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People v. Swift

Court of Appeals of Illinois, Third District

October 19, 2016

LOREN SWIFT, Defendant-Appellant.

          Rehearing denied November 28, 2016

         Appeal from the Circuit Court of La Salle County, No. 12-CF-608; the Hon. Cynthia M. Raccuglia, Judge, presiding.


          Michael J. Pelletier and Ann Fick, of State Appellate Defender's Office, of Elgin, for appellant.

          Brian Towne, State's Attorney, of Ottawa (Jasmine Morton, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

          Panel JUSTICE LYTTON delivered the judgment of the court, with opinion. Justices Holdridge and Wright concurred in the judgment and opinion.



         ¶ 1 Defendant, Loren Swift, appeals from his conviction for aggravated driving under the influence (DUI). He argues first that the trial court should have dismissed the case where the indictment was deficient. Further, defendant contends that the State failed to prove the element of proximate cause beyond a reasonable doubt. We affirm.

         ¶ 2 FACTS

         ¶ 3 On January 2, 2013, the State charged defendant with two counts of aggravated DUI (625 ILCS 5/11-501(a)(6), (d)(1)(C) (West 2012)). The State would later drop one of those charges. The indictment on the remaining count read as follows:

"On or about, August 17, 2012, in LaSalle County, Illinois, *** defendant[ ] committed the offense of: aggravated driving under the influence of alcohol (Class 4 felony)
In that the said defendant drove a Chevy Trailblazer north on County Highway 15 at a time when there was any amount of drug, substance or compound in the defendant's blood, breath, or urine resulting from the unlawful use or consumption of cannabis, and in committing the violation the defendant was involved in a motor vehicle accident that resulted in great bodily harm to Robert Miller."

         ¶ 4 The trial court arraigned defendant on February 1, 2013. On that date, the State tendered the then two-count indictment to the defense. Defense counsel stated: "We'll acknowledge receipt of the two count indictment, waive reading of that and recitation of penalties and enter a plea of not guilty and demand trial by jury, please."

         ¶ 5 Over the ensuing months, defendant filed a number of pretrial motions. In one of those motions, defendant moved to dismiss the charges against him on the grounds that the statute under which he was charged had been amended to carve out an exception for the lawful medical use of cannabis. Defendant argued that his equal protection and due process rights would be violated if the new standard did not apply to him. At a hearing on the matter, defense counsel declared that he had "read the whole act five times." The trial court denied the motion.

         ¶ 6 Defendant's jury trial commenced on March 10, 2014. The State's first witness was Dr. Richard Anderson, a trauma surgeon at St. Francis Hospital in Peoria. Anderson testified that defendant was brought to the hospital on August 17, 2012, and a urinalysis was conducted as a standard part of trauma procedures. He testified that the urinalysis toxicology showed the presence of cannabinoids in defendant's system. He explained that cannabinoids are derivatives of marijuana and that their presence in a urine sample is indicative of prior marijuana use.

         ¶ 7 After Anderson was dismissed, defense counsel moved to dismiss the indictment, arguing that it was defective on its face. Counsel argued that while the statute referenced a statutory subsection that required proximate cause, the actual indictment did not contain that element. Counsel characterized that as a fatal flaw, arguing that the case should be dismissed. The State argued that the phrase "resulted in great bodily harm, " as used in the indictment, had the same meaning as proximate cause. The State also referenced a discussion the parties had held regarding jury instructions that took place the previous day in the court's chambers. Citing that discussion, the State suggested defense counsel's argument was not made in good faith.

         ¶ 8 The trial court denied defendant's motion and directed the State to amend the indictment. The court commented: "[I]t's just a matter of words because resulted in does, indeed, mean the cause." Accordingly, the court found that amending the indictment to include the proximate cause element was technical rather than substantive and thus did not require the State to go back to the grand jury. The court also found that amending the indictment to include the proximate cause element would cause no surprise to defendant.

         ¶ 9 The State's next witness was Miller, the victim in the case. Miller testified that on the date in question he was driving his pickup truck with a trailer attached. After loading farm equipment onto his trailer, Miller proceeded north on County Highway 15 toward the town of Kernan. Miller described that stretch of Highway 15 as "gently rolling, [with a] roller coaster-type effect." Miller testified that Highway 15 is a two-lane road with a three-foot shoulder.

         ¶ 10 As Miller turned onto Highway 15, he noticed in his mirror that a piece of the equipment on his trailer had come loose. Concerned that the equipment might fall off the trailer when the truck crossed railroad tracks, Miller decided to pull over. Citing his experience as a truck driver, Miller testified that he knew the best place to pull over would be the top of a hill. He explained that the top of a hill is ideal both to increase the visibility of his truck and to "get a truck moving again" upon restarting. Miller testified that he found an appropriate spot "on top of a little rise, " and that he "pulled off the road as far as I safely could." Miller explained that to the right of the three-foot shoulder was a ditch with a steep drop-off. He testified that the wheels on his truck and trailer were as close to that drop-off as possible and were then "about halfway off the pavement."

         ¶ 11 Upon stopping, Miller checked his driver's side mirror and saw the running lights of a vehicle cresting a hill behind him. He activated his emergency flashers and checked his mirror once again. This time, Miller saw nothing behind him. He alighted from his truck and walked back to the trailer. He grabbed the loose piece of iron, then noticed that another piece of iron had come loose as well. Miller took the first piece of iron to the bed of his truck and turned back toward the trailer to retrieve the second loose piece. As he returned to the trailer, he noticed a vehicle traveling toward him. Miller testified: "I noticed a vehicle coming from the south at a rate of speed that I thought was faster than should have been traveling knowing that *** I was there. Knowing that I was *** partially obstructing the road." Miller testified that the vehicle he saw was a TrailBlazer.

         ¶ 12 Miller saw the TrailBlazer hit his trailer. He testified that he did not hear the squealing of tires indicative of braking before the impact. Miller recalled spinning, as well as seeing a vehicle in the air. His next recollection was of lying in the middle of the road. His shoulder was on the center line with his head facing south. Miller testified that he was just under the TrailBlazer's driver's door. Miller spoke to the driver of the TrailBlazer as they waited for help to arrive. Miller identified defendant as the driver.

         ¶ 13 Miller was taken by ambulance to a hospital in Streator, then later via helicopter to St. Francis Hospital in Peoria. Miller testified that he sustained a number of injuries, including a broken femur, a broken disc in his lumbar spine, and three breaks in his pelvis. His injuries required eight or nine surgeries, including, in Miller's words, "five serious surgeries."

         ¶ 14 On cross-examination, Miller testified that he was aware of a large parking lot off Highway 15, approximately 25 to 50 yards north of where the accident took place. That parking lot was adjacent to Harv's Auto Body Repair. He explained that he chose not to pull in there because backing out onto Highway 15 with his trailer would have been difficult and unsafe. It was for this same reason that Miller chose not to pull off onto a smaller street.

         ¶ 15 Lawrence Majerus of the La Salle County sheriff's office testified that he responded to the scene of the accident. Majerus briefly spoke to defendant on the scene and again later at the hospital. Defendant told Majerus that he had been glancing at a cornfield, and when he brought his eyes back to the road he saw the truck and trailer, and was unable to stop or swerve. Majerus described the relevant stretch of Highway 15 as follows: "There are dips in the road but they're not to the point where you come up over a rise and you're on top of somebody." Majerus confirmed that the accident occurred at the top of one of those ...

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