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01/29/88 the People of the State of v. Henry M. Janik

January 29, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

HENRY M. JANIK, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

518 N.E.2d 1332, 165 Ill. App. 3d 453, 116 Ill. Dec. 352 1988.IL.109

Appeal from the Circuit Court of Du Page County; the Hon. Thomas Callum, Judge, presiding.

APPELLATE Judges:

JUSTICE NASH delivered the opinion of the court. WOODWARD, J., concurs. JUSTICE REINHARD, Dissenting in part.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE NASH

Following a jury trial, defendant, Henry M. Janik, was found guilty of driving under the influence of alcohol (Ill. Rev. Stat. 1983, ch. 95 1/2, par. 11-501(a)(2)) and leaving the scene of an accident (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 11-401(a)), but not guilty of driving under the influence of alcohol while blood-alcohol concentration was .10 or more (Ill. Rev. Stat. 1983, ch. 95 1/2, par. 11-501(a)(1)). He was sentenced to a one-year term of probation, with conditions, including 150 days in the Du Page County jail.

Defendant raises the following issues on appeal: whether the evidence was sufficient to support a finding of guilty beyond a reasonable doubt of driving under the influence of alcohol and of leaving the scene of an accident involving death; and whether the trial court's refusal to give instructions regarding the defense of necessity was error requiring reversal and a new trial of the offense of leaving the scene of an accident.

On Sunday, December 30, 1984, between approximately noon and 6 p.m., defendant was at the Avalanche Pub watching football play-off games. Defendant testified that he had $3 or $4 with him and that, over the course of the afternoon, he consumed five eight-ounce draft beers. Although he went to the tavern alone, at some time after the first game had ended defendant spoke with two friends who later testified that they had not noticed anything unusual in defendant's speech, manner or balance and that, in their opinion, he was not under the influence of alcohol.

Defendant left the bar at approximately 6:15 p.m. and drove west on Army Trail Road. At that time, Deputy Dean Wildermuth of the Du Page County sheriff's department was parked in the center eastbound lane of traffic on Army Trail Road and was gesturing to the victim, who was crossing the westbound lanes of traffic, to get off the road. The victim continued to cross the street and defendant's vehicle struck him. Officer Steven Gabriel of the Village of Carol Stream police department also observed the accident from a nearby parking lot and testified that the weather was cold, clear and dry. Additionally, it was a dark rural area, but there were streetlights at the intersections on either side of the accident site, and there was also some additional lighting from a shopping center located at the east intersection. From where Gabriel was, it looked like the victim was wearing dark clothing when, in fact, he was wearing a tan jacket and grey pants. Neither before nor after the impact did defendant's car swerve or take evasive action, nor did his brake lights appear to go on. Gabriel stated that defendant was not driving erratically.

Defendant's car hit the victim with such impact that defendant's windshield shattered, leaving a hole on the right passenger side, the victim's tied tennis shoes were knocked off, and his wallet and a glove, which were later found in the front passenger seat of defendant's car, apparently flew threw the hole caused by the impact. Defendant testified that he felt an explosion and his windshield was shattered. He thought that someone had thrown something at him and he had to get out of there and go home to call the police. He testified that he had not observed a person in the street, that there was no place to stop or call for assistance at the scene, and that his house was only four blocks away. He arrived home in 35 or 40 seconds and told his wife that someone had thrown something at him and they had to call the police.

After the accident, Deputy Wildermuth followed defendant with his emergency lights activated. Defendant was 600 to 800 feet ahead of Wildermuth, who remained behind defendant for four blocks until defendant turned into his driveway. This took about a minute. Defendant testified that he had not noticed Wildermuth parked on Army Trail Road nor did he notice any emergency lights behind him on his way home. As defendant pulled into his driveway, his wife noticed the smashed windshield and, when she went outside, she saw that defendant was pale and visibly shaken. She did not notice an odor of alcohol. Defendant told her that something was thrown at the windshield.

At approximately the same time, Wildermuth pulled into the driveway. At his request, defendant produced his license. Wildermuth noticed that defendant was in a state of mild shock and asked defendant if he knew what he had hit. Defendant told him that he thought it was a mailbox. Wildermuth then informed defendant that it was a pedestrian. Wildermuth proceeded to recover the victim's wallet from defendant's car. Both Wildermuth and defendant's wife thought defendant had no difficulty walking down the driveway and getting into the squad car. In his wife's opinion, defendant was not under the influence of alcohol. Wildermuth, however, stated that he had no opinion one way or the other.

Wildermuth returned defendant to the scene of the accident, where arresting Officer Carol Lussky of the Village of Hanover Park police department spoke with defendant in her squad car. Defendant had no difficulty and needed no assistance in moving from one vehicle to the other. Lussky asked defendant what he thought had happened, and he responded that he saw something in the road and tried, unsuccessfully, to avoid hitting it. When asked what he thought it was, defendant said he thought it was a mailbox.

During this conversation, Lussky detected a moderate odor of alcohol and asked defendant if he had been drinking. Defendant then told her that he had been drinking at a bar down the road. Lussky testified that, based on the facts that defendant was involved in an accident with a pedestrian and told her he had hit a mailbox, that even after being told it was a person, he still thought it was a mailbox, that defendant's eyes were watery, that there was a moderate odor of alcohol, that he stated he had been drinking and that he had no knowledge of the victim's wallet recovered from his car, she advised defendant that he was under arrest for driving under the influence of alcohol. Lussky then administered field sobriety tests at the scene in front of the ambulance and next to her car, both of which had their emergency lights activated. In performing the heel-to-toe test, defendant stepped from the line twice to regain his balance and in turning, wavered and was slow in making his turn. Defendant touched the bridge of his nose with one hand and his upper lip with the other, when performing the finger-to-nose test. Defendant's performance of the field sobriety tests confirmed Lussky's opinion that defendant was intoxicated.

Thereafter, Lussky took defendant to the hospital where he voluntarily submitted to having his blood tested for alcohol content. On their way to the hospital, defendant stated that he wanted his blood tested because he did not believe that he was under the influence. It is undisputed that defendant's speech was coherent, understandable and clear and that he was polite and cooperative at all times relevant hereto.

Veronica Rotterman, a chemist employed by the State of Illinois Department of Public Health, testified as an expert witness to the alcohol concentration of defendant's blood. She stated that based on the gas chromatography method she used, i.e., the direct liquid injection method, defendant's blood had an alcohol concentration of .165.

Dr. Christopher Long, chief toxicologist of the Bureau of Forensic Science, of the Illinois State Police in Springfield, Illinois, testified for defendant that the printout of defendant's blood-alcohol level was not scientifically accurate or reliable, that the standards Ms. Rotterman used were improper, that there was some indication of operator error, and that the machine used to run the direct injection test, which has been replaced by the head space gas chromatograph, should have been tested after every five sample runs, but was not tested at all while Ms. Rotterman ran approximately 30 samples through the machine.

Initially, we address defendant's contention that the trial court erred in refusing to instruct the jury on the affirmative defense of necessity. Defendant offered two instructions regarding the affirmative defense of necessity, one defining the defense, Illinois Pattern Jury Instructions, Criminal, No. 24 -- 25.22 (2d ed. 1981) (hereinafter IPI Criminal 2d), and the other including the defense as an element that the State had to disprove beyond a reasonable doubt, as set forth in the issues instruction, on the charge of leaving the scene of an accident. He argues that the justification for giving the necessity defense instruction was the evidence of his belief that he hit a mailbox in the roadway or that it was thrown at his car and that he left the scene to call the police because he feared for his own safety.

Section 7 -- 13 of the Criminal Code of 1961 provides:

"Conduct which would otherwise be an offense is justifiable by reason of necessity if the accused was without blame in occasioning or developing the situation and reasonably believed such conduct was necessary to avoid a public or private injury greater than the injury which might reasonably result from his own conduct." (Ill. Rev. Stat. 1985, ch. 38, par. 7-13.)

Unless the State's evidence raises the issue of an affirmative defense of necessity, a defendant must present "some evidence" thereon so as to raise the alleged defense. (See Ill. Rev. Stat. 1985, ch. 38, par. 3-2(a); People v. Unger (1977), 66 Ill. 2d 333, 338, 362 N.E.2d 319.) If the defense of necessity was available to defendant, he was entitled to an instruction on this theory provided "some evidence" was introduced to support it. (See Unger, 66 Ill. 2d at 338, 362 N.E.2d at 321.) We note that necessity is viewed as involving the choice between two admitted evils (Unger, 66 Ill. 2d ...


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