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People v. Eubanks

Court of Appeals of Illinois, First District, Second Division

December 26, 2017

RALPH EUBANKS, Defendant-Appellant.

         Appeal from the Circuit Court of Cook County, No. 10 CR 1904 Illinois. Honorable Timothy Joseph Joyce, Judge Presiding.

          JUSTICE MASON delivered the judgment of the court, with opinion. Presiding Justice Neville concurred in the judgment and opinion. Justice Pucinski dissented, with opinion.



         ¶ 1 Defendant Ralph Eubanks was arrested after a hit-and-run accident that killed Maria Worthon and injured her six-year-old son, Jeremiah Worthon. Witnesses estimated Eubanks to have been driving at 60 to 90 miles per hour. After his arrest, Eubanks was forcibly subjected to blood and urine tests, the latter of which tested positive for cannabis, ecstasy, and cocaine metabolite.

         ¶ 2 Following a jury trial, Eubanks was found guilty of first degree murder, failure to report a motor vehicle accident involving death or injury, and aggravated driving under the influence. On appeal, he argues (i) the trial court erred by not instructing the jury on reckless homicide as a lesser-included offense of first degree murder, (ii) his conviction for failure to report an accident must be reversed where the State failed to prove that he did not report the accident at a police station within half an hour, (iii) the statute authorizing warrantless, nonconsensual blood and urine tests is unconstitutional, both on its face and as applied in Eubanks's case, and (iv) improper comments by the prosecutor denied Eubanks a fair trial.

          ¶ 3 We agree with Eubanks on the first three points and, therefore, need not reach the fourth. Accordingly, we (i) reverse Eubanks's conviction for first degree murder and remand for a new trial on that charge, (ii) reduce his conviction for Class 1 failure to report an accident to the Class 4 version of the offense in the same statute (625 ILCS 5/11-401(a), (c) (West 2008)), and (iii) reverse Eubanks's conviction for aggravated driving under the influence.

         ¶ 4 BACKGROUND

         ¶ 5 Suppression Hearing

         ¶ 6 Before trial, Eubanks moved to suppress the result of his blood and urine tests, arguing that the tests were an unconstitutional search because Eubanks did not consent to be tested, the police did not have a warrant, and there were no exigent circumstances excusing the failure to obtain one. Eubanks also filed a motion to declare unconstitutional section 11-501.2(c)(2) of the Illinois Vehicle Code (625 ILCS 5/11-501.2(c)(2) (West 2008)), the statute under which the testing was performed:

"[I]f a law enforcement officer has probable cause to believe that a motor vehicle driven by or in actual physical control of a person under the influence of alcohol, other drug or drugs, or intoxicating compound or compounds, or any combination thereof has caused the death or personal injury to another, that person shall submit, upon the request of a law enforcement officer, to a chemical test or tests of his or her blood, breath or urine for the purpose of determining the alcohol content thereof or the presence of any other drug or combination of both."

         ¶ 7 At the hearing on Eubanks's motions, the parties did not present evidence but proceeded by way of stipulation to the following facts. On December 21, 2009, at 9:05 p.m., Eubanks was arrested in connection with a hit-and-run accident that killed Maria and injured Jeremiah. The police had probable cause to arrest Eubanks for driving under the influence. At the police station, Eubanks refused to take a breathalyzer test or to submit to blood and urine tests. At 2:53 a.m., an officer took Eubanks to the hospital, telling him that he was required by law to submit to blood and urine tests. Eubanks was physically restrained by hospital security and a blood sample was taken at 4 a.m. The nurse then asked for urine, but Eubanks refused to urinate. The nurse threatened to catheterize him. As she approached him with a catheter, he urinated, and a sample was collected at 5:20 a.m. The samples were sent to the crime lab for analysis. Eubanks's blood produced negative results for alcohol or any illegal substance, but his urine tested positive for cannabis, ecstasy, and cocaine metabolite.

         ¶ 8 The trial court denied Eubanks's motions to suppress his test results and to declare section 11-501.2(c)(2) unconstitutional.

         ¶ 9 Trial

         ¶ 10 Shortly before 9 p.m. on December 21, 2009, in the Rogers Park neighborhood of Chicago, Felix Worthon was walking home with his wife Maria and their son Jeremiah near the intersection of Greenview and Greenleaf Avenues. Maria and Jeremiah stopped to talk to Maurice Glover, a man from their church. Felix crossed the street ahead of them. As he was crossing, he heard a sound behind him; he turned around and was nearly hit by a car. The car struck Maria and Jeremiah and kept going without stopping. The force of the impact knocked Maria's body a block away. Maria died immediately, and Jeremiah suffered permanent injuries.

         ¶ 11 Madeline Moratto and Alex Montejo were walking down the sidewalk when they witnessed the collision. Moratto estimated the car's speed to be 80 miles per hour, and Montejo estimated it at 60 miles per hour. Both testified that the car's headlights were off, and it did not stop or slow down after the collision. Glover, who also witnessed the collision, estimated the car's speed at 80 to 90 miles per hour.

         ¶ 12 Calvin Tanner was a passenger in the car with Eubanks when the collision occurred. Tanner and his cousin, Dennis Jeter, were friends with Eubanks. Jeter owned a green Pontiac, which he loaned to Eubanks a few days before the accident occurred. On December 21, 2009, Tanner and Jeter were at their grandmother's house with Eubanks. The three had earlier purchased vodka together. Tanner and Jeter both drank, but neither could remember whether Eubanks had anything to drink.

         ¶ 13 That night, Eubanks took Jeter's car to drive Tanner to pick up a futon. Officers Brian Murphy and Chris Wertepeny, on patrol in an unmarked squad car, observed Eubanks shortly before 9 p.m. driving at high speed with no headlights. The officers curbed his vehicle, but when they exited their squad car and approached, Eubanks drove away southbound at a high rate of speed. He sped through the next intersection-a "busy intersection, " according to Murphy- without stopping at the stop sign. The officers lost sight of his car within seconds.

         ¶ 14 At the intersection of Greenview and Greenleaf, after speeding by a church with a U-Haul truck parked in front, Eubanks struck Maria and Jeremiah. The impact knocked out the car's entire front windshield; Tanner had glass in his mouth and was bleeding. Fearing that they had struck a person, Tanner said to Eubanks, "I hope you didn't do what I thought you did." Eubanks told him, "It's too late, " and continued driving without slowing or stopping.

         ¶ 15 After driving the car down an alleyway, Eubanks finally stopped and both men got out. Tanner called Jeter and told him, "Your car's been wrecked." Tanner also told Eubanks that he should return to the site of the collision, but Eubanks refused. Eubanks got back in the car without Tanner and drove away.

         ¶ 16 Jeter arrived and Tanner brought him to the scene of the accident, where they saw a body

on the ground covered by a blanket. Both men spoke to police. Tanner told them that he was a passenger in the vehicle involved in the collision and that Eubanks was the driver. He denied telling police that the vehicle was going 60 to 70 miles per hour and that nothing was obstructing their view. Jeter told the police that he had loaned his vehicle to Eubanks.

         ¶ 17 Meanwhile, officers Jennifer Escher, Scott Pierson, and Patrick McHugh were on patrol when they received a radio call about a hit-and-run accident involving a green Pontiac with license plate H37583. Escher saw the Pontiac in an alleyway and approached it at 50 miles per hour, but the Pontiac sped away, and she lost sight of it. Escher, Pierson, and McHugh all saw the Pontiac on Newgard Avenue. Pierson drove his squad car in front of the Pontiac. The Pontiac went into reverse, lost control, and, in Pierson's words, "started ping-ponging off parked cars." Eubanks jumped out of the Pontiac and attempted to flee on foot, but he was apprehended by Officer John Ventrella and taken into custody at 9:05 p.m.

         ¶ 18 At 10:30 p.m., Ventrella interviewed Eubanks at the police station. Eubanks appeared carefree and "relatively unaffected by the whole incident." Ventrella testified that he could smell alcohol on Eubanks but did not offer any opinion as to whether he was intoxicated. At the time the case was being directed by officers from the major accident unit, other officers were conducting various aspects of the investigation, such as interviewing witnesses to the hit-and-run accident.

         ¶ 19 At 12 a.m., Ventrella informed Eubanks that he was under arrest for driving under the influence, and he read him his motorist rights. Ventrella asked Eubanks to take a breathalyzer test, but Eubanks refused; Eubanks also refused to submit blood and urine for testing. At that point, Ventrella "basically stood by and waited for instruction" from the major accident unit.

         ¶ 20 Later, Ventrella was instructed to bring Eubanks to the hospital to obtain blood and urine samples from him, which he did at 2:57 a.m. When a nurse approached Eubanks to draw blood, Eubanks became combative and pulled his arm away. Security officers entered and restrained him, allowing the nurse to draw his blood at around 4 a.m. Eubanks also refused to give a urine sample, claiming that he could not urinate. A catheter was ordered for him; as the nurse approached to insert the catheter, Eubanks urinated on his own at 5:20 a.m.

         ¶ 21 Eubanks was taken back to the police station, and Ventrella again spoke with him at 5:54 a.m. A video of this conversation was played for the jury in which Eubanks asked to go to the bathroom, explaining that he earlier drank a quart of Hennessy.

         ¶ 22 Forensic scientists with the Illinois State Police laboratory testified that Eubanks's blood sample tested negative for any alcohol or drugs, but his urine sample tested positive for cannabis and its metabolite, ecstasy and its metabolite, and cocaine metabolite. Colleen Lord, who in 2009 was a forensic scientist working for the Illinois State Police laboratory, explained that the body converts drugs to metabolites over time as part of the metabolic process.

         ¶ 23 Eubanks, testifying on his own behalf, stated that Jeter was the driver that night and that Eubanks was not present for the crash. According to Eubanks, on December 21, 2009, Jeter called Eubanks and asked him to return his car so that Jeter could take Tanner to go pick up a futon. Eubanks met Jeter and Tanner at their grandmother's house, where they had drinks together. All three of them went to Tanner's apartment. Then Jeter and Tanner left to get the futon, while Eubanks stayed behind to save Jeter's parking space for him.

         ¶ 24 After they left, while Eubanks was still standing outside in the parking space, he received a call from Tanner, who said that they had been in an accident. Eubanks started walking toward the accident scene. As he neared the area, police also arrived on the scene. Eubanks ran away from them because he was carrying marijuana. The police chased him, tackled him, and brought him to the police station.

         ¶ 25 On cross-examination, Eubanks reiterated that he was nowhere near the car crash when it occurred; at 9 p.m., he was standing in a parking spot waiting for Jeter and Tanner to return. Regarding his drug and alcohol usage, he admitted that on the day of the accident he drank a quart of Hennessey. He smoked marijuana a week before the accident (but not on that day) and also took an ecstasy pill two days prior. He denied taking any cocaine, though he speculated that the ecstasy pill might have been mixed with cocaine.

         ¶ 26 At the jury instructions conference, Eubanks requested that the jury be instructed on reckless homicide as a lesser included offense of first degree murder. The court denied his request, stating that if the State's evidence was believed, Eubanks's actions "could only create a strong probability of death or great bodily harm to some individual."

         ¶ 27 The jury found Eubanks guilty of first degree murder, failure to report a motor vehicle accident involving death or injury, and aggravated driving under the influence. Eubanks was sentenced to 40 years' imprisonment.

         ¶ 28 ANALYSIS

         ¶ 29 We address three contentions Eubanks raises on appeal: (i) his conviction for first degree murder should be reversed because the trial court failed to instruct the jury on reckless homicide as a lesser-included offense; (ii) his conviction for failure to report an accident must be reversed where the State failed to prove that he did not report the accident at a police station within half an hour; and (iii) his conviction for aggravated driving under the influence must be reversed because the warrantless, nonconsensual testing of Eubanks's blood and urine was an unconstitutional search inside his body.

         ¶ 30 Reckless Homicide Instruction

         ¶ 31 Eubanks first argues that he was entitled to a jury instruction on reckless homicide since there was some evidence that he acted recklessly in causing Maria's death. The State argues that the instruction was properly denied since there was no evidence of recklessness presented at trial. We agree with Eubanks.

         ¶ 32 Initially, Eubanks does not argue that the evidence is insufficient to convict him of first degree murder, nor could he reasonably do so. See People v. Alsup, 373 Ill.App.3d 745, 754 (2007) (evidence was sufficient to support conviction for first degree murder where defendant stole a van and led police on a high-speed chase, disregarding traffic control devices and trying to ram a police car); People v. Thomas, 266 Ill.App.3d 914, 926-27 (1994) (evidence was sufficient to support conviction for first degree murder where defendant led police on high-speed chase down congested street, ran red light at intersection without slowing down, and collided with car traveling in cross-traffic); People v. Stevens, 324 Ill.App.3d 1084, 1093 (2001) (evidence supported defendant's guilty plea to first degree murder where "defendant drove a stolen car at speeds in excess of 100 miles an hour, drove it on the shoulder of an expressway, weaved through traffic, refused to stop for marked police units, and drove it into the rear of the victim's vehicle"). Rather, Eubanks argues that there was sufficient evidence of his recklessness that the jury should have been instructed on both reckless homicide and first degree murder. Indeed, in both Alsup and Thomas, the trial court determined that there was sufficient evidence of recklessness to issue an instruction on reckless homicide to the jury. Alsup, 373 Ill.App.3d at 754; Thomas, 266 Ill.App.3d at 925.

         ¶ 33 A defendant is entitled to an instruction on a lesser-included offense if there is some evidence in the record that, if believed by the jury, would reduce the crime charged to a lesser offense. People v. McDonald, 2016 IL 118882, ¶ 25. That is, the evidence must permit a rational jury to acquit the defendant of the greater offense but still find him guilty of the lesser offense. People v. Patel, 366 Ill.App.3d 255, 275 (2006); see also People v. Martin, 236 Ill.App.3d 112 (1992) (trial court errs in giving a lesser-offense instruction where the evidence would support either a conviction on the greater offense or a verdict of not guilty, but not a conviction on the lesser offense). When the trial court determines that there is insufficient evidence to justify giving a jury instruction, we review that determination for abuse of discretion. McDonald, 2016 IL 118882, ¶ 42.

         ¶ 34 The primary distinction between first degree murder and reckless homicide is the mental state of the defendant. People v. Pollard, 2015 IL App (3d) 130467, ¶ 27. Under section 9-1(a)(2) of the Criminal Code of 1961, a defendant commits first degree murder when he kills an individual without lawful justification and "knows that such acts create a strong probability of death or great bodily harm to that individual or another." 720 ILCS 5/9-1(a)(2) (West 2008). It is not necessary that defendant intended to kill or that he was certain that someone would die as a result of his actions. Alsup, 373 Ill.App.3d at 753. As this court has explained:

" 'A person who knows, i.e., is consciously aware, that his acts create a strong probability of death to another may not have such death as his conscious objective or purpose. [Citation.] He may simply not care whether the victim lives or dies. Under these circumstances, the person would be guilty of murder although the death was caused "unintentionally." ' " Id. at 753-54 (quoting People v. Deacon, 130 Ill.App.3d 280, 287-88 (1985)).

         On the other hand, a defendant commits reckless homicide when he unintentionally kills an individual through use of a motor vehicle and his actions "are likely to cause death or great bodily harm to some individual, and he performs them recklessly." 720 ILCS 5/9-3 (West 2008). A person acts recklessly when "he consciously disregards a substantial and unjustifiable risk *** and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation." 720 ILCS 5/4-6 (West 2008). The question of whether a defendant acted knowingly or recklessly is typically a question to be resolved by the finder of fact (People v. Jones, 404 Ill.App.3d 734, 744 (2010); see People v. DiVincenzo, 183 Ill.2d 239, 253 (1998) ("inferences as to defendant's mental state are a matter particularly within the province of the jury")), as is the question of whether the defendant's acts create a "strong probability" of death or great bodily harm or whether they are merely "likely" to cause such a result (Alsup, 373 Ill.App.3d at 750).

         ¶ 35 We find that there was sufficient evidence of Eubanks's recklessness to instruct the jury on reckless homicide. In this regard, we are guided by our supreme court's decision in People v. Belk, 203 Ill.2d 187 (2003). Belk stole a van and, while being pursued by police at a high rate of speed, crashed into another vehicle, killing both occupants. At the time of the crash, Belk was under the influence of alcohol and driving at over 100 miles per hour in an area with "numerous restaurants and other establishments that were still open for business." Id. at 190. There were other cars on the street that pulled to the side as Belk raced past, as well as many nearby pedestrians. Id.; People v. Belk, 326 Ill.App.3d 290, 292 (2001).

         ¶ 36 Although Belk was convicted of felony murder, our supreme court held that Belk's act of stealing the van was not a "forcible felony." Belk, 203 Ill.2d at 195. The court also stated that the evidence "would support an inference that Belk acted recklessly and contemplated that in attempting to elude police he was likely to cause death or great bodily harm, an inference that clearly supports a conviction for reckless homicide pursuant to section 9-3 of the Code." Id. (citing 720 ILCS 5/9-3 (West 1996)). Thus, the court reduced Belk's felony murder conviction to reckless homicide. Id. at 191, 198.

         ¶ 37 Eubanks's actions are sufficiently comparable to Belk's actions that a rational jury could find that Eubanks acted recklessly. Both defendants fled from police at a high rate of speed (60 to 90 miles per hour for Eubanks, 100 miles per hour for Belk). At no point did either defendant apply the brakes or attempt to slow down before the fatal collision (see Belk, 326 Ill.App.3d at 292). In fact, Belk's flight from police was arguably more dangerous than Eubanks's since Belk was in an area with numerous establishments open for business and other vehicular and pedestrian traffic was present, while Eubanks was in a "quiet neighborhood."

         ¶ 38 Another instructive case is People v. Gittings, 136 Ill.App.3d 655 (1985). While intoxicated, Gittings led a police officer on a high-speed chase in an area with several small hills and curves. He was going in excess of 85 to 90 miles per hour, where the posted speed limit was 35 miles per hour and there was a cautionary 20 miles per hour speed limit on curves. It was night and Gittings did not have his headlights on. His car plunged down a ravine, killing his passenger. Under these facts, the court upheld his conviction for reckless homicide. Id. at 661. As with Belk, Gittings bears many of the same indicia of recklessness as the present case: a highspeed chase at night without headlights, under circumstances where high speed posed particular risks to those in the vicinity of the defendant. See also People v. Beck, 295 Ill.App.3d 1050 (1998) (evidence was sufficient to support conviction for reckless homicide where defendant, while intoxicated, was driving at night in the wrong lane of traffic with his headlights off and collided with an oncoming vehicle). Thus, particularly in light of the principle that inferring a defendant's mental state is typically within the province of the jury (DiVincenzo, 183 Ill.2d at 253), we find that the trial court erred in denying Eubanks's request for an instruction on reckless homicide.

         ¶ 39 The State nevertheless argues that the evidence of first degree murder was so strong that any failure to instruct on the lesser offense would have been harmless, citing People v. Washington, 375 Ill.App.3d 243, 249 (2007). The jury in Washington was instructed on armed robbery and on robbery, but the trial court denied defendant's request for an instruction on theft. Id. at 247. The jury found defendant guilty of armed robbery. Washington held that, although the denial of a theft instruction was in error, such error was harmless in light of the jury's verdict. The court explained that "theft is a simple deprivation of property; robbery is a deprivation of property, plus force or the threat of force; and armed robbery is the deprivation of property, plus force or the threat of force, plus the use of a dangerous weapon." Id. at 249 (citing 720 ILCS 5/16-1(a)(1), 18-1(a), 18-2(a) (West 2002)). Since the jury convicted defendant of armed robbery rather than simple robbery, it must have believed that he used force or the threat of force as well as a dangerous weapon. Thus, the ...

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