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09/20/89 the People of the State of v. Dorothy R. Hester

September 20, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT

v.

DOROTHY R. HESTER, APPELLEE



SUPREME COURT OF ILLINOIS

544 N.E.2d 797, 131 Ill. 2d 91, 136 Ill. Dec. 111 1989.IL.1449

Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. Howard L. Fink, Judge, presiding.

APPELLATE Judges:

CHIEF JUSTICE MORAN delivered the opinion of the court.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MORAN

Defendant, Dorothy R. Hester, was charged by information with the reckless homicide (Ill. Rev. Stat. 1983, ch. 38, par. 9-3(a)) of Diane Streetz (victim). She was also charged with the misdemeanor offense of driving under the influence of alcohol (Ill. Rev. Stat. 1983, ch. 95 1/2, par. 11-501(a)(2)); however, that charge was not included in the record on appeal. (See also 178 Ill. App. 3d 360, 364 n.1.) Following a jury trial, defendant was convicted of both offenses and sentenced to 28 months' imprisonment for reckless homicide and a concurrent term of 364 days for driving under the influence of alcohol. Defendant appealed. A majority of the appellate court reversed and remanded the cause for a new trial, on the basis that the jury was improperly instructed. (178 Ill. App. 3d 360.) We granted the State's petition for leave to appeal (107 Ill. 2d R. 315).

Thereafter, the State opted to have its petition for leave to appeal stand as its brief. (107 Ill. 2d R. 315(g).) We note that defendant did not file either an answer to the State's petition for leave to appeal or a response brief, nor did she appear before the court to present oral argument.

The sole issue presented for review is whether the trial court denied defendant due process of law by instructing the jury with a modified version of Illinois Pattern Jury Instructions, Criminal, No. 23.06 (2d ed. 1981) (hereinafter IPI Criminal 2d). The instruction as given is set forth in detail later in this opinion.

The charges stem from an incident which occurred on July 4, 1984, in Streamwood, Illinois. About 10:15 p.m., approximately 100 people were walking southbound on the sidewalk of Park Boulevard; they were coming from a fireworks display. At this time, defendant was leaving a Streamwood carnival and driving northbound on Park Boulevard when she lost control of her car. The car ricocheted off a curb, struck a boulder in the median strip and jumped the curb at Brunswick Street. The car went onto the lawn area, knocked over a 70-foot chain link fence and headed off in a 90-degree turn across Park Boulevard. The car struck two pedestrians: one was thrown onto the hood of the car; the other, the victim, was pulled under the car and dragged over the pavement, a curb and a median strip. Her body separated from the undercarriage of the car when it went over a cement parking bumper. The car continued into a neighboring shopping center, where it struck two small trucks and came to a halt. The victim died a short time later.

Several people rushed to the automobile and to the victim. Jack Gravely, Ronald Zimmer and Edward Winclechter testified that when defendant got out of her car they noticed a strong odor of alcohol on her breath and that she appeared to be intoxicated. Gravely testified that defendant did not have any bruises, marks or cuts on her face nor was she bleeding. He, Ronald Zimmer and Carol Zimmer also testified that they never saw the car's brake lights activated at any time during its errant course. Additionally, Joanne Kitterman and Carol Zimmer testified that the car never slowed down. Ronald Zimmer stated that the car accelerated to a speed approaching 50 miles per hour. The posted speed limit was 30 miles per hour.

Randall Brockmeyer, a Streamwood police officer, testified that he arrived at the scene of the accident at approximately 10:25 p.m. After making some initial inquiries and observations of defendant, he placed her under arrest for driving under the influence of alcohol, because he smelled a strong odor of alcohol on her breath, her eyes were "bloodshot," and she appeared intoxicated. Brockmeyer, a licensed breathalyzer operator, administered a breathalyzer test to defendant at 11:05 p.m. The results revealed that her blood-alcohol level was .20%.

Defendant testified that she drank one beer with her dinner in the late afternoon and another one while at the carnival. She said that a third beer was spilled on her by someone she was speaking with at the carnival. She further testified that while driving, the car went "bump" and pulled to the right. She tried to correct the direction of the car but she could not and the car struck a boulder in the median strip. In attempting to regain control over the car, she said she wrestled with the steering wheel, cutting and bruising her hand. She also stated that she tried to brake the vehicle and believed that she was going only 30 miles per hour. She testified that she was thrown about the car, striking her head on the roof several times, and after coming to a halt in the parking lot, she was "dizzy" and "did not know what [she] hit" or "what was going on." She further testified that she smoked cigarettes and took two prescription drugs -- Tagamet for an ulcer and Dilantin, an antispasmodic -- which defense counsel argued affected the results of her breathalyzer test.

Both sides presented expert testimony regarding the accuracy of the breathalyzer machine and the results of the breathalyzer examination. However, the defense expert, Gil Sapir, was not certified on the machine, a Smith-Wesson 1000, used to test the defendant, although he was trained on the Smith-Wesson 2000 by the manufacturer.

Charles Roberts, an accident reconstructionist and engineer, testified for the State, as an expert. He stated that the car's braking system was operable, the steering linkage turned freely and there was nothing wrong with the accelerator linkage. Roberts also stated that there was a deformity, a "bend," in the car's steering linkage, but he testified that it was unrelated to the car's striking the boulder and opined that this bend would not result in the "total" ...


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