People v. Kiehn , 2022 IL App (2d) 200734-U ( 2022 )

2022 IL App (2d) 200734-UNo. 2-20-0734
Order filed March 18, 2022
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent
except in the limited circumstances allowed under Rule 23(e)(l).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Kane County.
)
Plaintiff-Appellee, )
)
v. ) No. 18-CF-799
)
ROBERT W. KIEHN, ) Honorable
) David P. Kliment,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE JORGENSEN delivered the judgment of the court.
Justices Zenoff and Brennan concurred in the judgment.
ORDER
¶1 Held: The State proved defendant guilty beyond a reasonable doubt of aggravated driving
under the influence. Further, trial counsel was not ineffective for failing to move
to suppress the traffic-stop video. Finally, we reject defendant’s argument that his
prosecution was vindictive. Affirmed.
¶2 Following a jury trial, defendant, Robert W. Kiehn, was convicted of two counts of
aggravated driving under the influence of alcohol (DUI) (625 ILCS 5/11-501(a)(2), (d)(1)(A),
(d)(2)(B) (West 2016)). On November 6, 2020, the court denied defendant’s posttrial motions and
sentenced him to felony probation. Defendant appeals, arguing that the evidence was insufficient
2022 IL App (2d) 200734-Uto establish intoxication beyond a reasonable doubt, his counsel was ineffective, and his
prosecution was vindictive. For the following reasons, we reject his arguments and affirm.
¶3 I. BACKGROUND
¶4 A. Pretrial and Trial
¶5 The events giving rise to this action occurred on December 26, 2017. On February 23,
2018, the court held a hearing on defendant’s petition to rescind the statutory summary suspension
of his license. At that time, the case against defendant was charged as a misdemeanor. In relevant
part, defense counsel argued that the video of the events leading up to defendant’s arrest did not
depict defendant being offered the opportunity to perform field-sobriety tests or a portable breath
test. Kevin Lawson, a police officer for the Village of East Dundee, testified that the audio
microphone was turned off during the time that he asked defendant to conduct field-sobriety
testing. Lawson testified that he offered those tests to defendant during transport to the police
station. Defense counsel did not move to suppress the video, nor would counsel later object to the
video’s admission at trial. The court entered a directed finding in the State’s favor.
¶6 Around two months later, on April 18, 2018, the State filed a two-count indictment against
defendant for aggravated DUI. The felony indictment was based upon the same events that were
previously alleged as a misdemeanor.
¶7 A jury trial commenced on January 30, 2020. Lawson testified that, on December 26,
2017, at around 12:56 a.m., he was on patrol near River and Jackson Streets in East Dundee. In
that area, he noticed that a vehicle was not properly parked in a diagonal parking spot on River
Street; rather, the vehicle had pulled through the spot and was resting such that two-thirds of the
vehicle was parked over the curb and on top of the parkway. There was snow on the ground, but
the curb remained visible. Lawson called for backup and positioned his squad car with the dash
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2022 IL App (2d) 200734-Ucamera recording the parked vehicle from the rear, passenger-side view. Lawson testified that,
when he arrived, the vehicle’s engine was running.
¶8 Lawson approached the vehicle from its passenger side and noticed two persons inside.
Defendant’s brother, Thomas (Tom) Kiehn, was seated in the front passenger seat and was dancing
to music, while defendant was in the driver’s seat, slumped over the center console. Lawson
testified that he knocked on the car window, but defendant did not wake up. Lawson motioned to
Tom to wake defendant, which he did by shaking him. Lawson asked defendant to lower his
window; defendant first rolled down the rear window before lowering the driver’s window.
Lawson asked defendant for identification and whether he had been drinking. Defendant
responded, “we’re good.” Lawson testified that defendant’s speech was slurred, and his eyes were
bloodshot and glassy; further, he smelled an odor of alcohol coming from the vehicle. Lawson
explained that he repeatedly asked defendant for his identification and for information, but
defendant’s answers were nonresponsive and did not make sense. For example, when asked for
identification and whether he had been drinking, defendant repeatedly stated “we’re fine,” that
they were on private property, and, later, that they were on public property. Based on his
observations, Lawson asked defendant to exit the vehicle. He did not comply.
¶9 Officers Daniel Duda and John Haase arrived on the scene as backup. They both witnessed
the vehicle straddling the curb and parkway. They observed defendant arguing with Lawson and
appearing confused, and Duda testified that defendant’s responses were “just kind of scattered.”
Haase stood at the driver’s side of the vehicle and testified that defendant exhibited slow, slurred
speech, seemed lethargic, and had bloodshot watery eyes. Haase testified that he smelled an odor
of alcohol from inside defendant’s vehicle. When he asked defendant his name, defendant
responded that he was in a parked vehicle. Although defendant was repeatedly ordered out of the
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2022 IL App (2d) 200734-Uvehicle (at least 10 times) and was informed that he was under arrest for obstruction, he did not
exit. Duda ultimately assisted Lawson in forcibly removing defendant from the car.
¶ 10 Based upon “the totality of the scene with the way the vehicle was parked, the time of day,”
the odor of alcohol, and defendant’s appearance, refusal to exit the vehicle and his nonresponsive
answers, it was Haase’s opinion that defendant was under the influence of alcohol. Similarly,
Lawson testified that his training and experience led him to conclude that defendant was under the
influence, given the way the vehicle was parked; defendant’s bloodshot and glassy eyes, lethargy,
and nonresponsive answers to questions; and the smell of alcohol. Duda testified that, other than
his experience on how people generally behave, his involvement at the scene did not permit him
to say unequivocally whether defendant was or was not under the influence of alcohol.
¶ 11 Lawson further testified that, at some point, defendant reached forward and turned the car
off, although he could not see how defendant did so because the steering wheel blocked his view.
The car used a key fob, which defendant put on the dashboard. Once defendant was placed inside
the squad car, Lawson noticed a strong odor of alcohol in the squad car that had not been there
before defendant’s presence. Lawson testified that the dashboard video and microphone had been
turned off when he asked defendant to perform field sobriety tests and that he asked him to do so
on the way to the police station where they have a sheltered area to perform the tests, since it was
cold outside. Once he arrived at the station, defendant refused a Breathalyzer test.
¶ 12 The video recording of the stop was played for the jury. (This court has also reviewed the
video). In sum, the video shows the passenger side of the vehicle. Lawson can be heard speaking
from the driver’s side of the vehicle, and defendant’s responses are mostly audible. Lawson asked
defendant if he came from Bandito Barney’s Beach Club, a restaurant and bar across the street
from where the vehicle was parked, and defendant responded, “yes.” When Lawson asked
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2022 IL App (2d) 200734-Udefendant for identification, defendant responded, “we’re good.” Lawson asked for identification
multiple times, and when defendant again responded, “we’re good,” Lawson disagreed, noting that
the vehicle was resting over a curb, defendant had bloodshot, glassy eyes, and that defendant had
lowered the rear window instead of the driver’s window. Lawson asked for identification again,
and defendant responded that he was in a “public place.” When Lawson asked yet again for his
identification, defendant asked why Lawson wanted it. Lawson explained he was investigating
whether defendant operated a vehicle while intoxicated and asked defendant how he had started
the vehicle; defendant again responded, “we’re good.” Instead of exiting the vehicle when asked
and ordered to do so, defendant repeated his refrain of “we’re good,” he was “fine,” and that he
was on “private property.” In short, defendant was repeatedly ordered out of the vehicle and was
warned he would be arrested for obstruction. Lawson reiterated that defendant was not cooperating
and that he could smell alcohol coming from the car; defendant insisted simply that he was in a
parked car and not moving. Ultimately, the officers removed defendant from the car, handcuffed
him, and walked him to Lawson’s squad car. 1
¶ 13 The court denied defendant’s motion for a directed verdict. Defendant’s brother Tom
testified that he spent December 25, 2017, with defendant for the Christmas holiday. After seeing
a movie together, defendant went home to eat leftovers, while, around 9 p.m., Tom drove
defendant’s car to Bandito Barney’s for dinner. He could not recall if he parked the vehicle over
the curb, but testified it was possible. Tom ate dinner and drank a beer, then consumed several
shots of alcohol with other people at the bar. He described himself as having been drunk, and he
1
At one point in the video, another person comes into view; apparently, the owner of
Bandito Barney’s arrived at the scene for a period.
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2022 IL App (2d) 200734-Ucalled defendant to pick him up. Defendant arrived and helped Tom get into the car. Tom testified
that defendant did not have anything to drink that day when they were together, nor did defendant
smell of alcohol when he arrived to get Tom. Tom testified that he did not give the key fob to
defendant. The last thing Tom recalled was sitting in the passenger seat of defendant’s car.
¶ 14 Defendant testified that he spent Christmas day with Tom but did not want to go out for
dinner. He let Tom drive his Range Rover to Bandito Barney’s. The vehicle operates with a push-
button start and requires a key fob, not an ignition key; the car unlocks when the key fob is nearby.
¶ 15 Defendant went to bed around 9:30 or 10 p.m. but awoke when Tom called to say he was
at a bar and in trouble. Defendant took a taxi to Bandito Barney’s and arrived around 12:15 a.m.
on December 26, 2017. He saw his car parked over a curb when he arrived. He was mad, went
into the bar to get Tom, and they returned to defendant’s vehicle. Defendant started the car with
the push button; Tom was still in possession of the key fob. Tom turned up the music and was
dancing in the passenger seat. They were in the vehicle for around one minute when Lawson
arrived.
¶ 16 Defendant denied that he was slumped over the center console and asleep. Rather, he
testified that he pulled out his identification but dropped it on the floor. He bent over to find it in
the dark. When he tried to show it to Lawson, Lawson would not take it. Defendant agreed that
the video depicts Lawson continuing to request his identification, but he testified that he tried to
hand it to Lawson three times. Defendant explained that he initially lowered both windows
because the driver-side window was slow to come down and, when he hit the controls, both the
drivers-side window and rear window rolled down at the same time. According to defendant,
Lawson seemed angry and had his hand on his weapon. Defendant was scared. He elaborated that
Lawson asked him how he was doing and then immediately asked him how much he had to drink.
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2022 IL App (2d) 200734-UDefendant said he responded, “none.” Defendant testified that Lawson told him only that he was
being placed under arrest for obstruction, and he never asked him to perform sobriety tests.
Defendant agreed, however, that he refused a Breathalyzer test once he arrived at the police station
because of the way he had been treated. He explained, “it seemed that everything was against me
when I knew I didn’t do anything wrong.” Defendant also agreed that the officers informed him
that they were investigating whether he was intoxicated and that he never told them that he was
there to pick up his brother. Defendant testified that he did not consume any alcohol on Christmas
day or the night of his arrest. He did not drive the car that night and did not retrieve the key fob
from Tom.
¶ 17 The jury found defendant guilty on both aggravated DUI counts.
¶ 18 B. Posttrial Motions
¶ 19 Defense counsel filed a posttrial motion, but then withdrew. New counsel filed two more
posttrial motions. In relevant part, defendant argued that the evidence was insufficient to sustain
his convictions. Further, defendant claimed that his trial counsel, J. Brick Van Der Snick, was
ineffective for failing to keep him informed about the legal proceedings and, for example, that the
misdemeanor charges could be raised to felony charges. If he had known, defendant alleged, he
might have told counsel he wished to negotiate a plea on the misdemeanor. Further, defendant
alleged (not as an ineffective-assistance claim) that the State failed to timely disclose a video
concerning defendant’s arrest (although he did not specify the video, it appears he was referring
to a booking video made at the station that went “missing”). In addition, in a second amended
posttrial motion (filed after the hearing on his motions commenced), defendant argued that the
State’s Attorney’s office had a policy to not offer plea agreements to defendants who petitioned to
rescind their summary suspensions and, thus, his felony prosecution was vindictive.
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2022 IL App (2d) 200734-U¶ 20 At a hearing on the motions, Van Der Snick was questioned about the contested issue
whether defendant was offered field sobriety tests and that, according to Lawson, he offered the
tests exactly when the audio cuts out in the video from the squad car. Van Der Snick was asked if
he investigated why the audio stopped on the video, and he answered no. He was then asked if he
considered “what other remedies may have existed at law in order to have that video excluded
from evidence at trial?” After some clarifying questions, Van Der Snick answered that he did not
investigate why the audio on the video “blanked out” for a minute.
¶ 21 Further, Van Der Snick was asked whether, prior to setting the case for trial, he ever
discussed with defendant the possibility of pleading guilty. He replied that he had, but, for two
reasons, defendant was not interested. First, defendant was a licensed private detective, and a
conviction would have ramifications upon his license. Second:
“*** because of the State’s policy that if you run motions, you don’t get an offer.
The motion [to rescind the statutory summary suspension of his license] had been run by
his prior attorney, so we were told there was going to be no plea negotiations because it
had been enhanced to a felony and they had ran [sic] the statutory summary suspension
***.”
¶ 22 On cross-examination, defense counsel asked Van Der Snick to describe the “standing rule
that if motions are run, then the State’s Attorney’s office no longer discusses plea agreements.”
Van Der Snick elaborated:
“Yes, sir. It is a—whether it is written or unwritten, it’s the policy of this [S]tate’s
[A]ttorney’s office and it has been for a long time and they tell us this. That if you want to
negotiate for a disposition, you better not run, my words, that we shouldn’t run motions
because then there will be no negotiations for settlement, sir.”
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2022 IL App (2d) 200734-U¶ 23 Van Der Snick disagreed with counsel’s characterization of the purported policy as a threat
to enhance misdemeanors to felonies:
“No. They never threatened me. They just tell me that this is their policy and we
understand that. I have had it several times where I will advise a client that they are not
threatening me, they are just telling me that’s their policy which I understand and it says if
you make them work and you go to a motion, you don’t get a plea offer. You have to either
go to trial or do a blind plea before the Judge, sir.”
¶ 24 On re-cross, the assistant State’s Attorney confirmed with counsel that, regardless of any
alleged policies, defendant did not want an offer because, if convicted of a DUI, he could lose his
license. However, defendant later testified that this was not true. In argument, the assistant State’s
Attorney noted that defendant’s misdemeanor case was enhanced to a felony case because of his
prior DUI violations.
¶ 25 On November 6, 2020, the court allowed additional argument. The assistant state’s
attorney reiterated that the alleged policies in the State’s Attorney’s office were irrelevant, because
defendant did not want an offer due to the possible effect on his license and career. Further, she
noted the record reflected that, on July 11, 2018, defendant was tendered an offer, which was well
after his summary suspension hearing. The fact that trial was set shortly after the offer was
tendered supported Van Der Snick’s testimony that his client could not accept an offer or he would
lose his license and job. In addition, she noted that enhancing defendant’s charges from
misdemeanors to felonies was not the result of prosecutorial vindictiveness and, further, that as an
officer of the court, she represented that the State’s Attorney’s office had no policy that negotiated
dispositions would not be allowed if pretrial motions or hearings were pursued. Further, she
continued, the argument did not make sense in that there was no threat of “new” charges, where
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2022 IL App (2d) 200734-Udefendant was already facing charges for DUI and they were upgraded because of defendant’s
criminal history. And again, she noted, the allegation of prosecutorial vindictiveness also failed
because defendant was tendered an offer.
¶ 26 The court denied defendant’s posttrial motions. In doing so, it commented that “every day
in this courtroom and in this courthouse,” misdemeanor charges are routinely enhanced after a
defendant’s criminal history is further investigated. The court stated that it often happens that
petitions to rescind are pursued on misdemeanor cases and that “there are still offers and most of
those cases still plead.” The court explained that defendant’s position on that issue was simply
untrue. Further,
“So I don’t know how any of this implicates any of the defendant’s rights because
none of it happened. He did get to have a hearing on the petition to rescind. He still got
an offer. You know, there was no—he wasn’t penalized in any way because of any of
those things happening, Mr. Van Der Snick’s testimony notwithstanding. There is no
policy in the State’s Attorney’s Office that if you run motions, you don’t get an offer. I’ve
been practicing in Kane County since 1982 as [Rule] 711, and there’s never been such a
policy. There never has been such a policy. Where Mr. Van Der Snick came [up] with
that, I don’t know, but there is no such policy. There may be individual attorneys who will
revoke an offer if you go too far with motions and so forth, but again, I’m just speculating
on that because I don’t even know if that’s true. It’s certainly not an office policy.”
C. Sentencing
¶ 27 As previously noted, defendant was charged with aggravated DUI because he violated the
DUI statutes on at least two prior occasions. After hearing argument, the court sentenced
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2022 IL App (2d) 200734-Udefendant to two years of probation, along with community service and various fines, fees, and
costs. Defendant appeals.
¶ 28 II. ANALYSIS
¶ 29 A. Sufficiency of the Evidence
¶ 30 Defendant argues first that the evidence was insufficient to establish intoxication. He notes
that there was no testimony presented at trial that he consumed any alcoholic beverages. Although
officers Lawson and Haase testified that they smelled an odor of alcohol coming from the vehicle,
Tom was also in the car and admitted to drinking numerous alcoholic beverages. According to
defendant, there was no way to determine whether the smell emanated from him or Tom. Further,
defendant asserts that there were no sobriety tests offered or performed, nor evidence that he
parked the car over the curb or even drove the car. In fact, Tom was the only person to testify to
driving the vehicle. As the State did not produce evidence that he was so intoxicated that he was
unable to operate his vehicle, defendant contends that his conviction must be reversed. For the
following reasons, we disagree.
¶ 31 When reviewing a challenge to a conviction based on the sufficiency of the evidence, we
view the evidence in the light most favorable to the State and decide whether any rational trier of
fact could find all elements of the crime proven beyond a reasonable doubt. See, e.g., People v.
Brown, 2013 IL 114196, ¶ 48. The trier of fact is responsible for resolving conflicting testimony,
weighing the evidence, and drawing reasonable inferences therefrom. See People v. Morris, 2014
IL App (1st) 130512, ¶ 16. Accordingly, we will not substitute our “judgment for that of the trier
of fact on issues involving the weight of evidence or the credibility of witnesses.” People v.
Siguenza-Brito, 235 Ill. 2d 213, 224-25 (2009). In other words, we will not “reweigh the evidence”
(People v. Phillips, 2015 IL App (1st) 131147, ¶ 26), and we “will not set aside a conviction unless
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2022 IL App (2d) 200734-Uthe evidence is so improbable or unsatisfactory that it creates a reasonable doubt as to the
defendant’s guilt” (People v. Diaz, 377 Ill. App. 3d 339, 344 (2007)).
¶ 32 To prove a defendant guilty of DUI, the State must prove that defendant (1) was in actual
physical control of the vehicle and (2) was under the influence of alcohol. 625 ILCS 5/11-
501(a)(2) (West 2016); see People v. Gordon, 378 Ill. App. 3d 626, 631 (2007). Defendant here
challenges only the second element, i.e., whether he was proved to be under the influence of
alcohol. To sustain the conviction, the State must have established that defendant was under the
influence to a degree that rendered him incapable of driving safely. See, e.g., People v. Workman,
312 Ill. App. 3d 305, 310 (2000). “Intoxication is a question for the trier of fact to resolve on the
basis of having assessed the credibility of the witnesses and the sufficiency of the evidence.”
Morris, 2014 IL App (1st) 130512, ¶ 20. Moreover, “circumstantial evidence alone may suffice
to prove a defendant guilty of DUI” (id. ¶ 20), as can the testimony of a single, credible police
officer (Phillips, 2015 IL App (1st) 131147, ¶ 18). Indeed, when the arresting officer provides
credible testimony, “[s]cientific proof of intoxication is unnecessary to sustain a conviction for
driving under the influence.” Gordon, 378 Ill. App. 3d at 632.
¶ 33 Here, viewing the evidence in the light most favorable to the State, we conclude that the
circumstantial evidence was sufficient to prove defendant guilty of aggravated DUI. Officer
Lawson testified that, when he approached the vehicle, defendant was slumped over the center
console and Tom had to shake defendant to wake him. Officers Lawson and Haase testified to
smelling an odor of alcohol emanating from the vehicle; both were standing closest to defendant,
not Tom, at the driver’s side of the vehicle. In addition, Lawson testified that, once defendant was
placed inside of the squad car, the vehicle smelled of alcohol. A reasonable trier of fact could infer
from (1) the manner in which defendant’s vehicle was running and parked, i.e., over the parking
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2022 IL App (2d) 200734-Uspot curb and onto the parkway, which was confirmed by pictures presented to the jury; (2) the
time (early morning hours) and location (across from Bandito Barney’s, a bar); and (3) defendant’s
and Tom’s admissions to having been inside Bandito Barney’s, that defendant had consumed
alcohol and drove the car forward over the curb and onto the parkway. Further, all three officers
testified that defendant’s answers to their questions were nonsensical and unresponsive, as
confirmed by the video recording. For example, defendant repeatedly claimed that he was “fine”
and in a public place, then in a private place, when asked for his identification. He was asked and
ordered numerous times to exit the vehicle and did not do so. Lawson and Haase also testified
that, based on their training and experience, it was their opinion that defendant was under the
influence of alcohol. In addition, while defendant performed no field sobriety tests and there was
a dispute as to whether he was offered that opportunity, he did refuse a Breathalyzer test. The
refusal to take a Breathalyzer test may be considered circumstantial evidence of consciousness of
guilt. See Morris, 2014 IL App (1st) 130512, ¶ 20; see also People v. Tartara, 2018 IL App (2d)
160207, ¶ 35. The jury could reasonably have found unconvincing defendant’s explanation that
he refused to take the test because of how he had been treated that evening and, instead, reasonably
inferred that, in light of all of the circumstantial evidence, that defendant refused the test because
he was intoxicated. Finally, Lawson and Haase both testified that defendant had bloodshot, glassy
eyes, seemed lethargic, and his words were slurred. See People v. Love, 2013 IL App (3d) 120113,
¶ 35 (testimony that a defendant’s breath smelled of alcohol and his or her eyes were glassy and
bloodshot is relevant evidence of the influence of alcohol).
¶ 34 When presenting his case, defendant disputed some of the above evidence, but resolving
conflicting testimony was the jury’s function, and we will not substitute our judgment for that of
the jury. See, e.g., Tartara, 2018 IL App (2d) 160207, ¶ 23. For example, although Lawson
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2022 IL App (2d) 200734-Utestified he offered them, defendant testified that he was never offered the opportunity to complete
sobriety tests. The jury could have found more credible that he was offered the tests, but refused,
just as he had done with the Breathalyzer test. Or, even if the jury accepted defendant’s position
as true, given the fact that no audio confirmed that Lawson offered those tests, it nevertheless could
have simply considered the absence of such testing opportunities outweighed by defendant’s
refusal to take the Breathalyzer test. Further, although defendant argues that Tom testified to both
driving the car and, later, drinking, such that Tom could have been responsible for the smell of
alcohol and parking the car over the curb, the jury was free to decide what weight to give this
evidence. We also note that, although Tom testified that he drove and parked defendant’s car, he
did not affirmatively testify that he parked the car over the curb. Defendant urges that the evidence
showed that there was snow on the ground and perhaps Tom did not see the curb; yet, Lawson
testified that the curb was visible, and the photographs and video corroborate that testimony.
Similarly, defendant argues that he was not slumped over and asleep, but, rather, was looking for
his dropped identification to hand to Lawson. The jury, again, could have rejected this testimony,
given Lawson’s testimony that he repeatedly asked for identification, but defendant never provided
it, which was corroborated by the video. The jury could have reasonably concluded that
defendant’s refusal to produce identification or exit the vehicle, as well and his nonresponsive and
nonsensical answers to questioning, reflected alcohol-induced impaired thinking and judgment.
Defendant is correct that the State did not present witnesses who saw him drinking or driving, but
that does not render the remaining evidence insufficient. Rather, defendant’s arguments ask this
court to reconsider and reweigh the evidence, which we may not do. In sum, given the credible
testimony from the three police officers, along with the circumstances at the scene (the vehicle’s
position, defendant’s bloodshot, glassy eyes, and nonresponsive answers to questions, and the odor
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2022 IL App (2d) 200734-Uof alcohol), photographs and video of the scene and stop, and defendant’s refusal to take a
Breathalyzer test, which can be evidence of consciousness of guilt, proof of intoxication was
sufficient to sustain defendant’s conviction for aggravated DUI. See Morris, 2014 IL App (1st)
130512, ¶ 22.
¶ 35 B. Ineffective Assistance of Counsel
¶ 36 Next, defendant argues that he received ineffective assistance of trial counsel when counsel
failed to move for exclusion of the audio/video evidence from the stop. Defendant explains that
using video recordings as trial evidence is common practice and that there exist laws concerning
recording equipment in squad cars, including that both audio and video be captured and stored for
specified periods. Here, he contends, the video of the stop and arrest was the only reasonable basis
upon which the jury could have found him guilty, yet audio was “strangely absent at times” and
cut out at the precise moment that Lawson testified that he asked defendant to perform field
sobriety tests. Further, defendant notes that he does not appear in the video until after he was
forcibly removed from his vehicle and is accompanied to the squad car. Defendant asserts that a
technical malfunction may be inferred, given that the State offered no explanation as to the missing
audio portion, and that a discovery sanction barring the State from introducing testimony regarding
what was contained in the video recording would have been proper. As the video was the only
reasonable evidence from which the jury could have concluded that he was intoxicated, and it was
crucial to the State’s case, defendant argues that it was incumbent upon trial counsel to move for
its exclusion, or for the court to sua sponte exclude it. We reject defendant’s arguments.
¶ 37 Preliminarily, this claim is forfeited. Although defense counsel mentioned the missing
audio when addressing the court during the posttrial hearing, and Van Der Snick was asked
whether he investigated why the audio stopped during a portion of the traffic stop video, this
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2022 IL App (2d) 200734-Uspecific ineffective-assistance issue was not raised in defendant’s posttrial motion. Rather,
defendant alleged that his trial counsel was ineffective for failing to keep him informed about the
legal proceedings. See, e.g., People v. Enoch, 122 Ill. 2d 176, 187 (1988) (failure to include an
issue in a posttrial motion results in forfeiture of that issue on appeal). In his reply brief, defendant
notes that he raised ineffective assistance in his posttrial motion but admits that he did so without
specifically mentioning the dashboard video. However, defendant notes that ineffective-assistance
claims may not be readily apparent from what exists in the record and may be based on what is
absent from the record. This assertion does not help defendant, as both the video recording and
the lack of a motion to suppress or exclude it are apparent from the record.
¶ 38 Defendant next requests that we review the issue for plain error. We may address a
forfeited issue when an error is plain and: (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,” (prong one) or (2) the error is “so serious that it affected the fairness of the defendant’s
trial and challenged the integrity of the judicial process, regardless of the closeness of the
evidence” (prong two). People v. Piatkowski, 225 Ill. 2d 551, 565 (2007); People v. Herron, 215
Ill. 2d 167, 178-79 (2005). Defendant contends that plain error here is satisfied on both prongs.
For the following reasons, we disagree.
¶ 39 The first step in a plain error analysis is to determine whether a “plain error” occurred. See
Piatkowski, 225 Ill. 2d at 564-65. In this context, the word “plain” is synonymous with “clear”
and is equivalent to “obvious.” Id. at 565 n.2. Defendant asserts that the error here is plain,
because the evidence was closely balanced and the video bolstered the officers’ testimony while
marginalizing his own case by “the absence of the evidence not present in the defective dashboard
recording.” Further, defendant argues that the error was so serious that it affected the fairness of
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2022 IL App (2d) 200734-Uhis trial, because if the video has been suppressed, the jury would have been left with only the
officers’ testimony “unbolstered by the conspicuously present parts in the video that corroborated
their testimony.” In sum, defendant contends, because of alleged audio “malfunctions” that
happened to coincide with key elements of the officers’ trial testimony, counsel should have at
least tried to suppress the recording. His failure to do so constitutes ineffective assistance and
“because of its importance to the proceedings, it would have changed the fundamental nature of
the evidence before the jury.” Defendant emphasizes that the missing portions of the video would
have corroborated his own testimony.
¶ 40 Defendant’s forfeited claim is one of ineffective assistance and, thus, the question is
whether counsel plainly committed an error constituting ineffective assistance by failing to move
for suppression of the video. Claims of ineffective assistance of counsel are analyzed by using the
two-prong test established in Strickland v. Washington, 466 U.S. 668, 687 (1984). To prevail, a
defendant must show that counsel’s performance was deficient, and that the deficient performance
was prejudicial. Id. Prejudice is demonstrated where a defendant shows that a reasonable
probability exists that, but for counsel’s deficient performance, the result of the trial would have
been different. See People v. Enis, 194 Ill. 2d 361, 376 (2000). “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. The
failure to establish either Strickland prong precludes a finding of ineffective assistance of counsel.
See People v. Henderson, 2013 IL 114040, ¶ 11. Generally, we consider trial counsel’s decision
whether to file a motion to suppress as a matter of trial strategy, entitled to great deference. See
People v. Bew, 228 Ill. 2d 122, 128 (2008). Further, where an ineffectiveness claim is based on
counsel’s failure to file a suppression motion, “in order to establish prejudice under Strickland, the
defendant must demonstrate that the unargued suppression motion is meritorious, and that a
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2022 IL App (2d) 200734-Ureasonable probability exists that the trial outcome would have been different had the evidence
been suppressed.” (Emphasis added.) Henderson, 2013 IL 114040, ¶ 15. A reviewing court will
not find counsel’s performance deficient where the motion would have been futile. See People v.
Patterson, 217 Ill. 2d 407, 438 (2005).
¶ 41 Here, although defendant refers to “key” missing portions of audio that would have
supported his testimony, as well as audio “malfunctions” that happened to coincide with “key”
elements of the officers’ trial testimony, the only missing audio that he identifies is when Lawson
purportedly asked him to perform field sobriety tests: defendant testified that he never did so and
the missing audio would have confirmed that Lawson never offered them, while Lawson testified
at both the summary suspension hearing and at trial that the dashboard video and microphone had
been turned off when he asked defendant to perform field sobriety tests on the way to the police
station. Thus, although defendant suggests that the State provided no explanation for the missing
audio and that a malfunction must be inferred, this is incorrect. The State did provide an
explanation through Lawson’s testimony: he had turned off the audio.
¶ 42 Moreover, defendant does not argue, for example, that the video was tampered with or that
the State committed a discovery violation with respect to producing this video. Indeed, other than
his opinion that the jury could have used it to find credible the officers’ testimony, i.e., that the
video was prejudicial to him, defendant offers no basis upon which trial counsel could have in
good faith moved to exclude the recording, let alone one that would have resulted in successful
suppression of the video. That evidence may be prejudicial is not, alone, a basis to exclude it.
Indeed, defendant’s argument falls far short of rebutting the presumption that counsel’s decision
was one of sound trial strategy. Indeed, the fact that the jury viewed and listened to the video and
witnessed that there was suddenly no audio when Lawson purportedly asked defendant to perform
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2022 IL App (2d) 200734-Usobriety tests could also have favored defendant, if the jury found the timing of the missing audio
suspicious. Allowing the video into evidence gave defense counsel the opportunity to argue that
the audio “conveniently” stopped at a point that would have favored his client, implying Lawson
was not credible in his testimony. As noted above, not only do we defer to trial counsel’s decisions
on suppression motions, an ineffective-assistance claim based on the failure to move to suppress
must demonstrate that motion would have been meritorious. See, e.g., Henderson, 2013 IL
114040, ¶ 15. Defendant does not offer a proper legal basis for suppression and, therefore, has not
established that the motion would have been meritorious. Again, we will not find counsel’s
performance deficient where the motion would have been futile. Patterson, 217 Ill. 2d at 438.
¶ 43 Nor has defendant established the prejudice prong of his ineffective-assistance claim.
Again, the jury could have found the absence of audio suspicious. But we disagree with defendant
that the video was the only reasonable basis upon which the jury could have found him guilty. As
mentioned in our resolution of defendant’s sufficiency claim, it could have found that defendant’s
admitted refusal to take a Breathalyzer test outweighed any credibility it might have given to his
claim that sobriety tests were never offered. While the video recording did corroborate the
officers’ testimony, the testimony alone, along with the other circumstances of the vehicle’s
position on the curb, photographs of such, and defendant’s refusal to take the Breathalyzer test,
would have sufficiently sustained the jury’s verdict, even if the video had been successfully
excluded.
¶ 44 In sum, defendant has failed to establish that his trial counsel was ineffective and, thus,
there was no plain error to support his plain-error arguments. We honor the forfeiture.
¶ 45 C. Vindictive Prosecution
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2022 IL App (2d) 200734-U¶ 46 Finally, defendant argues that his felony prosecution was vindictive, violated his right to
due process, and that the State failed to overcome the presumption of prosecutorial vindictiveness
that arose “in the absence of any other explanation for seeking a bill of indictment following the
hearing on defendant’s petition to rescind statutory summary suspension.” Defendant explains
that a prosecution is vindictive when it is pursued in order to punish a person for doing what the
law allows him or her to do. Here, consistent with Van Der Snick’s testimony that the Kane County
State’s Attorney’s office has a policy that, “if you run motions, you don’t get an offer,” defendant
claims that he did not receive an offer after a hearing on his civil petition to rescind his statutory
summary suspension. Rather, after the hearing, “without explanation of record,” the State indicted
him for aggravated DUI, even though the felony indictment was based upon the same facts
previously alleged in the misdemeanor charge. Defendant emphasizes that the indictment was
initiated only after his hearing on the petition to rescind. Since the criminal prosecution violated
his due process rights, defendant contends that the remedy is to dismiss the vindictive charges
against him.
¶ 47 We reject defendant’s arguments. 2 A prosecutor violates the due process clause of the fifth
amendment by exacting a price for a defendant’s exercise of an established right, or by punishing
a defendant for doing what the law plainly entitles him to do. See United States v. Goodwin, 457
U.S. 368, 372 (1982). However, to rebut the presumption that prosecutions are undertaken in good
2
We note that our resolution of this issue does not rely on the trial judge’s commentary
regarding his experience as a practicing attorney in Kane County or his assertion that the State’s
Attorney’s office has no policy like that alleged by defendant. The commentary did not constitute
evidence and bordered on improper testimony.
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2022 IL App (2d) 200734-Ufaith, a defendant must prove that the prosecutor acted with genuine animus or retaliatory motive
against him or her and that, but for that animus or motive, he or she would not have been
prosecuted. See, e.g., People v. Kun Lee, 2011 IL App (2d) 100205, ¶ 14. The defendant may use
circumstantial evidence but must demonstrate that the circumstances show a realistic likelihood of
vindictiveness, which almost never applies to a prosecutor’s pretrial decisions. Id. ¶ 15.
¶ 48 Here, the record outright contradicts defendant’s contentions. First, although defendant
was initially charged with misdemeanor DUI, and although he disputed the charges overall, he
does not argue that, given his criminal history, the charges pursued in the felony indictment were
improper or unsupported. Defendant instead points simply to the timing of the charges and Van
Der Snick’s comments at the hearing concerning the office’s policy that a defendant will not get
an offer if he or she “runs” motions. However, even if true, such a policy does not necessarily
equate to a prosecutor having genuine animus or retaliatory motive against a defendant, especially
when the charges were not improper. Again, the record reflects that the indictment charges were
supported by defendant’s criminal history. Therefore, defendant cannot show that, but for that
animus or motive, he would not have been prosecuted.
¶ 49 Second, although defendant claims that the State failed to overcome the presumption of
prosecutorial vindictiveness that arose “in the absence of any other explanation for seeking a bill
of indictment following the hearing on defendant’s petition to rescind statutory summary
suspension,” the State did provide an explanation for seeking an indictment. Again, defendant’s
criminal history supported aggravated DUI felony charges.
¶ 50 Finally, the entire basis of defendant’s claim implies prejudice, i.e., that had he not pursued
a petition to rescind the statutory summary suspension of his license, the State might have been
amenable to presenting him with an offer. He repeatedly asserts that he received no offer. Again,
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2022 IL App (2d) 200734-Uhowever, the record reflects that the State did present an offer before trial and after the hearing on
the summary suspension. Specifically, the record contains an order dated July 11, 2018, that the
parties agreed to a continuance, “State tenders offer,” and the case was continued for status.
Defendant presumably rejected the offer, as an October 18, 2018, order reflects that defendant was
arraigned, entered a not-guilty plea, and the case was set for trial. Nowhere in his appellate briefs
does defendant address the order reflecting that the State extended him an offer, which he rejected.
Yet this fact eviscerates his claim that the State’s Attorney’s office had a policy to not extend
offers to defendants who “run” pretrial motions because, if such a policy exists, defendant did not
suffer prejudice from it. Defendant’s vindictive-prosecution claim fails.
¶ 51 III. CONCLUSION
¶ 52 For the reasons stated, we affirm the judgment of the circuit court of Kane County.
¶ 53 Affirmed.
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