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02/23/89 the People of the State of v. David S. Melind

February 23, 1989





535 N.E.2d 49, 179 Ill. App. 3d 836, 128 Ill. Dec. 835 1989.IL.239

Appeal from the Circuit Court of Du Page County; the Hon. Edward W. Kowal, Judge, presiding.


JUSTICE INGLIS delivered the opinion of the court. UNVERZAGT, P.J., and DUNN, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE INGLIS, Defendant appeals his murder conviction for which he was sentenced to 32 years.

On appeal, defendant contends that (1) he was not proved guilty of murder beyond a reasonable doubt; (2) he was denied his right to pretrial disclosure of exculpatory evidence; and (3) his sentence is excessive. We affirm.

On November 10, 1986, John Kugelman, an Illinois State trooper, died after being struck by an automobile driven by defendant, David Melind. An indictment was filed on November 19, 1986, charging defendant with three counts of murder and one count of reckless homicide. Two of the murder counts were nol-prossed by the State prior to the start of trial on April 22, 1987. The remaining count of murder charged defendant with violation of section 9-1(a)(2) of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 9-1(a)(2)), that defendant knew his conduct created a strong probability of death or great bodily harm to John Kugelman.

Prior to trial, defendant requested discovery of Officer Kugelman's personnel file. The trial court denied this request.

At trial, Wesley Schulz, a Hoffman Estates police officer, testified that he was on duty on the afternoon of November 10, 1986. At 3:30, he noticed a car passing him in the opposite direction travelling at a high rate of speed. Schulz checked his radar and determined that the car was travelling at 40 miles per hour, 20 miles per hour over the speed limit. Schulz then turned his car around, activated his emergency lights, and went after the car. In addition to the driver, the car which Schulz was pursuing had a passenger in the front and one in the back. As Schulz followed, the car turned around a corner and accelerated, going 55 miles per hour through the parking lot of Conant High School. The car then slowed and turned southbound onto Plum Grove Road, going through a stop sign. Schulz stated that he saw the car's brake lights as the car slowed around the corners. Schulz called in a report that he was chasing after a car. Schulz testified that at one point the car was going 60 miles per hour down a two-lane road. The car then ran through a red light at Schaumburg Road, going across the intersection on the wrong side of the road. An Illinois State police car turned on its warning lights and joined the pursuit. The speeding car proceeded through a number of residential streets, going through stop signs, weaving around traffic, and hitting speeds of 50 to 60 miles per hour.

When the car got onto Route 72 (Higgins Road), it was going 70 miles per hour. Schulz noticed that another Hoffman Estates squad car and a Schaumburg unit had also joined the chase. Driving on the shoulder of the road and going through another red light, the car proceeded onto an on-ramp and headed southbound on Route 53 (Illinois Highway 290). Schulz and the other police cars followed, at 80 miles per hour.

Schulz described the traffic volume on Route 53 as being light to medium. Schulz stated that the car continued to weave around traffic. Whenever Schulz would get close to pulling along side the car, the car would swerve and block Schulz' progress. The car also drove on both the right and left shoulders of the highway a number of times.

After about 4 1/2 miles, Schulz noticed that the traffic ahead, near the overpasses for the Milwaukee Road train tracks and Irving Park Road, had slowed to a stop in all three lanes. The car pulled out onto the left shoulder of the road, and Schulz and the other police cars followed. As Schulz straddled onto the shoulder, he saw a uniformed State trooper step out onto the left shoulder. According to Schulz, the trooper had his hand in the air "as if to signal the car to stop." Schulz stated that the car kept going straight without slowing down. Schulz did not see the car swerve or its brake lights go on. Schulz next saw the windshield of the car shatter, and the trooper was propelled into the air. Schulz stated that the trooper landed some 200 feet down the road in the center of the southbound lanes.

After the impact and after going one-tenth of a mile further, the car swerved to the right side of the highway, crossing all lanes and entering onto a ramp leading to eastbound I-290, still going at 80 miles per hour. About three miles later, with the help of other squad cars, Schulz was able to force the car to a stop on the right shoulder. Defendant was arrested by another police officer and taken to the Hoffman Estates police department.

At the police station, Schulz gave Miranda warnings to defendant, who agreed to talk. Schulz asked defendant why he did not stop, to which defendant replied: "I didn't know that guy was going to jump out in front of me." Asked if he tried to avoid hitting the trooper, defendant told Schulz: "Well, at the last, I did. I thought he was going to get out of the way." When defendant refused to make a written statement, Schulz ended his interrogation.

On cross-examination, Schulz stated that he had his squad car three to four lengths behind defendant's car at the time of the impact and was looking through the windshield of defendant's car. Schulz said he saw the trooper step two or three feet onto the shoulder and that the collision happened "quick."

Schulz recalled seeing the trooper's car blocking the left and center lanes of traffic. The trooper's car had no light bar on its roof. Cars backed up in the left lane prohibited any movement to the right. To the left of the shoulder, at a slight slope, was a grassy area. In the middle of the median strip, there was a concrete pillar for the overpass. ...

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