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02/24/89 the People of the State of v. Randy S. Mikyska

February 24, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

RANDY S. MIKYSKA, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

534 N.E.2d 1348, 179 Ill. App. 3d 795, 128 Ill. Dec. 743 1989.IL.245

Appeal from the Circuit Court of Ogle County; the Hon. Alan W. Cargerman, Judge, presiding.

APPELLATE Judges:

JUSTICE DUNN delivered the opinion of the court. NASH and McLAREN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE DUNN

Following a jury trial, defendant, Randy Mikyska, was found guilty of reckless homicide (Ill. Rev. Stat. 1985, ch. 38, par. 9-3), for causing death by driving over the speed limit at an unreasonable speed and failing to respond to a sudden crisis. He was found not guilty of reckless homicide for driving under the influence of drugs. Defendant was sentenced to two years' imprisonment. He raises two issues on appeal: (1) whether he was proved guilty beyond a reasonable doubt; (2) whether he was denied a fair trial by evidence of his past use of illegal drugs. For the reasons below, we reverse.

At approximately 11 p.m., April 8, 1986, defendant was driving south in the right lane of Interstate 39, a 55-miles-per-hour highway in Ogle County, when he drove into the rear of a Ford Falcon that was traveling between 20 and 30 miles per hour in the right lane. The cars caught fire, and the driver of the Falcon, Harry Oltman, was killed.

At trial defendant testified that he was traveling about 55 miles per hour when he observed dim taillights approximately three-fourths of a mile away. After seeing the taillights, he checked the gauges on the dashboard, as well as the rearview mirror, both side mirrors, and around the blind spot to his left. He signaled to change lanes. After checking his blind spot, he saw the Falcon just in front of him so he braked and shifted down, but could not avoid hitting it. In a taped statement to police, defendant stated that when he first saw the taillights he had ample time to change lanes, but thought the Falcon was traveling at about the same speed as his car, about 55 miles per hour. He estimated he was about 45 feet behind the Falcon when he put on his blinker and checked his mirrors and his blind spot.

Defendant testified that before the accident, he had made his final delivery for his employer, a pharmaceutical supplier. Defendant's log book showed that his last delivery was made at a health center in Rockford at 10:50 p.m. The collision occurred 16 minutes later, at 11:06 p.m. Defendant agreed with the prosecutor's calculation that it would have been necessary to travel 105 miles per hour in order to travel the 28 miles from the last delivery point to the site of the accident in 16 minutes, but stated that the time indicated on the log book was inaccurate. He said he deliberately misrepresented the time because he was behind schedule.

Douglas Muchow testified he saw the fire and stopped to help. He said defendant appeared to have all his faculties about him and defendant asked him, "Where did that car come from? Why was he stopped in the middle of the road?"

Roxannne Charnock testified that at approximately 11 p.m. she was driving south on Interstate 39 at about 55 miles per hour when she approached the Falcon. She had to brake and slow down to about 40 miles per hour before she moved to the left lane to pass the Falcon. She estimated that the Falcon was going about 20 to 30 miles per hour. She stated that she was surprised that the car was going slower than normal, but she did not have difficulty passing the car.

State Trooper Michael Broome testified he was driving north on Interstate 39 at approximately 11 p.m. when he noticed the Falcon going south at a slow speed, which he estimated at 30 miles per hour. He continued to watch the car in his rearview mirror as he drove north looking for a spot to turn around. He saw a semitruck approach the Falcon at a quick pace and then move into the passing lane without problem to pass the Falcon. Broome watched the Falcon continue down the highway when he saw a fire in his mirror. He did not see defendant's car until he approached the accident site. Broome later conducted a visibility test near the accident site. He stated that at that point the road was a straight, level, four-lane highway. Broome testified that he sat two-tenths of a mile north of the accident site to watch a car drive by with its headlights off. He could see the car as it passed him and was able to see it as far as a half a mile past the site where there is a well-lit exit for highway 38.

State Trooper Terry Shanafelt testified for the State as an expert in accident reconstruction. He investigated the accident scene and concluded that if the Falcon's speed was between 20 to 30 miles per hour, defendant's car was traveling 89 to 99 miles per hour when he started braking and 82 to 94 miles per hour at impact. He observed the skid marks at the scene and found that defendant had braked his car 44 feet prior to impact.

Defendant submitted to a blood and urine test approximately four hours after the accident. Against defendant's continuing objection and after the denial of a motion to suppress, the State was allowed to introduce the results of the tests. The blood test showed the presence of four drugs: (1) acetaminophen (Tylenol); (2) diazepam (Valium); (3) lidocaine (used as a local anesthetic); (4) pentobarbital (a sedative). It was determined that the acetaminophen and the diazepam were administered to defendant after the accident. No alcohol was found in the blood. The urine test showed traces of marijuana, though this was not quantified. Dr. John Murphy, a pathologist in charge of the chemistry and toxicology laboratories at Memorial Medical Center, testified that the level of pentobarbital found in defendant's blood, 1.8 milligrams, was within the therapeutic range of 1 to 5 milligrams. At the therapeutic level the drug would have its optimum effect. The Valium in defendant's blood, .4 milligrams, was below the therapeutic range of .5 to 1.5 milligrams and would not have impaired defendant's driving ability by itself, though it would intensify the effect of the pentobarbital, but Murphy could not say by how much. ...


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