People v. Kotlinski, 2–10–1251.

• Decision Date: 21 October 2011
• Docket Number: No. 2–10–1251.,2–10–1251.
• Citation: 355 Ill.Dec. 497,959 N.E.2d 1230,2011 IL App (2d) 101251
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Steven C. KOTLINSKI, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

2011 IL App (2d) 101251
355 Ill.Dec. 497
959 N.E.2d 1230

The PEOPLE of the State of Illinois, Plaintiff–Appellee,
v.
Steven C. KOTLINSKI, Defendant–Appellant.

No. 2–10–1251.

Appellate Court of Illinois, Second District.

Oct. 21, 2011.

[959 N.E.2d 1231]

Christopher R. Smith, Smith, John & Antholt LLC, Chicago, for Steven Kotlinski.

Michael J. Waller, Lake County State's Attorney, Lawrence M. Bauer, Deputy Director, Kristin M. Schwind, State's Attorneys Appellate Prosecutor, for People.

OPINION Justice ZENOFF delivered the judgment of the court, with opinion.

[355 Ill.Dec. 498] ¶ 1 Defendant, Steven C. Kotlinski, appeals from his conviction of obstructing a [355 Ill.Dec. 499]

[959 N.E.2d 1232]

peace officer in violation of section 31–1(a) of the Criminal Code of 1961 (Code) (720 ILCS 5/31–1(a) (West 2008)), following a jury trial. Because the State failed to prove defendant guilty beyond a reasonable doubt, we reverse.

¶ 2 BACKGROUND ¶ 3 The Video

¶ 4 The following facts are taken from viewing People's Exhibit No. 1 in evidence, the unredacted video of the traffic stop effected by Mundelein, Illinois, police officers on New Year's Day 2010 that resulted in multiple charges against defendant. However, we first begin with enough background, learned from the trial transcript, to place the events depicted on the video in context.

¶ 5 The traffic stop commenced shortly after 3 a.m. at Route 45 and Hickory in Mundelein. The video, which includes sound, was shot from Officer Anthony Raciak's squad car. Raciak testified that the camera activates automatically when he turns on his flashing roof lights, although in this case the camera started recording events before he switched on his lights to alert the driver of the car in which defendant was a passenger to pull to the curb. Raciak and the other police officer at the scene, Richard Turek, wore body microphones that transmitted the sound. Raciak and Turek were equipped with Tasers in addition to their guns, batons, and pepper spray. According to an internal Mundelein police department general order admitted into evidence, a Taser is a laser-sighted “stun type device” that fires probes. When the probes hit a human being, they transmit a 26–watt electrical signal that “overrides the body's central nervous system to cause an uncontrollable contraction of muscle.” The effect “is to physically debilitate a subject regardless of pain tolerance or mental focus.”

¶ 6 Jean Kotlinski, self-employed as a bookkeeper, was the driver of the Ford Expedition that was the subject of Raciak's traffic stop. Her husband, defendant, who was a principal engineer with Abbott Laboratories, was in the front passenger seat. Their two adult sons, Craig and Corey, were in the backseat. Bernard Neri, a friend of Craig's and Corey's, was also in the backseat, sitting between Craig and Corey. They had left a New Year's Eve party at Jean's sister's home in Mundelein and were going home to Hawthorne Woods. There was snow on the ground, and the temperature was close to zero.

¶ 7 Raciak began tailing the Kotlinski vehicle because he saw five people inside it, which made him suspicious. The Kotlinski vehicle committed no traffic violations, but when Raciak discovered that the license plate sticker had expired several hours earlier, he used that as his reason to stop the vehicle. Raciak testified, “We need a reason obviously to stop the vehicle, but * * * what drew my attention to the vehicle was that there were [five] people in it.” Because of the number of people in the Expedition, Raciak radioed for backup, and Turek responded to the scene. While Raciak was occupied outside of his squad car, Turek positioned Raciak's car approximately 25 feet behind the Expedition. The camera in Raciak's vehicle caught the action from that vantage point. Turek did not activate the camera in his squad car, which was angled behind Raciak's squad car. The scene was lit with ambient light from the roadway, Raciak's headlights, his flashing roof lights, and a flashlight he carried.

¶ 8 The following is a narrative of what the unredacted video depicts. In the lower right-hand corner of the video are the date and the time, showing the hour, minutes[355 Ill.Dec. 500]

[959 N.E.2d 1233]

and seconds in real time as they elapse.

¶ 9 The video opens with Raciak tailing the Kotlinski vehicle. We hear radio traffic inside the squad car and then Raciak makes the traffic stop. He walks to the driver's-side door of the Expedition and asks for Jean's license and insurance card. She is unable to locate a current insurance card, but says she is insured. Raciak informs her that her license sticker is expired. She replies that she has a current one, but not in the car with her. Raciak then says he smells the strong odor of alcohol coming from inside the vehicle, and asks who has been drinking. Jean says she had nothing to drink, she is the designated driver. Defendant, from inside the vehicle, volunteers “I did [drink].” Raciak asks Jean to step out of the vehicle so he can determine whether the odor is coming from her or not. She complies, joking that she is probably old enough to be Raciak's mother.

¶ 10 Raciak positions Jean behind the Expedition. Raciak's back is to the Expedition, and he is facing toward the camera. Jean's back is to the camera. Raciak explains that she will have to perform field sobriety tests so that he can determine that the odor of alcohol is not from her person. In the first test, he has her follow his finger with her eyes. We are unable to see how she performs because her back is to the camera. At one point, the audio cuts out and then returns. Raciak then has her perform a straight-leg-raise test. He demonstrates, and then she commences the test, raising her left leg and counting audibly to 30. Toward the end of this test, the video goes off, so we cannot see the complete test, but we hear her count all the way to 30. The video returns, and Raciak demonstrates the heel-to-toe test and has her perform it, which she does. Raciak then directs her to accompany him back to his squad car for a portable Breathalyzer test.

¶ 11 From the point Jean got out of the Expedition to this point, the video shows no movement from anyone inside the Expedition, and there are no comments.

¶ 12 Raciak and Jean reach the front of his squad car, and he directs her to the middle of the hood. Raciak then holds a black device in front of her face. His back is to the camera, and he is facing toward the Expedition.

¶ 13 At 03:08:40 hours, the front passenger-side door of the Expedition opens, and at 03:08:41 defendant steps out of the vehicle. He does not move away from the doorframe, and he does not say anything. He is facing the camera, looking in the direction of Raciak and Jean.

¶ 14 At 03:08:41 Raciak yells, “Get back in the car!” Raciak fast-walks with his hand on Jean, who is in front of him, to the rear of the Expedition. Raciak yells again, “Get back in the car.” Raciak orders Jean to get up against the back fender of the Expedition. He keeps his body against hers. Turek is at the right side of the video, approaching defendant. Turek is yelling “Get back in the car.” Jean screams for defendant to get into the car. Defendant says nothing while he is outside the vehicle. At 03:09:02, defendant reenters the Expedition. He says, “I'm in the car. I'm in the f* * * car.” Raciak and Turek holler “Close the door!” Turek threatens to tase defendant. Jean tells Raciak, “He [defendant] will have a heart attack.” Raciak says, “Well, he is going to get tased.” At 03:09:28, Turek closes the car door.

¶ 15 At 03:09:38, Raciak handcuffs Jean behind her back. He tells her she is not under arrest, but he is going to arrest defendant for obstructing his investigation. Jean protests and says, “He's in the car.” [355 Ill.Dec. 501]

[959 N.E.2d 1234]

Raciak responds, “He's not. He isn't listening.” Raciak places Jean, handcuffed behind her back, into his squad car. Raciak then moves quickly to the Expedition, where he yanks the passenger door open and orders defendant to “get out.” Immediately, Raciak dives into the vehicle, his Taser extended. We hear the crackling sound of a Taser, and Raciak pulls defendant from the car and throws him into the snow. Raciak and Turek jump on defendant. We hear Tasers crackling. Defendant moans and says, “I have a heart condition. Call 911.” During this phase, the sound goes off again, and then comes back. Once defendant is in handcuffs, Raciak keeps telling defendant to get up. Defendant says, “I can't.” Raciak says, “You have to.”

¶ 16 Paramedics arrive at the scene, and Raciak releases Jean.¹

¶ 17 The Charges

¶ 18 On February 3, 2010, the grand jury indicted defendant on two counts of aggravated battery of a police officer (720 ILCS 5/12–3 (West 2008)), alleging that defendant caused bodily harm to Officer Anthony Raciak by grabbing him and made contact of an insulting or provoking nature by pushing Officer Anthony Raciak. On May 7, 2010, the State charged defendant by information with obstructing a peace officer. The charge read as follows:

“Steven C. Kotlinsky DOB: 1/24/1956 hereinafter called the defendant(s), did on or about January 1, 2010, in Lake County, Illinois, commit the offense of: obstructing a peace officer (Class A) in violation of 720 ILCS 5/31–1(a), in that the said defendant knowingly obstructed the performance of Officer Anthony Raciak of an authorized act within his official capacity, being a DUI investigation, knowing Officer Raciak to be a peace officer engaged in the execution of his official duties, in that said defendant exited his vehicle, yelled at Officer Raciak and refused to obey commands by Officer Anthony Raciak to get back in his vehicle.”

¶ 19 The Trial and Posttrial Motions

¶ 20 Defendant's jury trial commenced on August 9, 2010. Raciak was the State's first witness. As we have already recounted his preliminary testimony regarding the reason for the traffic stop, we pick up his...