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People v. Mcdermott

OPINION FILED NOVEMBER 27, 1985.

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

v.

GERALD MCDERMOTT, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. Frank Orlando, Judge, presiding.

JUSTICE MURRAY*FN1 DELIVERED THE OPINION OF THE COURT: *FN1 JUSTICE MEJDA AUTHORED THE ORIGINAL OPINION ISSUED IN THIS CAUSE AND, UPON HIS RETIREMENT, JUSTICE MURRAY WAS SUBSTITUTED. JUSTICE MURRAY HAS LISTENED TO THE TAPE OF ORAL ARGUMENTS AND HAS CONSIDERED THE RECORD, BRIEFS AND THE OPINION IN THIS MATTER.

After a bench trial, defendant, Gerald McDermott, was found guilty of two counts of reckless homicide (Ill. Rev. Stat. 1981, ch. 38, par. 9-3), driving under the influence (Ill. Rev. Stat. 1981, ch. 95 1/2, par. 11-501), and driving on the wrong side of the roadway (Ill. Rev. Stat. 1981, ch. 95 1/2, par. 11-701(c)). Defendant was sentenced to concurrent two-year terms of imprisonment on the two reckless homicide counts and was fined $1,000 for driving under the influence of alcohol and drugs and $100 for driving on the wrong side of the roadway. He appeals from his convictions on the reckless homicide and driving under the influence counts contending that: (1) the motion to suppress the results of defendant's urine sample should have been granted because defendant never consented to the seizure or analysis of the sample; (2) the trial court applied the wrong legal standard in denying his motion to suppress his statements made to police in the hospital; (3) the defendant never waived his right to a jury trial on the charges of driving under the influence and driving on the wrong side of the roadway; (4) the State failed to prove beyond a reasonable doubt that defendant was under the influence of alcohol or cannabis or that he exceeded the speed limit; and (5) the trial court abused its discretion in sentencing the defendant to concurrent two-year terms of imprisonment. We affirm in part, reverse in part, vacate defendant's sentence and remand the cause for resentencing.

The incident giving rise to this case was an automobile accident on River Road in Des Plaines on July 15, 1982, which resulted in the deaths of Gregory Satinover and Julie Kalber. The evidence at trial established that the defendant's vehicle was proceeding northbound on River Road at about 10 p.m. In the vicinity of the accident, River Road is a four-lane roadway, two lanes in each direction, with a double yellow line separating northbound and southbound lanes and a posted speed limit of 50 miles per hour. Except for intersections, there are no lights along River Road, which is bounded on either side by wooded areas. At the point where the accident occurred, there is a curve in the road.

Defendant, who was familiar with this portion of the road, testified that he was driving in the innermost of the two northbound lanes. He was neither drowsy nor having mechanical trouble with his vehicle. Defendant estimated that his speed was about 50 miles per hour. He had not had anything alcoholic to drink nor had he taken any kind of drugs the evening of the accident. He had, however, smoked marijuana the day before the accident. The last thing he recalled prior to the accident was the headlights of another car followed almost instantly by a crash.

The defendant's brother, John McDermott, a passenger in defendant's vehicle, testified that the defendant did not drink any alcoholic beverages or take any drugs the evening of the accident. He did not notice anything unusual about defendant's driving that evening nor did he see the vehicle cross the center line. Although he glanced at the speedometer prior to the accident, he did not see what speed it registered.

On the evening in question, Daniel Nelson was stopped at a stop light at the intersection of Kensington and River Roads when the victims' vehicle turned onto River Road in front of him. The victims' vehicle was about 100 feet ahead of Nelson's vehicle traveling southbound. After the light turned green, Nelson accelerated to 45 to 50 miles per hour and began gaining on the victims' vehicle. He saw the taillights of the victims' vehicle flicker, but did not observe the accident or any other vehicles on the road in either a northbound or southbound direction. As he neared the accident site, he saw the victims' vehicle in a ditch and the defendant's vehicle in the outermost southbound lane.

Des Plaines Police Officer Michael Erbach was the first officer on the scene. He found all four people injured, the vehicles extensively damaged, the defendant's vehicle in the southbound outermost lane facing south and the victims' vehicle off the roadway facing north. He noticed four deep gouges in the pavement just south of defendant's vehicle, each a couple of feet long, caused by a part of a vehicle protruding into the pavement at the time of impact. There were no skid marks at the scene. Erbach identified the occupants of one vehicle as Gregory Satinover and Julie Kalber and of the other as Gerald and John McDermott. He stated that the weather was warm and the road dry and free of defects.

In the emergency room, nurse Laura Marzano attended to the defendant. She took blood and urine samples from the defendant, who was unconscious, and gave the urine sample to Des Plaines Police Detective Michael Lambeau. She thought she detected a faint smell of alcohol on defendant's breath.

Detective Lambeau testified that on July 23, he questioned the defendant shortly after he had been removed from intensive care. At that time, defendant told Lambeau that he thought the other vehicle was in his lane, that he had had one beer about 3:30 p.m. on the day of the accident and that he had smoked some marijuana the day before the accident. When an accident reconstruction expert, Lynn Fricke, inspected the vehicles on August 17, the vehicles were in substantially the same condition as they were the morning after the accident. The roadway at the scene of the accident was in substantially the same condition on August 17 as it was on July 16 when Detective Lambeau first arrived on the scene.

Ramamal Patel, a toxicologist, analyzed the defendant's urine sample to determine the presence of alcohol or controlled substances. The results indicated a .025 alcohol concentration in the defendant's blood and the presence of 75 nenograms per millileter of cannabinoids in defendant's urine. Patel attached no significance to the latter result except that it showed the presence of a high level of cannabinoids in the urine. On cross-examination, Patel stated that if a person had two beers at the time the defendant had one, 10 hours later there would be no trace of alcohol in his body. When called on behalf of the defense, Patel testified that he could not say what effect the level of alcohol and cannabis would have on a person's ability to perform normal tasks.

An accident reconstruction expert, Lynn Fricke, testified that he was provided with police reports, measurements and photographs taken by police at the accident scene. On August 17, Fricke visited the scene taking his own measurements and photographs. He later viewed and photographed the two vehicles. In his opinion, the accident was a head-on collision which occurred in the outermost southbound lane or the lane in which the victims' vehicle was traveling. Based on information given him by police that the victims' vehicle was traveling 45 miles per hour, Fricke estimated the speed of defendant's vehicle to be about 71 miles per hour. He acknowledged that if he had not been given the speed of the victims' vehicle, he could not have estimated the speed of the defendant's vehicle.

Prior to trial, defendant moved to suppress the statements made to Detective Lambeau at the hospital. He also moved to suppress the seizure and analysis of defendant's urine sample. Hearings were held on both of these motions. The court found the statements made to Lambeau were voluntarily made by the defendant. The trial court denied the motion to suppress the seizure and analysis of the urine based on the implied consent statute. Ill. Rev. Stat. 1981, ch. 95 1/2, par. 11-501.1.

At the conclusion of the trial, the defendant was found guilty of two counts of reckless homicide, one count of driving under the influence and one count of driving on the wrong side of the roadway. He was sentenced to concurrent two-year terms of imprisonment and was fined $1,000 for driving under the influence and $100 for driving on the wrong side of the ...


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