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07/18/97 PEOPLE STATE ILLINOIS v. SHELLY R. TRACY

July 18, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
SHELLY R. TRACY, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of the 13th Judicial Circuit, La Salle County, Illinois. No. 96--TR--4336. Honorable William Balestri, Judge Presiding.

Rehearing Denied August 20, 1997. Released for Publication August 20, 1997.

Present - Honorable Michael P. Mccuskey, Justice, Honorable William E. Holdridge, Justice, Honorable Kent Slater, Justice. Justice McCUSKEY delivered the opinion of the court. Slater and Holdridge, JJ., concur.

The opinion of the court was delivered by: Mccuskey

The Honorable Justice McCUSKEY delivered the opinion of the court:

Following a jury trial, the defendant, Shelly R. Tracy, was convicted of passing a school bus which was stopped for the purpose of receiving or discharging pupils (625 ILCS 5/11--1414(a) (West 1996)). She was fined $150 and appeals her conviction.

On appeal, the defendant argues that: (1) the trial court should have appointed a special prosecutor because Stephen R. Paul, an assistant State's Attorney, testified at the defendant's trial; (2) the trial court should have suppressed a statement the defendant made to Paul; (3) the State failed to prove the corpus delicti of the crime; (4) the evidence was not sufficient to prove the defendant guilty beyond a reasonable doubt; (5) the defendant was denied her right to a fair trial because the trial court prevented her from presenting evidence to show Paul's bias against her; (6) the trial court failed to properly instruct the jury; and (7) section 11--1414 of the Illinois Rules of the Road (Rules of the Road) (625 ILCS 5/11--1414 (West 1996)) is unconstitutional, or unconstitutional as applied to her.

Following our careful review of the record, we find no merit to any of the defendant's contentions and affirm.

FACTS

Donald Olson is the president of Olson Bus Service, Incorporated. On October 31, 1995, Olson was driving a school bus as a substitute for the regular bus driver. At 3:20 p.m., Olson was picking up students at Seneca Grade School to take them home. The bus he was driving was third in a line of seven buses which were parked on a public street by the school. The buses had their eight-way lights on, stop arms out, and the flashing lights on the stop arms were working properly. All the lights on Olson's bus were in proper working order and functioning on the day in question. Olson saw a white Nova drive by the school buses. The license plate number on the car was YDF 711. Olson could not see who was driving the Nova or how many persons were in the car. After the Nova passed his bus, Olson used his cellular telephone to alert the Seneca police department.

George Lamboley, an officer with the Seneca police department, received a call from the dispatcher regarding a white car passing school buses. Lamboley asked the dispatcher to run the vehicle's license plate number. The dispatcher informed the officer that the car was registered to Lori Tracy. Olson later signed a traffic citation against Lori Tracy. The citation was mailed to the home address listed for Lori Tracy.

The first appearance date on the citation was December 6, 1995. On that date, Stephen R. Paul, an assistant State's Attorney, called Lori's name in the courtroom. William Tracy, Lori's father, and the defendant, Lori's mother, approached Paul after they heard him call Lori's name. Lori's parents told Paul that Lori was not coming because she lived in Chicago. According to Paul, the defendant then told him that it was not right that Lori had been charged with the offense because the defendant was the person who passed the school buses. Subsequently, on February 28, 1996, the trial court granted the State's motion to enter a nolle prosequi order and dismissed the charge against Lori with leave to reinstate. On April 3, 1996, the defendant was charged with committing the offense of passing a school bus.

On April 22, 1996, the defendant filed a motion for discovery. The State's answer stated that its trial witnesses would be Olson and Officer Lamboley. The answer was signed by Assistant State's Attorney Paul. On July 3, 1996, the State filed an amended answer to the discovery request. This answer listed Paul as a witness and was signed by another assistant State's Attorney, Niels F. Bringsjord. The defendant then filed a motion to suppress her statements to Paul. This motion was denied on August 14, 1996, following a hearing. On August 30, 1996, the defendant filed a motion seeking the appointment of a special prosecutor because Paul was going to testify as a witness. The trial judge noted that it was within his discretion to appoint a special prosecutor. The judge determined that a special prosecutor was not warranted in this case because Paul was not the complaining witness.

A jury trial was held on September 17, 1996. Bringsjord prosecuted the case. Olson and Officer Lamboley testified regarding the occurrence, and Paul testified about the defendant's statement. Paul told the jury that he was an assistant State's Attorney and worked with Bringsjord. He testified that he dismissed the charge against Lori after the defendant made her statement to him on December 6, 1995. He said that he was not assigned to prosecute the defendant's case. The trial court sustained the State's objections to the defendant's questions on cross-examination regarding Paul's involvement as a prosecutor in the defendant's case. However, the original answer to the defendant's discovery request, which was signed by Paul, was admitted into evidence over the State's objection.

The defendant denied telling Paul that she passed the school buses. She said that she had never in her life "passed a school bus that was loading with the arms out and the lights flashing." During cross-examination by the State, the defendant testified that she was working as a teacher at the Seneca Grade School. She testified she was teaching at the school on October 31, 1995. She said she drove one of the five cars her family owned to school that day. However, she said she didn't know which one she drove. She testified the bell rings at 3:16 p.m. for dismissal, but she does not get out of school until 10 or 15 minutes after the bell rings. She did admit talking to Paul on December 6, 1995.

The jury began deliberations and sent the judge a note asking: "What date were the charges against Lori Tracy officially dropped [and] Shelly charged with the charge of passing a stopped school bus?" The trial judge denied the defendant's request that the jury be instructed that the charge against Lori had not been officially dismissed. The judge wrote back to the jury that it was to "decide the case based on the evidence presented in court and my instructions on the law." The jury found the ...


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