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04/06/94 PEOPLE STATE ILLINOIS v. MICHAEL TESTIN

April 6, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
MICHAEL TESTIN, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Lake County. No. 92-CF-2292. Honorable Michael J. Fritz, Judge, Presiding.

McLAREN, Geiger, PECCARELLI

The opinion of the court was delivered by: Mclaren

JUSTICE McLAREN delivered the opinion of the court:

The defendant, Michael Testin, was found guilty of reckless homicide following a jury trial. (Ill. Rev. Stat. 1991, ch. 38, par. 9-3(a) (now 720 ILCS 5/9-3(a) (West 1992)).) The defendant raises the following issues on appeal: (1) the trial court erred in denying his motion for judgment notwithstanding the verdict; and (2) the trial court did not properly instruct the jury. For the following reasons, we affirm.

At approximately 10:30 p.m. on July 20, 1992, the defendant was driving south on Route 12, Lake Zurich, Illinois, in a 1984 Chevrolet Corvette. Route 12 is a four-lane highway with a grassy median which divides two lanes running north and two lanes running south. Overhead streetlights are located where side streets intersect with Route 12. The defendant was changing from the left to the right lane when his vehicle struck and killed 13-year-old Anthony Logan. Logan had been skateboarding on Route 12 and was not wearing any reflective devices on his clothing.

Prior to the collision, the defendant was clocked by radar as travelling between 83 miles per hour in a 55 mile-per-hour zone and 77 miles per hour in a 45 mile-per-hour zone. The precise rate of speed at the point of impact is unknown. Field sobriety tests administered to the defendant following the collision confirmed that he did not consume any alcohol that evening.

The defendant was indicted by a grand jury for the offense of reckless homicide. (Ill. Rev. Stat. 1989, ch. 38, par. 9-3(a) (now 720 ILCS 5/9-3(a) (West 1992)).) The indictment alleged that on July 20, 1992, the defendant was operating a 1984 Chevrolet Corvette southbound on Route 12 in Lake Zurich, Illinois, at a speed greater than was reasonable and proper with regard to the existing traffic conditions and the safety of persons properly upon the roadway, in that the defendant quickly turned his vehicle across different lanes of traffic without signaling and drove onto the shoulder of the road without first ascertaining that such movement could be made with safety, causing his vehicle to strike Anthony Logan, thereby unintentionally causing his death.

The cause proceeded to a jury trial. At the close of the State's case in chief, the defendant moved for a directed verdict. The motion was denied. The defendant's motion for a directed verdict at the close of all the evidence was also denied.

At the jury instruction conference, the defendant's non-IPI instructions were all refused. The defendant submitted a special interrogatory which questioned whether the jury's finding of recklessness was predicated upon a finding that he was speeding at the point of impact. It was also refused.

The jury found the defendant guilty of the offense of reckless homicide, and judgment was entered on the verdict. The defendant filed a post-trial motion for a judgment notwithstanding the verdict and for a new trial. The motion was denied, and the defendant appealed.

The defendant first contends that the court erred in denying his motion for a judgment notwithstanding the verdict because the State failed to prove that he was guilty of reckless homicide beyond a reasonable doubt. A defendant is guilty of reckless homicide when the State proves, beyond a reasonable doubt, that while operating a motor vehicle the defendant unintentionally caused a death, and the acts which caused the death were performed recklessly so as to create a likelihood of death or great bodily harm. ( People v. Wilson (1991), 143 Ill. 2d 236, 245, 157 Ill. Dec. 473, 572 N.E.2d 937; People v. Ethridge (1993), 243 Ill. App. 3d 446, 464, 183 Ill. Dec. 61, 610 N.E.2d 1305.) The defendant claims that the evidence adduced at trial is insufficient to support a finding of guilt beyond a reasonable doubt because there was insufficient evidence of recklessness.

Recklessness is defined as a conscious disregard of a substantial and unjustifiable risk that constitutes a "gross deviation from the standard of care which a reasonable person would exercise in the situation." (Ill. Rev. Stat. 1991, ch. 38, par. 4-6 (now 720 ILCS 5/4-6 (West 1992)).) Recklessness may be inferred from all the facts and circumstances in the record. ( People v. Smith (1992), 149 Ill. 2d 558, 565, 174 Ill. Dec. 804, 599 N.E.2d 888.) The trier of fact determines whether the State has proved the defendant was reckless. ( People v. Wilson (1991), 143 Ill. 2d 236, 246, 157 Ill. Dec. 473, 572 N.E.2d 937.) The critical inquiry when reviewing the sufficiency of the evidence to support a conviction of reckless homicide is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Smith, 149 Ill. 2d at 565.

Tracy Goodyear of the Lake Zurich police testified that she clocked the defendant travelling in the Corvette at 83 miles per hour in a 55 mile-per-hour zone. Goodyear began to follow the vehicle to initiate a traffic stop but did not activate the Mars lights or siren "in fear that the vehicle would flee." Further south on Route 12, Goodyear paced and clocked the speed of the Corvette at 77 miles per hour in a 45 mile-per-hour zone. While following the vehicle, Officer Goodyear noticed that the driver, later identified as the defendant, made approximately six or seven "erratic" lane changes in which the defendant would weave in and out of traffic and around vehicles in his path without signaling. With each lane change, the time that elapsed between successive lane changes grew shorter.

Goodyear testified that she was approximately three to four car lengths behind the defendant, with no other cars between them, when she observed the defendant change from the left to the right lane when the passenger's side crossed over the right lane divider approximately two to three feet. Immediately after that, Goodyear heard a loud "thud" and observed a body, later identified as that of 13-year-old Anthony Logan, fly over the top of the defendant's vehicle, land on the roof, come into midair once again, and tumble down the roadway. She did not observe the actual impact. The defendant's vehicle swerved to the left and Officer Goodyear initiated a traffic stop by activating the Mars lights. Goodyear approached the defendant's vehicle and observed three female passengers. The back hatch of the Corvette was "totally busted out," the sunroof was "busted," and the windshield on the passenger's side was "smashed out." The victim's skateboard was under the Corvette.

Carl Eckberg was the victim's companion that evening. He testified that he and Logan were walking and skateboarding south on the paved shoulder of Route 12 when Logan was struck by the defendant's vehicle. Eckberg estimated that the paved shoulder on Route 12 is three or four feet wide and is separated from the roadway by a white lane marker. The opposite side of the shoulder is grass and gravel. Eckberg stated that he and Logan did not walk or skateboard onto the road. He further stated that they would get off of their skateboards and walk onto the gravel area of the shoulder when they heard a vehicle approaching from behind.

Deputy Roger Barrette, an accident reconstructionist with the Lake County sheriff's department, investigated the scene. To determine how the collision occurred, Barrette observed the damage to the vehicle and the body, the condition of the pavement, and the position of the vehicle and the body. The front bumper of the Corvette had rub marks 11.5 to 24 inches from the center of the bumper. Barrette opined that this area of the bumper first struck the back of Logan's left leg. The force caused Logan to somersault into the air. While in the air, the windshield struck the right side of Logan's head, causing the windshield to shatter in the form of a spider web. The right portion of Logan's rib cage was torn in a crescent shape when his body hit the leading edge of the roof where the sunroof meets the windshield. Barrette opined that Logan's body continued to move across the top of the car, as evidenced by marks indicative of stretching, to Logan's legs and buttocks. With the information supplied by Officer Goodyear and an examination of the damage to the bumper of the vehicle and the injuries to Logan's body, Barrette estimated that the vehicle first struck Logan when it was two or three feet over the right lane markings. Since the bumper of the Corvette was damaged ...


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