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
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
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
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
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
"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
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
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
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
THE DEFENDANT: Yes.
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 ...