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10/02/95 PEOPLE STATE ILLINOIS v. ROBERT J.

October 2, 1995

PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
ROBERT J. JAKUPCAK, JR., DEFENDANT-APPELLANT.



Appeal from the Circuit Court of LaSalle County. No. 92-CF-292. Honorable Howard C. Ryan, Presiding Judge.

Released for Publication November 6, 1995. Petition for Leave to Appeal Denied January 31, 1996.

Present - Honorable Michael J. Colwell, Justice, Lawrence D. Inglis, Justice, S. Louis Rathje, Justice. Inglis and Rathje, JJ., concur.

The opinion of the court was delivered by: Colwell

JUSTICE COLWELL delivered the opinion of the court:

Defendant, Robert Jakupcak, Jr., appeals his conviction for reckless homicide. (720 ILCS 5/9-3) (West 1992)). Defendant contends that: (1) the trial court erred in denying his motion to strike the opinion of the State's expert concerning the speed of defendant's car; (2) the State failed to prove him guilty beyond a reasonable doubt of the offense of reckless homicide; (3) he was denied a fair trial because the family and friends of the deceased conspired throughout the trial to bring to the jurors' attention highly prejudicial and inadmissible materials, including posters suggesting that defendant or someone connected with him had vandalized the deceased's grave and (4) the trial judge applied the wrong standard in considering his motion for a new trial. We reverse and remand for a new trial.

The charge of reckless homicide against the defendant arose out of the alleged unlawful killing of Angel Pence, whose death was caused by injuries received when the defendant's vehicle collided with her vehicle. The accident occurred at about 8:30 p.m. on May 30, 1992, in front of the Dairy Queen located on Route 23 in Streator, Illinois. Route 23 is a four lane road with two lanes going north and two lanes going south. The posted speed limit on Route 23 is 40 miles per hour. There are a number of businesses in the area of the Dairy Queen.

The defendant's girlfriend, Roseanne Kohrt, testified that at about 8:30 p.m. on May 30, 1992, she was with the defendant in his car, a 1974 Chevrolet Monte Carlo. Defendant was driving north on Route 23 in Streator. At the time, Kohrt and the defendant had no destination in mind. Kohrt testified that the defendant drove past the Dairy Queen on Route 23. The defendant then proceeded to the intersection of Route 23 and Oakley Avenue. Defendant and Kohrt decided to go to Ottawa. The defendant needed to turn his car around to get gas, so he turned left on Oakley, heading west, and turned his car around in the parking lot of the Food Expo grocery store and headed back towards the intersection of Oakley Avenue and Route 23.

Kohrt testified that the defendant stopped at the stoplight at the intersection of Oakley and Route 23. She testified that the defendant turned right on the red light and headed south on Route 23, back towards the Dairy Queen. According to Kohrt, after making the turn onto Route 23, the defendant accelerated and was going about 45miles per hour as they approached the Dairy Queen, although Kohrt admitted that she was not watching the speedometer at the time. Defendant also changed from the right lane to the left lane as they approached the Dairy Queen. Kohrt testified that as she was looking out the passenger side window she realized the defendant had applied his brakes and looked up and saw a blue car in front of them, which they immediately hit. The blue car, driven by Angel Pence, was exiting the Dairy Queen onto Route 23 at the time of the collision. Angel Pence was fatally injured. Amy Moore, a friend of Angel Pence, and her sister, Allison Moore, were also in the blue car and both suffered injuries from the collision.

Anthony Bockelman testified that at approximately 8:30 p.m. on the night of the collision he drove northbound on Route 23 and passed the Dairy Queen. He stated that the Dairy Queen was packed with people. Bockelman testified that after he passed the Dairy Queen he observed the defendant turn right onto Route 23 (heading towards Bockelman) from Oakley Avenue. He stated that the defendant's tires were smoking and squealing as he made the turn onto Route 23. Bockelman estimated that the defendant made the turn at a speed of 40 to 45 miles per hour and performed a "power slide", causing the car to slide into the southbound left-hand lane on Route 23. Bockelman stated that the defendant smiled at him and floored his Monte Carlo as Bockelman's car passed the defendant's. Bockelman, who has worked as an automobile mechanic, testified that he heard the four barrel carburetor in the defendant's car kick in when he floored it and that the defendant's tires were "blowing dust right off the curb." Bockelman stated that the defendant passed him and that he continued to watch the defendant through his rear view mirror until the defendant "plowed into someone."

Steven Mamer testified that at approximately 8:30 p.m. on the evening of the accident the defendant was behind him as Mamer waited for the traffic light to change at the corner of Oakley Avenue and Route 23. Mamer testified that as the light turned green and he proceeded east on Oakley, he observed in his rear-view mirror that the defendant was turning right onto Route 23. Mamer further testified that he notice nothing unusual about the way the defendant was driving and did not hear any squealing tires. Mamer, however, stated that he did not see the defendant complete the turn onto Route 23.

Amy Moore testified that she and her sister went with Angel Pence to the Dairy Queen on Route 23 on the evening of the collision. Moore testified that the Dairy Queen was busy when they arrived. They went to the drive through window to order ice cream. Mooretestified that after they received their order at the pick-up window, Angel Pence pulled up to the exit and waited a minute or two, before pulling out onto Route 23, to see if any cars were coming. According to Moore, they were planning on turning left (north) on Route 23 in order to take her sister, Allison Moore, home. Amy Moore testified that Angel Pence looked both ways as they exited the Dairy Queen. She stated that when they pulled out of the Dairy Queen exit she saw a car coming south on Route 23, but that it was about 400 feet away from them and in her opinion there was plenty of time for Angel Pence to pull the vehicle out of the Dairy Queen and make a left-hand turn onto Route 23. As they pulled out, however, the defendant's car, which turned out to be the car Amy Moore saw 400 feet away, struck the Pence vehicle.

Allison Moore, the other passenger in the Pence vehicle, also testified that they pulled up to the Dairy Queen exit on Route 23 and stopped in order to see if any cars were coming.

The defendant testified that he has lived in Streator his whole life. He stated that he works for his father in an automobile body shop and that he has worked there since he was in the 7th grade. The defendant testified that he owns a red 1974 Chevrolet Monte Carlo, that the engine had been rebuilt in 1990, and that his car has a four-barrel carburetor. The defendant also stated that he installed a tachometer in his car, but that he only uses it for gas mileage purposes. The defendant testified that he is familiar with the city of Streator and with the Diary Queen. He testified that he is aware that people stand around in front of the Dairy Queen and that cars pull in and out of the driveway of the Dairy Queen, as well as the driveways of the businesses in the area surrounding the Dairy Queen. The defendant testified that he was traveling at 45 miles per hour when he hit the Pence car. We note that there is no evidence in the record that the defendant was intoxicated at the time of the collision.

Illinois State Trooper, Lawrence Lepianka, an accident reconstruction expert, testified for the prosecution. Lepianka testified that his police headquarters advised him on June 1, 1992, that the Streator Police had requested the services of an accident reconstruction expert to determine the speed of the defendant's car at the time of the accident. Lepianka and Trooper Weyforth, a then-uncertified accident reconstruction trainee, met with Officer Anderson (the officer who was dispatched to the scene immediately after the collision) at approximately 4:30 p.m. on June 1, and they went to the scene of the accident. Officer Anderson showed Lepianka and Weyforth where the two cars had come to rest ...


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