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People v. Boyle

OPINION FILED NOVEMBER 14, 1979.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

KELLEY M. BOYLE, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Rock Island County; the Hon. JAY M. HANSON, Judge, presiding.

MR. JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:

This is an appeal from an order of conviction for reckless homicide entered by the circuit court of Rock Island County after a jury trial.

On December 18, 1977, at approximately 10 p.m., the defendant, Kelley M. Boyle, was operating a motor vehicle northbound on Seventh Street in the city of East Moline, Illinois. Seventh Street is a four lane north-south street. The traffic light was red when the defendant's vehicle, a red 1968 Chevrolet Camaro, approached the intersection of Seventh Street and 42nd Avenue. Two motor vehicles, one in the left lane driven by Tim Fisher and the other in the right lane driven by Elizabeth Phillips, were already stopped. Defendant stopped his vehicle behind the Phillips vehicle.

At the trial Elizabeth Phillips testified that the bright lights of the Camaro first attracted her attention. Both of them were working. She also testified that when the Camaro pulled up behind her at the intersection it "tapped my back end." When the traffic light turned green the Fisher vehicle crossed the intersection before hers did. While she was in the intersection defendant "revved up his engine and pulled over into the west hand lane and proceeded to pass me." The Camaro went through the intersection and returned to the east lane. She had to apply her brakes to avoid hitting it. All three vehicles then proceeded north, the Fisher vehicle in the west northbound lane and the defendant's vehicle and the Phillips vehicle in the east northbound lane.

A collision occurred between defendant's motor vehicle and a motorcycle near the intersection of Seventh Street and 38th Avenue. The defendant knew that he had collided with something because he felt a slight jolt and saw two handlebars sticking over the front of his car. Defendant and his passenger, David W. Phillips, got out of the car and saw the rear wheel of a motorcycle imbedded in the front of the car. They did not see a body. Defendant and Phillips became frightened and ran away.

At trial Elizabeth Phillips testified that after defendant's vehicle passed her it "fishtailed and continued to accelerate." She thought the Camaro hit the curb because she saw sparks. She also saw the Camaro fishtail several times as it proceeded north. In her opinion the Camaro was travelling "at least 60 if not 65 or 70." She did not see anything in front of the Camaro and did not see the impact. On cross-examination Miss Phillips said that the sparks which she saw occurred at what was later determined the point of impact and that the fishtailing occurred after that point.

Tim Fisher testified that the Camaro was travelling between 60 and 70 miles per hour when it passed him and it continued to accelerate. Between 40th and 39th avenues Fisher saw a red taillight which he thought was on a motorcycle. He saw sparks and heard a crash. The Camaro moved a little to the right and left and continued on at a reduced rate of speed. Prior to the collision the defendant's vehicle did nothing unusual except accelerate in speed. It travelled in a straight line. Fisher saw only one light on defendant's vehicle.

Fisher and Miss Phillips found the body of the deceased, Brian Russell, on Seventh Street near the intersection with 38th Avenue.

On January 13, 1978, defendant was indicted for reckless homicide. On May 8, 1979, defendant filed a written motion in limine to exclude from trial testimony and evidence anything involving any of the vehicles prior to the stop at the intersection of Seventh Street and 42nd Avenue. Defendant alleged that anything which occurred prior to the stop was immaterial and irrelevant and he would not receive a fair trial if it were introduced. A hearing on the motion was held after the completion of jury selection on May 8, 1979. Defendant, based upon discovery, stated that he believed the State would attempt to introduce evidence that he had been drinking prior to the collision even though he had not been charged with being under the influence of alcoholic liquor; that his vehicle had been disabled prior to the stop; that he had an argument with Robert Crum; and that he had disobeyed two stop signs on Oak Lawn Avenue. The trial court granted the motion in part and denied it in part, ruling that the State could introduce evidence of occurrences after the defendant's disabled vehicle was started again on Oak Lawn Avenue.

At trial Lucille Schwartz, who lived near Oak Lawn Avenue and Fifth Street in East Moline, testified that she saw defendant's vehicle on Oak Lawn Avenue facing in a westerly direction at approximately 9:30 p.m.; that one headlight was out and defendant had difficulty starting his car. When the engine started she thought it was a "pretty hot car." At 9:50 p.m. defendant's car left the area "at a pretty high rate of speed" and did not stop at the stop sign on Fifth Street.

Robert James Crum testified that he saw the red Camaro in front of his home on Oak Lawn Avenue at approximately 9:45 p.m. on December 18, 1977. Crum later saw the Camaro parked in front of the Schwartz house. He had an argument with defendant, who threatened him. When the defendant's vehicle left the area it did not stop at the intersection of Fifth Street and the service road. Crum said the tires were smoking and the Camaro was travelling at 75 or 80 miles per hour. He later saw the Camaro on Seventh Street at 42nd Avenue. After stopping, the vehicle proceeded through the intersection at more than 40 miles per hour. Crum said he saw sparks, which meant that the Camaro had "bottomed out" in the intersection.

Next the State requested that the trial court call David W. Phillips as a court's witness because Phillips was a hostile witness. Phillips had been a passenger in the defendant's car. The defendant objected because it had not been shown that Phillips was hostile. The court refused to call Phillips until there was some showing of hostility. The State introduced a transcript of the grand jury minutes. Defendant argued that there was no reason to believe that Phillips would change his testimony or be hostile. After arguments the court ruled that Phillips could be called as a court's witness based upon his testimony before the grand jury.

After he was given immunity from prosecution Phillips testified that the defendant was a "little mad" because he could not get the car started. Phillips said he did not see the motorcycle; he did not see the collision; he did not feel the impact; he did not hear anything.

On his own behalf defendant testified that he saw nothing in front of him, even though he was looking. He did not remember hitting anything although he remembered a jolt. He did not realize that he had hit a motorcycle until he saw the handlebars sticking over the front of the ...


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