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People v. Olson

OPINION FILED MAY 12, 1981.

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

v.

OLAF E. OLSON, JR., DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Boone County; the Hon. JOHN C. LAYNG, Judge, presiding.

MR. JUSTICE LINDBERG DELIVERED THE OPINION OF THE COURT:

Defendant, Olaf Olson, was convicted after a jury trial in Boone County of attempted murder, armed violence, reckless driving, attempting to elude an officer and two traffic offenses. He was sentenced to concurrent terms of 27 years for attempted murder, 10 years for armed violence, 3 months for reckless driving, 30 days for attempting to elude an officer and fined $100 for each of the two traffic offenses. From the convictions for armed violence and attempted murder, defendant appeals. Ill. Rev. Stat. 1977, ch. 38, pars. 8-4(a), 9-1(a), 33A-2.

At approximately 1 p.m. on March 27, 1979, defendant Olson was observed by Illinois State Trooper Ken Kaas sitting in an automobile parked along Genoa Road near Rockford in such a way as to partially block the entrance to the Northwest Tollway. Kaas approached the automobile and asked Olson to pull over to the shoulder. Olson, who was slumped toward the passenger side of the front seat, took one look at the trooper and accelerated the car, ran through a red light and proceeded northbound on Genoa Road. Kaas gave chase. He testified that the speed of defendant's car exceeded 80 miles per hour and that the vehicle often strayed into the southbound lanes forcing oncoming traffic to swerve in order to avoid collision. Defendant ran a stop sign in an effort to turn onto Route 20, and then continued eastbound on that road.

Defendant stopped his car on Route 20, and Kaas pulled up behind. Kaas observed a long-barreled gun extending from the window of defendant's car from which a shot was fired in his direction. Olson again fled with Kaas in close pursuit.

The chase ended when Olson's car swerved in front of Kaas' vehicle, crossed the westbound lanes and hit an embankment on the north side of the road. Kaas testified that Olson fired a shot from his car and the trooper returned the fire. Defendant got out of his car, took another shot in the direction of Kaas and then staggered toward the trooper with his gun extended. Kaas fired several rounds at Olson who finally fell to the ground. He was hospitalized at about 3 p.m. A blood test taken at the time of admittance to the hospital showed blood alcohol content of .34 percent.

Subsequent inspection of the car yielded a bottle of whiskey and several items which were later identified as belonging to Tim and Matilda Breitbach, whose trailer home near Galena, Illinois, had been robbed earlier on the same day. The Breitbachs testified that two men in a car fitting the description of that owned by defendant had come to their farm about 9 o'clock on the morning of March 27 and had asked directions to the Galena Territories. Returning from work later in the evening, the Breitbachs discovered that their trailer had been ransacked and several things stolen, including a shotgun. There were bullet holes in the windshield, cab door and hood of a truck parked outside. Although no fingerprints were recovered, the shotgun retrieved from defendant Olson was identified as belonging to the Breitbachs, and a spent cartridge found near the truck was matched to the shotgun.

Donald Greenshaw, work release director for Boone County, testified that on March 27, 1979, Olson was employed at Barnes Auto Body Shop in Belvidere pursuant to a work release program, the conditions of which required that inmates such as Olson go directly from jail to work. They could go nowhere else without special permission. On March 27, 1979, no such permission had been given Olson.

A fellow employee at Barnes Auto Body Shop, Jack Cooper, testified that on the day of the incident defendant arrived at work at about 12:30 p.m. "pretty drunk." Olson asked Cooper whether he still had his job, then mumbled that he wanted to call his girlfriend. Because of his drunken condition, Olson was unable to dial the telephone number. Cooper placed the call and handed him the phone. Olson left shortly thereafter.

I

Defendant's first contention on appeal is that the evidence of his intoxication precluded a finding that he had the requisite intent to sustain a charge of attempted murder or armed violence.

• 1 Both of these crimes require a showing of specific intent (People v. Trinkle (1977), 68 Ill.2d 198, 369 N.E.2d 888; Ill. Rev. Stat. 1979, ch. 38, par. 33A-2), and are therefore subject to the defense of intoxication. (People v. Harkey (1979), 69 Ill. App.3d 94, 386 N.E.2d 1151; People v. Remon (1976), 40 Ill. App.3d 337, 352 N.E.2d 374.) However, voluntary intoxication may negate the element of intent only when it is so extreme as to entirely suspend the defendant's power of reason, i.e., his ability to act knowingly. People v. Mikel (1979), 73 Ill. App.3d 21, 391 N.E.2d 550; People v. Fleming (1976), 42 Ill. App.3d 1, 355 N.E.2d 345.

Defendant called two doctors to testify as to his state of mind at the time of the incident. The first, Dr. Carl Hamann, who had earlier been appointed by the court to determine Olson's competency to stand trial, stated that the American Medical Association standards on alcohol levels in the blood provide that an amount of .3 to .4 percent alcohol is "definitely sufficient to cause death * * * and .5 is almost invariably fatal." At .3 to .35 percent levels, the person "would usually be stuporous and would have difficulty comprehending what they saw or heard." Dr. Hamann speculated that at the time of the incident two hours before the blood test was administered, Olson's blood alcohol level would have been in the neighborhood of .4 percent. However, even at the lower level of .34 percent recorded two hours later, a person's ability to distinguish right from wrong would be "seriously impaired" and his power to reason would be "practically" suspended. At .4 percent, the person would be "very near comatose, near coma in a very stuporous position, and extremely difficult to think and reason or have any mental functioning except reflex actions." Dr. Hamann emphasized that certain routine physical actions might still be performed by persons with this amount of alcohol in the blood, but that such actions would be more indicative of reflex than intent. This would account, he said, for a person's ability to drive a car (although not well), get to one's place of work, or even shoot a gun if threatened. Dr. Hamann stated that Olson had a history of fighting and a deep-seated belief that others imposed upon and took advantage of him. When asked whether these characteristics affected his ability to form an intent to do something, he replied that it would likely make his reaction automatic.

The second medical witness, Dr. J.G. Graybill, testified that with a blood alcohol level of .34 percent it was "highly questionable" whether a person could form a judgment as to what is right and wrong, and that such a person's power to reason would be limited to "impulsive action" which Dr. Graybill distinguished from reasoning ...


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