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People v. Bertolet

Illinois Appellate Court


April 01, 1999

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
ERIC R. BERTOLET, DEFENDANT-APPELLANT.

Appeal from the Circuit Court of Effingham County. No. 96-CF-203 Honorable Richard H. Brummer, Judge, presiding.

The opinion of the court was delivered by: Justice Goldenhersh

IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS

On May 7, 1997, defendant was charged by information with 18 counts of reckless homicide (720 ILCS 5/9-3(a) (West 1994)) and aggravated driving while under the influence of alcohol (hereinafter aggravated DUI) (625 ILCS 5/11-501(d)(3) (West 1994)). A jury trial was commenced on those 18 counts on August 4, 1997. On August 7, 1997, the jury returned verdicts finding defendant guilty of four counts of aggravated DUI and not guilty on all other counts. Defendant's motion for a new trial was filed, heard, and denied. He was sentenced to 30 months' probation. On appeal, defendant raises two issues: (1) whether the State proved beyond a reasonable doubt that defendant was in fact the driver of one of the vehicles involved in the collision and (2) whether the State proved beyond a reasonable doubt that defendant's operation of his vehicle constituted the proximate cause of the deaths of the two victims. This court upholds the verdicts as to the issue whether defendant was the driver of the vehicle but reverses on the issue whether the State proved beyond a reasonable doubt that the actions of defendant were the proximate cause of the deaths of the two victims. Pursuant to Supreme Court Rule 366(a)(5) (155 Ill. 2d R. 366(a)(5)), we reverse the Class 4 felony convictions of aggravated DUI and enter a judgment of guilty for the Class A misdemeanor of driving under the influence (hereinafter DUI) (625 ILCS 5/11-501(a)(1) (West 1994)).

I. FACTS

On March 24, 1996, defendant was alleged to be operating a 1995 Plymouth Neon, registered to Angela Kincaid, traveling on northbound Keller Drive in Effingham. At approximately 1:30 a.m., defendant was attempting to turn left onto the Avenue of Mid America. At the same time and place, Deputy Sheriff John Niccum was operating an Effingham County sheriff's squad car traveling on southbound Keller Drive. When the two vehicles entered the intersection of Keller Drive and the Avenue of Mid America, they collided violently, resulting in serious bodily harm to all persons involved.

The Plymouth Neon driven by defendant had four other passengers: Angela Kincaid, Brian Cunningham, Michael Kull, and Brent Redfern. Angela Kincaid and Brian Cunningham died as a result of the collision, while Brent Redfern, Michael Kull, and defendant all suffered serious bodily harm. Deputy Niccum suffered a stress fracture of his right ankle and lacerations to his right hand. Defendant and the two surviving passengers of the Plymouth Neon remember nothing of the accident, including who was driving the vehicle immediately prior to the accident. Deputy Niccum remembers only that the traffic signal at the intersection of southbound Keller Drive and the Avenue of Mid America was green when he entered it.

There were two witnesses to the accident. James M. Ousley testified that he had been near the intersection, at a McDonald's Restaurant, at the time of the collision. As he exited McDonald's, he saw a sheriff's car go by, and a "split second later" Ousley saw the "end" of the accident. Ousley continued to testify that at the time he observed the end of the accident, the southbound light at the intersection of Keller Drive and the Avenue of Mid America was red. He further testified that when he saw the sheriff's car drive past him it did not have any type of emergency or overhead lights activated. Ousley estimated that the sheriff's vehicle was traveling about 50 miles per hour.

The second witness to the accident was Jennifer Rainford. She testified for the defense as an eyewitness to the speed of the squad car. At the time, she was working at a restaurant located north of the collision site. Rainford testified that the sheriff's car was going about 55 to 60 miles per hour as it passed the restaurant. She testified that the squad car had no warning lights activated.

The first officer to arrive on the scene was Illinois State Trooper Don Schutzbach. He responded pursuant to a call for assistance from Deputy Niccum. Because of the serious condition of the driver of the Plymouth Neon, Schutzbach did not retrieve any identification and initially identified the driver as a female with a lot of hair. After completing his duties at the scene of the accident, Schutzbach proceeded to St. Anthony's Memorial Hospital to obtain the identifications of the driver and the other passengers of the Plymouth Neon. When he arrived at the hospital, he was informed by the attendants that the driver of the vehicle was, in fact, male. In open court he relied on these statements and his own recollection of the appearance of the driver to identify defendant as the driver of the Plymouth Neon. Schutzbach further testified that defendant did not have a beard, contrary to the testimony of Michael Kull and defendant. Schutzbach finished his testimony by stating that the blood drawn by hospital employee Sherri Garner was in fact taken from defendant.

Sherri Garner, a St. Anthony's Memorial Hospital employee, stated that two times subsequent to the accident she drew blood at the hospital from a person she believed to be defendant. She said she also drew blood from the other victims, and she could only describe defendant as "big."

Barbara Miles, a laboratory technician at St. Anthony's Memorial Hospital, participated in the treatment of the passengers in the Plymouth Neon. She stated that the blood she believed to be defendant's was identified only by a number. When she entered the room where an individual identified as defendant was being treated, she saw nurse Dana Hakman drawing blood. Miles did not take that sample of blood because she believed that she was already carrying a vial of defendant's blood. However, Miles indicated that she had no idea where she got the blood in her pocket.

In order to maintain the credibility of the blood-alcohol- concentration evidence, the State relied on Trooper Schutzbach's testimony that he personally witnessed two vials of blood being drawn from defendant and that he personally sent those vials to the Illinois State Crime Lab in Springfield for analysis. Cathy Anderson, a toxicologist with the Illinois State Police Crime Lab, testified that she received and tested the vials sent by Trooper Schutzbach. She stated that she used whole-blood analysis in determining the presence of ethyl alcohol. Based upon the tests she conducted on the blood, she determined an ethanol level of 0.125 grams per deciliter.

Next, the State called Daniel Brown, a toxicologist, to testify to blood-alcohol levels for a person of defendant's height and weight. From the data he received (time and place of accident, height and weight of defendant, and the results of certain analyses performed upon defendant), Brown estimated that at the time of the accident the blood- alcohol level of defendant would have been 0.15 grams per deciliter. In his expert opinion, this blood-alcohol level would measurably impair a driver's ability to operate a vehicle safely. Brown also considered the testimony of Brent Redfern as to how many beers defendant consumed on the evening in question. Redfern testified that, along with the others, defendant consumed six or seven beers on the evening in question. According to Brown, based on the time of the consumption of alcohol relative to the time of the accident, a person of defendant's height and weight would have needed to consume seven to nine beers to reach a 0.15- grams-per-deciliter blood-alcohol level at the time of the accident.

Before Schutzbach went to the hospital, another officer arrived at the scene of the accident, State Trooper David Mahon. Mahon conducted the initial investigation at the scene of the accident by making a diagram of the accident and by taking measurements. His investigation disclosed that defendant's vehicle had attempted to turn left at the time it was struck by the southbound sheriff's car. Mahon further concluded that the sheriff's car made no attempt to stop. He stated that the left-turn lane of northbound Keller Drive is controlled by an arrow. Mahon observed that the traffic lights were such that a left turn could be negotiated without the green arrow, so long as the northbound light was still green. Mahon testified that if defendant's vehicle had pulled forward into the intersection while the light was on green, then he could legally complete a left turn when the light turned yellow, so long as he yielded to oncoming traffic. Mahon continued to indicate that if the Keller Drive northbound light was yellow, then the southbound light would also be yellow.

The defense called an Illinois State Police accident reconstructionist, Brent Pinkston, as an expert. Based upon the measurements and observations of Sergeant Dave Mahon, Pinkston concluded that the sheriff's car was traveling an estimated 70 miles per hour at the time of impact. Pinkston estimated the Plymouth Neon's speed to be approximately 22 miles per hour as it was turning left. He opined that neither vehicle attempted to stop and that neither driver's view was obstructed at the intersection.

After a jury trial, defendant was found guilty of four counts of aggravated DUI. Defendant appeals.

II. ANALYSIS

Defendant's first issue on appeal is whether the State proved beyond a reasonable doubt that defendant was the person operating the Plymouth Neon. The State bears the burden of proving, beyond a reasonable doubt, a defendant's guilt as to each element of a criminal offense. People v. Gilliam, 172 Ill. 2d 484, 515, 670 N.E.2d 606, 620 (1996); People v. Ware, 23 Ill. 2d 59, 62, 177 N.E.2d 362 (1961). Defendant contends that there are three inconsistencies in the evidence: (1) Trooper Schutzbach's belief at the scene of the accident that the driver was female, when in fact the driver was male, (2) Schutzbach's testimony that the driver did not have a beard, which was contradicted by Michael Kull's and defendant's testimony that he did, and (3) the question of the authenticity of the blood-alcohol evidence. The defense claims that these inconsistencies indicate insufficient evidence to prove guilt beyond a reasonable doubt. However, it is the responsibility of the jury, not the reviewing court, to weigh the evidence and assess the credibility of witnesses presented to it. People v. Steidl, 142 Ill. 2d 204, 226, 568 N.E.2d 837, 845 (1991); People v. Jimerson, 127 Ill. 2d 12, 43, 535 N.E.2d 889, 903 (1989). When considering a challenge to a criminal conviction based upon insufficient evidence, the reviewing court must view the evidence in a light most favorable to the prosecution and determine if any rational trier of fact could have found, beyond a reasonable doubt, the guilt of the defendant in the essential elements of the crime. Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 99 S. Ct. 2781, 2789 (1979); Gilliam, 172 Ill. 2d at 515, 670 N.E.2d at 620; People v. Collins, 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277 (1985).

This court will not overturn the jury's interpretation of the evidence presented before it at trial. It is not the function of the reviewing court to retry the defendant. Jackson v. Virginia, 443 U.S. at 319, 61 L. Ed. 2d 560, 99 S. Ct. at 2789; Collins, 106 Ill. 2d at 261, 478 N.E.2d at 277. Therefore, we uphold the jury verdict with regard to issue one.

The second issue defendant raises is whether the State proved that defendant's actions were the proximate cause of the deaths of the two victims. The defense objected to the jury instructions giving the definition of proximate cause.

Supreme Court Rule 451(a) (134 Ill. 2d R. 451(a)) states that Illinois Pattern Jury Instructions, Criminal, should be used unless the court determines that the instruction does not accurately state the rule of law. This rule gives the trial court the discretion to determine whether a jury instruction should be given. People v. Blackwell, 76 Ill. App. 3d 371, 379, 394 N.E.2d 1329, 1336 (1979); People v. Finley, 49 Ill. App. 3d 26, 29, 363 N.E.2d 871, 877 (1977); People v. Hines, 28 Ill. App. 3d 976, 984-85, 329 N.E.2d 903 (1975). The Second District Appellate Court has summarized the role of the trial court:

"[A]ny trial court faced with a unique factual situation or point of law should not give any instructions, whatever their source, without carefully evaluating their individual accuracy and their cumulative effect upon the jury." Dezort v. Village of Hinsdale, 77 Ill. App. 3d 775, 777, 396 N.E.2d 855, 857 (1979).

The Fourth District Appellate Court has acknowledged the trial court's discretionary power when determining the propriety of submitted jury instructions. Curry v. Summer, 136 Ill. App. 3d 468, 483 N.E.2d 711 (1985). The test is whether, taken as a whole, they are sufficiently clear so as not to mislead the jury and whether they fairly and correctly state the law. Curry, 136 Ill. App. 3d at 474-75, 483 N.E.2d at 716.

In criminal trials, the Judge's function to decide on the form of the jury instructions is of the utmost importance, because a defendant's freedom, liberties, and in some cases, life are dependent upon the jury's verdict. Jury instructions that do not maintain fairness can constitute the difference between the jury acquitting the defendant and the jury convicting the defendant. The discretionary power of the trial Judge is based upon the recognition that no single definition can suit all purposes and no two sets of facts are the same. Dezort, 77 Ill. App. 3d at 777, 396 N.E.2d at 857.

During the trial, the jury received a definition of proximate cause from Illinois Pattern Jury Instructions, Criminal, No. 23.28A (3d ed. 1996 Supp.) (hereinafter IPI Criminal 3d No. 23.28A (1996 Supp.)), as follows:

"The term `proximate cause' means any cause which, in the natural or probable sequence, produced the great bodily harm. It need not be the only cause, nor the last or nearest cause. It is sufficient if it concurs with some other cause acting at the same time, which in combination with it [] causes the great bodily harm." IPI Criminal 3d No. 23.28A (1996 Supp.).

IPI Criminal 3d No. 23.28A (1996 Supp.) is based upon Illinois Pattern Jury Instructions, Civil, No. 15.01 (3d ed. 1995), which defines proximate cause for civil cases. The original Committee Note for the criminal instruction acknowledged the civil origin of the instruction and stated that in criminal cases the trial court should consider limiting the definition to the first sentence, because of the different consequences for liability in a criminal proceeding as opposed to a civil proceeding. Illinois Pattern Jury Instructions, Criminal, No. 23.28A, Committee Note, at 251-52 (3d ed. 1992). The criminal pattern instruction was revised in 1995, and the Committee Note modified the limiting-definition position taken in the original note. IPI Criminal 3d No. 23.28A, Committee Note, at 183 (1996 Supp.). This reflected a Fourth District Appellate Court holding that the definition could, and should, contain the second and third sentences when a DUI is subject to enhancement to a Class 4 felony pursuant to section 11-501(d)(3) of the Illinois Vehicle Code (625 ILCS 5/11-501(d)(3) (West 1994)). See People v. Martin, 266 Ill. App. 3d 369, 640 N.E.2d 638 (1994).

In Martin, the defendant was driving his vehicle when he struck and killed three pedestrians walking along the side of the road. He was charged with three counts of reckless homicide, two counts of aggravated DUI, and one count of leaving the scene of an accident. The jury convicted the defendant of all six counts. The trial Judge entered judgment on three counts of reckless homicide and one count of leaving the scene of an accident. On appeal, the defendant claimed that the definition given to the jury of proximate cause was erroneous and prejudiced the defendant's case. The court held that the instructions were proper because the State had a legitimate interest in ensuring that the jury understood the nature of criminal liability in an aggravated DUI case. Martin, 266 Ill. App. 3d at 379, 640 N.E.2d at 645-46. The State feared that if the definition of proximate cause was limited to the first sentence, a jury could be led to conclude that, under the law, the victims' walking on the wrong side of the road at night might preclude its finding that the defendant's conduct was the cause of the pedestrians' death. Martin, 266 Ill. App. 3d at 379, 640 N.E.2d at 646- 47. The court stated that such a determination would go against established Illinois law on intervening causes. Martin, 266 Ill. App. 3d at 379, 640 N.E.2d at 646. The supreme court has held that in order for an intervening cause to relieve a defendant of liability, the intervening cause must be completely unrelated to the defendant's acts. The defendant's acts need not be the sole and immediate cause of death but must have contributed to the death. People v. Brackett, 117 Ill. 2d 170, 176, 510 N.E.2d 877, 880 (1987). The Fourth District Appellate Court held that the definition of proximate cause was fair and in no way prejudiced the defendant.

The Fourth District ruling, while taken into consideration, is not binding on other appellate court districts. State Farm Fire & Casualty Co. v. Yapejian, 152 Ill. 2d 533, 539, 605 N.E.2d 539, 542 (1992); People v. Harris, 123 Ill. 2d 113, 128, 526 N.E.2d 335 (1988). Although appellate courts may decline to follow another district's ruling, the circuit court is bound by an appellate ruling in the absence of controlling authority from its own district. State Farm Fire & Casualty Co., 152 Ill. 2d at 539, 605 N.E.2d at 642. However, the trial court still must ensure that the facts of a particular case warrant the application of an appellate case. We do not believe that the similarities of fact between Martin and the case before us warrant applying Martin to this case.

The trial court erred by including the last two sentences of the definition for proximate cause. There is no evidence of defendant violating any traffic laws of any kind. In Martin, it can be inferred that the driver was swerving out of the designated lane of traffic by the fact that he hit pedestrians who were not on the roadway. The swerving indicates a classic sign of alcohol negatively influencing driving ability, and as such, the consumption of alcohol was at least one cause of the deaths in that case. In this case, the potential intervening factors are of a nature that tend to exonerate defendant. Defendant was struck by a vehicle which may, or may not, have run a red light. At the very least the light was yellow. Defendant was struck by a vehicle estimated to be traveling 70 miles per hour by an Illinois State Police expert accident reconstructionist. In Martin, the only potential intervening factor was that the three pedestrians the driver hit were walking on the wrong side of the road, but this fact did not relieve the defendant of the duty to keep his vehicle on the designated roadway.

The most informative distinction is that the defendant in Martin was convicted of reckless homicide. The court discussed the possibility of defining proximate cause with IPI Criminal 3d No. 7.15 (3d ed. 1992), "Causation in Homicide Cases." Martin, 266 Ill. App. 3d at 380, 640 N.E.2d at 646. The court surmised that since the defendant was charged with reckless homicide, the causation definition could be used because the difference between proximate cause in an aggravated DUI case and proximate cause in a homicide case is insignificant. Martin, 266 Ill. App. 3d at 381, 640 N.E.2d at 646. We cannot agree with this characterization, nor will we apply this logic to the case before us. In this case the jury acquitted defendant of the reckless homicide charges. This indicates that the jury did not conclude that defendant acted with reckless disregard for public safety. However, by instructing the jury that defendant's consumption of alcohol need only be a contributing cause of the great bodily harm suffered by the victims, the trial court abused its discretion and left the jury with an inaccurate impression of the definition of proximate cause.

The defense argues that the inclusion of the second and third sentences in the definition of proximate cause led the jury to misapply the law and not consider that the intervening factor of the squad car driver's negligence may preclude an aggravated DUI conviction.

The Second District Appellate Court has addressed the importance of the second and third sentences of the definition of proximate cause: "[I]t is equally clear that the bracketed material containing the last two sentences was included in IPI Civil No. 15.01 to address the situations where there was evidence that something or acts of someone other than the negligence of the parties was [sic] also a possible proximate cause of the injury. (See Perry v. Chicago & North Western Transportation Co. (1977), 54 Ill. App. 3d 82, 91, 369 N.E.2d 155.)" Willson v. Pepich, 119 Ill. App. 3d 552, 556-57, 456 N.E.2d 882, 886 (1983).

Criminal liability requires a defendant's acts to be a direct cause of the injury. Tort liability requires that it be reasonably foreseeable that a defendant's conduct may result in injury. Jackson v. Virginia, 443 U.S. at 316, 61 L. Ed. 2d 560, 99 S. Ct. at 2787. The Martin court noted this difference yet concluded that the statute for aggravated DUI foresees the possibility of the driver's impairment resulting in great bodily harm. Martin, 266 Ill. App. 3d at 380, 640 N.E.2d at 646. That assertion accurately states a policy aim behind the aggravated DUI statute. However, while it is foreseeable that a person driving under the influence may hit another vehicle while turning at an intersection, it is not the design of the statute to charge a driver with a Class 4 felony for being under the influence and being in an accident; the consumption of alcohol must be a proximate cause of the accident. In this case, the intervening factor raises doubt as to whether the consumption of alcohol on defendant's part was the cause of the accident. To charge a driver with a Class 4 felony for being under the influence, but not actually causing an accident, is not the function of or the legislative intent behind the aggravated DUI statute. The jury instructions are of the utmost importance to convey this message to the jury. The inclusion of sentences two and three guided the jury to the erroneous Conclusion of automatic guilt based solely on the fact that the driver was legally intoxicated.

In this case the jury instructions did not allow the jury to consider the possibility that defendant's consumption of alcohol could be irrelevant to the accident in question. Unique sets of facts require granting trial courts the discretion to determine appropriate jury instructions. Dezort, 77 Ill. App. 3d at 777, 396 N.E.2d at 857. It is well established that it is within the trial Judge's discretion to refuse to use nonpattern jury instructions and to replace them with IPI jury instructions if the IPI instructions adequately address the issues in the case. People v. Maldonado, 193 Ill. App. 3d 1062, 1072, 550 N.E.2d 1011, 1018 (1989); People v. Barnes, 117 Ill. App. 3d 965, 975, 453 N.E.2d 1371, 1380 (1983); People v. Larson, 82 Ill. App. 3d 129, 142, 402 N.E.2d 732, 742 (1980). Conversely, it is permissible for the trial Judge to elect not to use IPI criminal instructions. The fact that the trial Judge has the power to decide what jury instructions to use requires that the trial Judge assess the facts of each case and determine the fairest characterization of the rule of law so as to adequately inform the jurors of the proper principles that they must apply. Dezort, 77 Ill. App. 3d at 777, 396 N.E.2d at 857.

We do not agree that Martin is applicable to the case before us. We conclude that the trial Judge abused his discretion by not adequately considering the unique circumstances in this case. Accordingly, pursuant to Supreme Court Rule 366(b)(1)(i) (155 Ill. 2d R. 366(b)(1)(i)), we reverse the convictions of aggravated DUI, a Class 4 felony, and enter a judgment of conviction for one count of DUI, a Class A misdemeanor, pursuant to Supreme Court Rule 366(a)(5).

III. CONCLUSION

For the foregoing reasons, the judgment of the circuit court of Effingham County is reversed, and pursuant to Supreme Court Rule 366(a)(5), a judgment against defendant is entered for driving under the influence of alcohol. The cause is remanded for resentencing.

Reversed; judgment entered; cause remanded.

RARICK, P.J., and WELCH, J., concur.

Opinion Filed: April 1, 1999

Justices: Honorable Richard P. Goldenhersh, J. Honorable Philip J. Rarick, P.J., and Honorable Thomas M. Welch, J., Concur

19990401


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