffic."

         ¶ 4 At 8:57 p.m., Kresen observed a car traveling west on Blivin Road, through the blocked portion of the road. As the car approached, Kresen observed it exit the westbound lane into the eastbound lane to avoid the large hole and its surrounding barricades. Kresen testified that the car did not strike any of the barricades or cones that had been emplaced. Once the car reached the corner of Blivin Road and Main Street, it turned right. The car came to a full stop before it entered northbound traffic on Main Street. Kresen followed the car.

         ¶ 5 As Kresen followed the car, he did not see it weave or cross either the center line or the fog line of the road. Kresen activated his emergency lights and shined his spotlight on the car to indicate that it should pull over. After up to 10 seconds, the driver turned on the car's right signal light and pulled to the side of the road. The car did not drive into the ditch at the side of the road; it smoothly pulled to a stop, straddling the fog line, with its right-side tires on the gravel shoulder and parallel with the fog line.

         ¶ 6 Kresen identified defendant in court as the person who was driving the car. (When Kresen made the identification, defendant, apparently in jest, pointed at one of his lawyers.) Kresen testified that, when he approached the vehicle, he detected a moderate odor of an alcoholic beverage. Defendant produced his Wisconsin driver's license without any fumbling or difficulty. Kresen asked defendant where he was going and defendant stated, "Wisconsin." Kresen asked defendant where he was coming from, and he again stated, "Wisconsin." Kresen said to defendant that his answers did not make any sense. Defendant then informed Kresen that he was lost and was just trying to make it home. Kresen informed defendant that he was in Illinois.

         ¶ 7 During the exchange, Kresen observed that defendant's eyes were "glassy." Based on defendant's driving through the closed road, the appearance of his eyes, and the odor of alcohol, in light of his training and experience, Kresen suspected that defendant might be under the influence of alcohol. Kresen asked defendant if he had had anything to drink, and defendant denied that he had. Kresen asked defendant to get out of his car, and defendant complied. As he exited his car, defendant did not stumble or hold onto the car. He walked to the front of Kresen's squad car with no apparent difficulties.

         ¶ 8 Kresen told defendant to stand with his feet together and his hands at his sides. At first, defendant complied, but then he seemed to shrug and placed his hands in his pockets. Kresen again directed defendant to place his hands at his sides. Kresen testified that it was a cool October evening, and, when asked if it had been "cold, " he emphasized that it was "cool." The recording did not appear to show that either Kresen's or defendant's breath was steaming in the night air. After being directed for the second time to place his hands at his sides, defendant briefly complied, again appeared to shrug, and again placed his hands in his pockets. Kresen testified that, based on these actions, he concluded that defendant was not following his instructions. Kresen also testified that, as this interaction in front of the squad car was taking place, he continued to smell a moderate odor of alcohol on defendant's breath.

         ¶ 9 Kresen testified that he sought to conduct field sobriety tests to assess defendant's balance and ability to follow instructions. In particular, Kresen explained, he was attempting to have defendant perform the one-leg-stand test. Kresen explained that it simulates a divided-attention task, such as driving a car, because the subject is required to balance on one foot while reciting a string of numbers in a particular fashion. According to Kresen, he instructed defendant to stand with his feet together and to place his arms at his sides. Kresen testified that defendant did not initially follow these instructions, because he once again placed his hands in his pockets. After another instruction to remove his hands from his pockets, Kresen then instructed defendant to raise one foot (defendant's choice as to which foot) about six inches with the toe pointed forward and to count: one thousand one, one thousand two, and so on. Kresen then demonstrated the one-leg-stand test for defendant and instructed defendant to begin.

         ¶ 10 Defendant asked Kresen to explain the test again. Kresen refused, telling defendant that he was not going to explain it again. Kresen testified that he believed that defendant understood the instructions. At this point, defendant became visibly agitated. Kresen testified that defendant exclaimed, "just arrest [me], " and refused to perform any tests. At that point, Kresen decided to arrest defendant. Kresen testified that he made the decision to arrest based on his observation of defendant ignoring the "road closed" signs and driving through a dangerous portion of Blivin Road, defendant's failure to immediately pull over when Kresen activated his flashing lights, defendant's apparent confusion upon the initial questioning, defendant's glassy eyes, the odor of alcohol in the car and on defendant's breath, defendant's failure to follow Kresen's instructions, defendant's failure and refusal to complete the field sobriety tests, and defendant's sudden agitation and argumentativeness when Kresen would not instruct defendant a second time about the one-leg-stand test. When defendant became agitated, refused to perform any tests, and exclaimed, 'just arrest [me], " Kresen obliged and placed defendant under arrest. Kresen handcuffed defendant. Defendant was fully compliant with the remaining arrest procedures.

         ¶ 11 Once defendant was in the car, the cabin microphone picked up defendant sighing, but beyond that, defendant was entirely quiet. Kresen testified that defendant was taken to the police station, where he was observed for a period of time. During that time, defendant was compliant and quiet; he did not curse or otherwise berate Kresen or the other police officers, and defendant did not fall asleep or ask to use a restroom. Defendant was asked to perform a breath test, but defendant refused.

         ¶ 12 On cross-examination, Kresen admitted that he did not ask defendant if he had allergies or another illness that could have potentially explained why defendant's eyes were glassy. After placing defendant under arrest, Kresen did not find any open containers of alcohol or any other contraband in the car or on defendant's person.

         ¶ 13 Following defendant's arrest, he was indicted on two charges of aggravated DUI, with count I alleging a Class X felony, because defendant had seven previous convictions of DUI, and count II containing the same allegations but charging a Class 1 felony. Before trial, the State nol-prossed count II.

         ¶ 14 At trial, after Kresen gave the testimony summarized above, a video of the arrest was published to the jury. In the video, 21 seconds of Kresen's administration of the horizontal gaze nystagmus (HGN) test was redacted. Defendant had filed a motion in limine seeking to preclude the entirety of the HGN test on the grounds that Kresen had not properly administered the test. The State agreed that Kresen had not properly administered the test, but it argued that the first portion of the test should nevertheless be admitted and published to the jury because, in that first portion, defendant was seen placing his hands in his pockets, taking them out at Kresen's apparent direction, and then placing them back in his pockets, at which point Kresen apparently did not again instruct defendant to remove them. The trial court agreed that the State could show the jury the first portion of the test to illustrate defendant's behavior and inability to comply with Kresen's instructions. We note that Kresen testified generally about field sobriety tests and never mentioned the HGN test by name or explained any of his actions in conducting the HGN test. The trial court instructed the jury that the video was redacted because "there [was] nothing relevant contained on that portion of the video."

         ¶ 15 During the State's rebuttal closing argument, the prosecutor remarked:

"That's why they have these DUI evaluations, that's why they send these officers to training, because somebody's not going to simply state 'I'm a drunken mess, arrest me.' Oh, wait a minute, he did say 'go ahead and arrest me.' That's consciousness of guilt.
Don't be blinded by the defense attorney saying he was able to do this, he was able to do that. He didn't show a sign here, he didn't show a sign there. Don't be blinded to the signs that he did show, the obvious signs. We don't know how he would have done on the physical portion of those field sobriety tests, we don't know what his breath alcohol level was, because he refused to do those things. That's called consciousness of guilt. If he wasn't guilty, why didn't he take the test-
[DEFENSE COUNSEL]: Objection, Judge, burden shifting.
THE COURT: Overruled.
[THE STATE]: That's called consciousness of guilt."

         ¶ 16 Later in the rebuttal closing argument, the prosecutor remarked:

         "There is one more decision, though, that you heard about, a decision that's absolutely telling about his consciousness of guilt and that you can infer his consciousness of guilt from, and that's that he refused a breath test at the station. Remember in your deliberations and use that as one of the factors that you use in finding the defendant guilty. Again, if he wasn't under the influence, why didn't [he] take that simple test? If he wasn't guilty, why did he refuse field sobriety testing? He didn't take that test because he was impaired. When you drink and drive to the point where you're going around barricades, driving into oncoming lanes, have no idea where you are, can't follow simple instructions, yell at an officer, refuse field sobriety testing, tell an officer 'just arrest me' and refuse a breath test, you combine all those factors, you're driving under the influence of alcohol and that's a crime in this state."

         The defense attorney did not object to the second set of remarks.

         ¶ 17 Following the argument, the jury returned a verdict of guilty. Defendant filed a timely posttrial motion seeking a judgment notwithstanding the verdict or, in the alternative, a new trial. The trial court denied the motion. At the sentencing hearing, defendant spoke in allocution, leading to a colloquy between defendant and the trial court before the trial court pronounced sentence:

THE DEFENDANT: Just that I'm very sorry that this case is here. That I have a very good support system outside. My family, my fiancée, Deborah. I intended on-I worked as a co-facilitator for a Smart Group from about 2007 to 2010, which I would intend to be going back to doing upon release in Waukesha, Wisconsin, where I live-we were living.
And I can assure the Court that this type of thing will never happen again being that I intend on getting married. We have a house. I intend on settling down and going ahead and doing that. And I am very aware of how serious this is and that it never happens again. Thank you.
THE COURT: Mr. Tatera, sir, do you recognize you have a serious problem with alcohol?
THE DEFENDANT: Yes. Absolutely.
THE COURT: Do you recognize if you don't do something about that, you're never going to be able to live a normal life?
THE COURT: Are you ready to do something about it?
THE DEFENDANT: Absolutely.
THE COURT: Why haven't you done it in the past, sir?
THE DEFENDANT: That's why I was co-facilitating the Smart Group beyond having to by court order or anything by that sort, continued for three years, you know, before work started getting in the way of that.
Now I realize that is something I will continue and stay in because it's something where I keep it foremost in my mind that that is a problem. That's ...

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