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People v. Visor

May 23, 2000


Appeal from the Circuit Court of Du Page County. No. 97--CF--2215 Honorable John T. Phillips, Judge, Presiding.

The opinion of the court was delivered by: Justice McLAREN

After a jury trial, the defendant, Randall J. Visor, was found guilty of six counts of reckless homicide (720 ILCS 5/9--3(a) (West 1996)). The trial court sentenced the defendant on two counts to two concurrent terms of 13 years' imprisonment. The defendant appeals his convictions and sentence. We affirm in part, vacate in part, reverse in part, and remand the cause.

The following facts are taken from the record. On October 21, 1997, the defendant was arrested, taken into custody, and charged with 16 counts of reckless homicide in connection with an automobile accident that resulted in the death of four women. Subsequently, the defendant's bond was reduced and on November 26, 1997, the defendant was released on bond with the following restrictions:

"[A]s a condition of the defendant's bond, he is to remain at his residence *** and is allowed to leave to meet with his attorneys and those working with his attorneys and other professionals and to attend court."

Before trial, all but six counts were nol-prossed by the State. The first remaining count, count I, alleged that the defendant committed the offense of reckless homicide in that the defendant:

"[W]hile under the influence of alcohol to a degree which rendered him incapable of safely driving and while acting in a reckless manner, performed acts likely to cause the death or great bodily harm to some individual, in that he operated a motor vehicle *** at a speed which was greater than reasonable and proper with regard to the existing traffic conditions and the safety of persons upon the roadway and entered into the intersection of Eola Road in disobedience to the steady red traffic control lights at that intersection causing his motor vehicle to strike another vehicle, thereby causing the death of Allison Matzdorf, Jenni Linn Anderson and Jennifer Roberts."

Count II was identical to count I except that it named only Ana Pryor (a passenger in the defendant's car) as the victim. Count VII, the next remaining count, was similar to count I, but it omitted the element of the influence of alcohol. Count VIII was identical to count VII but named only Pryor as the victim. Count XI was identical to count I but added, "while under the influence of alcohol, with an alcohol concentration in his blood of 0.08 or more." Count XII, the last remaining count, was identical to count XI but named only Pryor as the victim.

The following evidence was uncontroverted at trial. In the early morning of October 13, 1997, Matzdorf, Anderson, and Roberts, all 16 years of age, left their homes to engage in homecoming weekend activities. In particular, the girls were going to "toilet paper" or "T.P." the home where the homecoming float was stored. Allison Matzdorf drove the other girls in her family's white Toyota Camry. Anderson sat in the front passenger seat and Roberts sat in the back seat. All three girls wore seatbelts. At approximately 4 a.m., the girls' white Camry was struck by the defendant's car at the intersection of Eola and New York Roads in Aurora, Illinois, when the defendant ran a red light, driving 75 miles per hour in a 45-mile-an-hour zone. All three teenagers died as a result of injuries caused by the collision. Ana Pryor, the defendant's friend who was a passenger in the defendant's car, also died as a result of injuries caused by the collision. Pryor, whose husband had died the previous year in another traffic accident, was the mother of three young children.

Stephen Peterson testified that, while stopped in his car at the intersection of Eola and New York Roads, he saw the defendant's car strike the driver's side of the girls' white Camry at a 90-degree angle. The Camry became airborne and landed in a ditch. The defendant's car was halfway in the ditch and the driveway of a nearby gas station. Peterson immediately pulled into the gas station and asked someone to call the police.

Aurora police officer Ron Hinterlong testified that he arrived at the accident scene at approximately 4 a.m. All four women appeared dead. The traffic signals functioned properly. The defendant asked Hinterlong, "Am I going to jail?" and "Is anybody as bad as I am?" Hinterlong noticed nothing unusual about the defendant's speech and was not close enough to smell the defendant's breath.

The defendant was taken to a nearby hospital. At 5 a.m., approximately one hour after the collision, the defendant's blood was drawn. A toxicology test revealed that the defendant's blood- alcohol concentration (BAC) was 0.172. This test was run on serum rather than whole blood. The defendant's serum blood BAC converted to a whole blood BAC of 0.14 to 0.15. Pryor's BAC was 0.0836. Another blood draw performed at 7:20 the same morning yielded a 0.097 BAC test result for the defendant. The three teenaged girls tested negative for chemicals in their blood except for Matzdorf, who tested positive for caffeine.

Just after the collision, the defendant's car contained the following items: on the passenger-side floor board, a partly full bottle of Special Brew, a brown paper bag containing a broken bottle of an alcoholic beverage called St. Ides, a liquor store receipt from the previous evening, and, on the driver's-side floor board, an open, party full bottle of Canadian Mist. The Special Brew contained 6% ethanol, and the Canadian Mist contained 42% ethanol.

Two employees of the Hollywood Casino in Aurora testified that they both served the defendant Long Island iced teas at 10:50 p.m., on October 16, 1997, the evening before the accident, and at 1 or 1:30 a.m. on the morning of the accident. The Long Island iced teas contained tequila, rum, vodka, cognac, and gin. Pryor drank a daiquiri. Twenty minutes after the defendant ordered his second Long Island iced tea, he ordered a shot of Hennessy but then canceled the order. Neither Hollywood Casino employee saw any signs that the defendant was intoxicated.

Tim Rueckert, an Illinois police officer employed by the Illinois Gaming Board, testified that he shared an elevator with the defendant at the casino at about 1 o'clock on the morning of the accident. The defendant did not have a drink with him at the time. Rueckert saw the defendant again at about 2:30 a.m. The defendant finished drinking a half-full 10-ounce cup of brown beverage and left the casino building. The defendant told Rueckert that Pryor was upset because their friends had left without them. Rueckert noticed no signs that the defendant was impaired by alcohol.

Sunshine Latham, a server at an Aurora Denny's restaurant, testified that she served the defendant breakfast at approximately 3:20 on the morning of the accident. The defendant ordered and ate two pancakes, two eggs, two sausages, and two strips of bacon. After eating that, the defendant ordered and ate four more eggs and four more sausages. The defendant was loud, rude, and smelled of alcohol. In response to the defendant's question, Latham told the defendant she could not serve alcohol. The defendant then told Latham that he did not want "the f---ing water." Latham testified that, as the defendant left the restaurant, he staggered and leaned on Pryor's shoulder. However, Deborah Porter, an Aurora police officer, testified that, during an interview, Latham did not use the word "staggered." Instead, Latham said that the defendant had had trouble walking.

Officer Hinterlong testified that he briefly saw the defendant and Pryor at the Denny's restaurant about half an hour earlier that morning. The defendant was eating breakfast. Hinterlong did not ...

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