2020 IL App (2d) 170942-U No. 2-17-0942 Order filed April 7, 2020
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT ______________________________________________________________________________
VILLAGE OF ROUND LAKE, ) Appeal from the Circuit Court ) of Lake County. Plaintiff-Appellee, ) ) v. ) 16 DT 1534 ) KATIE MILROY, ) Honorable ) John J. Scully Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________
JUSTICE ZENOFF delivered the judgment of the court. Justices Jorgensen and Schostok concurred in the judgment.
ORDER
¶1 Held: The appellate court affirmed defendant’s conviction for driving under the influence of alcohol where (1) there was sufficient evidence to find her guilty beyond a reasonable doubt, (2) defendant’s procedural default of the Zehr issue was honored because she failed to meet her burden of persuasion that this was a closely balanced case under the plain-error doctrine, and (3) defendant was not denied a fair trial by the admission of evidence, prosecutorial comments, or a jury instruction.
¶2 Defendant, Katie M. Milroy, appeals her conviction of driving under the influence of
alcohol (625 ILCS 5/11-501(a)(2) (West 2016)) following a jury trial in the circuit court of Lake
County. We affirm.
¶3 I. BACKGROUND 2020 IL App (2d) 170942-U
¶4 Defendant was charged by complaint with driving under the influence, and a jury trial took
place over two days from May 2-3, 2017. Officer Kurtis Schultz of the Round Lake Police
Department testified at trial that he was on patrol in the early morning hours of August 29, 2016.
Just after midnight, he observed a silver Grand Am driving with only one working headlight.
Schultz turned his patrol car around and began following the car. He testified that he observed
the car “weaving back and forth within its lane.” Based upon the non-working headlight, Schultz
activated his overhead lights to initiate a traffic stop. The car was approaching a railroad crossing
when Schultz activated his lights, and it did not immediately stop. The car continued across the
railroad crossing, came to a stop at the next intersection, executed a right turn using its turn signal,
and then pulled over and parked on the shoulder of Route 134.
¶5 Defendant was in the driver’s seat, and a male passenger was in the front seat next to her.
When Schultz asked defendant for her driver’s license and insurance papers, she reached into the
back seat more than once and came back empty-handed each time. Defendant told Schultz that
she left her driver’s license at home when she left to pick up her friend from a nearby bar. Schultz
described defendant’s speech as “confused,” and said that he smelled a strong odor of alcohol from
inside the car, though he could not be certain if the smell was emanating from defendant, her
passenger, or both. Defendant told Schultz that she had nothing to drink, and she provided
Schultz with sufficient information for him to confirm who she was and that she had a valid
driver’s license.
¶6 After verifying her license, Schultz asked defendant to step out of her car and come to the
rear of the vehicle. He testified that, once defendant was outside of the car, he detected a strong
odor of alcohol on her breath, and her eyes were “glassy and bloodshot.” Schultz administered
several field sobriety tests, beginning with a Horizontal Gaze Nystagmus test (HGN), where he
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instructed defendant to follow his finger with her eyes. Schultz observed a “lack of smooth
pursuit in both eyes” and “nystagmus” in both eyes, which is an involuntary jerking of the eye.
Schultz observed six of six possible indicators for alcohol consumption during the HGN test.
¶7 Schultz next administered the “walk-and-turn” test. He instructed defendant to take nine
heel-to-toe steps in a straight line, turn around, and then take nine more heel-to-toe steps along the
same line. Schultz could not recall whether he used an actual painted line for the test or whether
he instructed defendant to walk on an “imaginary” line. Schultz testified that he observed
defendant lose her balance during the initial instruction phase, start the test before being instructed
to do so, and step off of the line multiple times while performing the test. In all, Schultz observed
three deficient “decision points,” which indicated that defendant failed the walk-and-turn test.
¶8 Schultz then asked defendant to perform the “one-legged stand” test. He instructed
defendant to pick up either her left or right foot six inches off of the ground and count out loud in
the manner “one-thousand one, one-thousand two, one-thousand three for 30 seconds.” During
the test, Schultz granted defendant’s request to remove her shoes. Schultz observed defendant
put her foot down multiple times, raise her arms to keep her balance, and sway, which were
deficiencies in three of four decision points, and “a good indicator of somebody who’s under the
influence of alcohol.”
¶9 Schultz placed defendant under arrest. After Schultz arranged a ride home for
defendant’s passenger, he transported her to the booking facility in Round Lake. Schultz testified
that he detected a strong odor of alcohol coming from the backseat, where defendant was seated,
during the five-minute drive.
¶ 10 Schultz described defendant’s mood at the booking facility as “erratic.” Schultz testified
that she went from a “calm, normal state to agitated state quickly, sometimes yelling, sometimes
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not,” while using profanity. He continued to detect the odor of alcohol coming from her at the
booking facility. He testified that it was “very evident” under the lights in the booking room that
her eyes were glassy and bloodshot. Schultz described a still picture from the booking video in
which defendant was “[g]iving me the bird,” meaning that she was extending the middle fingers
of both of her raised hands in his direction. Schultz testified that, based on his five years of
experience and training as a law enforcement officer, and based on his life experience, it was his
opinion that defendant was under the influence of alcohol.
¶ 11 On cross-examination, Schultz testified that he did not recall whether he made mention of
defendant’s glassy or bloodshot eyes in his police report. Schultz confirmed that defendant was
not slurring her speech on the night of her arrest.
¶ 12 Two videos were entered into evidence and shown to the jury during Schultz’s testimony.
The first was a video taken from Schultz’s “dash-cam” in his squad car, which included audio of
the entire roadside encounter and the transport of defendant to the booking facility. The video
shows defendant’s car passing Schultz’s squad car in the opposite direction while Schultz was
parked on the side of Cedar Lake Road. Schultz immediately turned his car around and traveled
in the same direction as defendant’s car. Schultz quickly caught up to defendant’s car and
followed her for about 30 seconds before activating his overhead lights. During that time, the
dash-cam video showed defendant’s car veering to the left within its lane and then back to the
center of the lane. The video also showed defendant’s car approaching the outer boundary of a
railroad crossing when Schultz activated his lights. Defendant continued through the railroad
crossing and came to a stop at the intersection on the other side of the crossing. Utilizing her turn
signal, defendant made a right turn onto Route 134 and pulled over to the shoulder. Schultz
pulled in behind her.
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¶ 13 The dash-cam video showed Schultz approaching defendant’s car and asking her for her
driver’s license and proof of insurance. Defendant cannot be seen at this stage, but she can be
heard telling Schultz that she did not have her driver’s license, explaining that she was giving her
friend a ride home from a local bar and that she left her purse at home. Defendant could be heard
on the video telling Schultz that she had not had anything to drink.
¶ 14 The dash-cam video showed Schultz leaving defendant in her car while he went to his
squad car to verify her identity and driver’s license. When Schultz returned to defendant’s car,
he asked her to step out and walk to the rear of her car. She complied with no apparent difficulty,
again telling Schultz that she had nothing to drink. Schultz began the sobriety field tests, starting
with the HGN test. Once completed, Schultz told defendant that her eyes indicated that she was
impaired. Defendant responded that her eyes were very dry. During the walk-and-turn test,
defendant could be seen walking nine steps in both directions along an “imaginary” line. During
the one-legged-stand test, defendant’s raised foot could clearly be seen touching the ground six
times while her arms were raised. When her raised foot touched the ground for the fourth time,
defendant asked Schultz if she could remove her shoes, and he permitted her to do so. The test
ended shortly thereafter.
¶ 15 Schultz told defendant that she failed each of the field sobriety tests and he placed her under
arrest. Defendant, who had been polite and compliant to this point, became upset when she
learned that she was being arrested, complaining that she would not be able to work or take care
of her daughter if she were arrested. Defendant told Schultz: “My lawyer is going to bury you.
You should’ve let me go home.”
¶ 16 Schultz placed her in the back of his squad car, and left her there while he and other officers
attended to defendant’s passenger, who was ultimately given a ride home by officers. While
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waiting for Schultz to return to the squad car, defendant could be heard on the dash-cam video
screaming: “Are you f***ing kidding me! What the f*** is taking so long!”
¶ 17 The second video shown to the jury depicted the procedures at the booking facility
following defendant’s arrest. During the booking video, defendant’s demeanor and behavior
shifted randomly over the course of the hour. At times, she was respectful and cooperative. She
thanked an officer for retrieving her keys from her car, and she later calmly considered whether
she should consent to blood-alcohol testing, before she ultimately refused to consent.
¶ 18 At other times, she appeared sad, burying her head into her lap and lamenting about how
this arrest would affect her. On one occasion, when an officer asked her the name of her
passenger, defendant giggled and spoke in a high-pitched voice:
“I’m not telling you anything. [laughter] Why the f*** would I? Serious? Yeah, no.
[laughter] Bye. [waives hand and laughs] Nice try. [laughter] That was, that was really
cute, though, honestly—really cute. [loud laughter] Bye!”
Defendant cursed frequently, telling Schultz that he did not “give a flying f***” about her situation,
and later raising the middle fingers of both of her hands toward Schultz. She told Schultz that
she hoped that he “burn[s] in hell.” She asked Schultz if he would pay the impound fee for her
car. When he responded that he would not, the following exchange took place:
“Defendant: Then how the f*** am I going to get my car out?
Schultz: I don’t know. I’m not the one who drank and drove tonight.
Defendant: I didn’t drink and drive. You’re an asshole. You gave me a DUI when
you didn’t have to.
Schultz: You still smell like alcohol.
Defendant: And you smell like an asshole.”
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¶ 19 Following Schultz’s testimony, the Village of Round Lake (Village) rested. Defendant
also rested without presenting evidence, and the court recessed for the day.
¶ 20 The next morning, the court stated that it had met informally with the parties the previous
evening to discuss jury instructions. The court then went through each of the proposed jury
instructions, including Illinois Pattern Jury Instructions, Criminal No. 23.29 (4th ed. 2000)
(hereinafter IPI Criminal No. 23.29), which provides:
“A person is under the influence of alcohol when, as a result of drinking any amount
of alcohol, his mental or physical faculties are so impaired as to reduce his ability to think
and act with ordinary care.”
IPI Criminal No. 23.29 was given without objection.
¶ 21 During closing argument, the Village argued that a sober person in the same position as
defendant would not have acted in the same manner as she did on the night of her arrest. The
prosecutor described defendant’s behavior as a “completely inappropriate, disproportionate
reaction to the situation she was in.” The prosecutor additionally argued: “Consider what the
defendant’s behavior and what her statements to the officer were, consider if that is someone who
is credible and sober.” These arguments mirrored comments from the prosecutor’s opening
statement, where he told the jury that they would see evidence of her guilt in her “vulgar words
towards the officer” that were “completely inappropriate to the situation.” In his rebuttal
argument, the prosecutor told jurors that they could find defendant guilty “if the alcohol affected
her ability to think and act with ordinary care.”
¶ 22 At 10:23 a.m. on May 3, 2017, the jury retired to consider their verdict. At 11:53 a.m.,
the jury returned a guilty verdict. Defendant timely appealed.
¶ 23 II. ANALYSIS
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¶ 24 Defendant raises three main issues on appeal: (1) the evidence was insufficient to prove
her guilty beyond a reasonable doubt, (2) the court’s failure to properly question potential jurors
on the Zehr principles was plain error, and (3) she was denied her right to a fair trial by (a) the
erroneous admission of the booking video into evidence, (b) improper comments during opening
statement and closing argument by the prosecutor, (c) an improper jury instruction, and (d)
cumulative error. The Village responds that (1) the evidence was sufficient to establish
defendant’s guilt beyond a reasonable doubt, (2) there was no plain error because the case was not
closely balanced, and (3) neither the booking video, statements by the prosecutor, nor the jury
instruction infringed upon defendant’s right to a fair trial.
¶ 25 A. Sufficiency of the Evidence
¶ 26 Defendant maintains that the Village failed to prove beyond a reasonable doubt that she
was driving while under the influence of alcohol, arguing that (1) the evidence showed that she
drove safely, (2) the field sobriety tests were improperly administered, and (3) Schultz exaggerated
the results of the field sobriety tests. The Village responds that the evidence clearly and
objectively supports the guilty verdict.
¶ 27 When a defendant challenges the sufficiency of the evidence presented against her, the
reviewing court must determine whether, after viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found that the essential elements of the crime
were proven beyond a reasonable doubt. People v. Harris, 2018 IL 121932, ¶ 26. It is the jury’s
role to resolve conflicts in the testimony, weigh the evidence, and draw reasonable inferences from
the facts. Harris, 2018 IL 121932, ¶ 26. It is not the function of the reviewing court to retry the
defendant, and it must draw all reasonable inferences in favor of the prosecution. Harris, 2018
IL 121932, ¶ 26. We will not reverse a conviction on appeal for insufficient evidence unless the
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evidence is so improbable or unsatisfactory that reasonable doubt as to defendant’s guilt remains.
Harris, 2018 IL 121932, ¶ 26.
¶ 28 Defendant argues that her driving was safe and legal because she stayed within the speed
limit, did not swerve between lanes, properly used her turn signal, appropriately parked on the
shoulder of the road, and did not crash her car. She additionally argues that she denied using any
alcohol, was polite and compliant up until the time of her arrest, had clear speech, had no trouble
getting out of her car, did not hold onto the car, did not stumble or stagger while walking, and gave
Schultz her social security number from memory. Defendant concludes that, even if the Village
established that she “may have used alcohol,” all of these factors indicate that the Village did not
prove that she was under the influence of alcohol such that she could not safely operate a vehicle.
¶ 29 According to defendant, the only evidence of her intoxication was Schultz’s testimony,
which was not credible where he could not recall whether (1) he wrote that defendant had glassy
eyes in his police report, (2) the National Highway Transportation Safety Administration requires
the use of an actual straight line during the walk-and-turn test, or (3) he gave defendant the HGN
instruction to keep following his finger with her eyes until told to stop. Defendant further asserts
that Schultz’s testimony was “largely contradictory” and that his “unqualified opinion” that she
failed the sobriety tests did not demonstrate that she could not safely drive. According to
defendant, Schultz exaggerated her deficient performance on the sobriety tests, as the dash-cam
video showed that her performance was “only slightly deficient under the circumstances.”
Moreover, the booking video was irrelevant as to whether she was intoxicated because it was
reasonable for her to be agitated after she was arrested. Finally, even had she taken the blood-
alcohol test, it would not have proved or disproved that she was under the influence of alcohol,
because it does not measure her ability to drive safely. For all of these reasons, defendant argues
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that the evidence was insufficient to prove that she was under the influence such that she was
incapable of driving safely.
¶ 30 To sustain a conviction for driving under the influence of alcohol, the Village had to prove
that defendant was (1) driving or in physical control of her car, and (2) under the influence of
alcohol. 625 ILCS 5/11-501(a)(2) (West 2016). Defendant concedes that she was driving, and
thus, the only issue before us is whether she was under the influence of alcohol. A person is
“under the influence of alcohol” when he or she is “ ‘under the influence to a degree that renders
the driver incapable of driving safely.’ ” People v. Phillips, 2015 IL App (1st) 131147, ¶ 18
(quoting People v. Love, 2013 IL App (3d) 120113, ¶ 34). Circumstantial evidence may be used
to prove that a person is under the influence, and the testimony of a single, credible police officer
is sufficient to sustain a conviction for driving under the influence of alcohol. Phillips, 2015 IL
App (1st) 131147, ¶ 18.
¶ 31 Here, Schultz testified that defendant swerved within her lane, was slow to react to his
lights, and seemed confused when answering his questions. Despite defendant’s repeated denials
that she had consumed any amount of alcohol, Schultz testified that he detected a strong odor of
alcohol coming from defendant during the field sobriety tests, while transporting her in his squad
car, and during the booking process. Schultz further testified that defendant’s eyes appeared
glossy and bloodshot, and that she failed each of the three field sobriety tests. Schultz described
defendant’s behavior during the booking process as “erratic,” going from calm to agitated very
quickly, yelling and using profanity. It was Schultz’s opinion, based on his training and
experience in five years as a law enforcement officer, as well as his personal life experience, that
defendant was under the influence of alcohol.
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¶ 32 The video evidence corroborated Schultz’s testimony. Defendant’s car is seen veering to
the left and back within her lane. Defendant carried no identification while driving, told Schultz
that she was coming from a bar, and denied drinking any alcohol whatsoever. During a test
designed to assess her ability to maintain balance, defendant’s foot is seen dropping to the ground
six times in 30 seconds. Defendant told Schultz that her lawyer would “bury” him, and she
screamed obscenities from the backseat of the squad car.
¶ 33 Defendant’s random shifts in demeanor are evident in the booking video. She
inexplicably laughs at an officer who asked the name of her passenger. She sobs. She
repeatedly berates Schultz, using the F-word over and over again, giving him the “bird” with both
fingers, telling him that she wished he would “burn in hell,” and retorting that he “smell[ed] like
an asshole.” Defendant continued to deny consuming any alcohol, but she nonetheless refused
to submit to testing to determine her blood-alcohol content, which was itself circumstantial
evidence of her consciousness of guilt. People v. Johnson, 218 Ill. 2d 125, 140 (2005) (evidence
of a person’s refusal to take a blood-alcohol test is admissible and may be used to argue the
defendant’s consciousness of guilt).
¶ 34 Where defendant and the Village presented competing theories of what the evidence
demonstrated, it was for the jury to assess each of these issues, weigh the testimony, resolve
conflicts in the evidence, and draw reasonable inferences from that evidence. Village of Bull
Valley v. Winterpacht, 2012 IL App (2d) 101192, ¶ 12. Schultz’s testimony, combined with the
dash-cam and booking videos, presented the jury with sufficient evidence to establish a basis on
which it could reasonably infer that defendant was not only drinking, but that she was under the
influence of alcohol such that she could not safely operate a motor vehicle. See People v. Hill,
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2014 IL App (2d) 120506, ¶ 56. Therefore, we conclude that the evidence was sufficient to prove
defendant’s guilt beyond a reasonable doubt.
¶ 35 B. Rule 431(b)/Zehr Principles
¶ 36 Defendant argues that she was denied a fair trial because the trial court violated Illinois
Supreme Court Rule 431(b) (eff. July 1, 2012) by failing to ask potential jurors during voir dire
whether they understood and accepted the “Zehr” principles. Rule 431(b) codified the principles
laid out in People v. Zehr, 103 Ill. 2d 472, 477-78 (1984), and provides in relevant part:
“The court shall ask each potential juror, individually or in a group, whether that juror
understands and accepts the following principles: (1) that the defendant is presumed
innocent of the charge(s) against him or her; (2) that before a defendant can be convicted
the State must prove the defendant guilty beyond a reasonable doubt; (3) that the defendant
is not required to offer any evidence on his or her behalf; and (4) that if a defendant does
not testify it cannot be held against him or her ***.” (Emphasis added.) Ill. S. Ct. R.
431(b) (eff. July 1, 2012).
Defendant asserts that the trial court erred by asking the jurors whether they “have a problem”
with any of the principles, rather than if they “understand” and “accept” each principle.
¶ 37 Defendant acknowledges that this issue was not preserved, but argues that we should
review it under the plain-error doctrine. The plain-error doctrine permits appellate review of a
clear or obvious unpreserved error when (1) “the evidence is so closely balanced that the error
alone threatened to tip the scales of justice against the defendant, regardless of the seriousness of
the error,” or (2) when the error was so serious as to threaten the integrity of the judicial process,
regardless of the closeness of the evidence. (Internal quotation marks omitted.) People v. Sebby,
2017 IL 119445, ¶ 48. Absent evidence that the error produced a biased jury, which is not alleged
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in this case, a Rule 431(b) violation is not cognizable under the second prong of the plain-error
doctrine. Sebby, 2017 IL 119445, ¶ 52. Therefore, to prevail on her plain-error argument,
defendant must demonstrate under the first prong of the plain-error doctrine that there was error
and that the case was closely balanced. We conduct a de novo review of alleged violations of
Rule 431(b). People v. Wilmington, 2013 IL 112938, ¶ 26.
¶ 38 The Village concedes that the court did not strictly comply with Rule 431(b), but argues
that even if this was error, this case was not closely balanced, so there can be no plain error.
¶ 39 During voir dire, the trial court questioned potential jurors on the Zehr principles as
follows:
“I’m going to give you a couple of concepts, and I want to see if any of you have a
problem with the concept. Do you accept and understand the following principle that a
defendant is presumed innocent of the charges against her? Do any of you have a problem
with that concept? No one is raising their hand.
***
Before a defendant can be convicted, the State must prove the defendant guilty
beyond a reasonable doubt. Do any of you have a problem with that concept? No one
is raising their hand.
How about the concept the defendant is not required to offer any evidence on her
own behalf? Any of you have a problem with that concept? And no one is raising their
hand.
And do any of you have the problem that the defendant’s failure to testify cannot
be held against her? Do any of you have a problem with that concept? And no one is
raising their hand.” (Emphasis added.)
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¶ 40 The first step in any plain-error analysis is to determine whether there was clear error.
Sebby, 2017 IL 119445, ¶ 49. In Sebby, our supreme court determined that it was clear error for
the trial court to ask potential jurors whether they “had any problems with” the Zehr principles,
rather than asking them whether they “understood” and “accepted” each of those principles.
Sebby, 2017 IL 119445, ¶ 49. Here, the trial court asked potential jurors if they “have a problem”
with the various principles, which was virtually identical to the question asked by the trial court in
Sebby. This was a clear violation of Rule 431(b). Trial courts must take notice of this important
rule and employ all necessary steps to ensure full compliance in every criminal case tried before a
jury. People v. Thompson, 238 Ill. 2d 598, 616 (2010). “Had the trial court used the best practice
of simply parroting the language of the rule in its questions, this issue never would have arisen on
review.” People v. Dismuke, 2017 IL App (2d) 141203, ¶ 80 (Burke, J., specially concurring).
¶ 41 Because we determine that there was clear error, the only question remaining in this first-
prong plain-error case is whether the evidence is closely balanced. Sebby, 2017 IL 119445, ¶ 69.
“Whether the evidence is closely balanced is, of course, a separate question from whether the
evidence is sufficient to sustain a conviction on review against a reasonable doubt challenge.”
People v. Piatkowski, 225 Ill. 2d 551, 566 (2007). For inquiries regarding the closeness of the
evidence, we conduct a qualitative, commonsense assessment of the totality of the evidence within
the context of the case, looking at the evidence on the elements of the charged offense along with
any evidence regarding the witness’ credibility. Sebby, 2017 IL 119445, ¶ 53. The evidence
may be closely balanced even when the defendant presents no evidence whatsoever in his or her
case-in-chief. Piatkowski, 225 Ill. 2d at 567.
¶ 42 As detailed above, defendant concedes that she was driving, and the only element at issue
is whether defendant was under the influence of alcohol. The Village proved its case through the
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testimony of Schultz and the two videos. Schultz had ample opportunity to observe defendant,
spending two hours in close proximity to her during the morning of her arrest. He testified that
she swerved within her lane while driving and delayed in reacting to his lights, although he initiated
the traffic stop on the basis of her non-working headlight. Defendant told Schultz that she was
coming from a bar, was unable to produce identification, and seemed “a bit confused.” Schultz
further testified that defendant had bloodshot eyes, smelled strongly of alcohol, and that she failed
each of three field sobriety tests. Schultz described defendant’s demeanor as “erratic,” saying
that she quickly shifted between calm and agitated states, sometimes yelling and using profanity.
¶ 43 The dash-cam and booking videos confirmed Schultz’s testimony. Defendant’s car
swerved to the left within her lane while driving. After she was stopped, defendant could be heard
telling Schultz that she left her identification at home and that she was coming from a bar. During
the one-legged stand test, she dropped her foot to the ground six times, even while she used her
arms to enhance her balance. The random swings in her demeanor were evident in the videos, as
was her repeated use of profanity.
¶ 44 Defendant frames this as a closely balanced credibility contest between two competing
theories. She asserts that she merely picked up her friend from a local bar and forgot her
identification at home. She argues that Schultz exaggerated her deficient performance during the
sobriety tests, and that her profane and ill-mannered behavior is explained by the fact that she was
upset about being arrested, and that her poor behavior did nothing to prove that she was under the
influence of alcohol. Thus, defendant concludes that neither the dash-cam nor the booking video
did anything to “corroborate” or “contradict” either theory of the case.
¶ 45 Defendant compares this case to People v. Naylor, 229 Ill. 2d 584 (2008), arguing that it
“boiled down to a credibility contest between the defense theory and the Village’s theory.” In
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Naylor, two officers testified that the defendant sold them heroin, whereas the defendant testified
that he was mistakenly swept up in a drug raid while picking up his son from school. Naylor, 229
Ill. 2d at 607. Our supreme court determined that the evidence was closely balanced because both
sides offered testimony supporting different plausible versions of events and there was no extrinsic
evidence that corroborated or contradicted either version. Naylor, 229 Ill. 2d at 607. Our case
is clearly distinguishable from Naylor. Here, there was no credibility contest because Schultz was
the only witness to testify at trial. Moreover, the dash-cam and booking videos were extrinsic
evidence that corroborated Schultz’s testimony. While defendant offers an alternative theory, this
was not a credibility contest of the type discussed in Naylor, and this case was not closely balanced
based on that theory.
¶ 46 Defendant further argues that the jury’s request to review the dash-cam video during
deliberations indicates that this was a closely balanced case, citing People v. Lee, 2019 IL App
(1st) 162563, ¶ 67. The Lee court held that the evidence was closely balanced in part because the
jury sent four notes to the court during its two days of deliberations indicating that it was at an
impasse. Lee, 2019 IL App (1st) 162563, ¶ 71. Here, the jury retired to begin its deliberations
at 10:23 a.m. Fourteen minutes later, at 10:37 a.m. the jury sent a note to the court: “We would
like to see the dash cam video of sobriety tests.” The jury was shown the video without objection.
At 11:25 a.m., the court went back on the record and said that it had received another note from
the jury, which read: “We would like to see driving video footage again until she stops.” The
jury was shown that portion of the video without objection. At 11:50 a.m., the court informed the
parties that the jury had reached a verdict. There is no indication in the record that the jury ever
reached an impasse or that the jurors themselves considered this a close case. The notes indicated
only that the jury wished to review evidence, and careful consideration of the evidence is what we
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expect of jurors in any trial. Wilmington, 2013 IL 112938, ¶ 35. The jury deliberations took only
one hour and 27 minutes from start to finish and were in no way extraordinary. Thus, this case is
distinguishable from Lee and is not closely balanced based on the jury’s request to review
evidence.
¶ 47 Defendant has failed to meet her burden of persuasion that this was a closely balanced case
under the first prong of the plain-error analysis. Naylor, 229 Ill. 2d at 593. Consequently, we
must honor her procedural default of the Zehr issue. Naylor, 229 Ill. 2d at 593.
¶ 48 C. Fair Trial
¶ 49 Defendant raises four additional issues under the broad heading that she was denied a fair
trial. She argues that the trial court deprived her of a fair trial because (1) it abused its discretion
by admitting the booking video, (2) the prosecutor made improper comments during his opening
statement and closing argument, (3) the court erroneously gave IPI Criminal No. 23.29, and (4)
the cumulative impact of these errors deprived defendant of a fair trial. The Village responds that
(1) the booking video was probative as to whether defendant was under the influence of alcohol,
(2) it made no improper comments that unfairly prejudiced defendant, and (3) the court properly
gave the relevant jury instruction.
¶ 50 1. Admission of Booking Video
¶ 51 Evidence is relevant and may be admitted at trial when it tends to prove or disprove any
material fact at issue. People v. Hoerer, 375 Ill. App. 3d 148, 157 (2007). Even relevant
evidence, however, may be excluded if its prejudicial effect substantially outweighs its probative
value. Hoerer, 375 Ill. App 3d at 157. It is within the sound discretion of the trial court to
determine whether evidence is relevant and whether its probative value outweighs its prejudicial
impact, and such a decision will not be reversed absent an abuse of that discretion. People v.
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Tolbert, 323 Ill. App. 3d 793, 797 (2001). An abuse of discretion occurs only where the trial
court’s ruling is arbitrary, fanciful, unreasonable, or where no reasonable person would take the
view adopted by the trial court. Tolbert, 323 Ill. App. 3d at 797.
¶ 52 Defendant argues that the booking video showed only that “she was frustrated at the
situation,” and thus, because there was no evidence to connect her behavior seen in the video to
her ability to safely drive a vehicle, the video is irrelevant as to whether she was under the influence
of alcohol. In her reply brief, defendant adds that the Village introduced no evidence to
demonstrate her “normal” behavior, and thus, did not prove that she was intoxicated because this
might be the way she behaves in her daily life. Defendant further asserts that, while the video
was irrelevant as to her guilt, it was nonetheless highly prejudicial because it was used to show
that she was “erratic,” “moody,” and generally deserving of punishment.
¶ 53 To be relevant, the booking video needed only to tend to prove or disprove that defendant
was under the influence of alcohol, which was the only element at issue. Defendant displayed
shifts in her demeanor and behavior that could reasonably be inferred to be the result of
intoxication. See People v. Sturgess, 364 Ill. App. 3d 107, 110 (2006) (affirming driving under
the influence conviction when the arresting officer testified that he determined the defendant was
under the influence based on her “demeanor, comportment, and behavior”). Moreover, the video
showed her refusal to submit to a breath test, which is itself relevant to demonstrate her
consciousness of guilt. Johnson, 218 Ill. 2d at 140. Accordingly, we determine that the booking
video was relevant because it tended to prove a material fact at issue, whether defendant was under
the influence of alcohol.
¶ 54 Despite its relevance, the booking video might have been inadmissible if its prejudicial
impact substantially outweighed its probative value. Hoerer, 375 Ill. App 3d at 157.
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Defendant’s argument on this point is that she was improperly prejudiced because the Village used
her own bad behavior in the video to demonstrate that she had a general propensity to commit
crime. In support, she cites People v. McGee, 2015 IL App (1st) 122000, ¶ 25 (“Evidence of a
crime or other bad acts for which a defendant is not on trial is inadmissible if relevant merely to
establish the defendant’s propensity to commit crime.”). Defendant’s behavior and choice of
words may have had a negative impact on the jury’s view of her theory that she was a “rational
sober person,” but this evidence was also relevant to prove she was under the influence of alcohol.
Therefore, the video went directly to an element of the crime charged and was not introduced
merely to establish defendant’s general propensity to commit crime. Under these circumstances,
where the video evidence corroborated witness testimony and tended to show that defendant was
under the influence of alcohol, we cannot say that its prejudicial impact substantially outweighed
its probative value. Therefore, the court did not abuse its discretion by admitting the booking
video.
¶ 55 2. Prosecutorial Comments
¶ 56 Defendant next asks us to review the unpreserved issue of what she believes were improper
comments by the prosecution during its opening statement, closing argument, and rebuttal
argument. Defendant asserts we should review these comments under both prongs of the plain-
error doctrine because the case was closely balanced and the errors were serious.
¶ 57 As noted, the first step in a plain-error analysis is to determine whether there was error at
all. Sebby, 2017 IL 119445, ¶ 49. Defendant first complains that the prosecutor inappropriately
described her language in the booking video as “vulgar” and “inappropriate” during his opening
statement. With respect to these comments, defendant asserts that the prosecutor used the video
as an improper attack on her character for no reason other than to prejudice her.
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¶ 58 The purpose of an opening statement is to allow a party to remark generally and concisely
about the facts and issues, and the State is generally given wide latitude in discussing the case.
People v. Smith, 2017 IL App (1st) 143728, ¶ 48. However, comments that are intended only to
arouse the prejudice and passion of the jury are improper. Smith, 2017 IL App (1st) 143728,
¶ 48. The comments defendant finds objectionable are contained in the following passage:
“And you’ll see some of the booking video again from the police station with the
defendant’s interaction with Officer Schultz. In addition to giving her the opportunity to
take a breathalyzer test and her refusing to take that test, which you consider later, is further
evidence of her guilt that you’ll see in further detail, her behavior and her language, her
vulgar words towards the officer, her completely out of character or out of—all the angles
of the situation, it’s completely inappropriate to the situation. She laughs alternately.
She cries. She buries her head in her hands, continues swearing at the officers in the
room.” (Emphasis added.)
The prosecutor described what the jury would see on the booking video, which was relevant to
whether defendant was under the influence of alcohol. He accurately stated that the jury would
observe her interactions with Schultz and her refusal to take the blood-alcohol test. Considering
defendant’s frequent use of the F-word, her use of her middle fingers, her wishing that Schultz
would burn in hell, and her telling Schultz that he smelled like an asshole, the prosecutor fairly,
accurately, and objectively summarized defendant’s words as “vulgar” and “inappropriate to the
situation.” Moreover, the prosecutor was not raising defendant’s character as an issue. Instead,
he discussed these facts as evidence that would point to defendant being under the influence of
alcohol, the central issue in the case. Accordingly, the comments were not an attack on
defendant’s character and were entirely proper.
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¶ 59 Defendant next argues that the prosecutor continued to make improper remarks during his
closing argument when he argued that defendant’s behavior in the booking video was a
“completely inappropriate, disproportionate reaction to the situation that she was in,” and urged
the jury to strongly consider her character and behavior.
¶ 60 Similar to opening statements, prosecutors are afforded wide latitude during closing
arguments. People v. Blue, 189 Ill. 2d 99, 127 (2000). Prosecutors may comment on the
evidence and all reasonable inferences to be made therefrom, though they may not present
arguments that serve no purpose but to inflame the passions of the jury. Blue, 189 Ill. 2d at 127-
28. Closing arguments are viewed in their entirety and allegedly erroneous statements must be
viewed in context. Blue, 189 Ill. 2d at 128. The comments defendant alleges were error came
within the following passages:
“You saw her begin to alternately scream and yell, sobbing, yelling at the officer.
Right before she’s taken to the police station, you heard “What the fuck is taking so long?”
And “Are you fucking kidding me?” Now, does that sound like something that someone
would say if they’re completely sober and in the position that she was in? I don’t think it
is.
And later, back at the police station, you see further evidence of this completely
inappropriate, disproportionate reaction to the situation she was in.
Now, again, you have seen the video. She goes from slumping in her chair to
sitting up straight, to putting her feet up on the desk, to burying her head in her legs, to
giggling really oddly at several times. She sort of giggles when the female officer walks
in the room and waving at her and speaking in a childish tone of voice. And at other
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points, again using vulgarity, dropping “F” bombs on the officer. At one point telling him
she hopes he burns in hell. Again, I don’t know how someone in a sober state of mind
would ever consider that appropriate, and given what else you know here, I think it’s
further evidence of her intoxication.
And again, one of the other things we’ll ask you to do today is consider the
credibility, not only of the witnesses you heard on the stand, but also what you see and hear
on the videos. Consider what the defendant’s behavior and what her statements to the
officer were, consider if that is someone who is credible and sober.” (Emphasis added.)
Defendant additionally complains of comments during the Village’s rebuttal argument, where the
prosecutor quoted language from IPI Criminal No. 23.29 and told the jury that if alcohol affected
defendant’s ability “to think and act with ordinary care, you can find her guilty.” She argues that
the comments during the closing and rebuttal arguments implied to the jury that “consumption
equals automatic intoxication” and that her guilt can be based upon “inappropriate” behavior.
¶ 61 Viewed in their entirety within the context of this case, the prosecutor’s comments properly
invited the jury to draw reasonable inferences from defendant’s words and behavior seen on the
video. The Village’s theory was that defendant’s words and behavior told a different story than
her repeated denials of drinking alcohol. There is nothing in the comments that urged the jury to
consider defendant’s general character, inferred that consumption equals intoxication, or conveyed
that the jury could find her guilty based solely on her bad behavior. The comments went directly
to the element of the crime at issue. As such, the comments were not error and there can be no
plain error.
¶ 62 3. Jury Instruction
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¶ 63 Defendant’s next unpreserved issue is that the trial court erred by giving IPI Criminal No.
23.29, because it did not accurately state the law as to whether she was under the influence of
alcohol. Defendant again acknowledges that she did not preserve this issue for review, but argues
that we should review it under both prongs of the plain-error doctrine. As noted above, there can
be no plain error if there was no error, and the Village responds that there was no error in this
instance. Citing People v. Dorn, 378 Ill. App. 3d 693, 698 (2008), defendant asserts that we
should review this issue de novo because we are determining whether the instruction accurately
conveyed the applicable law. Defendant misstates the holding of Dorn, which was that we
conduct a de novo review of whether jury instructions, “as a whole,” accurately convey the law.
(Emphasis added.) Dorn, 378 Ill. App. 3d at 698. “However, we review for an abuse of
discretion the trial court’s decision to give a particular jury instruction.” Dorn, 378 Ill. App. 3d
at 698. Thus, in determining whether there was error to support defendant’s plain-error argument,
we review the trial court’s decision to give this particular jury instruction for an abuse of discretion.
¶ 64 IPI Criminal No. 23.29 provides:
“A person is under the influence of alcohol when, as a result of drinking any amount
of alcohol, his mental or physical faculties are so impaired as to reduce his ability to think
Defendant contends that IPI Criminal No. 23.29 failed to require the jury to make a specific finding
as to whether she was under the influence of alcohol such that she could not safely operate a
vehicle. Defendant additionally contends that the instruction erroneously invited the jury to
consider her “general character, behavior, and conduct,” in addition to her ability to drive.
¶ 65 IPI Criminal No. 23.29 is a well-established pattern instruction that defines, as a matter of
law, when a person is under the influence of alcohol. See IPI Criminal No. 23.29 (4th ed. 2000),
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Committee Comments. The committee comments to IPI Criminal No. 23.29 cite People v.
Schneider, 362 Ill. 478 (1936), which laid the foundation for the current version of IPI Criminal
No. 23.29 and its predecessors. See IPI Criminal No. 23.29, Committee Comments; see also
Shore v. Truman, 63 Ill. App. 2d. 315 (1965); Mills v. Edgar, 178 Ill. App. 3d 1054 (1989). In
Schneider, our supreme court determined that whether a person was intoxicated is a factual
question for the jury, but what constitutes intoxication is a matter of law; thus, a jury instruction
defining intoxication is appropriate. Schneider, 362 Ill. At 485.
¶ 66 In People v. Frazier, which is also cited in the committee comments to IPI Criminal No.
23.29, the defendant was convicted of driving under the influence after the trial court gave the
then-current pattern instruction defining intoxication, which was virtually identical to the
instruction given in this case:
“A person is under the influence of alcohol when as a result of drinking any amount
of alcohol his mental and/or physical faculties are so impaired as to reduce his ability to
think and act with ordinary care.” People v. Frazier, 123 Ill. App. 3d 563, 569 (1984).
The defendant in Frazier argued that the instruction should have referred to driving and his ability
to operate a vehicle. Frazier, 123 Ill. App. 3d at 570. The Frazier court rejected that argument:
“The instruction did not need to mention driving, for the definition of ‘intoxication’ does
not vary according to the activity engaged in. To hold otherwise would imply that the
consumption of alcohol may impair a person’s ability to think and act while it leaves intact
his ability to drive, a notion we reject. ‘Thinking’ and ‘acting,’ the concepts used in the
instruction, are broad enough to include all the tasks associated with driving.
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Furthermore, the jury did not need to be reminded again that the offense here was
based on the defendant’s condition while he was driving and not at some other time.”
Frazier, 123 Ill. App. 3d at 570.
¶ 67 Defendant asserts that the jury should have been instructed that she was required to be
under the influence of alcohol to such a degree that she was unable to operate a vehicle, and that
IPI Criminal No. 23.29 failed to focus the jury’s attention on her ability to drive safely. Defendant
portrays IPI Criminal No. 23.29 as an overbroad definition of “under the influence” that
generalizes the jury’s assessment by requiring only that it look to her ability to “think and act with
ordinary care,” not her ability to drive. Defendant is incorrect. As explained in Frazier, it would
be unreasonable to believe that alcohol impaired defendant’s ability to “think and act” while
leaving intact her ability to drive. Moreover, the jury did not need reminding that the offense was
based on her condition while she was driving, and not some other activity. Accordingly, the trial
court did not abuse its discretion in giving IPI Criminal No. 23.29. Thus, we determine that there
was no error, and accordingly, there can be no plain error.
¶ 68 4. Cumulative Error
¶ 69 Defendant next argues that even if none of the complained-of errors independently warrant
reversal, the cumulative impact of the errors surrounding the booking video, the prosecutor’s
comments, and IPI Criminal No. 23.29, nonetheless necessitate a new trial. Criminal defendants
are entitled to a fair, orderly, and impartial trial. Blue, 189 Ill. 2d at 138. When an error arises
that denies a defendant her right to a fair, orderly, and impartial trial, we must take corrective
action to protect fairness and the very integrity of the judicial process. See Blue, 189 Ill. 2d at
138. As detailed in our analysis above, the booking video was properly admitted, the prosecutor’s
comments did not constitute error, and IPI Criminal No. 23.29 was an appropriate instruction.
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None of the complained-of errors were, in fact, error. Consequently, defendant has not shown
that the cumulative effects of these alleged errors deprived her of her right to a fair trial.
¶ 70 III. CONCLUSION
¶ 71 For the foregoing reasons, we affirm the judgment of the circuit court of Lake County.
¶ 72 Affirmed.
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