Appeal from the Circuit Court of Madison County; the Hon. A.A.
Matoesian, Judge, presiding.
JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
Upon a jury trial the defendant, William P. McHugh, was convicted of two counts of reckless homicide and one count of driving under the influence of intoxicating liquor. He appeals raising three issues: (1) whether the evidence was insufficient to prove any of the three counts of which he was convicted; (2) whether the defendant was "denied a fair trial by introduction of the result of blood alcohol tests performed for medical purposes after the defendant had refused to submit to prosecutorial testing"; (3) whether the conviction for the second count of reckless homicide should be vacated because it arose from the same physical act upon which the conviction for the first count of reckless homicide is based.
The charges arose out of a collision between a truck driven by defendant and a small automobile driven by Michael Mahan, who died in the collision. The collision occurred on a clear day in the southbound lane of a bridge over which Mahan was traveling south and the defendant north. Shortly before the collision loose gravel had been put on the roadway leading to the bridge, some of which had been tracked onto the bridge by vehicles passing over the roadway onto the bridge. Defendant and the two passengers who were in the truck with him at the time of the collision, Byron Bell and Karen Pearson, were employed by the Economic Opportunity Commission in Madison County. The testimony of these two passengers was conflicting in many important respects.
Testifying for the State, Byron Bell indicated that during the afternoon of the collision, the three employees had been using the truck to move park benches and that during the course of this activity the defendant, who was driving the truck, had driven to a liquor store about two miles away. Bell said that on the way to the liquor store the defendant was "driving, you know, fast and kind of crazy, you know." The witness stated that on the way to the liquor store the defendant was driving in excess of the speed limit and was "drinking the rest of his wine that he had in the first bottle before we left the job site." The defendant, he said, purchased eight bottles of wine and a half pint of whiskey at the liquor store and in the driveway of the liquor store opened and drank nearly all of one of the bottles of wine just purchased. The witness testified that the defendant was "running stop signs" after he left the liquor store on the way back to the job site. Asked to describe the defendant's "attitude," the witness answered, "Well, I just knew he was like drunk, you know. I don't know how his attitude is when he's drunk, you know, but he was acting kind of wild to me." The witness testified that a truck was traveling in front of theirs and that "[defendant] was riding the truck bumper." When the truck ahead reached the bridge in question it speeded up and "threw up a lot of gravel." At that point, the witness said, "[defendant] started hitting the accelerator." He described the truck as "right in front of us bumper to bumper. Pat [the defendant] was riding him on the bumper, you know, and when the truck got on that bridge that's when he really speeded up, and when he speeded up he threw up a lot of dust as white as that wall. You couldn't see nothing." "[A]s it got hard to see," the witness said, "[defendant] just — he was steady hitting the accelerator like he could see, you know." In the middle of the bridge, "when the dust was up," defendant moved from the northbound into the southbound lane and struck the decedent's white automobile. The witness had been unable to see the truck in front of them or any other vehicle through the dust. He stated that the defendant did not apply his brakes before colliding with the car and estimated the rate of speed of the truck at the time of the collision at about 50 or 60 miles per hour. In the opinion of the witness, who denied having drunk any of the alcohol himself, the defendant was intoxicated. Bell testified that he has been convicted of forgery. On cross-examination he stated that he has brought suit against the Economic Opportunity Commission because of back injuries allegedly sustained by him during the collision.
Testifying for the defendant, Karen Pearson stated that at the job site defendant had pulled a full bottle of wine out from under one of the seats of the truck. She testified further that the defendant, Byron Bell, and four others, including herself, had been drinking from the wine bottle. Asked how the defendant had driven to the liquor store, the witness answered, "Safely." She said that on the way to the liquor store he did not speed or fail to obey any lights or stop signs. She described in as "sober" on his way there and said she did not see him consume any liquor there. She testified that Bell and the defendant were drinking one of the bottles of wine as defendant drove, after leaving the liquor store. Bell threw the empty bottle from the truck, she said, and opened another, from which he and the defendant were drinking as they traveled. She testified that the defendant was no closer to the truck in front of them than "[m]aybe two and a half, three car lengths" and was traveling at a speed of "[a]bout thirty, thirty-five" miles per hour. She said the defendant had not "tailgated" the truck in front of them. Speaking of the cloud of dust, she said, "We were coming down [the roadway,] and the green pickup truck [in front of them] hit the dust and rocks on the bridge and threw up all the dust behind us [sic]." She described the dust by saying, "You couldn't see anything. It's like I said, somebody could have walked across and you wouldn't have seen them [sic]." The witness stated that she had been unable to determine what lane of travel they were in. She testified that as they approached the cloud of dust the defendant "had already started to slow down to come on to the bridge" and applied the brakes "when we hit the cloud of dust." She stated, "[R]ight as we come out of the cloud of dust he seen the [decedent's] car, and that's when he just crammed on the brakes." In the opinion of the witness the defendant was not intoxicated at the time of the collision. On cross-examination she estimated defendant's speed at about 25 or 30 miles per hour as he came into the dust after having slowed down in his approach to the bridge. He slowed down further, she said, as he drove through the dust. She testified further to having lied to the police to protect the defendant.
The defendant's testimony was essentially in accord with that of Karen Pearson. He testified that following the collision he threw broken and unbroken bottles of wine over the bridge and tried to conceal both the liquor and the fact that he had been drinking. He said he could not have been traveling 50 or 60 miles per hour on the road in question and had seen the decedent's white car in the distance prior to the accident but had concluded that it would not reach the bridge when it did.
George Berry, a deputy sheriff who was off duty at the time of the collision but lived nearby and was summoned to help by Karen Pearson, testified that the defendant was bleeding from the mouth and had about him a "strong" odor of alcohol. The witness testified that "[the deceased] was sitting in the driver's seat behind the wheel. The wheel was — had his chest caved in. The whole front end of the car was pushed back up on his body." The deputy coroner, Ralph Bahlman, Jr., testified that the deceased
"suffered extensive crush type injuries, which would be common in a traffic collision, to the chest area. It is my opinion that the ribs were fractured, and these fractured ribs in turn punctured the organs in the chest. He also suffered breaks to both legs and to his arms."
The witness stated that he had found no bones intact.
Roy Gibson, the deputy sheriff who was on duty at the time of the collision and who responded to the call concerning it, testified that the defendant's upper lip had been cut and that defendant "was sort of staggering, unsteady." The witness said he could smell "a little bit of liquor." He had, he said, measured skid marks of about 95 feet, including 40 feet that reflected the distance the truck had pushed the smaller vehicle along the railing of the bridge. He testified that there was "[v]ery little" gravel on the bridge. In the opinion of the witness, the driving conditions caused by the gravel required a driver to reduce his speed by 20 miles per hour. The witness had noticed, apparently as he drove to the scene of the collision over the loose rock on the roadway, a "little bit" of a cloud of dust in his rear view mirror. He testified that it was not so thick he could not see through it. As he drove over the loose rock he was following another motor vehicle.
The nurse who treated the defendant in the emergency room testified that she could smell a "strong" odor of alcohol about the defendant, but her testimony did not indicate that the defendant's behavior seemed affected by the alcohol. The witness declined to give an opinion as to whether the defendant was intoxicated. The physician who treated defendant in the emergency room, likewise, did not indicate by his testimony that defendant's behavior seemed to be affected by alcohol. The physician was, however, of the opinion that the defendant was under the influence of intoxicating liquor. The physician's opinion was based not on his observations of defendant's behavior and responses but on the results of a blood test, as may be seen from the following colloquy between the witness and the assistant State's Attorney:
"Q. [Assistant State's Attorney] * * * Now, Doctor, basing your opinion of intoxication upon your conversations with the Defendant, your physical observations of him, and of the hospital medical records, and did you rely on these records in your treatment?
Q. Basing it on all three of those things, do you have an opinion based upon a reasonable degree of medical certainty as to whether or not the Defendant was intoxicated, basing it on all the evidence?
A. I would say clinically which means by taking the history and physical examination, he was not intoxicated. His behavior was rational, cooperative, but according to the blood levels that was [sic] ...