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People v. Lacombe

OPINION FILED MARCH 4, 1982.

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

v.

ANTHONY A. LACOMBE, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Vermilion County; the Hon. JAMES K. ROBINSON, Judge, presiding.

JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:

Reckless homicide.

But not only must the criminal conduct be reckless, it must also be wilful and wanton.

Ergo, we must reverse.

LaCombe was charged with reckless homicide, convicted by a jury, and sentenced to 2 years' probation.

FACTS

The victim, Terry Lacey, was killed when he was run over by defendant's truck. The State presented the following evidence during its case in chief:

Carson Swinford lived in a house adjacent to the Northeast Grade School in Danville, Illinois. During the early morning hours of July 28, 1980, he was awakened by the sound of a loud car or truck engine. He proceeded to the bedroom window through which he saw a reddish pickup truck drive around the side of the building out of sight. He then went back to bed, having seen nothing unusual. The truck was not weaving.

Keith Stelzer, another neighbor whose house abutted the Northeast Grade School complex, was watching television between 1:30 and 2 a.m. His attention was distracted by the sound of a car or truck engine. He too looked out his window and saw a reddish pickup truck on the school playground. The truck was driving without taillights or headlights. The truck moved around the school building out of Stelzer's sight. It was not traveling rapidly but he heard it "rev up" as if it were changing gears. Stelzer did not see the truck again but within two to three minutes heard sounds which seemed to him to be the opening and closing of the doors and the tailgate of a truck. Because Stelzer thought this conduct was suspicious, he called the police. He also stated it was not unusual for cars to drive on the field.

When the police arrived three to five minutes later, they asked him to accompany them to the athletic field. The grass was wet and Stelzer saw a number of tire marks on the field. He also testified that the truck was moving at 15 to 20 m.p.h. and that the noise from the engine was not caused by speeding. It was his opinion that the truck was not driving at a speed which would pose a danger to anyone. The truck was not weaving, doing circles, or "bobbing."

Robert Knapp testified that on July 27 he walked his dog on the athletic field. At that time there were no tracks in the grass or on the asphalt and no circular ruts on the ball field. The next day, when he again walked his dog, he saw numerous tire marks on the playground, on the ball field, and on the asphalt adjacent to the buildings. Though some of the tire tracks appeared fresh, Knapp could not say with certainty that all of them had recently been made.

Officer Michael Byrne received a call directing him to the Northeast school at approximately 2 a.m. on July 28. As he entered the playground area of the school in his police van, he saw a red pickup truck with the lights off leaving the playground. He attempted to follow the truck but because of a row of hedges, his vision was obscured and he lost sight of the truck for a few moments.

Byrne stopped his vehicle in an intersection and then saw movement at a house down the block from him. He backed his police van up to the house and saw defendant standing beside a red pickup truck.

When Byrne stopped, defendant came up to the van and told the officer in an excited voice that "Jack Terry is lying out there dying." Defendant was distraught and repeated the substance of this statement several times to the officer who tried to calm him down.

Because defendant was excited, Byrne placed him under arrest to keep him in custody until the officer could find out what had happened. Byrne detected a "fairly strong" odor of alcohol on defendant and, over objection, testified that he arrested the defendant for driving under the influence. The court then offered and gave a limiting instruction to the jury that this testimony could only be used for the purpose of ascertaining why the officer acted in the manner he did.

Byrne observed a large number of circular tire tracks which had been cut into the athletic field by what appeared to be automobile tires. The ...


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