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March 2, 1994


Appeal from the Circuit Court of Lake County. No. 92-TR-77352. Honorable David M. Hall, Judge, Presiding.

Doyle, Colwell, PECCARELLI

The opinion of the court was delivered by: Doyle

JUSTICE DOYLE delivered the opinion of the court:

On appeal, defendant, John J. Cord, contends that it was error for the trial court to deny his request for a jury instruction on the affirmative defense of necessity.

After a jury trial on September 30, 1992, defendant was found guilty of driving under the influence of alcohol (DUI) (Ill. Rev. Stat. 1991, ch. 95 1/2, par. 11-501(a)(2) (now 625 ILCS 5/11-501(a)(2) (West 1992))). Defendant had been arrested and charged following a three-car accident which occurred at approximately 9:30 p.m. on July 10, 1991, at the intersection of Washington Street and Route 83 in Grayslake, Illinois.

At trial, the court denied defendant's request to include a jury instruction on the affirmative defense of necessity. The trial court denied his post-trial motion which also raised the issue of the denial of his request for the same jury instruction. Defendant was sentenced to two years' probation conditioned on the payment of a fine of $650, level III alcohol counseling, and attendance at a victim impact panel. The court also imposed a 30-day jail term which was stayed for six months and made subject to vacatur pending defendant's compliance with the conditions of probation.

At trial, Marco Alfano testified that, on July 10, 1991, he was waiting in his vehicle at the intersection of Route 83 and Washington Street in Grayslake. There was a car behind him, and there was a car in front of him which left as the traffic light turned green. In the car behind him, there was a female with two small children. The road was dry and it was clear outside, and there were streetlights at the intersection. Before Alfano could proceed through the intersection, there was an accident in which his vehicle was hit from behind. Alfano stopped his car and heard a voice behind him. When he got out of the car, he saw that the woman driving the car behind him which rear-ended him was still in her car with her children, and defendant was standing next to the driver's window. Alfano was able to view the area around him and saw no one running or walking away from the scene. He saw the woman's car and then a third car which was behind hers. Alfano spoke to defendant who said that it was his girlfriend who had been driving the third car, but Alfano did not see the girlfriend. Alfano left his car parked until the police arrived; he did not receive a traffic citation. Defendant requested that Alfano and the woman move their cars, but Alfano advised against this until the officers arrived. Alfano then observed defendant drive his car a distance of about 30 to 50 yards to a neighboring parking lot.

On cross-examination, Alfano said that, after the accident, he saw a few cars travel from the opposite direction but did not recall any cars going in the same direction as his car. After the police arrived, Alfano moved his car off the road to the parking lot. Alfano could not say whether defendant was driving the third car before the accident. On redirect examination, he testified that defendant drove the third car when it was moved to the parking lot.

Deputy George Manis of the Lake County sheriff's department was called to the scene of the accident at about 9:30 p.m. A Grayslake police officer was already on the scene. The three cars were in the parking lot of the Triangle Restaurant. The drivers of the first and second cars could not state for certain who had been driving the third car, but stated that defendant drove the third car to the parking lot after the accident. When Manis interviewed defendant, he saw that defendant's eyes were glassy, he was swaying, and there was a strong odor of an alcoholic beverage coming from defendant's mouth. Manis had a little difficulty understanding defendant who seem confused about what had happened. When Deputy White arrived and offered to have defendant take a field sobriety test, defendant refused to do so. On cross-examination, without elaboration, Manis stated that it is prudent to pull cars off a road after a traffic accident at night. Manis further testified that, although there had been a number of accidents at rush hour at this intersection, this accident did not occur at rush hour.

At this stage, the court heard arguments on whether a jury instruction on the necessity defense should be permitted and, based on the evidence adduced, concluded that it should not. The court noted that the officer's opinion that it would be prudent to move the cars was an opinion that should have been objected to.

Deputy Richard White testified that he received a radio dispatch regarding the accident at about 9:30 p.m. and arrived at the intersection about five minutes later. The intersection had two southbound and two northbound lanes on Route 83, and there were two eastbound and two westbound lanes on Washington Street. There were stoplights at the intersection which were working properly. The cars involved in the accident were located in the parking lot when he arrived. A Grays lake police officer had arrived at the scene before White. White learned that when the accident occurred, Alfano was driving westbound in the first car, an AMC Spirit, and was stopped at the red light when he was rear-ended. Mrs. Delaney, who had two young sons with her, was driving the second car, a Mercedes Benz station wagon which rear-ended Alfano's vehicle. There was rear-end damage to Alfano's car and front-end and rear-end damage to Delaney's. Defendant's vehicle sustained front-end damage. Alfano told White that defendant moved his car into the parking lot right after the accident, while the other two vehicles remained on the roadway until the Grays lake police officer told the drivers to move the cars to the parking lot. Defendant said that he had not been driving the third car at the time of the accident, but he was in the car. White noticed that defendant had red, glassy eyes, mumbled speech, and a strong odor of alcohol on his breath; his balance was poor, and he stumbled at times when he walked. White asked him to perform field sobriety tests, and defendant replied that he did not want to take the tests because he was "inebriated" and could not pass them. White then place him under arrest for DUI. At the police station, defendant stated he had been drinking since 7 p.m. and had consumed six beers.

On cross-examination, White stated his belief that defendant had been driving the third car because the other two drivers had indicated that they saw no one else leave the scene of the accident. White related that defendant had told him he drove the car to the parking lot and that his girlfriend was driving at the time of the accident. However, defendant did not furnish her name. The traffic accident report (defendant's exhibit No. 2) showed that the owner of the car was Michelle Thorn. White further testified that he believed defendant had drunk a lot more than six beers and did not find defendant credible regarding who was driving prior to the accident or how many beers he had consumed. White also stated that the westbound traffic was slow at that time of the evening. He acknowledged that there was a slight curve approximately 150 to 200 yards away from the rear of the accident scene.

Defendant's motion for a directed verdict was denied. Defendant presented no evidence, but he again requested a jury instruction on the affirmative defense of necessity. The court ruled that there was no evidence sufficient to raise this defense.

On appeal, defendant argues that the evidence was sufficient to entitle him to the necessity instruction and that it was reversible error for the trial court to deny his request. A defendant is entitled to an instruction "'as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor.'" ( People v. Berquist (1993), 239 Ill. App. 3d 906, 915, 181 Ill. Dec. 738, 608 N.E.2d 1212, quoting Mathews v. United States (1988), 485 U.S. 58, 63, 99 L. Ed. 2d 54, 61, 108 S. Ct. 883, 887.) An affirmative defense may be raised by the State's evidence, and, if that does not do ...

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