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People v. Gruner

OPINION FILED FEBRUARY 19, 1985.

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

v.

BARRY D. GRUNER, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of McHenry County; the Hon. Leonard Brody, Judge, presiding.

JUSTICE SCHNAKE DELIVERED THE OPINION OF THE COURT:

The defendant, Barry D. Gruner, was charged by information with reckless homicide. (Ill. Rev. Stat. 1983, ch. 38, par. 9-3.) Following a jury trial he was convicted of that offense and sentenced to a 30-month term of probation, which included a six-month jail sentence. He was also fined $1,000. The defendant appeals, contending (1) that he was not proved guilty beyond a reasonable doubt; (2) that the trial court improperly admitted evidence of the concentration of alcohol in his breath as shown by a test administered to him after his arrest; and (3) that the trial court improperly excluded evidence of the concentration of alcohol in the decedent's blood.

This case arose out of a collision between the defendant's car and a car driven by Ricky Geren. Geren died as a result of injuries sustained in the collision. The accident occurred on April 9, 1983, in the early morning hours, on Route 14, just west of Borden Street in Cary. At the location of the collision, Route 14 is a two-lane road that runs in a northwest-southeasterly direction.

The State presented two occurrence witnesses, Diane Van Allen, who had been a passenger in the decedent's car on the night in question, and Christine Militello, who had been driving her car behind Geren's at the time of the accident.

Van Allen testified that on the night in question she and her friend, Debbie Stoddard, went to Harrigan's, a tavern in Crystal Lake, sometime between 11 p.m. and midnight. Van Allen was driving her car, and Stoddard was a passenger. Van Allen had previously been at the Bring Her Inn in Crystal Lake, where she had one beer. While she was at Harrigan's, Van Allen had three more beers.

At about 1 a.m., she saw Ricky Geren in the tavern. She played darts and visited with him, Stoddard, and others. Van Allen, Stoddard, and Geren eventually decided to go dancing at Peabody's, a bar in Cary, and they left Harrigan's at about 1:50 a.m. Van Allen stated that when she first saw Geren in Harrigan's, he had a mixed drink in his hands, and that he had one more before they left. She stated, however, that he did not appear to be under the influence of alcohol.

When they left Harrigan's, it was agreed that Stoddard would drive Van Allen's car, and Van Allen would ride in Geren's car, a red Corvette. Stoddard left about five minutes before Geren and Van Allen.

Van Allen testified that as she and Geren approached the scene of the accident from the west, they were traveling 30 to 35 miles per hour. The speed limit at that location was 30 miles per hour. It was raining. Geren and Van Allen were talking to each other. She testified that Geren "was glancing at me, back and forth between me and the road." She then saw a car approaching from the east more than halfway in their lane. The other car was about two car lengths away. Geren jerked the steering wheel violently to the right, and the cars collided. The other car hit the Corvette on the driver's side. After the collision, the Corvette did not travel much, if at all. Geren was unconscious immediately after the crash.

On cross-examination, Van Allen stated that at Harrigan's Geren told her that he had just purchased the Corvette a week before and wanted to show it to her. She said that when they left, Geren had not finished the second drink she saw him with. She did not smell alcohol on his breath at that time or later on in the car.

When they were driving east toward the accident, Geren had the radio on. Van Allen characterized the rain as "steady." She testified that when Geren would look at her, he would take his eyes off the road for a second or two. After one of these glances, Van Allen heard Geren say "shit." She looked forward and then saw the other car. She was able to determine that the other car was partially in the eastbound lane because she could see the center line. After Geren jerked the steering wheel to the right, the Corvette went partially onto the shoulder of the road before the impact.

Christine Militello, who had been driving her car behind the Corvette at the time of the accident, testified that on the night in question from about 10 p.m. until about 11:45 p.m. she was at Cat Ballou's, a tavern in Crystal Lake. Militello had two beers there. When she left, she went to Harrigan's, arriving at about 12:10 a.m. Militello testified that she had nothing to drink at Harrigan's. She listened to music and visited with friends.

According to Militello, at about 1:30 a.m. she left Harrigan's to meet her sister at Peabody's. She was driving her Dodge Omni and was alone. She noticed a Corvette traveling east ahead of her. There were no cars between her Omni and the Corvette. It was raining. As they approached the scene of the accident, both cars were traveling about 30 to 35 miles per hour. Militello testified that she saw a car approaching from the east "half over into the eastbound lane." She saw the Corvette start to swerve to the right, and then the collision occurred. The left front of the westbound car hit the left side of the Corvette right around the front wheel. The westbound car "kept running along the side of the Corvette," "came around the back" of it, and cut in front of Militello's car, and pulled over onto the shoulder of the eastbound lane. She did not see the westbound car swerve after it hit the Corvette.

Militello testified that she drove into the westbound lane to avoid the car which cut in front of her. She drove back into the eastbound lane and then parked in a nearby driveway. Militello got out of her car and went over to the Corvette, where she saw Geren unconscious. Van Allen, who was very upset, said to her, "Oh, my God, did you see that car over in our lane?"

On cross-examination, Militello characterized the rain just prior to the accident as "just above a drizzle." She said that visibility was very good.

The State presented evidence that the defendant was the driver of the westbound car, which was a Ford Thunderbird. Several witnesses testified that after the collision he appeared to be under the influence of alcohol. There was testimony that his cheeks were flushed and his eyes bloodshot. Officer Giallombardo of the Cary police department testified that the defendant did not perform well on certain field sobriety tests. The State also introduced the results of the defendant's breath test which showed an alcohol concentration of 0.15, based on the definition set forth in section 11-501.2 of the Illinois Vehicle Code. (Ill. Rev. Stat. 1983, ch. 95 1/2, par. 11-501.2.) According to that provision, a person is presumed to be under the influence of alcohol if the concentration is 0.10 or more. (The jury was instructed that this presumption was not binding on it, and that other evidence on the question of intoxication could properly be considered.)

Officer Dennis Keys, the evidence technician for the Cary police department, testified concerning his investigation of the scene. He stated that the body of the Corvette was made of fiberglass and that the debris at the scene consisted mostly of fiberglass which had broken off the body of the Corvette. The debris was located primarily in the eastbound lane of Route 14. One piece of debris, also fiberglass, was found on the shoulder of the westbound lane. Officer Keys expressed his opinion, based on the location of the vehicles and debris after the collision, that the impact occurred in the eastbound lane.

On cross-examination, Officer Keys was asked whether the impact could have occurred a "matter of inches" south of the center line, and he replied, "I wouldn't be able to speculate on that at all due to the weather conditions."

The defense presented one occurrence witness, the defendant himself. He testified that on the day in question he met his friend, Robert Salzman, at the latter's place of business in Elk Grove Village. They had planned to shop for uniforms for their softball team that afternoon. They left Salzman's place of business at about 3:30 p.m. and went to Bennigan's, a tavern in Schaumburg, each of them driving his own car. They stayed at Bennigan's for an hour to an hour and a half, and during that time the defendant had two beers and a cup of clam chowder.

From Bennigan's they went to a sporting goods store in downtown Palatine to look at uniforms. They were at the store for about a half hour, and upon leaving took with them two or three pamphlets advertising uniforms.

The two then proceeded to Gimmicks, a bar on Route 14 in Palatine, arriving at about 6:30 p.m. The defendant stayed there until about 1:45 a.m. While there, he looked at the brochures with Salzman, played pool and video games, and visited with other patrons of the tavern. The defendant testified that while ...


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