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People v. Latto

March 31, 1999


The opinion of the court was delivered by: Justice Hartman

Appeal from the Circuit Court of Cook County. Honorable Robert Nix, Judge Presiding.

While driving his car, defendant was involved in an accident with another car driven by Grace Perlman, in which her husband, Albert Perlman, was a passenger. Albert was killed and Grace was seriously injured. Defendant was indicted on three counts of reckless homicide and four counts of aggravated driving while under the influence of alcohol (DUI). Following a bench trial, defendant was found guilty on two counts of reckless homicide and two counts of aggravated DUI. He was sentenced to a single five-year term for reckless homicide and three concurrent nine-year terms of imprisonment for both aggravated DUI charges and the remaining reckless homicide charge. Defendant raises as issues on appeal whether (1) he was proved guilty beyond a reasonable doubt; (2) the circuit court erred in allowing admission of certain expert testimony; and (3) the court penalized defendant for exercising his right to a trial.

The evidence adduced at trial established that, on December 16, 1995, shortly before 6 p.m., Grace was driving her 1992 Oldsmobile Cutlass at about 35 miles per hour. Albert was in the front passenger seat. She was traveling northbound in the inner lane of Waukegan Road between Lake and Chestnut Avenues when defendant's vehicle crossed the center line from the southbound lanes and struck the Cutlass. *fn1 The impact caused the Cutlass to stop and move backwards several feet, resulting in the death and injuries noted above.

At the time of the collision a witness, Betty Timm, was driving her vehicle in the inner southbound lane of Waukegan Road. Defendant's vehicle, also southbound, was a distance behind her car. She stopped behind another southbound vehicle ahead of her, waiting to turn left, or east. Timm observed an Oldsmobile station wagon in the process of completing a left or westbound turn from the inner northbound lane. The turning northbound and southbound vehicles were making simultaneous left turns. Timm heard a vehicle engine "revving up" behind her and observed defendant's vehicle, a Ford Mustang, pull out from behind her and pass around her, entering the outer southbound lane just as the station wagon's turn was almost complete. The station wagon was three-fourths across the outer southbound lane in completing its turn when it was struck at its right rear quarter panel and bumper by defendant's vehicle. After striking the station wagon, defendant's vehicle then crossed southeastward into the northbound lane of traffic and struck the Perlmans' Cutlass.

The driver of the station wagon, Carol Hicks, did not see defendant's vehicle until she felt the impact of the collision. From her rear-view mirror, Hicks then observed the collision between defendant's Mustang and the Perlmans' Cutlass. After the collision, Hicks observed defendant and another man exit defendant's vehicle; defendant then yelled to Hicks, "[f]ucking bitch, you turned in front of me."

Arriving at the scene shortly after the accident, Glenview Police Officer Donald Hohs observed defendant seated on the curb next to the passenger side of his vehicle. Calling defendant to him, Officer Hohs observed that defendant was chewing gum and rocking back and forth on his feet. Speaking to defendant from a distance of 12 to 15 inches, Officer Hohs smelled a "strong" odor of alcohol on his breath, his eyes were "slightly" bloodshot and "dazed," and he had an abrasion on his forehead at his hairline. Officer Hohs described defendant's behavior as "agitated, excited, then calmed." Believing defendant to be under the influence of alcohol, Officer Hohs placed defendant under arrest. *fn2

Glenview Police Officer Carl Hansen arrived at the scene of the accident at approximately 6:35 p.m. and spoke with defendant, who, at this time, was seated in the rear of a squad car. Like Officer Hohs, Officer Hansen also noted a "strong odor of alcoholic beverage about [defendant] and glassy eyes and somewhat of an excited state." Officer Hansen then transported defendant to Glenbrook Hospital where he read defendant his "warning to motorist" at 7:09 p.m. and administered a blood and urine test to defendant at 7:45 p.m., with the assistance of Pam Aitchinson, a hospital emergency room nurse. While at the hospital, Officer Hansen recovered a bottle of vicodin ES pills from defendant.

According to Nurse Aitchinson, she spoke with defendant, who told her that he took vicodin for back pain, at approximately 7 p.m. She knew that he had been arrested for DUI and was at the hospital for a blood and urine test. Acknowledging that she was observing defendant for the purpose of determining whether he needed medical treatment, and not for the purpose of determining whether he was intoxicated, she nonetheless believed that defendant was not under the influence of alcohol when she spoke with him. She described defendant as coherent and alert, with a steady gait, clear speech and no presence of an odor of alcohol.

Defendant's urine and blood tests revealed a blood alcohol level of .074 and his urine test revealed traces of vicodin. *fn3 After being transported to the Glenview Police Department defendant took four field sobriety tests more than four hours after the accident. Officer Hansen, who administered the tests, described defendant as polite and cooperative, and described his speech as not mumbled, slurred or "mushmouthed."

Later, while at the station, defendant spoke with assistant State's Attorney Cathy Crowley, to whom he told that, prior to the accident, he had been Christmas shopping in Kenosha, Wisconsin with a friend, who had driven both to Wisconsin. They stopped for a lunch of a steak sandwich and fries. Defendant admitted to drinking two beers and one brandy, but nothing after 2:30 p.m. When he arrived home, he took vicodin for a headache and went to sleep. Just before 6 p.m., friends reminded him of a party that evening. After leaving his house shortly before 6 p.m., defendant was driving southbound on Waukegan in the inner lane, "speeding a bit" at 40 miles per hour, when he struck the station wagon which caused him to leave the southbound lanes and strike the Perlmans' Cutlass in the northbound lanes.

At trial, Officer Hohs, a certified accident reconstructionist, testified that after defendant's arrest, he made observations and collected data for the purpose of reconstructing the events which precipitated the collision. From his observation of the accident debris and the post-occurrence positions of the vehicles, Officer Hohs concluded that the initial collision between defendant's Mustang and Hicks' station wagon occurred when the station wagon was three-quarters into a driveway, perpendicular to the right southbound lane. At the time of the collision, defendant's Mustang was in a "steering mode" with part of the vehicle in the inner southbound lane, meaning defendant was attempting to avoid striking the station wagon by turning into the inner lane. As a result of the collision, the Mustang lost some of its velocity and its right front tire was torn through the sidewall, became under-inflated, but did not blow out, and dragged on the pavement. The tire's tear, or cut, also caused the Mustang to lose its cornering stiffness and become harder to maneuver.

After striking the station wagon, the Mustang traveled 85 feet into the inner northbound lane where it struck the Perlmans' Cutlass. The force of the impact pushed the Cutlass back approximately seven feet from the point of "maximum engagement," the first contact between the Mustang and the Cutlass. The Mustang overrode the Cutlass and compressed it into the road.

According to Officer Hohs, if defendant's Mustang had been traveling 40 miles per hour after striking the station wagon, it would have traversed the 85 feet in 1.46 seconds before striking the Cutlass. At that speed, even if defendant had been using his brakes, which the tire marks indicated that he had not, he would not have come to a complete stop within that time.

Officer Hohs also explained the differences between various types of reactions in driving and believed defendant's reaction was either a complex reaction, in which he made a conscious decision based on variables that would require more time to react, or a discriminative reaction, which was an overwhelming anticipation or perception of the hazard, that could take "anywhere from a second all the way up to infinity." Officer Hohs acknowledged that either reaction would take more than one second, and that steering is a quicker response to an accident or perceived hazard than braking and that steering is "probably *** the most efficient response."

The State presented, over defense objection, the testimony of Dr. Joerg Pirl, a toxicologist whom the State qualified as an expert. Using the method of "retrograde extrapolation," which he indicated was scientifically accepted, Dr. Pirl asserted that, based on defendant's blood alcohol level, which was .074 percent at 7:45 p.m. according to the hospital blood results, and taking into account the meal eaten and the alcoholic drinks consumed, defendant's blood alcohol level would have been from approximately .102 to .111 percent at 5:59 p.m. Dr. Pirl explained that alcohol is eliminated from the body at an average rate of .015 to .02 per hour in 85 percent of males. Assuming that in the entire period after the accident defendant was in the elimination and not absorption phase for the alcohol he had consumed, retrograde extrapolation indicated that defendant had a blood alcohol level of between .102 and .111 at the time of the collision.

The State rested. Defendant presented the expert testimony of Dr. Austin Gibbons, a physician specializing in pathology. Differing from Dr. Pirl's opinion, Dr. Gibbons thought that retrograde extrapolation is "junk science" and did not think that it was accepted by peer review scientific literature. Retrograde extrapolation from a single measurement could not be relied upon; from that number it is impossible to determine whether an individual is in the absorption phase or, if in the elimination phase, when the level had peaked. Trauma, and the type of beverage and food consumed could affect the absorption rate and so the validity of an extrapolation. Elimination does not occur at a constant, linear rate, but fluctuates in any given individual; accordingly, even if several variables are known, such as a person's sex, and when he last ate and drank, a blood alcohol level at an earlier time cannot be extracted from later blood alcohol measurements, and cannot be relied upon with scientific certainty.

Defendant also presented the testimony of his mother, Lula Latto, and his brother-in-law, Michael Downing. Lula observed defendant between 5:30 and 6 p.m. prior to the collision and Michael observed defendant at Glenbrook Hospital at 7:35 p.m. after the collision. Neither believed defendant to have been under the influence of alcohol.

John Geaslin, a Glenview fireman/paramedic, testified for defendant. He arrived at the accident scene at 6:12 p.m., spoke with Hicks, defendant and defendant's passenger to determine whether any needed medical attention. He described defendant as lucid, rational and not confused; he further stated that defendant's gait was steady, his eyes were normal and his speech was neither mumbled or thick-tongued. He spoke with defendant while seated in the rear of the ambulance with defendant, his passenger and Hicks and did not notice an odor of alcohol about defendant. Geaslin asked defendant, Hicks, and defendant's passenger if any had been drinking and all responded, "no." Geaslin did, however, notice an odor of alcohol in the ambulance after Hicks, defendant and defendant's passenger left the ambulance, but he could not identify its source. Based on his observation, he believed that defendant was not under the influence of alcohol. On cross-examination, Geaslin admitted that he had known defendant prior to the accident, had frequented defendant's hot dog "joint," and considered him a "real friendly good guy."

Following closing arguments, the court found defendant guilty on two counts of reckless homicide and two counts of aggravated DUI and sentenced him to three nine-year ...

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