People v. Horne , 2022 IL App (3d) 190263-U ( 2022 )

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except
in the limited circumstances allowed under Rule 23(e)(1).
2022 IL App (3d) 190263-UOrder filed January 11, 2022
____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
2022
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 14th Judicial Circuit,
) Henry County, Illinois,
Plaintiff-Appellee, )
) Appeal Nos. 3-19-0263, 3-19-0264
v. ) and 3-19-0265
) Circuit Nos. 17-CF-409, 17-CF-415
) and 17-CF-434
GERALD T. HORNE, )
) Honorable
) Terence M. Patton,
Defendant-Appellant. ) Judge, Presiding.
____________________________________________________________________________
PRESIDING JUSTICE O’BRIEN delivered the judgment of the court.
Justices Lytton and McDade concurred in the judgment.
____________________________________________________________________________
ORDER
¶1 Held: This court has jurisdiction and declines to remand for a Krankel hearing. Even if
the State and circuit court improperly commented on defendant’s postarrest silence
such conduct did not amount to reversible plain error.
¶2 Defendant, Gerald T. Horne, appeals his three convictions for felony driving while his
license was revoked. He argues this court does not have jurisdiction over any of the convictions
because there is a timely posttrial motion pending. Alternatively, if this court determines it has
jurisdiction, he argues remand is required for a hearing pursuant to People v. Krankel, 102 Ill. 2d
181 (1984). Further, defendant argues that one of his convictions should be reversed because the
court and the State improperly commented on his postarrest silence. We affirm.
¶3 I. BACKGROUND
¶4 The State charged defendant with one count of felony driving while license revoked (625
ILCS 5/6-303(a), (d-2) (West 2016)) in each of the three separate cases, Nos. 17-CF-409, 17-CF-
415 and 17-CF-434, arising from three separate incidents. The cases proceeded together, and bench
trials were held on the same day.
¶5 In case No. 17-CF-415, Officer Christopher Lafriniere testified that he was on patrol on
December 6, 2017. At approximately 2 a.m., he noticed a vehicle on Route 84 with a loud exhaust.
As it drove by, Lafriniere could see one silhouette through the passenger’s side window. He
followed the vehicle and it abruptly turned into the fire station parking lot. Lafriniere “turned
around in a driveway just on the driver’s side of the vehicle.” He saw the driver exit the driver’s
side of the vehicle and start checking the tires. Lafriniere did not see anyone else exit the vehicle
“and there was no one else in the area.” Only the driver’s door was open. There were no other
occupants in the vehicle. The State asked Lafriniere “Was there any mention of any other
occupants around? Any—did you ever make contact with anyone other than the driver?” He
responded “No, there was no one else in the area.”
¶6 It was dark, but there were “quite a few streetlights” in the area, as well as parking lot and
building lighting. From the time Lafriniere pulled behind the vehicle to the time he stopped in the
parking lot next to the vehicle, there was “maybe five seconds’ worth” of time where he did not
have a continuous view of the driver and that was while going around a curve on Route 84.
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¶7 Lafriniere conducted a motorist assist to see if there were any issues with the vehicle.
Defendant told him that there was something wrong with the tire. The vehicle did not have a flat
tire and Lafriniere did not see any reason why someone would be looking at the tire. Defendant
provided Lafriniere with an Illinois identification (ID) card. After running defendant’s information
through dispatch, Lafriniere was informed that defendant had a warrant and his license was
revoked. Lafriniere also ran a check on the registration, and it did not match the vehicle. He told
defendant that the registration did not match. The State asked Lafriniere if defendant made any
statements after being informed the registration did not match and he testified that defendant
wanted a supervisor and the State police.
¶8 Officer Zachary Bollinger testified that on December 6, 2017, he was with Lafriniere and
they pulled behind a vehicle driving on Route 84. They made contact with the driver of the vehicle,
defendant. Bollinger had not previously seen defendant. He stated no one else was in the vehicle.
Bollinger explained his basis for that conclusion by stating that:
“as the vehicle pulled into the fire station parking lot, we pulled in onto Fifth
Avenue directly after it and past it, saw him getting out of the driver’s seat, and we
turned around in the first driveway after the fire station. There is nothing in
between, blocking view, between that driveway and the fire department.”
There was no time during the turning process that they were unable to directly observe the vehicle.
No one else exited the vehicle besides defendant and there was only one occupant from the time
Bollinger first observed the vehicle until they pulled behind it in the parking lot. When asked if
there was any way someone else could have exited the vehicle and walked away, Bollinger
responded “I suppose in, like, a make-believe situation, a small person could have escaped out of
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the passenger-side door and snuck away.” He further stated that “Realistically, no, nobody else got
out of the vehicle.”
¶9 Adario Lawson testified that he was defendant’s friend. On December 6, he picked
defendant up from work in what he believed was defendant’s vehicle. They were travelling on
Route 6. A “tire started acting funny” so they pulled over at the fire station. Lawson exited the
driver’s side door of the vehicle and immediately walked down the street to the gas station to get
“Fix a Flat,” but he did not make it to the gas station. Lawson did not remember which direction
he walked or what the weather was like. After a couple blocks, he turned around and saw the police
talking to defendant. Lawson stated he “was going to turn around, but I thought, you know, he can
handle it.” He did not return to the vehicle and received a ride home. Lawson stated that he was
not in any trouble but did not return to the vehicle because he was “not comfortable around police
at all.” Defendant did not drive the vehicle.
¶ 10 Lawson stated that he did not drive to a gas station rather than stop at the fire station
because “like the tire had popped” so he did not want to go any further. There was no flat tire and
Lawson never figured out what was wrong. Lawson did not tell the police he was driving
“[b]ecause [he] didn’t think it was going to be an issue.”
¶ 11 Defendant testified that Lawson picked him up from work on December 6 in defendant’s
girlfriend’s vehicle. Lawson always took him back and forth to work. Defendant was in the
passenger seat of the vehicle, “slouched back a little bit.” Defendant did not know the route they
took but agreed that at some point they were on Route 84. They “heard a hard boom, like the tire
had popped or something with *** the four-wheel drive.” Lawson pulled into the fire station.
Defendant told Lawson “just to get out; in case there was a flat, [they did not] want to be in this
town, this little small town like this.” As soon as the vehicle parked, Lawson exited the driver’s
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seat and started walking toward the gas station to get “Fix a Flat.” Defendant exited the passenger
side and started looking around to see if the tire was flat when the police arrived.
¶ 12 The police asked for defendant’s ID, which he provided. Defense counsel asked him if he
had “occasion to explain to the police officers that [Lawson] was the one that was driving and that
[Lawson] was just going to get help and he might be back?” Defendant replied he did not. When
asked if there was a reason he did not, defendant explained that he knew he had a warrant, he was
frustrated with the police, and he did not want to answer questions so he “raised [his] right to ask
for higher authority of these guys.” Also, defendant thought Lawson “might come back.”
Defendant had not driven the vehicle that night.
¶ 13 On cross-examination, the State sought to confirm with defendant that he didn’t mention
anything about a driver, Lawson, to the police and he stated “No. I didn’t want to mention anything
about anything, because I was facing a warrant at the time. I was pretty upset. I lost my job. So,
no, I did not answer any questions about that.”
¶ 14 During closing argument, the State argued that “This was never mentioned that there was
another friend. I certainly—if I were to have someone who was actually driving and I have a
revoked driver’s license, the first thing I would say was that there was another individual and locate
that individual.”
¶ 15 After setting forth reasons why it found Lawson was not credible, the court stated, “And
the defendant doesn’t mention anything to the police about Mr. Lawson being in there.”
¶ 16 The court found defendant guilty in each case. On April 9, 2019, the court sentenced
defendant to concurrent terms of 24 months’ conditional discharge and 180 days in jail. Thereafter,
defendant filed a motion to reconsider which the court denied on May 2.
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¶ 17 In all three of the cases, defendant then filed, as a self-represented litigant, a notice of
appeal on the form approved by the supreme court. This document was filed May 7, 2019. In the
section provided to state the relief requested, defendant checked the boxes “reverse the trial court’s
judgment” and “other.” Next to “other” he wrote “Inefective counsel/I ask that the decision to be
reversed because I was getting harassed + followed by Kewanee police. They would follow me
over a 15 block radius.” In all three of the cases, defendant submitted a handwritten document,
which was filed on May 9, 2019, although the handwritten date on it was May 5. There was no
additional information in the record indicating when the document was sent to the court. The
document was titled “Appeal” and stated, “I would like for the cases above to be appeal or request
for over turne for the postconviction proceedings.” It continued “I would like case over turne for
Ineffective counils not puting more request and to best my case. Bad council. To have that’s cases
to the appellate court.” The court made a docket entry in each case on May 9 indicating it reviewed
a letter from defendant stating he wished to appeal and that a notice of appeal had already been
filed. The appeals in all three cases have been consolidated.
¶ 18 II. ANALYSIS
¶ 19 A. Jurisdiction
¶ 20 Defendant first argues that this court lacks jurisdiction over each of the three cases involved
in this consolidated appeal because he filed a timely posttrial motion in each case which is still
pending. He bases this assertion on: (1) the references to ineffective assistance of counsel in the
notice of appeal and the handwritten document which were both filed in each case; and (2) Illinois
Supreme Court Rule 606(b) (eff. July 1, 2017), which provides that when a timely posttrial motion
directed against the judgment has been filed, any notice of appeal filed before entry of the order
disposing of such motion shall be stricken regardless of whether the postjudgment motion was
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filed before or after the notice of appeal. Alternatively, he requests that if this court determines it
has jurisdiction that we remand the matters for a Krankel hearing.
¶ 21 Here, even assuming defendant was attempting to raise ineffective assistance of counsel
claims with the circuit court rather than with this court on appeal, this court has jurisdiction.
Specifically, the court in People v. Darr, 2018 IL App (3d) 150562, ¶ 99, stated “[w]hen defendant
filed his notice of appeal, even contemporaneously with his ineffectiveness claims, he had
perfected his appeal and deprived the circuit court of jurisdiction.” In that matter, as in the instant
case, the defendant had filed the ineffectiveness claim contemporaneously with the notices of
appeal, “apparently as a single filing.” Id. ¶ 93. The court in Darr further determined that Rule
606(b) did not undermine the notice of appeal and return jurisdiction to the circuit court. Id. ¶ 95.
Despite defendant’s argument that Darr was decided incorrectly, we choose to follow Darr and
therefore hold that defendant’s ineffectiveness claims filed contemporaneously with, and after, the
notices of appeal did not undermine the notices of appeal. Thus, this court has jurisdiction in all
three cases. Additionally, we see no reason to remand for a Krankel hearing as “the court’s failure
to address defendant’s ineffectiveness claims would not prevent him from raising those same
claims on appeal,” which defendant has not done. Id. ¶ 99. Because defendant does not otherwise
present any challenge to his conviction or sentence in case Nos. 17-CF-409 or 17-CF-434, those
judgments are affirmed.
¶ 22 B. Alleged Improper Comments
¶ 23 Defendant next argues that in case No. 17-CF-415, the court and the State both improperly
commented on his postarrest silence by noting his failure to inform the police that Lawson was
purportedly the driver. He acknowledges that he failed to preserve this issue (see People v. Enoch,
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122 Ill. 2d 176, 186 (1988)) but argues that it amounts to reversible plain error because the
evidence is closely balanced.
¶ 24 The plain error doctrine allows a forfeited error to be reviewed when “a clear or obvious
error occurred and the evidence is so closely balanced that the error alone threatened to tip the
scales of justice against the defendant.” People v. Belknap, 2014 IL 117094, ¶ 48. Generally, the
first step in applying the plain error doctrine is to determine whether a clear or obvious error
occurred. People v. Sebby, 2017 IL 119445, ¶ 49. But, even if we assume that defendant did not
open the door regarding his failure to mention Lawson and that the comments were improper, we
conclude the evidence was not closely balanced.
¶ 25 A matter is not necessarily closely balanced simply because it comes down to a credibility
contest. See Belknap, 2014 IL 117094, ¶ 51 (noting in People v. Adams, 2012 IL 111168, the
supreme court overturned the appellate court’s decision that concluded the evidence was closely
balanced because of the conflicting testimony between the defendant and the officers). When
determining whether the evidence is closely balanced, “a reviewing court must evaluate the totality
of the evidence and conduct a qualitative, commonsense assessment of it within the context of the
case.” Sebby, 2017 IL 119445, ¶ 53.
¶ 26 Here, taking a qualitative, commonsense view of defendant and Lawson’s version of events
versus Lafriniere and Bollinger’s version, we conclude that defendant and Lawson’s version is not
credible and plausible. Specifically, it is not plausible that, if Lawson was present and driving as
stated by defendant and Lawson, that he could exit the driver’s side of the vehicle and leave the
area without Lafriniere or Bollinger seeing him. It is also not plausible that Lawson would take off
immediately to find “Fix a Flat” without even checking if there was a flat tire. This is especially
so considering it was 2 a.m. in December and ultimately, there was no flat tire. Additionally, if
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Lawson was driving defendant back and forth to work all the time, it is not plausible that he would
think that there would be no issue with who the driver was. On the other side, both Lafriniere and
Bollinger’s testimony was credible and plausible. This testimony established that the officers only
saw one person in the vehicle as it drove by, the vehicle abruptly pulled into the fire station parking
lot, nothing obstructed their view of the vehicle once it pulled into the parking lot, they only saw
defendant exit the vehicle, defendant got out of the driver’s door, and there was no one else in the
area. Therefore, we conclude the evidence was not closely balanced and thus, the purportedly
improper comments do not amount to reversible plain error. Based on the foregoing, we affirm the
judgment in case No. 17-CF-415.
¶ 27 III. CONCLUSION
¶ 28 The judgment of the circuit court of Henry County is affirmed.
¶ 29 Affirmed.
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