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People v. Hillis

Court of Appeals of Illinois, Fourth District

September 28, 2016

GARRY L. HILLIS, Defendant-Appellant.

         Appeal from Circuit Court of Greene County No. 13CF100 Honorable James W. Day, Judge Presiding.

          JUSTICE APPLETON delivered the judgment of the court, with opinion. Justices Harris and Steigmann concurred in the judgment and opinion.



         ¶ 1 A jury found defendant, Garry L. Hillis, guilty of aggravated driving under the influence of alcohol (DUI) (625 ILCS 5/11-501(d)(1)(F) (West 2012)), and the trial court sentenced him to five years' imprisonment. He appeals on two grounds: (1) the court abused its discretion by granting a motion in limine by the State and by denying his own motion in limine, and (2) it was unproved that he was the driver. We find no abuse of discretion in the rulings on these motions in limine, and looking at all the evidence in the light most favorable to the prosecution, we conclude that a rational trier of fact could find, beyond a reasonable doubt, that defendant was the driver. Therefore, we affirm the trial court's judgment.

         ¶ 2 I. BACKGROUND

         ¶ 3 A. The Charge

         ¶ 4 In the information, the State charged defendant with committing the offense of aggravated DUI (625 ILCS 5/11-501(d)(1)(F) (West 2012)) in that, on May 2, 2013, he drove a Ford F-150 pickup truck on Illinois Highway 108 in Greene County, Illinois, while under the influence of alcohol and was involved in a motor vehicle accident, which proximately caused the death of Brandy Gilbert.

         ¶ 5 B. The Motions and Orders in Limine

         ¶ 6 Before the jury trial, the parties filed motions in limine. The rulings on two such motions are at issue in this appeal.

         ¶ 7 1. The State's Motion To Bar a Physician, Charles Earnshaw, Jr., From Reconstructing the Accident

         ¶ 8 In its "Motion in Limine No. 2, " the State said it anticipated the defense would call a physician, Charles Earnshaw, Jr., as an expert witness. (The State's "Motion in Limine No. 1" is not at issue in this appeal.) The State argued that although, judging by his curriculum vitae, Earnshaw "[might] be qualified to testify as to matters that pertain[ed] to [i]nternal [m]edicine, " he lacked "the requisite formal education, experience, or scientific expertise to qualify him to testify as to matters discussed in his report as related to accident reconstruction and occupant placement."

         ¶ 9 According to Earnshaw's curriculum vitae, he has a bachelor's degree in chemistry and a medical degree. He is a retired physician who specialized in internal medicine. Apparently, he never has taken any classes in accident reconstruction (at least none are listed under the heading of "Education"), and his curriculum vitae nowhere mentions any training or experience in that field.

         ¶ 10 Nevertheless, in a report he wrote for defense counsel, Earnshaw stated:

"I protracted the angle of the slope from the shoulder of the highway to the base of the pole[, ] and this angle is between [12] to 15 degrees downward. Assuming highway speeds and a rain[-]slicked asphalt road[, ] the victims' truck probably struck the pole between [40] to [60 miles per hour]. *** The front passenger door received damage that was relatively minor[, ] with the major impact occurring to the truck frame behind the front passenger seat and door. A passenger in the rear seat would have experienced the full impact. If [Gilbert] had been the restrained or even unrestrained passenger[, ] I doubt that her injuries would have been nearly as severe. If[, ] on the other hand[, ] she had been the unrestrained driver[, ] she would have been hurled at vehicle speed at the roof, door, door frame, and [defendant's] left side with great force. This scenario would best explain the severity and location of her injuries[, ] including the bruising of her left anterior thigh from contact with the steering wheel. If [defendant] had been the unrestrained driver[, ] he would have suffered severe right[-]sided head and chest injuries but probably less severe than those of [Gilbert]. In addition[, ] [Gilbert] would have in all likelihood suffered significant left[-]sided injuries when he struck her. If [defendant] had been a restrained driver[, ] his injury would probably be a seatbelt bruise from the left shoulder to his right hip. *** In conclusion[, ] I feel that [Gilbert] was the unrestrained driver and [defendant] was the restrained passenger in this accident but do not have enough evidence to be certain."

         ¶ 11 Because Earnshaw apparently had no education, training, or experience in accident reconstruction, the State requested, in "Motion in Limine No. 2, " that the trial court bar him from "testifying as an expert in matters regarding the reconstruction of the accident involving the [d]efendant, *** and that before any attempt to elicit testimony of the same from *** Earnshaw ***, the proper foundation *** be demonstrated outside the presence of the jury." ¶ 12 On April 9, 2015, in a pretrial conference, the trial court granted the State's "Motion in Limine No. 2." The order reads: "State motion to deny witness granted."

         ¶ 13 2. Defendant's Motion To Bar an Accident Reconstructionist, Nathan S. Shigemura, From Opining, on the Basis of Injury Patterns, Who the Driver Was

         ¶ 14 The State disclosed an expert, Nathan S. Shigemura, who, according to defendant's motion in limine, was "a relatively well-known 'crash reconstruction' expert in the State of Illinois." Defendant admitted that Shigemura was "definitely qualified to opine on how the crash in this case occurred, " but he argued that Shigemura was unqualified "to opine on who was driving the vehicle at the time of the crash[, ] because he base[d] that opinion on the extent of the injuries to [defendant] and Ms. Gilbert, without having any medical training or education."

         ¶ 15 Shigemura already had given his opinion that defendant was the driver. He had expressed this opinion in a letter of December 6, 2013, to the Greene County sheriff, Robert D. McMillen. A copy of Shigemura's letter to McMillen is in the record; it is attached to defendant's motion in limine as exhibit A.

         ¶ 16 In Shigemura's letter, under the heading "Occupant Kinematics" (referring to the movement of vehicle occupants in a crash), he begins by describing how the accident happened: the pickup truck slid diagonally to the right and into a utility pole, as illustrated in a drawing. (Emphasis in original.) The impact was in the area of the passenger door, near the side mirror. The front-seat passenger, Shigemura explains to McMillen, would take the brunt of the impact:

"[T]he front[-]seat passenger would move to the right and forward[, ] into the collision region[, ] and would sustain severe injuries, predominantly to the right side. The driver's injuries would be less severe than the passenger's since the driver would be f[a]rther from the collision region and not moving into the collision region. The passenger would also be [in between] the driver and collision region[, ] thus providing shielding and cushioning for the driver. Ms. Gilbert sustained severe injuries[, ] including skull fractures[, ] as a result of the crash. The magnitude and locations of the injuries sustained by Ms. Gilbert indicate that she was in the immediate area of the impact at the time of the collision. These injuries led to the death of Ms. Gilbert.
[Defendant] sustained minor injuries, described as 'bumps and bruises[, ]' in the collision and was treated and released from the hospital the night of the crash. Minor cuts were located on the right arm of [defendant]. While at the hospital[, ] [defendant] 'was complaining of his side hurting.' When examined at the Greene County [s]heriff's [o]ffice two days after the crash, [defendant] had soreness and a red mark to the left chest area. The bottom of the steering wheel of the truck was bent forward. The damage to the steering wheel and the soreness/red mark to the left chest area of [defendant] are consistent with [his] striking the steering wheel with his left chest area as [he] moved to the right and forward at the time of the collision with the pole. At the time of the collision, the steering wheel would have been turned to the left in an unsuccessful attempt to bring the vehicle back onto the roadway (which also caused the counterclockwise rotation of the vehicle). Because the steering wheel would have been turned to the left, the bottom of the steering wheel would have rotated up to the 'three o'clock' position[, ] where it was struck by [defendant].
Thus, evaluation of the information available, inspections of the scene and [the] Ford truck[, ] and analyses of the vehicle motion and occupant motion[, ] with related injury pattern, all indicate that [defendant] was the driver and Ms. Gilbert was the passenger of the Ford truck at the time of the crash."

         ¶ 17 Defendant argued in his motion in limine: "[I]t is clear that Mr. Shigemura's opinion that the [d]efendant was the driver is primarily based upon the injury pattern he observed in the medical records in this case. *** And since Mr. Shigemura has NO general or specialized medical training or experience, he cannot, as a matter of law, depend on the medical records to reach his conclusion." (Emphasis in original.) Therefore, defendant requested the trial court to "enter an [o]rder limiting the State's expert witness opinion to that evidence related to accident reconstruction and not the medical records in this case."

         ¶ 18 In the pretrial conference of April 9, 2015, the trial court "[d]en[ied] [defendant's] mot[ion] to eliminate Shig[e]mura as a witness, " to quote the order.

         ¶ 19 C. Evidence in the Jury Trial

         ¶ 20 1. The Testimony of Michael Lovel

         ¶ 21 Michael Lovel was a Carrollton police officer. The evening of May 2, 2013, he was on his regular patrol. At approximately 11:15 p.m., a dispatcher radioed him that the Greene County sheriff's office had requested the assistance of the Carrollton police with an accident west of Carrollton, on Illinois Highway 108. Lovel drove to the scene of the accident.

         ¶ 22 It had been raining off and on throughout the evening. It was a little muddy out, a little slick. At the first set of "S" curves, Lovel saw a broken utility pole and drooping power lines. After parking his squad car in a position that would warn eastbound drivers of the downed power lines, he got out and began descending the embankment, toward a pickup truck, which had come to rest in a field below.

         ¶ 23 He encountered defendant on the way down the embankment. Defendant "was visually upset, frantically running about[, ] and he *** came up the embankment screaming that 'She needs help[!] She needs help[!] We need to get her to the hospital[!]' " The truck was pointing away from Lovel, toward the south, and at first he did not see to whom defendant was referring. Then defendant led him around the truck, to a woman lying on the ground, on her left side, 10 to 15 feet from the driver's side of the truck. Defendant told him it was Brandy Gilbert-and, in fact, Lovel was acquainted with both her and defendant, having (in a professional capacity) interacted with them on previous occasions. The right side of Gilbert's face was red and swollen, and she appeared to be bleeding from the right rear of her head. Her hair was blood-soaked. Defendant lifted her arm, and it fell down limply when he released it.

         ¶ 24 Lovell called emergency medical services and the fire department. As he waited for them to arrive, the wind picked up, and it began to rain, so he got a blanket out of his squad car and covered Gilbert with it to keep her warm. Soon the paramedics arrived. Deputy Sheriff Chris Weller also arrived. Lovel helped the paramedics carry Gilbert up the embankment and into an ambulance. Defendant also was taken away in an ambulance, or so Lovel assumed (he was concentrating on Gilbert).

         ¶ 25 He never asked defendant what had happened or who had been the driver.

         ¶ 26 2. The Testimony of Chris Weller

         ¶ 27 On May 2, 2013, the dispatcher notified Weller of a single-vehicle crash that had occurred about four miles west of Carrollton, "on the first set of 'S' curves." Weller was 20 to 30 minutes away. Upon arriving, he saw fire trucks; ambulances; another police officer; a snapped utility pole; power lines close to the ground; and "a black truck pointed south on the south side of the road[, ] in the field." Two people were being loaded into ambulances. The ambulances left.

         ¶ 28 Weller walked down the embankment. He testified: "It was rainy. It was cool. It was slippery. *** [The truck] had been hit on the passenger side, like on the passenger side corner post." Gilbert was the registered owner of the truck, or so Weller "believe[d]." (Actually, it was undisputed that defendant was the registered owner of the truck. A 2013 Illinois registration card found in the truck named him as the owner, and later in the trial, he testified he was the registered owner.)

         ¶ 29 When a state trooper arrived at the scene, Weller went to Boyd Hospital to find out the condition of the two occupants of the pickup truck. Gilbert was unconscious and in critical condition, and she was going to be flown out. She had a "trauma or wound *** on the right side of her head" and "lacerations *** on her right shoulder." Defendant, however, was in a condition to talk. When the state trooper, named Goodman, came to the hospital, he or Weller read defendant his rights and asked him what had happened. Defendant explained what had happened, including who the driver was. (When defense counsel, on cross-examination, asked Weller what defendant's answer was to the question of who had been the driver, the prosecutor objected on the ground of hearsay, and the trial court sustained the objection.)

         ¶ 30 Subsequently, Weller attended two further interviews of defendant. Defendant was consistent in what he said in all the interviews. During one of the interviews, defendant lifted up his shirt and showed "he had a mark on his chest." Defense counsel asked Weller:

"Q. Did you, while you were standing there, being videotaped, make a mark-make a hand signal across from his right shoulder to his lower hip and say, 'Yeah, passenger seat restraint.'?
A. I don't recall.
Q. Is it possible?
A. I don't recall. That state-
Q. If it were videotaped, it would show, would it not?
A. Yeah, it would, but I don't recall.
Q. Okay.
A. That's been a long time ago. I don't recall what I did."

         ¶ 31 A couple of days after the accident, Weller also interviewed "a Ms. Stewart at Moto Mart in Carrollton." He asked her if she saw Gilbert the day of the accident. Stewart replied that she had. According to Stewart, Gilbert stopped by the Moto Mart in the afternoon, to get some cash with her debit card, but "[t]he debit machine was broke[n], " and she could not get any cash. At the time, Gilbert "was driving the vehicle, " and nobody was with her. Gilbert "always drove the vehicle to work, " Stewart told Weller.

         ¶ 32 3. The Testimony of Brandi Field

         ¶ 33 Brandi Field is a master trooper with the Illinois State Police. More specifically, she is a crime scene investigator. A search warrant authorized her to search the persons of defendant and Gilbert; collect deoxyribonucleic acid (DNA), fingerprints, and handprints from them; and search the pickup truck.

         ¶ 34 On May 4, 2013, she went to the Greene County sheriff's office to meet with the sheriff, to photograph defendant, and to take standards from him. Pursuant to the search warrant, she took cheek swabs and a hair sample from him, and she obtained his fingerprints and palm prints. She also took photographs of him. As shown by the photograph labeled People's exhibit A-5, his "left side [was], just under the nipple line[, ] *** just a hair redder." She saw nothing out of the ordinary on his chest, shoulders, and back. On the back of his hands and on his forearms were some small nicks or abrasions, evidently from the tiny cubes of broken glass that had flown through the cab of the truck when the passenger window exploded. Between the eyebrow and eyelid of his right eye, he had a small abrasion like a pinprick and some reddish discoloration.

         ¶ 35 Next, Field "went to where the vehicle was secured, " Pyatt Towing Company. She described the exterior of the truck as follows:

"A. It was a black pickup truck with a gray interior. The significant damage on the passenger side-looked like something underneath-undercarriage and looked like it had been rolled[, ] but the whole passenger side was just laid open like a can opener. It was, um, the window was broken on the passenger side, on that side. The other windows were intact. It looked like that damage had been focused on that passenger side."

         ¶ 36 She described the interior of the truck as follows:

"A. There was food, like carry-out food, strewn all in the passenger floorboard. There was a cell phone in the floorboard of the passenger side, front. There [were] items, personal items, in the back seat. *** [I]t was like a half-cab so there was a bunch of stuff stacked back there. But besides a lot of red, bloodlike substance, there was glass throughout the vehicle from the-it looked like from the front passenger door and from that little side window behind the passenger door that was broke[n] out."

         ¶ 37 Field's photographs are in the record. It appears, from these photographs, that the passenger-side mirror is broken off. The passenger door-which, Field testified, would not open-is dented, wavy, and scraped, starting from where the mirror used to be and going back. From front to rear, the damage on the passenger side becomes progressively worse. The extended-cab area, behind the passenger door, is more deeply bashed in, and the bed of the truck on the passenger side has its skin peeled back. The leaf springs are knocked loose from the passenger rear wheel.

         ¶ 38 It also appears, from these photographs, that the driver's seat, the center console (which is in the down position), the middle seatbelt, and the passenger's seat are stained with splotches of a red, blood-like substance. These red splotches appear to begin on the left half of the passenger seat and to become bigger and more extensive in the area of the middle console and on the driver's seat. A red, blood-like substance appears to be thinly smeared and printed all over the plastic end-part of the middle console, where a cup would be inserted, and kernels of glass are down inside the cup receptacle. On the passenger floorboard, near the passenger door, is a white Styrofoam container, which is split and muddy but appears to have no red stains on it. Also on the passenger floorboard are some hamburger buns, which do not appear to be squashed or bloodied. On the floor hump between the driver floorboard and the passenger floorboard are two slices of white bread, a hamburger bun, and French fries, none of which appear to be squashed or bloodied. Strips of what appears to be grilled steak are also scattered among these items, on the hump and the passenger floorboard.

         ¶ 39 People's exhibit B-45 is a photograph of a 2013 Illinois registration card showing defendant as the owner of this truck, a 1986 Ford pickup truck. People's exhibit B-46 is a photograph of his proof of insurance for the truck (the expiration date is September 22, 2012).

         ¶ 40 After looking at the truck; taking photographs; swabbing the red, blood-like stains; and collecting long strands of hair, some of which was stuck to the driver's-side windshield, Field went to the hospital to look at Gilbert and collect samples from her. By the time Field arrived at the hospital, Gilbert was brain-dead and was being prepared for organ harvesting.

         ¶ 41 Field found a wooden fragment in Gilbert's blood-matted hair and saw what appeared to be little slivers of wood on her forehead. The injuries on her right side were quite severe: she had "significant scratches and abrasions on the right shoulder, " and on the right side of her head, lacerations were stapled together. "[T]hroughout the back of her neck and in front and kind of on her chest, " she "had quite a bit of those little lacerations and stuff that you very commonly see with broken glass, the cube glass that comes from *** those side windows during crashes." Her right ear was filled with blood and fluids. There were no visible injuries on the left side of her head. There was a bruise, however, on her left thigh.

         ¶ 42 Field took photographs of Gilbert lying on a bed in the hospital. It appears, from these photographs, that the shoulder wound consists of three, four, or five closely spaced lacerations roughly parallel to one another, covered and held shut with a strip of transparent medical tape. These lacerations are on top of the shoulder (that is, on the horizontal plane of the shoulder), starting near the tip of the shoulder and extending toward the neck. The right side of her face and neck and her right shoulder near the base of her neck have many ...

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