People v. Horn

2021 IL App (2d) 190190

186 N.E.3d 13

452 Ill.Dec. 566

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Kellen L. HORN, Defendant-Appellant.

No. 2-19-0190

Appellate Court of Illinois, Second District.

Opinion filed June 18, 2021

Rehearing denied July 9, 2021

Amanda J. Hamilton, of Konicek & Dillon, P.C., of Geneva, for appellant.

Tricia L. Smith, State's Attorney, of Belvidere (Patrick Delfino, Edward R. Psenicka, and John G. Barrett, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

JUSTICE BRENNAN delivered the judgment of the court, with opinion.

¶ 1 Defendant, Kellen L. Horn, was charged with possession of a controlled substance (at least 100 but less than 400 grams) ( 720 ILCS 570/402(a)(2)(B) (West 2016)) and possession with intent to deliver a controlled substance (at least 100 but less than 400 grams) (id. § 401(a)(2)(B)). A jury convicted him on both counts. On appeal, defendant claims (1) the police had no probable cause to arrest him, thus the trial court erred when it refused to suppress his inculpatory postarrest statements, (2) the State failed to prove his guilt on both counts beyond a reasonable doubt, (3) the trial court erred when it admitted his prior criminal conviction as substantive evidence and made prejudicial comments regarding the evidence, and (4) the trial court erred in failing to reduce his sentence. For the reasons that follow, we reverse and remand.

¶ 2 I. BACKGROUND

¶ 3 On November 29, 2017, defendant was riding as a passenger in a vehicle on I-90. His cousin, Markus Brown, was driving. Neither defendant nor Brown owned the vehicle. At approximately 1:45 p.m., Trooper Greg Melzer of the Illinois State Police (ISP) performed a traffic stop. During the stop, Melzer requested identification from both defendant and Brown. He subsequently learned that both men had suspended licenses. Melzer then had Brown exit the vehicle and sit in his patrol car while he wrote a citation.

¶ 4 Approximately three minutes after the stop, Trooper Alan Taylor arrived at the scene with his K-9 partner, Bart. About five to seven minutes after the stop, Melzer also requested Trooper Peter Skiba to come to the scene to assist. Trooper Taylor then walked Bart around the vehicle to perform a free-air sniff. Bart alerted to the presence of narcotics in the vehicle. Melzer asked defendant to exit the vehicle, and all three troopers conducted a search of the vehicle. During the search, the troopers discovered an urn in the trunk that contained a bag of ashes and a bag containing cocaine.

¶ 5 Defendant and Brown were arrested. The following day, defendant was charged with possession of a controlled substance and possession with intent to deliver. In December 2017, defendant was indicted on those charges.

¶ 6 A. Pretrial Motions

¶ 7 1. Defendant's Motion to Quash Arrest and Suppress Evidence

¶ 8 In March 2018, defendant filed a motion to quash arrest and suppress evidence. Defendant argued that the troopers lacked probable cause to detain and arrest him such that evidence obtained as a result (specifically, statements made by defendant while in custody) was the fruit of impermissible detention. The trial court conducted a hearing on May 31 and June 6, 2018.

¶ 9 At the hearing, Melzer testified as follows. First, he explained that he was assigned to the criminal patrol team, whose goal was to investigate potential criminal activity on Illinois roadways rather than to issue traffic citations. State troopers were advised to issue written warnings, rather than citations, for speeding infractions of up to nine miles per hour over or under the limit. He stopped a vehicle occupied by defendant on November 29, 2017, at approximately 1:45 p.m.

¶ 10 Before making the stop, Melzer observed the vehicle traveling at 74 miles per hour in a 70 mile per hour zone and saw the vehicle's tires cross the dashed lane lines. After making the stop, he requested the vehicle's registration from the driver, Brown, and identification from defendant and Brown. He learned that Brown's license was suspended in Wisconsin and that the vehicle was not registered to either occupant. Melzer moved Brown to his patrol car to discuss his license status. Brown was placed under arrest but not handcuffed.

¶ 11 Trooper Taylor arrived next and spoke with defendant. He reported to Melzer that defendant told him that the men went to Chicago to purchase shoes for Brown's daughter at Nike Town. Melzer testified that defendant and Brown gave "conflicting stor[ies]" about what they had done that day, although he did not specify how their accounts differed. The discrepancy in the men's stories, combined with Brown's nervousness, made Melzer suspicious.

¶ 12 After Trooper Skiba arrived, Trooper Taylor had his K-9 partner Bart perform a free air sniff. Bart alerted to narcotics. Melzer had defendant exit the vehicle, while the other troopers searched it. They discovered an urn in the trunk that contained a package of ashes and a package with a white powdery substance, which field-tested positive for cocaine. The vehicle search disclosed no items belonging to defendant or bearing his name. The troopers then placed defendant under arrest and transported him to an ISP office referred to as Plaza 5.

¶ 13 Melzer further testified that he had seen the men earlier that day. At approximately 10:45 a.m., he observed a gray sedan driving eastbound on I-90. Since it matched the general description of a vehicle involved in an armed robbery in Rockford, he followed it into the Belvidere Oasis parking lot. Two men exited the vehicle. Melzer determined that neither matched the description of the men involved in the armed robbery and did not conduct any further investigation. He later recognized that the vehicle he pulled over for speeding was the same one he had seen earlier. Brown and defendant were the same occupants he had observed earlier.

¶ 14 Trooper Taylor testified at the hearing consistent with Melzer. He further explained that he did not know the basis for the stop upon arriving at the scene. Trooper Taylor nevertheless questioned defendant because the standard practice for officers following a stop of a vehicle with multiple occupants is to collect stories from each one to determine if somebody is being deceitful. He further testified that defendant was cooperative, polite, and did not appear nervous.

¶ 15 The State also introduced video exhibits from the troopers’ dashboard cameras. The video from Melzer's car depicted Melzer's interaction with Brown during the stop. Brown tells Melzer that defendant was his cousin, that the car belonged to another one of Brown's cousins, and that the ashes were those of Brown's uncle. Melzer instructs one of the other troopers to take defendant out of the vehicle and pat him down. Brown explains that he and defendant had driven down from Wisconsin to Chicago to drop off his son with Brown's mother because he had to take care of his "sick baby." At one point Melzer asks Brown whether he had done any shopping, but Brown's response is inaudible. After Trooper Taylor's K-9 alerted to the presence of narcotics in the vehicle, Melzer asked Brown if there was a reason the K-9 would alert. Brown responded that he had smoked cannabis outside of the vehicle earlier in the day. Further, one of the troopers is heard stating that defendant was wearing an ankle monitor and asked Brown if defendant was on parole or probation. Brown's response is not audible.

¶ 16 Following the hearing and argument, the trial court issued a written order denying defendant's motion to quash arrest and suppress evidence. The court reasoned:

"The troopers, collectively, had the following evidence: (1) Brown and the defendant traveled together from Wisconsin to Chicago and were on their way back home in Wisconsin; (2) the co-defendants provided a different reason for the trip—neither of which included picking up or transporting an urn with ashes of a person's remains; (3) contraband was found in an urn with what appeared to be ashes from a person's remains; (4) Brown and the defendant were related; (5) the ashes were those of Brown's uncle (which a reasonable inference could be made that the remains were also a relative of the defendant); and (6) the defendant was wearing an electronic monitoring bracelet on his ankle (which leads to a reasonable inference that he was on parole, probation, or pretrial release). The Court finds instructive Maryland v. Pringle , 540 U.S. 366 [124 S.Ct. 795, 157 L.Ed.2d 769] (2003) in finding that it was reasonable to believe that either or both of the co-defendants solely or jointly possessed the contraband."

Thus, the court concluded that the troopers had probable cause to arrest defendant and denied his motion to quash arrest and suppress evidence.

¶ 17 2. The State's Fourth Motion in Limine

¶ 18 In October 2018, defendant filed a motion in limine seeking to bar the State from introducing evidence that defendant had previous convictions. Conversely, the State filed two motions in limine seeking to introduce defendant's (1) two prior convictions to impeach his credibility if he testified and (2) prior conviction for delivery of heroin to show his intent to deliver the cocaine found in this case. The trial court heard argument on the motions. It allowed the State to use the defendant's prior convictions for impeachment if defendant testified and further granted the State's motion to introduce defendant's delivery-of-heroin conviction to show defendant's intent to deliver cocaine.

¶ 19 B. Jury Trial

¶ 20 Melzer testified substantially as he did at the suppression hearing: he testified to (1) the traffic violations that formed the basis for his stop of the vehicle; (2) the arrival of Troopers Taylor and Skiba approximately 3 and 20 minutes later, respectively; (3) his discovery that Brown and defendant both had suspended licenses; (4) his communication with defendant at the scene;¹ (5) what he learned defendant had said...