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07/24/96 PEOPLE STATE ILLINOIS v. TIMOTHY JACK

July 24, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
TIMOTHY JACK, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Winnebago County. No. 94--CF--1860. Honorable K. Craig Peterson, Judge, Presiding.

Released for Publication August 26, 1996.

Presiding Justice McLAREN delivered the opinion of the court: Rathje and Hutchinson, JJ., concur.

The opinion of the court was delivered by: Mclaren

PRESIDING JUSTICE McLAREN delivered the opinion of the court:

After a bench trial, the defendant, Timothy Jack, was found guilty of aggravated leaving the scene of a motor vehicle accident involving personal injury or death (625 ILCS 5/11--401(b) (West 1994)). We affirm.

The following facts are taken from the record of the trial proceedings. On August 9, 1994, at 9 p.m., the defendant drove eastbound on McCurry Road when he struck the victim, Anthony Barlow, who was riding a bicycle eastbound. The accident occurred in a dark rural area of Winnebago County on McCurry Road, a 22.9-foot-wide, two-lane road, with guardrails seven feet from each side of the pavement. Before being struck, the victim rode his bicycle approximately five feet five inches into the defendant's lane. The victim wore dark clothing, and his bicycle did not have a light. The defendant testified that, after he struck the victim, he stopped and looked behind his car. He did not see anything and, thus, concluded that he hit a deer and drove on. Unfortunately, the defendant struck the victim who was thrown more than 80 feet onto the side of the road. His body was partially obscured by weeds under the guardrail. The victim died as a result of injuries sustained in the accident.

As the accident occurred, Alison Dean drove westbound on McCurry Road with Sarah Herschlag, a passenger. Dean and Herschlag testified that they saw the defendant's car strike what they initially believed was a deer. However, Dean stated that after she passed the accident "it didn't look like a deer *** it looked like a person." Dean did not see a face but saw the outline of the body. Herschlag testified that after they passed the accident she saw the bicycle reflectors as she looked out the rear car window. Dean turned the car around and drove eastbound on McCurry Road. Dean stopped the car, and both Dean and Herschlag saw the bicycle by the side of the road. According to Dean, the tire was "sticking out into the road." Dean and Herschlag then proceeded to their planned destination, a swimming pool. When they arrived at the swimming pool, Dean asked the pool personnel to call 911. Dean, Herschlag, and a friend, Sara Smith, returned to the scene of the accident, stepped out of the car, and saw the victim in the bushes. They returned to the pool to be sure 911 had been called and then returned to the accident scene. Paramedics and police were already there. The paramedic at the scene testified that "you could see the victim as you drive past him."

The chief of police of the Village of Roscoe, Richard Lee, testified that the defendant called him the next morning. According to Lee, the defendant stated that the night before "he thought he hit something on McCurry Road," he drove home and saw "that his windshield was pushed in," and he told his girlfriend "that he hit a deer." However, Police Chief Lee testified that, during a second interview on August 11, 1994, the defendant stated that he did not know what he hit, he was afraid to call the police, and he could not get himself to do anything. The defendant also told Police Chief Lee that he stayed up all night.

According to Sergeant Don Wilder of the Village of Roscoe police department, the defendant stated that he did not call the police after the accident because he "was like a zombie," his "heart was beating 300 times a minute," he "was scared," he thought he struck a deer, and he could repair his car's damage because he was in the car repair business. In addition, the defendant told Officer Wilder that he first learned that a child had been hit on McCurry Road at 8 a.m. the following morning. However, the defendant also told Officer Wilder that he first became aware that he possibly struck a person at 6 a.m. the following morning, when Bruce Hanson, a friend, stopped by the defendant's home.

Diane Brandon, the defendant's girlfriend, testified that, when the defendant arrived home after the accident, he behaved in a "hysterical" manner and was "very upset." She also testified that the defendant's voice was shaky, she could not understand what he was saying, and he was talking to himself.

The defendant testified that he was "startled and shocked" when the right-hand side of his windshield came in as he travelled 45 miles an hour on McCurry Road. The speed limit is 55 miles an hour. The defendant stopped the car, opened the door, and, with one foot out of the car, looked back over his shoulder for "a second or two." The defendant testified that he did not see anything and, thus, drove home. The defendant thought he hit a deer. However, he did not investigate. The defendant stated that when he arrived home, he felt shaky and was startled but did not act in a hysterical manner. The defendant offered no evidence that he was hospitalized or otherwise physically incapacitated at anytime after the accident.

The State charged the defendant with (1) leaving the scene of a motor vehicle accident involving personal injury or death (625 ILCS 5/11--401(a) (West 1994)), a class A misdemeanor (625 ILCS 5/11--401(c) (West 1994)); and (2) aggravated leaving the scene of a motor vehicle accident involving personal injury or death (625 ILCS 5/11--401(b) (West 1994)). The section 11--401 of the Illinois Vehicle Code (Code) provides:

"(a) The driver of any vehicle involved in a motor vehicle accident resulting in personal injury to or death of any person shall immediately stop such vehicle at the scene of such accident, or as close thereto as possible and shall then forthwith return to, and in every event shall remain at the scene of the accident until the requirements of Section 11--403 have been fulfilled. Every such stop shall be made without obstructing traffic more than is necessary.

(b) Any person who has failed to stop or to comply with said requirements shall, within 3 hours after such motor vehicle accident, or, if hospitalized and incapacitated from reporting at any time during such period, within 48 hours after being discharged from the hospital, report the place of the accident, the date, the approximate time, the driver's name and address, the registration number of the vehicle driven, and the names of all other ...


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