People v. Rhoden

625 N.E.2d 940, 253 Ill. App. 3d 805, 192 Ill. Dec. 785
CourtAppellate Court of Illinois
DecidedDecember 16, 1993
Docket4-93-0247
StatusPublished
Cited by22 cases

This text of 625 N.E.2d 940 (People v. Rhoden) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Rhoden, 625 N.E.2d 940, 253 Ill. App. 3d 805, 192 Ill. Dec. 785 (Ill. Ct. App. 1993).

Opinion

JUSTICE COOK

delivered the opinion of the court:

Defendant Barry Dean Rhoden was charged with reckless homicide (Ill. Rev. Stat. 1991, ch. 38, pars. 9 — 3(a), (b)) and driving under the influence of alcohol (DUI) (Ill. Rev. Stat. 1991, ch. 95 1/2, par. 11— 501(a)(2)). A jury found defendant not guilty of reckless homicide but guilty of DUI. Judgment was entered and defendant appeals, arguing (1) his due process rights were violated because he was convicted on the basis of evidence of DUI at a time different from that charged; (2) the charge was insufficient; and (3) the State did not prove the corpus delicti of the offense.

At approximately 7 p.m. on September 17, 1992, while driving home, Champaign County State’s Attorney Thomas J. Difanis was flagged down by an individual standing on the roadside. Difanis noted that standing corn had been knocked down and saw a red Chevrolet Corvette in the cornfield. As Difanis approached the vehicle, he saw defendant standing near the car and talking to a person trapped underneath it. According to Difanis, defendant appeared to be very upset, alternatively talking to the person under the car and demanding that those present help lift the car off the person. The fire department rescue vehicles and police arrived shortly thereafter. Difanis detected an odor of alcohol on defendant and expressed the opinion that defendant was intoxicated. Difanis heard defendant say, in response to a question by another person who had come to the accident scene, that he had been driving the car.

Deputy William S. Wascher of the Champaign County sheriff’s department arrived at the scene after Difanis and the rescue personnel. Wascher testified that as he approached the vehicle Difanis advised him that the driver was standing to the rear of the vehicle. Wascher noticed defendant’s speech was slurred and there was a “very strong odor of alcohol on his breath.” Wascher testified defendant indicated he was taking his friend home to change clothes when the accident occurred. Wascher asked defendant to take a field sobriety test. Defendant was unable to perform a walk-and-turn test, but indicated his back was hurting. Wascher then asked defendant to perform a heel-to-toe walking test and defendant failed to successfully perform it. Wascher concluded, based on the odor of alcohol, defendant’s demeanor, his “verbalization,” and his conduct, that he was very intoxicated. Defendant was then taken to the booking area of the jail and given a breathalyzer test, which revealed his blood-alcohol content to be .21. Defendant told Wascher he had drunk “probably four” beers at work.

Defendant testified he drank four or five beers in 30 to 40 minutes at his place of employment, an automobile body shop. He and his boss, James Richard Whitton, left the auto shop at approximately 6 p.m. in defendant’s Corvette with defendant driving and Whitton in the passenger seat. They went to Senator’s Pub on Route 45, arriving at around 6:30 p.m. Defendant testified he had “three or so” more beers and Whitton had mixed drinks. An employee of Senator’s Pub, called as a witness by defendant, testified she served defendant three light beers and served Whitton two vodka and tonics, two root beer shots, and a lemon drop. In her opinion, defendant was not under the influence of alcohol and Whitton was. Defendant testified the two stayed at Senator’s Pub for approximately 40 minutes, then left in defendant’s Corvette with defendant driving. Defendant admitted that after leaving Senator’s Pub he “could have been” under the influence of alcohol. Defendant testified that as he and Whitton drove on Route 45, they decided to go to a country and western bar behind the Old Orchard Bowling Alley. They discovered the bar was now an Elks club so they did not go in.

Defendant testified Whitton wanted to drive so defendant sat in the passenger seat while Whitton drove the car back out to the highway, heading north on Route 45. Defendant testified Whitton turned left at the first intersection which, at the time of the accident, defendant thought was Windsor Road but was actually Curtis Road. They proceeded west on Curtis Road when, according to defendant, Whit-ton said “let’s go fast,” and then Whitton reached down to grab the gear shift. At that point, according to defendant, “the wheels locked up or something” and the car skidded off the road, hit a ditch, and started flipping. Defendant testified he ended up on the ground in the cornfield and Whitton ended up trapped underneath the car. Whitton died four days later. Defendant testified that when he spoke to Wascher he was worried that Whitton was hurt and that Whitton would be in trouble because Whitton did not have a driver’s license. The parties stipulated Whitton did not have a driver’s license at the time of the accident.

Defendant’s investigator, Larry Adelsberger, examined the vehicle which had been secured for investigation. Adelsberger found the driver’s seat as far back or almost as far back as it could be moved. Defendant testified that when he drove the car he typically had the seat all the way forward because he could not touch the pedals otherwise. Two of defendant’s witnesses testified that defendant customarily drove with the seat all the way forward. Adelsberger also found the Corvette had a tilt steering wheel with six possible positions. Counting from the highest point to the lowest, the steering wheel was in the third position when Adelsberger examined it. Defendant testified that he drove with the tilt steering wheel all the way down touching his legs. Defendant testified that when he got out of the car he would release the tilt steering wheel to the top. Two of defendant’s witnesses testified that defendant drove with the steering wheel all the way down, almost resting on his legs.

During deliberations, the jury asked the court in a note: “Does the DUI charge only apply at moment of the accident?” The court replied “no” to the jury’s inquiry. The jury found defendant guilty of DUI and not guilty of reckless homicide. The trial court denied defendant’s request for a special interrogatory asking the jury where and when defendant was DUI.

Defendant filed timely post-trial motions, including a motion for judgment of acquittal notwithstanding the verdict, a motion in arrest of judgment, and a motion for new trial. Defendant attached to the post-trial motions an affidavit from one of the jurors. In the affidavit, which the trial court reviewed along with the post-trial motions, the juror stated that the jury acquitted defendant of reckless homicide because the State “had not proven beyond a reasonable doubt” that defendant was driving at the time of the accident. The juror further stated in the affidavit that based on the court’s response to the jury’s note asking whether the DUI charge applied only to the accident, the jury believed it could consider as part of the DUI charge defendant’s testimony that he had been driving on South Neil Street (Route 45) prior to the accident. The juror concluded the guilty verdict on the DUI charge “related solely to defendant’s admitted driving on South Neil Street [Route 45], and had nothing to do with defendant’s alleged driving on Curtis Road west of Mattis Avenue” where the accident took place. The court considered the affidavit, over the State’s objection, but denied defendant’s post-trial motions.

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Cite This Page — Counsel Stack

Bluebook (online)
625 N.E.2d 940, 253 Ill. App. 3d 805, 192 Ill. Dec. 785, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-rhoden-illappct-1993.