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People v. Spencer

April 01, 1999

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
FRED L. SPENCER, DEFENDANT-APPELLANT.



Appeal from Circuit Court of Vermilion County No. 96CF163 Honorable John P. O'Rourke, Judge Presiding.

The opinion of the court was delivered by: Justice Cook

IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS

In October 1997, defendant Fred Spencer was found guilty by a jury of reckless homicide, aggravated driving under the influence of alcohol (DUI), and aggravated driving with a blood-alcohol concentration of .10 or more. 720 ILCS 5/9-3(a) (West 1996); 625 ILCS 5/11-501(d)(1)(C) (West Supp. 1995), 11-501.2 (West 1996). The convictions arise from an automobile accident on December 17, 1995, when defendant drove his pickup truck into the rear of a semi tractor-trailer killing his passen- ger, JoAnn Abernathy. On December 5, 1997, the trial court entered judgment on the reckless homicide count (the DUI convictions merged into that count) and sentenced defendant to four years' imprisonment. The trial court denied defendant's posttrial and post-sentencing motions. Defendant appeals, arguing (1) the trial court erred in admitting into evidence a hospital record showing the results of his blood-alcohol content (BAC) taken at the hospital when he was being treated after the accident, (2) the State failed to prove beyond a reasonable doubt that he committed reckless homicide, and (3) his four-year prison sen- tence is excessive. We affirm.

On December 17, 1995, defendant drove JoAnn Abernathy, his girlfriend, to the Fairview Sportsman Club (club) around 1 p.m., dropped her off, and proceeded to a camping area a short distance from the club. Defendant consumed three cans of beer at the camping area before he left, between 6 and 7 p.m., and drove back to the club to meet Abernathy and Roberta Davis. Defendant consumed two cans of beer that evening at the club while he served as bartender. One-half hour before leaving the club, he counted the bar receipts, locked up, and turned on the security system for the building. Defendant testified he had no trouble completing these tasks. Neither Danny Keel, who was present at the club for a short time when defendant was there, nor Davis, a longtime friend of both defendant and Abernathy, believed defendant was impaired. Davis watched defendant count the bar receipts and lock up without any difficulty.

Defendant drove Abernathy and Davis in his pickup truck from the club to the residence of Cecil and Ruth Randall, where he dropped Davis off. According to Davis and defendant, Abernathy had a can of beer in the pickup when they left the club. Davis testified defendant had no problems staying in his lane or maneuvering through intersections. He was not driving erratically or too fast as he drove to the Randalls' residence and had no trouble backing into the Randalls' drive. Both Cecil and Ruth Randall, longtime friends of defendant and Abernathy, watched defendant drop Davis off at their home around 10 p.m. Defendant had no problem backing his truck into or driving out of their driveway. He did not appear intoxicated that night. Ruth watched defendant walk Davis from the truck to the house and defendant did not seem to have any difficulty in walking the few steps from his truck to their front door. Ruth noticed nothing unusual about him or his speech when he said good night. Defendant also testified that he had no trouble driving from the club to the Randalls' residence. Defendant felt he had no problems functioning even though he had consumed alcohol earlier in the evening.

Defendant and Abernathy left the Randalls' residence and headed for Interstate 74. As defendant maneuvered down the interstate's eastbound entrance ramp, he saw a semi truck travelling eastbound in the right lane. The semi did not merge into the left lane as defendant travelled down the exit ramp. A car was travelling behind the moving semi. Defendant attempted to accelerate on the ramp, but was unable to pass the moving truck, so he let his foot off the gas so that the semi and car could travel past him. As he travelled down the merge lane, he was watching the semi and car to his left, then hit the back of the trailer of a parked semi. No vehicles were behind defendant as he drove down the entrance ramp or as he travelled in the merge lane.

Defendant did not see the semi he hit until he collided with it. He never hit his brakes before the collision because he had no reason to stop. Defendant did not feel intoxicated or that alcohol affected his ability to safely drive his pickup that night.

At about 10:30 p.m., Kevin Kruse, the driver of the semi with which defendant collided, drove down the Interstate 74 entrance ramp to the merging lane located past the end of the entrance ramp and pulled his semi over so that it was completely on the shoulder of the eastbound merge lane. After stopping he checked his mirrors and found his side lights, clearance lights, and four-way flashers working, including a configuration of lights on the back of the trailer. As he was preparing to exit his truck, he heard and felt a big thud. He jumped out of the truck and walked to the rear, where he saw defendant's pickup truck underneath the trailer. The pickup had shoved the rear axles of his trailer so far forward that the tires were hitting the tires directly in front of them. The lights were still operating on Kruse's truck. Kruse radioed for help, told defendant to stay calm, and waited for rescue crews. Kruse smelled alcohol within the pickup when he was speaking to defendant through a crack in the door.

Officer Brian Tison, a Vermilion County sheriff's deputy, answered the dispatch of the accident at 10:49 p.m. The weather conditions were cold and clear and there was no moisture on the roadway when he arrived. At the scene he observed a semi tractor-trailer parked completely on the shoulder of the merge lane. The semi was about halfway along the length of the merge lane, approximately 500 feet east of the end of the entrance ramp. The semi's four-way flashers, red lights, and lights on the back of the trailer, the ones that had not been broken by defendant's pickup, were all operating. Defendant's pickup was wedged underneath the rear of the semi to its windshield.

Based upon Tison's experience, training, and observation, he concluded the speed of the pickup truck at impact was relatively high because the rear axle of the tractor-trailer was broken loose and pushed into the axle in front of it. The impact had moved the entire semi closer to the white line marking the shoulder, where it was sitting crooked. The pavement showed no skid marks leading up to the vehicles. After a rescue squad arrived and extricated defendant and Abernathy from the pickup, Tison saw a crushed beer can on the middle of the front seat.

Tison did not speak with defendant at the scene. When he arrived at the emergency room, where defendant was being treated, he assisted medical personnel in restraining defendant in order to insert an IV. At that time, he smelled an odor of alcohol coming from defendant.

John Howard, an investigator with the Vermilion County sheriff's department, examined and took photographs of the accident scene beginning about 11:15 p.m. Weather conditions were dark and dry and, by the time he arrived, defendant and Abernathy were gone. Pictures of the scene showed a damp roadway (it began to rain after Howard arrived), but a dry roadway underneath the semi and defendant's pickup. Howard saw no skid marks or any other marks leading up to the location of the accident. All lights, emergency flashers, headlights, and side markers appeared to be working on the semi, which was parked on the shoulder off the merge lane. The semi's trailer was shifted to the left approximately one foot from the impact of defendant's vehicle.

Howard spoke with defendant on December 20, while he was in the hospital. Defendant told him he came down the ramp and was attempting to merge into traffic, but a vehicle in the driving lane prevented him from merging, so he hit the parked truck. Defendant told Howard he was not aware of a beer can being inside the truck, but that there was one in the bed of the truck.

Terry Hume, an emergency medical technician (EMT), was dispatched to the accident scene at 10:52 p.m. He observed defendant's pickup wedged underneath the back end of the semi-trailer all the way up to the pickup's windshield area. The two passengers were pinned in the vehicle and had to be extricated from the pickup. While defendant was in the ambulance en route to the ...


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