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04/27/89 the People of the State of v. Garrett Garofalo

April 27, 1989





537 N.E.2d 1166, 181 Ill. App. 3d 972, 130 Ill. Dec. 837 1989.IL.614

Appeal from the Circuit Court of Lake County; the Hon. Harry D. Hartel, Judge, presiding.


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


Defendant, Garrett Garofalo, was charged by indictment with reckless homicide (Ill. Rev. Stat. 1987, ch. 38, par. 9-3(a)), driving under the influence of alcohol (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 11-501(a)(2)), driving while license revoked (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 6-303(a)), and failure to report an accident involving personal injury or death (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 11-401(b)). Following a bench trial, defendant was found guilty on all four counts. Defendant filed a timely notice of appeal. We affirm.

On March 27, 1987, at approximately 1 a.m., Marc Cohen was hit by an automobile and killed. Shortly thereafter, Officer Kurt Rutz of the Vernon Hills police department saw a gray Thunderbird being driven with its right headlight out. The car was being driven erratically. Before Officer Rutz had a chance to investigate, he received a report of a man down in the roadway. Officer Rutz indicated that it was approximately 1.8 miles from where the Thunderbird was parked outside defendant's apartment to the scene of the accident. Officer Rutz never saw who was driving the Thunderbird.

Officer Rutz testified that he returned to the Thunderbird after investigating the report of the man down in the roadway. The Thunderbird was parked in front of the apartment building where defendant lived. He observed damage to the front side of the car. He also noticed bloodstains on the right front fender. Rutz then set up surveillance of the automobile. Around 2 a.m., a car drove up, and three individuals got out. These individuals were later identified as James Constantine, Mike Gienko, and Daniel Wells. Officer Rutz approached the three individuals and brought them into the police station for questioning. Rutz later found out that the Thunderbird belonged to defendant's family and that defendant used the car to go to and from work.

Officer Rutz, along with two other officers, went to defendant's apartment to question defendant. However, the officers were unable to gain access to defendant's apartment, despite repeated knockings and telephone calls to the apartment. Around 6 a.m., Ralph Garofalo, defendant's father, came to the apartment and began to knock on the door. Defendant answered the door and was subsequently issued three traffic citations. Defendant stated, "You're going to have a hard time proving that," after receiving a citation for DUI.

Defendant retrieved his car keys from the kitchen table and was taken to the Vernon Hills police department for questioning. It was later determined that the car keys fit the gray Thunderbird's ignition. The questioning session was tape-recorded, and the tape was admitted as evidence during the trial. Defendant stated that he had been drinking at a bar for a few hours, and then left the bar to go home. He did not know who drove the car home, which route the car took, or why there was damage to the front of his car. Defendant did not testify at trial.

James Constantine, a friend of defendant, testified at the trial. Constantine testified that he, along with two other friends, arrived at the bar around 1:15 a.m. Constantine stated that he saw defendant at the bar. It was his opinion that defendant was drunk. Constantine talked to defendant for a short period of time, and then defendant left the bar. Constantine followed defendant out of the bar in an attempt to prevent defendant from driving the car. Defendant refused to give his car keys to Constantine, stating, "I am driving." Constantine attempted to get the keys from defendant, but was unsuccessful. However, Constantine did manage to prevent defendant from entering the driver's side of the vehicle. Defendant went around the car and got in on the passenger's side. Constantine walked back towards the bar, whereupon he noticed a woman walking towards defendant's automobile. Constantine stated that this woman offered to drive defendant home several times when defendant and the woman were inside the bar. Constantine further stated that the car stayed in the parking lot for 15 to 20 minutes and then left. He did not see who was driving the car when it left the parking lot.

Constantine stated that he, along with two friends, left the bar around 1:45 a.m. As they drove home, Constantine saw police cars blocking the road. Constantine stated that he became concerned about defendant and decided to see if defendant made it home safely. Constantine testified that he drove his car to defendant's Thunderbird, which was parked in front of the apartment building where defendant resided. Constantine observed the damage to the right front of the Thunderbird. It was at this time that Officer Rutz approached and questioned the three men.

The other two men in the car with Constantine, Mike Gienko and Daniel Wells, also testified at the trial. It was the opinion of each of them that defendant was intoxicated when he was at the bar. Both offered to drive defendant home, but defendant refused. However, neither man saw who actually drove the gray Thunderbird out of the bar's parking lot.

Officer Merritt McPhee of the Vernon Hills police department also testified. Officer McPhee stated that he was called to the accident scene to locate and collect physical evidence. Officer McPhee recovered gray paint chips and pieces of gray plastic near the body of the victim. The paint chips and plastic were apparently from defendant's Thunderbird. McPhee also noticed faint tire and foot impressions in the gravel on the side of the road. However, no attempt to match the impressions was made.

After closing arguments, the trial Judge made the following findings:

"I take it it's obvious that I have no doubt defendant was under the influence of alcohol to a degree which rendered him incapable of safely driving, and that Mark Cohn [ sic ] was killed by an automobile, the automobile being the one which the defendant had been driving, and the only question in my mind -- I take it the intoxication is recklessness, and Mr. Cohn [ sic ] is dead because of the reckless operation of an automobile -- and the only question this Court has before it is whether or not the circumstances are such that I can draw inferences from the facts in evidence which would lead me to conclude beyond a reasonable doubt that the defendant was driving that automobile. I think they do.

I think the hypothesis or theory of innocence that this mystery lady who had apparently been rebuffed in her efforts to -- everyone was rebuffed in their efforts to drive this defendant home somehow, you know -- we don't know where she came from. She wasn't seen by Mr. Constantine who got in a physical confrontation over who was going to drive the automobile. I think the theory that somehow she drove the defendant home, parked the car at ...

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