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People v. Groebe

Court of Appeals of Illinois, First District, Third Division

September 30, 2019

STACEY GROEBE, Defendant-Appellant.

          Appeal from the Circuit Court of Cook County No. 17 C3 30219 Honorable Steven M. Wagner, Judge Presiding.

          JUSTICE HOWSE delivered the judgment of the court, with opinion. Presiding Justice Ellis and Justice Cobbs concurred in the judgment and opinion.


          HOWSE, JUSTICE

         ¶ 1 Following a bench trial, defendant, Stacey Groebe, was convicted of aggravated driving under the influence of alcohol (aggravated DUI) for committing DUI while having three previous convictions for DUI or an equivalent offense. Due to defendant's prior convictions, she was sentenced as a Class 2 offender to three years in prison. On appeal, defendant contends that (1) her right to a public trial was violated when the video recording of the traffic stop and field sobriety tests preceding her arrest was viewed by the trial court in chambers and was not played in open court, (2) the evidence was insufficient to show she was under the influence of alcohol, and (3) the trial court's remarks summarizing its ruling erroneously shifted the burden of proof to the defense. We affirm.

         ¶ 2 I. BACKGROUND

         ¶ 3 Defendant was charged with the Class 2 felony version of aggravated DUI for driving under the influence of alcohol while having three previous DUI violations (625 ILCS 5/11- 501(d)(1)(A), (d)(2)(C) (West 2016)). Defendant also was charged with the Class 4 felony version of aggravated DUI for driving under the influence of alcohol while her driving privileges were revoked or suspended for a prior DUI violation or for a similar offense (id. § 11-501(d)(1)(G), (d)(2)(A)).

         ¶ 4 At trial, Roselle police officer David Hourigan testified that at about 2 a.m. on April 1, 2017, he was in a police vehicle in the area of Plum Grove Road and Nerge Road. Hourigan saw two people leave the Strike Ten Lanes & Lounge at closing time and get into a blue Ford Escape. The individuals sat in the vehicle with the headlights on for about 15 minutes.

         ¶ 5 Hourigan drove past the Escape and saw three people seated inside. He parked across the street and started to run a registration check on the Escape. Meanwhile, the Escape left the parking lot and drove north on Plum Grove Road. Hourigan followed the Escape as it turned onto Oriole Road. The Escape parked on the right side of the street with the interior lights on.

         ¶ 6 Hourigan drove past the Escape, proceeded two blocks and turned around on Oriole Road, passing the Escape from the other direction and noting the interior lights were still on. Hourigan drove back to Plum Grove Road, parked, and continued to run a registration check on the vehicle. Hourigan drove to where the Escape had been parked and noted it was no longer there. A few minutes later, he saw the Escape turn back onto Oriole and saw the headlights turn off; Hourigan lost sight of the vehicle again and then saw it with its headlights back on.

         ¶ 7 Hourigan followed the Escape north onto Plum Grove Road. The Escape was in the left lane, moved to the right lane after the right turn signal was engaged, and then returned to the left lane. According to Hourigan, it "straddled the lane line for maybe a hundred feet, 200 feet" with no turn signal on. The Escape then returned to the right lane.

         ¶ 8 Hourigan activated his vehicle's emergency lights to initiate a traffic stop. The Escape continued driving for about two blocks before stopping on the right side of Plum Grove Road. When Hourigan approached the Escape, he observed defendant in the driver's seat, a man in the passenger seat, and a woman in the back seat behind the man.

         ¶ 9 Defendant told Hourigan she was "looking for my insurances [sic]" and spoke in a slurred manner. He asked her to step out of the vehicle. Hourigan testified that the defendant's eyes were "glassy and red and there was a strong odor of an alcoholic beverage coming from the vehicle and her breath." Hourigan told her to walk to the rear of the Escape and asked for her driver's license, which she said was at home. Defendant told Hourigan she was driving a friend home to Orland Park.

         ¶ 10 When Hourigan asked defendant's name, she initially responded, "Stacey Groebe." She then told Hourigan her name was Ashley Neven and stated she was just married. She gave Hourigan her date of birth. Defendant said she was from Palos Hills, which she described as being "just down the road like 15 minutes." Hourigan performed an Internet search for Palos Hills and learned it was "35 to 39 minutes" away from the location of the traffic stop. Defendant denied consuming alcohol when asked by the officer.

         ¶ 11 Hourigan administered field sobriety tests, starting with the horizontal gaze nystagmus (HGN) test. He testified he had performed "thousands" of HGN tests and had received training in performing that test in accordance with National Highway Traffic and Safety Administration (NHTSA) standards. The test was administered by the officer holding a pen and moving it in front of the subject's face. Hourigan told defendant to watch the pen with her eyes only and watch it move from side to side without moving her head. Defendant was able to follow his instructions and her eyes equally tracked the pen; however, Hourigan observed "in both eyes [ ] a lack of smooth pursuit" and "a distinct and sustained nystagmus at maximum deviation." Hourigan testified those factors indicated that defendant had consumed alcohol.

         ¶ 12 Hourigan next administered the one-leg stand test, directing defendant to keep her hands at her sides and hold one foot straight about six inches off the ground while counting aloud for 30 seconds. Hourigan demonstrated the test to defendant. He testified that when performing the test, defendant "hopped" and "lifted her arms [ ] almost to a 90-degree angle." Defendant swayed and was unable to maintain her balance, and she lowered her foot on counts 9 and 12. Also, after counting for 30 seconds, defendant counted to 48, at which point Hourigan told her to stop.

         ¶ 13 Hourigan then administered the walk-and-turn test. He directed defendant to stand on the white line at the road's edge with one foot in front of the other and her hands at her sides. Hourigan demonstrated nine steps, touching his heel to his toe and counting aloud with each step, and he turned and walked back the same way. Defendant said she understood those instructions. Hourigan stated that defendant initially "was unsteady on her feet, swaying from side to side" and "went down to count 5 and then just stopped and appeared to [ ] lose her balance." Defendant returned to the starting point and began again, stepping off the line and not touching her heel to her toe at several points. After defendant turned, her feet "were out of alignment from side to side and she was using her arms." Hourigan could not hear defendant counting aloud.

         ¶ 14 Hourigan asked defendant to take a preliminary breath test, which she refused. Defendant was arrested. An open, half-full bottle of vodka was recovered from the front passenger side of the vehicle, along with an Illinois identification card for Stacey Groebe displaying a different date of birth than the date she gave Hourigan. Defendant also refused to take a breath test at the police station.

         ¶ 15 Hourigan testified that defendant was under the influence of alcohol based on her failure to complete the sobriety tests and her "slurred speech, the odor of alcoholic beverage on her breath, the glassy red eyes, her responses to questions." Hourigan further noted the "time and location" of the traffic stop, the fact that defendant drove over the lane lines, her failure to immediately stop when he activated his emergency lights, and the fact that she was driving in "the opposite direction from home." Hourigan also based that opinion on "the observations I made on the [HGN] test" and defendant's failure to properly complete the one-leg stand test and the walk-and-turn test.

         ¶ 16 The State referred to a video recording of the traffic stop and defendant's performance of the field sobriety tests taken from the dashboard camera in Hourigan's police car.[1] Hourigan stated that he had reviewed the video prior to his testimony and that the video represented a true and accurate recording of the events. Defense counsel said it would "stipulate to the video."

         ¶ 17 On cross-examination, Hourigan described his administration of the HGN test. He said he took into account defendant's statement to him that she was on three prescription medications. Hourigan did not see defendant fall or stumble when walking from the bowling alley to the car, and she got out of the car without assistance during the traffic stop. Defendant committed a traffic violation of improper lane usage.

         ¶ 18 After Hourigan's testimony, the State asked to admit into evidence a copy of defendant's certified driving abstract, which indicated that she had two prior DUI convictions in Illinois and that her driver's license was revoked when these events occurred.

         ¶ 19 After defense counsel initially objected to the admission of the driving abstract, the court stated it would "take the opportunity during the lunch break not only to watch the video but of course to review any case law" regarding the admission of the driving abstract. Further discussion took place, after which defense counsel stated that the defense had "no objection" either to the admission of the video recording or the driving abstract.

         ¶ 20 The video recording, defendant's driving abstract, and other exhibits were admitted into evidence. The court stated that the video would be "admitted into evidence and published to the court." Before adjourning for lunch, the court again remarked that it would "watch the video."

         ¶ 21 When the case was recalled, the court stated it had watched the video. The State rested its case-in-chief, and the defense moved for a directed verdict, which the court denied.

         ¶ 22 The defense called three witnesses who were with defendant on the night of these events. Amy Joslyn testified that she lived in Palos Hills and had known defendant for five years. She, defendant, Bhavik Patel (who sometimes went by the name "Bob"), and Jonathan Kermer went to Strike Ten and left at about 2 a.m.

         ¶ 23 Patel, who was Joslyn's boyfriend, began having an epileptic seizure, and the group remained in the parking lot until about 2:30 a.m. After leaving the parking lot, defendant stopped on a street off of Plum Grove Road because Patel said they were going the wrong way to his house, where he needed to retrieve medication. Joslyn called Uber for a ride for Patel, and he was picked up while they remained on the side street. Joslyn testified she called a ride for Patel ...

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