                                                                         Digitally signed by
                                                                         Reporter of Decisions
                       Illinois Official Reports                         Reason: I attest to the
                                                                         accuracy and integrity
                                                                         of this document
                              Appellate Court                            Date: 2017.05.15
                                                                         11:34:31 -05'00'




                  People v. McKinley, 2017 IL App (3d) 140752



Appellate Court   THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption           JAMES W. McKINLEY, Defendant-Appellant.



District & No.    Third District
                  Docket No. 3-14-0752



Filed             March 21, 2017



Decision Under    Appeal from the Circuit Court of Will County, No. 13-CF-2454; the
Review            Hon. Edward A. Burmila, Jr., Judge, presiding.



Judgment          Affirmed.



Counsel on        Michael J. Pelletier and Editha Rosario-Moore, of State Appellate
Appeal            Defender’s Office, of Ottawa, for appellant.

                  James Glasgow, State’s Attorney, of Joliet (Justin A. Nicolosi, of
                  State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the
                  People.



Panel             JUSTICE CARTER delivered the judgment of the court, with opinion.
                  Justice O’Brien specially concurred, with opinion.
                  Presiding Justice Holdridge dissented, with opinion.
                                              OPINION

¶1       Defendant, James W. McKinley, appeals from his conviction for aggravated driving under
     the influence of alcohol (DUI) arguing that, during jury deliberations, the circuit court erred in
     allowing the jury to view the videotape of defendant’s traffic stop and field sobriety tests in the
     courtroom instead of the jury room. We affirm.

¶2                                               FACTS
¶3       Defendant was charged with aggravated DUI (625 ILCS 5/11-501(a)(2), (d)(2)(B) (West
     2012)). The case proceeded to a jury trial. The only evidence presented at trial was the State’s
     presentation of testimony from two troopers and the patrol vehicle dash camera videotape of
     the incident.
¶4       Jeremy Kunken testified that he had been a trooper for the Illinois State Police since
     February 2013. During his training at the Illinois State Police Academy, he was trained on DUI
     detection and enforcement, specifically “[d]etecting the odor of alcohol, the administration of
     field sobriety tests, and the use of the Intoxilyzer.” He was also trained to detect certain “cues
     and clues” in someone under the influence of alcohol, including red, glassy eyes, the odor of
     alcohol, slurred speech, and a particular gait.
¶5       Kunken stated that on November 10, 2013, he was assigned patrol on Interstate 55. At
     approximately 1:20 a.m., Kunken observed a black Kia vehicle “driving at a high rate of
     speed.” He clocked the vehicle’s speed at 99 miles per hour in a 55-mile-per-hour zone. After
     he determined the vehicle’s speed, he initiated a traffic stop. The vehicle pulled over to the
     right lane, partially on the fog line. Kunken’s vehicle was equipped with video recording
     equipment, which recorded the traffic stop. He agreed that the videotape was a true and
     accurate depiction of the traffic stop. Kunken approached the passenger side of the vehicle and
     identified defendant as the driver. He then asked defendant for his driver’s license and proof of
     insurance. During the encounter, defendant’s speech was not slurred, and Kunken did not have
     any difficulty understanding him. Kunken did not immediately smell alcohol. Defendant
     handed Kunken his insurance and his work driving permit. Kunken then asked defendant
     where he was coming from. Defendant stated that he was on his way home from work. Kunken
     said defendant had first stated that he was coming from work in Burr Ridge and then said
     Romeoville. Kunken asked defendant if he had been drinking. Kunken asked defendant to exit
     the vehicle. After defendant exited the vehicle, Kunken observed that defendant’s eyes were
     red and glassy. As Kunken spoke with defendant, he detected a strong odor of alcohol on his
     breath. Defendant denied consuming alcohol multiple times but then admitted to having two
     shots of Grey Goose. Defendant ultimately admitted he was coming from a bar in Romeoville,
     but Kunken did not remember which bar.
¶6       Kunken administered field sobriety tests. He first administered the horizontal gaze
     nystagmus (HGN) test. Based on the HGN test, Kunken determined that defendant had
     consumed alcohol. He observed, “[t]he lack of smooth pursuit in his eyes, the distinctive and
     sustained nystagmus and maximum deviation, and [defendant] had nystagmus prior to 45
     degrees.” While administering the test, Kunken again noticed a strong smell of alcohol.
     Kunken then administered the walk-and-turn test. Kunken determined that defendant failed the
     test because “[h]e started before [Kunken] finished giving the instructions. He lost his balance
     during the instruction phase. He stepped off the line, and he missed heel-to-toe steps. He made

                                                  -2-
     an incorrect turn, and he also used his arms for balance during the test. And he also stopped
     walking during the test for balance.” Kunken also determined that defendant failed the one-leg
     stand test because “[h]e put his foot down multiple times. He was swaying, and he also used his
     arms for balance.” Based on defendant’s performance on the field sobriety tests, the strong
     odor of alcohol, the admission of drinking, and the red, glassy eyes, Kunken determined that
     defendant was under the influence of alcohol and unable to operate a motor vehicle. Kunken
     then arrested defendant. Defendant refused to submit to a breathalyzer test.
¶7        Nathan Schramka then testified that he was also a trooper with the Illinois State Police, had
     been employed as such for seven years, and had undergone specialized training in alcohol and
     DUI detection, including field sobriety tests. He had made between 275 and 300 DUI arrests.
     On the night in question, he stopped to assist Kunken. At the scene, he approached the car with
     Kunken. Schramka also stated that the videotape fairly and accurately depicted the events of
     the evening. Schramka agreed that defendant stated both that he was coming from Burr Ridge
     and Romeoville. Once defendant exited the vehicle, Schramka detected a strong odor of
     alcohol coming from defendant’s breath and noticed that his eyes were bloodshot. Defendant
     first said he had not been drinking and then admitted that he drank two shots of Grey Goose.
     Schramka stated that he never had a hard time hearing Kunken’s instructions to defendant
     regarding the field sobriety tests. Based on Schramka’s observations of defendant, he
     determined that defendant had failed the field sobriety tests, was under the influence of
     alcohol, and was unable to safely operate a motor vehicle. Schramka did not make a report, as
     it was not typical for backup officers.
¶8        The videotape showed Kunken pulling defendant over. Kunken then approached
     defendant’s vehicle. Once Kunken was outside the police car, the background noise from the
     wind and the traffic was a little loud, though the majority of the officer’s interaction with
     defendant could be heard. Kunken told defendant he was speeding, and defendant stated, “I’m
     just trying to get home, because I know I’m a little late. I’m a little late. I’m trying to get home
     from work.” Defendant said he got off work at 9 p.m. He said he worked in Burr Ridge.
     Kunken then asked where defendant was coming from at that time. Defendant said he was
     coming from Romeoville. Schramka noticed that defendant was wearing a wristband and
     asked where he had been that required wristbands. Kunken said that he did not believe
     defendant was telling him the truth about being at work. Kunken then had defendant step out of
     the vehicle. Defendant stated multiple times that he was coming from work. Schramka asked
     how much alcohol he had to drink, stating that he could smell the alcohol on defendant.
     Defendant stated that he had not had any. He then admitted to having two shots of Grey Goose
     about 30 minutes prior. He said he had stopped at the Brunswick Zone after work, which was
     where he had gotten the wristband.
¶9        The videotape then showed Kunken initiating the field sobriety tests. Kunken first had
     defendant perform the HGN test. Next, Kunken initiated the walk-and-turn test. Kunken told
     defendant to hold the starting position until he told him to start. Defendant had a hard time
     remaining in the starting position. Defendant practiced a couple of times to make sure that he
     was doing it right. He then said that he was having a hard time hearing Kunken. Kunken moved
     closer and explained. Defendant demonstrated the turn to Kunken to make sure that he was
     doing it correctly. Kunken showed defendant again. Defendant said he wanted to see Kunken
     do the whole thing, but Kunken said no because he would then be out in the road, but Kunken
     showed some steps and turns. Defendant stated he understood what Kunken was telling him to


                                                  -3-
       do. Defendant started once, stepped out, and was not counting the steps. He then started again.
       Instead of leaving his front foot planted and taking small steps to turn with his back foot, as he
       was instructed to do, defendant planted his back foot and took small steps with his front foot.
       Lastly, Kunken administered the one-leg stand test. Defendant started before Kunken told him
       to. Once he began, defendant forgot to count out loud. He then started and stopped three times.
       After 12 seconds, defendant again put his foot down, saying that Kunken could “have him
       count to 100.” Kunken said he would not have him count to 100. Defendant started again but
       again stopped before Kunken told him to. Defendant was then arrested.
¶ 10       The State rested, and defendant did not present any evidence.
¶ 11       While in deliberations, the jury sent a question to the judge asking if jurors could see the
       videotape again. The judge brought the jury back into the courtroom and said:
                   “You can see the video again. You can see that we brought the equipment here, and
               we are going to play that for you momentarily.
                   Two things that you need to know, however. No one will make any additional
               comments about the video, and there won’t be any questioning of any of the attorneys
               or anything along those lines. We’ll simply play the video, and then you can make
               whatever observations you would choose to make.
                                                   ***
                   *** The other thing that I need for you to know is graciously Judge David Carlson
               has agreed to sit in here and monitor the playing of the video. As I told you, we have
               two court calls in process. I am going to be across the hall in that courtroom, but you
               can never have anything occur in a case without a judge being present. And as I said,
               Judge Carlson has graciously agreed to monitor this for us.
                   So they are going to set the video up. Judge Carlson will be here in my stead. And,
               of course, if you have any other questions, provide them to the bailiff and we will
               address them, okay?”
       Defendant did not object. The jury then watched the videotape in the presence of the substitute
       judge, prosecution, defense attorney, defendant, and bailiff.
¶ 12       The jury found defendant guilty of aggravated DUI. Defendant filed a motion for judgment
       notwithstanding the verdict or new trial, which was denied. Defendant did not raise an issue
       with the jury deliberations in his motion. He was sentenced to 54 months’ imprisonment. His
       motion to reconsider sentence was also denied.

¶ 13                                           ANALYSIS
¶ 14       On appeal, defendant argues that the circuit court erred by allowing the jury, while in the
       midst of jury deliberations, to view the videotape of the traffic stop in the courtroom.
       Specifically, defendant argues that the jury should have been allowed to view the videotape in
       the private jury room because viewing it in the presence of defendant, the attorneys, the judge,
       and the bailiff created a “chilling effect” on the jury. We disagree because we find that
       defendant was not prejudiced by the jury viewing the videotape in the courtroom where
       nothing in the record suggests that the presence of others in the courtroom affected the jury in
       any way.
¶ 15       Defendant acknowledges that he forfeited this issue by failing to object at trial or raise the
       claim in a posttrial motion. Nonetheless, defendant urges us to consider his claim under the

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       first prong of the plain-error doctrine, which allows a reviewing court to consider a waived
       error when the evidence is closely balanced. People v. Herron, 215 Ill. 2d 167, 187 (2005). The
       first step in plain-error analysis is determining whether an error occurred. People v. Sargent,
       239 Ill. 2d 166, 189 (2010). The burden of persuasion rests with defendant in plain-error
       review. People v. Thompson, 238 Ill. 2d 598, 613 (2010). We begin by examining the
       applicable standard of review used in determining the existence of error.
¶ 16        At the outset, we note the universally accepted principle that a circuit court has discretion
       to determine whether to grant or deny the jury’s request to review evidence or testimonial
       transcripts. People v. Kliner, 185 Ill. 2d 81, 163 (1998). We also acknowledge that a circuit
       court is vested with discretion as to what exhibits the jury may have in the jury room. People v.
       White, 2011 IL App (1st) 092852, ¶ 59. Neither of the above scenarios, however, is implicated
       in the instant case. Here, the parties do not contest the circuit court’s discretionary decision to
       allow the jury to view the videotape again during deliberations. Instead, the present case calls
       into question the trial court’s discretionary manner of allowing the videotape to be viewed by
       the jury. In determining whether the trial court abused its discretion with regard to this narrow
       situation, we find guidance in the United States Supreme Court’s decision in United States v.
       Olano, 507 U.S. 725, 737-38 (1993), our decision in People v. Johnson, 2015 IL App (3d)
       130610, and the First District’s decision in People v. Rouse, 2014 IL App (1st) 121462.
¶ 17        One of the fundamental tenets our judicial system is grounded upon is the mandate that
       “ ‘ “the deliberations of the jury shall remain private and secret.” ’ ” Olano, 507 U.S. at 737
       (quoting Fed. R. Crim. P. 23(b) advisory committee’s note, quoting United States v. Virginia
       Erection Corp., 335 F.2d 868, 872 (4th Cir. 1964)). The primary purpose of this honored rule is
       to protect the jurors from improper influence. Id. at 737-38. In Olano, two alternate jurors were
       permitted to retire with the jury but were cautioned not to participate in the discussions.
       However, they were present throughout the jury’s deliberations. The Court explained: “The
       question in this case is whether the presence of alternate jurors during jury deliberations was a
       ‘plain error’ that the Court of Appeals was authorized to correct under Federal Rule of
       Criminal Procedure 52(b).” Id. at 727.
¶ 18        In addressing the above question, the Court stated: “We generally have analyzed outside
       intrusions upon the jury for prejudicial impact.” Id. at 738. Therefore, the presence of a third
       party in jury deliberations may impinge on the privacy of such deliberations, but reversal is
       only warranted if prejudice resulted from the intrusion. Id. Specifically, the Court noted in
       theory the presence of alternate jurors during jury deliberations might prejudice a defendant in
       two different ways: (1) either because the alternates actually participated in the deliberations,
       verbally or through “body language,” or (2) the alternates’ presence exerted a “chilling” effect
       on the regular jurors. Id. at 739. Ultimately, the Court concluded the defendant failed to
       establish prejudice. Id. at 740. The Court also stated: “Nor do we think that the mere presence
       of alternate jurors entailed a sufficient risk of ‘chill’ to justify a presumption of prejudice on
       that score.” Id. at 741.
¶ 19        In Johnson, we were confronted with a similar question as that presented in Olano. In
       Johnson, the defendant was convicted of aggravated battery of a police officer. Johnson, 2015
       IL App (3d) 130610, ¶ 11. At trial, the jury was twice shown a surveillance videotape of the
       incident. Id. ¶ 7. The videotape showed officers restraining and patting the defendant down
       when the defendant “head-butted” one of the officers. Id. ¶ 5. During deliberations, the jury
       asked to view the videotape again. Id. ¶ 9. The circuit court allowed the jury to view the video

                                                    -5-
       in the courtroom in the presence of the judge, prosecutor, defendant, and defense counsel. Id.
       After the jury watched the video, defense counsel filed a motion to allow the jury to take the
       videotape into the deliberation room, which was denied. Id. ¶ 10.
¶ 20       On appeal, defendant argued that the “manner in which the jury was allowed to review the
       video was presumptively prejudicial because the presence of the judge, attorneys and parties
       impaired the jury’s ability to deliberate and thoroughly examine the evidence.” Id. ¶ 14.
       Relying on Olano, a divided panel determined that viewing the video in the courtroom in the
       presence of others was not prejudicial to defendant and that jury deliberation in the presence of
       nonjury members is not presumed to be prejudicial. Id. ¶¶ 19-20. In doing so, the majority
       stated:
                “The parties discussed the procedure for operating the video equipment, the jury came
                into the courtroom, they watched the video and they retired to the jury room. The jury’s
                continued deliberation, without requesting to view the video again, indicates that it
                thoroughly examined and considered the evidence to its satisfaction. Nothing in the
                record suggests that the judge, the prosecutor, or defense counsel affected the jury’s
                ability to analyze the video evidence.” Id. ¶ 20.
¶ 21       The defendant in Rouse contended that the circuit court’s act of requiring the jury to watch
       surveillance footage in the presence of the parties and the trial judge “ ‘infringed upon the
       sanctity and privacy that is so critical to jury deliberations.’ ” Rouse, 2014 IL App (1st)
       121462, ¶ 73. In labeling the above issue as one of discretion, the Rouse court stated:
                    “No one communicated with the jurors while they viewed the recording. After
                viewing the recording, the jury returned to the jury room to deliberate. Under the record
                before us, we find no indicia of prejudice or anything improper having occurred during
                the replay of the surveillance footage.” Id. ¶ 79.
¶ 22       Applying the reasoning announced in Olano, Johnson, and Rouse, in the absence of actual
       prejudice we cannot find an abuse of discretion or error. More specifically, we believe that the
       mode and manner in which a circuit court allows a jury to review a piece of evidence (the video
       in the instant case) falls directly within the scope of the court’s inherent authority to manage its
       courtroom. See People v. Coleman, 358 Ill. App. 3d 1063, 1068 (2005) (holding a circuit court
       has inherent authority to manage its courtroom and its docket); cf. Ill. R. Evid. 611(a) (eff. Oct.
       15, 2015) (acknowledging the considerable inherent discretion of the trial court to control all
       aspects of a trial). We now turn to the question of whether the circuit court committed error or
       abused its discretion in the instant case.
¶ 23       Here, the circuit court allowed the jury to view the video during deliberations in the
       courtroom in the presence of a judge, the prosecutor, defendant, defense counsel, and the
       bailiff. Like in Johnson, the record does not show any prejudice to defendant. No one present
       in the courtroom spoke to the jury while the video was shown. Before showing the video, the
       judge told the jury that if they had any further questions, they could provide them to the bailiff.
       The jury did not ask to see any portions of the video again. We cannot say that the presence of
       the substitute judge, prosecutor, defendant, defense counsel, and the bailiff affected the jury’s
       ability to analyze the video. Defendant has failed to show that he was prejudiced by the circuit
       court’s decision to show the video to the jury in the courtroom, and therefore, we cannot find
       error or that the circuit court abused its discretion. Although we find no prejudice was shown in
       this case, thus no error, we would caution circuit courts that the procedure utilized by the court


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       in the instant case could have the potential of becoming problematic and possibly lead to
       prejudicial error in some cases. Cf. Rouse, 2014 IL App (1st) 121462, ¶¶ 80-82.
¶ 24       In coming to this conclusion, we also reject defendant’s argument that the video would
       have been beneficial to him had the jury had the option to pause and replay portions.
       Specifically, defendant argues that the video challenges the credibility of the officers because
       their testimony “distorted [his] response about where he was coming from.” In making this
       argument, defendant relies upon the fact that the officers “could not recall whether defendant
       had told [them] about Burr Ridge as a response to a question about where his place of
       employment was located” or whether defendant had said he was coming from Burr Ridge. The
       video clearly shows defendant was unable to properly complete the field sobriety tests, which
       was consistent with the officers’ testimony. Viewing the video in the private jury room would
       not have resulted in a different verdict. See Johnson, 2015 IL App (3d) 130610, ¶ 20.
¶ 25       Even if we agreed with defendant that it was error to allow the jury to view the video in the
       courtroom, the alleged error does not rise to the level of plain error.
                   “Forfeited errors are reviewable in two instances: (1) where 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, regardless of the seriousness of the error and
               (2) where a clear or obvious error occurred and that 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.” People v. Belknap, 2014 IL 117094, ¶ 48.
¶ 26       Here, the evidence was not closely balanced. Instead, the evidence, from a common sense
       assessment, of aggravated driving under the influence of alcohol was overwhelming because
       defendant (1) admitted to drinking Grey Goose, (2) smelled like the alcoholic beverage,
       (3) had bloodshot eyes, (4) failed the HGN test, (5) failed the walk-and-turn test, and (6) failed
       the one-leg stand test. See id. (contextual analysis of claims that the evidence is closely
       balanced).
¶ 27       Although not argued, we also find that the alleged error is not a structural error and that the
       circuit court’s decision with regard to the video did not affect the fairness of defendant’s trial,
       nor did it challenge the integrity of the judicial process. See Thompson, 238 Ill. 2d at 610-13
       (analysis of the type of error that is structural and that undermines the integrity and fairness of
       the judicial process).

¶ 28                                       CONCLUSION
¶ 29      The judgment of the circuit court of Will County is affirmed.

¶ 30      Affirmed.

¶ 31       JUSTICE O’BRIEN, specially concurring.
¶ 32       The lead opinion states it “cannot find error or that the circuit court abused its discretion”
       with regard to the circuit court’s decision requiring the jury to view the video, during
       deliberations, in the courtroom and in the presence of the judge, the prosecutor, defendant,
       defense counsel, and the bailiff. Supra ¶ 23. I disagree with this holding and instead believe
       that it was error to allow anyone to be present with the jury when they viewed the video during
       their deliberations.

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¶ 33       One of the basic tenets of our justice system is that jury deliberations must be private and
       secret in order to protect the jury from improper influence. Olano, 507 U.S. at 737-38. The
       presence of other parties in jury deliberations may be prejudicial where such presence exerts a
       “chilling” effect on the jury. See id. at 739.
¶ 34       Here, the fundamental tenet of private jury deliberations was violated when the circuit
       court allowed not only itself but also the prosecutor, defendant, the defense counsel, and the
       bailiff to be present during said deliberations. The fact that the above parties remained silent
       during the viewing of the video does not change this conclusion, as deliberations can be
       disrupted not only via direct interference (e.g., one of the parties audibly offering comment on
       the video) but also via the mere presence of an outside party. See Johnson, 2015 IL App (3d)
       130610, ¶ 49 (McDade, J., dissenting) (“it is hard to imagine a more intrusive, more chilling
       presence in the deliberations than the opposing parties—the defendant with his attorney and
       the State in the person of the State’s Attorney—and the trial judge”).
¶ 35       While some may argue that jury deliberations constitute only the actual discussion of
       evidence and not its mere viewing, I believe this distinction is one without significance. The
       discussion of evidence is no different than the viewing of evidence, as both occur after the jury
       is ordered to deliberate, i.e., jury deliberations. Thus, upon a jury being ordered to deliberate,
       the circuit court must ensure that said deliberations are entirely private. Requiring the jury, in
       the instant case, to view the video in the courtroom and in the presence of the parties was
       improper.
¶ 36       Though I would find error, I agree with the majority’s alternative finding that any error did
       not rise to the level of plain error. Supra ¶¶ 25-27. The evidence was not closely balanced. Nor
       does the alleged error constitute a structural error. For these reasons, I specially concur in the
       majority’s decision affirming defendant’s conviction for aggravated DUI.

¶ 37       PRESIDING JUSTICE HOLDRIDGE, dissenting.
¶ 38       The lead opinion upholds defendant’s conviction, finding that there was no error as the trial
       court had the inherent authority to allow the jury, during jury deliberations, to view the
       videotape in the courtroom; in the presence of the judge, defendant, defense counsel,
       prosecutor, and bailiff. Supra ¶¶ 22-24. Because I disagree with this holding, I respectfully
       dissent. Instead, I believe that, though allowing a jury to view evidence in the presence of
       outsiders is not necessarily error in every case, the facts of the instant case justify a finding of
       error.
¶ 39       At the outset, I agree with Justice Carter’s preliminary position that “the mode and manner
       in which a circuit court allows a jury to review a piece of evidence (the video in the instant
       case) falls directly within the scope of the court’s inherent authority to manage its courtroom.”
       Supra ¶ 22. Unlike the position taken by Justice O’Brien in her special concurrence (supra
       ¶¶ 32-36), I believe there are instances in which a circuit court could allow the jury to view a
       video in the presence of outsiders without error. Such an instance, however, would require a
       narrow and specific instruction from the court to the jury. Unlike Justice Carter (supra ¶ 23), I
       do not believe that is what occurred here.
¶ 40       In this case, when allowing the jury to view the videotape in the courtroom, the court
       stated:



                                                    -8-
                    “You can see the video again. You can see that we brought the equipment here, and
                we are going to play that for you momentarily.
                    Two things that you need to know, however. No one will make any additional
                comments about the video, and there won’t be any questioning of any of the attorneys
                or anything along those lines. We’ll simply play the video, and then you can make
                whatever observations you would choose to make.”
¶ 41       The above instruction is erroneous in that it lacks specificity and also is confusing. After
       hearing the instruction, it is reasonable to assume that the jurors would not have known if they
       were allowed to discuss the video among themselves once they returned to the jury room. I
       believe this fact, when viewed in conjunction with the fact that the jury was removed from the
       deliberation room and required to view the videotape in the courtroom and in the presence of
       the judge, parties, and bailiff, supports the conclusion that the circuit court abused its discretion
       in the manner in which it allowed the jury to review the videotape. Stated another way, while a
       circuit court has the inherit authority to control its courtroom, such authority does not excuse
       conduct that results in the chilling of jury deliberations.
¶ 42       Further, I believe the jury intrusion, coupled with the confusing instruction tendered by the
       circuit court, was so manifestly erroneous that prejudice should be presumed. In Olano, the
       Supreme Court held that “[t]here may be cases where an intrusion should be presumed
       prejudicial.” Olano, 507 U.S. at 739. Justice McDade dissented in Johnson and found such
       presumptive prejudice in a similar situation. In Johnson, the court allowed the jury to view a
       videotape in the courtroom in front of the judge, defendant, defense counsel, and prosecutor.
       Johnson, 2015 IL App (3d) 130610, ¶ 9. “After directing that the jurors should watch the video
       in the courtroom, the trial judge expressed the opinion that he had to be present because ‘it is a
       session in open court and I am presiding.’ ” Id. ¶ 41 (McDade, J., dissenting). Justice McDade
       found this error to be presumptively prejudicial, stating: “Although we do not absolutely know,
       it would be unreasonable not to actually find, or at the very least to presume, that the presence
       of these entities did in fact operate as a restraint upon the jurors’ freedom of expression and
       action.” (Emphasis in original.) Id. ¶ 51. In doing so, Justice McDade pointed to the statement
       of the trial court, finding that “it [was] reasonable to presume that, upon adding the presence of
       the judge, whose avowed intent was to ‘preside,’ the parties and counsel to [a] controlled
       environment, the ability of the jurors to freely discuss the details of the video and its possible
       impact on their decision was inhibited or ‘chilled.’ ” Id. ¶ 52.
¶ 43       I adopt the reasoning espoused by Justice McDade in Johnson and find that the instruction
       given by the circuit court in the instant case had a similar effect. The court specifically
       instructed the jury that “[n]o one will make any additional comments about the video” and they
       could “make whatever observations [they] would choose to make.” Though we cannot be
       certain that this prevented the jury from discussing the video once they returned to the jury
       room, we can presume, as Justice McDade did in Johnson, that the instruction inhibited the
       jury’s ability to deliberate. See id. ¶¶ 51-52. I would presume that the court’s erroneous
       instruction, compounded with the presence of the judge, parties, and bailiff in the courtroom,
       had a chilling effect on the jury.
¶ 44       Both Justice Carter and Justice O’Brien find that, if there was error, it did not rise to the
       level of reversible plain error (closely balanced or structural). Supra ¶¶ 25-27; see also supra
       ¶ 36 (O’Brien, J., specially concurring). Though I agree that the evidence was not closely
       balanced, I believe the presumed prejudice, as discussed above, justifies a finding that the error

                                                     -9-
was structural in nature. Structural error is found “where a clear or obvious error occurred and
that 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.” Belknap, 2014 IL
117094, ¶ 48. Here, a clear error occurred. Supra ¶ 41. It, further, undermined defendant’s
right to a fair trial. Supra ¶¶ 42-43. The integrity of the judicial process is challenged where
jury deliberations are chilled by outside influence.1 See Olano, 507 U.S. at 739. Accordingly,
I would reverse defendant’s conviction for DUI and remand for further proceedings.




    1
     Though defendant did not argue structural error, forfeiture is a limitation on the parties, not the
reviewing court. See People v. Holmes, 2016 IL App (1st) 132357, ¶ 65. I would also note that the
majority addresses the unraised issue of structural error.

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