People v. Shakirov

2017 IL App (4th) 140578, 74 N.E.3d 1157

• Court: Appellate Court of Illinois
• Decided: April 5, 2017
• Docket: 4-14-0578
• Status: Unpublished

Opinion

FILED

2017 IL App (4th) 140578 April 5, 2017

Carla Bender

NO. 4-14-0578 4th District Appellate

Court, IL

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from Plaintiff-Appellee, ) Circuit Court of v. ) McLean County MANSUR SHAKIROV, ) No. 13CF597 Defendant-Appellant. ) ) Honorable ) John Casey Costigan, ) Judge Presiding.

JUSTICE STEIGMANN delivered the judgment of the court, with opinion. Justices Holder White and Pope concurred in the judgment and opinion.

OPINION

¶1 In March 2013, defendant, Mansur Shakirov, was driving a semi-tractor trailer

southbound on Interstate 39 (I-39) near Hudson, Illinois, when he collided with several

emergency vehicles that were responding to an earlier accident. The collision resulted in the

death of volunteer firefighter Christopher R. Brown.

¶2 In May 2013, the State charged defendant with reckless homicide (720 ILCS 5/9­

3(a) (West 2012)). In March 2014, a jury convicted defendant of that charge, and the trial court

later sentenced him to four years in prison.

¶3 Defendant appeals, arguing, in pertinent part, that the State failed to prove him

guilty beyond a reasonable doubt. Defendant argues alternatively that the trial court erred by

denying his motion in limine to bar certain evidence. For the reasons that follow, we reverse.

¶4 I. BACKGROUND ¶5 A. The Charge of Reckless Homicide

¶6 To facilitate the reader’s understanding, we provide the elements the State was

required to prove beyond a reasonable doubt to sustain a conviction for reckless homicide.

¶7 A person commits reckless homicide when (1) while driving a motor vehicle, (2)

the person “unintentionally kills an individual without lawful justification *** if his acts whether

lawful or unlawful *** are such as are likely to cause death or great bodily harm,” and (3) those

acts were performed recklessly. 720 ILCS 5/9-3(a) (West 2012). As applied to the offense of

reckless homicide, “A person is reckless or acts recklessly when that person consciously

disregards a substantial and unjustifiable risk that [his acts are likely to cause death or great

bodily harm], and that disregard constitutes a gross deviation from the standard of care that a

reasonable person would exercise in the situation.” 720 ILCS 5/4-6 (West 2012); see also 720

ILCS 5/9-3(a) (West 2012).

¶8 B. The State’s Charge and Defendant’s Arraignment

¶9 On the evening of March 5, 2013, defendant, a 28-year-old resident of Spokane,

Washington, was driving a semi-tractor trailer southbound on I-39 near Hudson, Illinois, when

he collided with emergency vehicles that were parked in the left lane responding to an earlier

accident. Defendant’s collision resulted in Brown’s death. Police issued defendant two traffic

citations that night, and sometime later, defendant returned to Spokane.

¶ 10 In May 2013, the State charged defendant with reckless homicide, alleging, as

follows:

“[T]hat defendant, while acting in a reckless manner, performed acts likely to

cause the death of or great bodily harm to some individual in that he operated a

motor vehicle, a white 2003 Freightliner [semi-tractor trailer], in a southern

-2­ direction [o]n the inside (left passing lane) of I-39, *** at a speed which was

greater than was reasonable and proper with regard to the existing traffic

conditions and the safety of persons properly upon the roadway, failed to proceed

with the necessary due caution and yield the right-of-way by slowing down and

change [sic] into the right lane, while reducing speed of the vehicle and

maintaining a safe speed for the conditions, upon approaching authorized

emergency vehicles displaying the appropriate warning lights, in that the

defendant caused his vehicle to strike *** Brown, thereby causing [his] death[.]”

That same day, the trial court issued a warrant for defendant’s arrest. The United States Marshall

Service subsequently arrested defendant in Spokane.

¶ 11 At a July 3, 2013, arraignment hearing, defendant appeared with counsel. At that

hearing, defendant (1) filed a waiver of extradition, (2) surrendered his passport, (3) agreed not

to drive commercial vehicles, and (4) entered a plea of not guilty. Upon the parties’ agreement,

the trial court set defendant’s bail at $100,000. That same day, defendant posted a $10,000 cash

bond and was released from custody.

¶ 12 C. Defendant’s Motion in Limine

¶ 13 On March 7, 2014, defendant filed a motion in limine, seeking to bar the State

from introducing evidence regarding an alleged violation of (1) section 395.3 of title 49 of the

Code of Federal Regulations (Federal Regulation) (49 C.F.R. § 395.3(a)(1), (2), (3)(i) (2013)),

which is a Federal Motor Carrier Safety Administration regulation titled, “Maximum driving

time for property-carrying vehicles”; and (2) section 11-907(c)(1), (2) of the Illinois Vehicle

Code (625 ILCS 5/11-907(c) (West 2012)), titled, “Operation of vehicles *** on approach of

authorized emergency vehicles.” As to each of these allegations, defendant contended that such

-3­ evidence was not relevant, had no probative value, and would be highly prejudicial.

¶ 14 1. The Pertinent Portions of the Provisions at Issue and the Specific Evidence Defendant Challenged

¶ 15 To provide context, we quote the pertinent provisions of the aforementioned

sections of the Federal Regulation and Vehicle Code and provide a brief discussion of the

specific evidence defendant sought to bar the State from presenting to the jury.

¶ 16 a. Section 395.3 of the Federal Regulation

¶ 17 The pertinent provisions of section 395.3 of the Federal Regulation provide, as

“(a) *** [N]o motor carrier shall permit or require any driver used by it to

drive a property-carrying commercial motor vehicle, nor shall any such driver

drive a property-carrying commercial motor vehicle, regardless of the number of

motor carriers using the driver’s services, unless the driver complies with the

following requirements:

(1) Start of work shift. A driver may not drive without first taking 10

consecutive hours off duty;

(2) 14-hour period. A driver may drive only during a period of 14

consecutive hours after coming on duty following 10 consecutive hours off duty.

The driver may not drive after the end of the 14-consecutive-hour period without

first taking 10 consecutive hours off duty.”

(3) Driving time and rest breaks. (i) Driving time. A driver may drive a

total of 11 hours during the 14-hour period specified in paragraph (a)(2) ***.” 49

C.F.R. § 395.3(a)(1)-(3)(i) (2013).

¶ 18 b. Section 11-907 of the Vehicle Code

-4­ ¶ 19 Section 11-907(c)(1), (2) of the Vehicle Code—commonly referred to as “Scott’s

Law”—provides, as follows:

“(c) Upon approaching a stationary authorized emergency vehicle, when

the authorized emergency vehicle is giving a signal by displaying alternately

flashing red, red and white, blue, or red and blue lights or amber or yellow

warning lights, a person who drives an approaching vehicle shall:

(1) proceeding with due caution, yield the right-of-way by making

a lane change into a lane not adjacent to that of the authorized emergency

vehicle, if possible with due regard to safety and traffic conditions, if on a

highway having at least 4 lanes with not less than 2 lanes proceeding in

the same direction as the approaching vehicle; or

(2) proceeding with due caution, reduce the speed of the vehicle,

maintaining a safe speed for road conditions, if changing lanes would be

impossible or unsafe.” 625 ILCS 5/11-907(c)(1), (2) (West 2012).

¶ 20 c. The Specific Evidence Defendant Sought To Bar

¶ 21 Defendant sought to prevent the State from soliciting expert testimony that on the

day before Brown’s March 5, 2013, death, defendant violated section 395.3(a)(2) of the Federal

Regulation by driving after the aforementioned 14-hour time period had elapsed. The expert

based his opinions, in part, on defendant’s logbook entries, in which he was required to

document, among other matters, the time he spent driving. As to the Vehicle Code, defendant

sought to prevent the State from offering expert testimony that he violated Scott’s Law by failing

to reduce speed or change lanes when approaching the emergency vehicles at issue.

¶ 22 2. The Hearing on Defendant’s Motion in Limine

-5­ ¶ 23 On March 10, 2014, defendant’s trial commenced. After the parties had selected a

jury and the trial court released the jury for the evening, the court considered arguments on

defendant’s motion in limine and ruled, as follows:

“[T]he court understands the experts’ reports to indicate that there was a Scott’s

Law violation, that *** speed was an issue with regard to the conditions ***. ***

[The court has] not seen the expert reports *** but the court does think that the

expert witnesses[,] if properly disclosed[,] can come to the conclusion that here

[are] the facts, here is my [expert] opinion on it[,] and here [are] the facts that

support it. So [the court will] allow him or her to testify as to what the

conclusions are in the report if that is what the report indicates.

With regard to the log book violation, this court will take an offer of proof

on [that issue,] but *** [the court is] having a difficult time seeing where the log

book violation that occurred a day before the accident is going to have relevance

to the day of the accident itself. So at this point in time, until that offer of proof is

made so the court can see it, the court is going to exclude it.” (Emphasis added.)

¶ 24 D. Defendant’s Jury Trial

¶ 25 1. The Initial Accident

¶ 26 Illinois State Police Trooper Christopher Parmley testified that at 9:40 p.m. on

March 5, 2013, he received a call about an accident that had occurred in the southbound lanes of

I-39 at mile marker 6. (At mile marker 6, I-39 is comprised of two northbound lanes and two

southbound lanes separated by a substantial grassy median.) Parmley’s initial investigation

revealed that a pickup truck towing a trailer of auto parts had been traveling northbound on I-39

when the driver lost control because the trailer started “fishtailing.” The trailer’s side-to-side

-6­ movement caused the pickup truck to travel through the median into the southbound lanes, where

a semi-trailer truck (semi) struck the back of the pickup truck and dislodged the trailer. As a

result of the collision, the semi traveled into the median, where it stopped. The trailer also

traveled into the median but landed on its side. (Later testimony revealed that the rear of the

trailer protruded into the southbound left lane of I-39.) The pickup truck came to rest on its side

facing north on the southbound right shoulder of I-39.

¶ 27 2. The Evidence Presented Concerning the Collision at Issue

¶ 28 Dan Hite, chief of the Hudson community fire protection district, testified that on

the evening of March 5, 2013, he received a call at his home regarding an accident that had

occurred in the southbound lanes of I-39 at mile marker 6. Hite traveled to that location in a sport

utility vehicle (SUV) equipped with emergency lights on the front dash and rear window. Hite

described the weather conditions as “light snow, blowing, fairly heavy winds, [and] cold.” Hite

entered I-39 a mile south of mile marker 6 and drove north with his emergency lights activated.

Hite noted that the road was “slick,” with snow “blowing across [I-39],” but “visibility was not

obscured.” Hite stated that he traveled on I-39 “at a safe but moderate speed,” which he

estimated was “between 35 to 40” miles per hour. After traveling one-half mile, Hite saw (1) the

silhouette of a semi, (2) a pickup truck located on the right southbound shoulder, and (3) that

both vehicles had their hazard lights activated.

¶ 29 Hite—who was the first emergency responder at the accident site—passed the

semi, which was located in the median. Hite continued north and passed a trailer lying on its side

that the pickup truck had been towing. The trailer was also located in the grassy median,

approximately 50 feet north of the semi. Hite parked his SUV on the northbound left shoulder of

I-39, approximately 100 feet north of the semi and 50 feet north of the trailer. Hite then assumed

-7­ command of the accident site.

¶ 30 Hite provided the following locations of the emergency vehicles that arrived

shortly thereafter: (1) an ambulance was parked facing south in the grassy median next to the

semi; (2) fire engine 102 was parked in the left southbound lane of I-39 adjacent to the trailer;

and (3) a squad car that Parmley had parked behind engine 102, but on the left shoulder instead

of the left lane, where engine 102 was parked. All emergency vehicles had their entire

complement of emergency lighting activated, including a light bar at the rear of engine 102 that

had eight lights sequentially blinking from left to right. The blinking lights alerted drivers to

remain or move into the right lane.

¶ 31 Hite confirmed that another emergency vehicle, fire command SUV 105, arrived

later. Hite explained that because he was concerned about oncoming southbound motorists, he

ordered the four firefighters that were en route in SUV 105 to a position sufficiently north of the

accident so that they could alert southbound traffic to reduce speed and move into the right lane.

Hite stated that SUV 105 was subsequently positioned north “about a half mile, right next to the

turnaround.” Hite observed that the speed of the light traffic that thereafter approached the

accident site “was slowing as it approached from both directions.” Sometime prior to making

final preparations to leave the accident site, Hite recalled SUV 105. SUV 105 returned and

parked behind engine 102 in the left southbound lanes of I-39. Hite noted that the front end of

SUV 105 was parallel to the rear end of Parmley’s squad car, which remained parked on the left

shoulder.

¶ 32 Prior to his departure, Hite stood at the rear of engine 102 and in front of the

squad car and SUV 105 with his command staff, comprised of Assistant Chief Jeff Thomas,

Captain Steve Modine, and Lieutenant Jason Brutlag. At some point, Thomas—who was

-8­ monitoring oncoming traffic—yelled, “[H]e’s not stopping. He’s not stopping. Run.” Hite looked

up and observed what he characterized as “the largest semi I’ve ever seen in my life”

approaching their location. Hite began running and heard “tearing metal,” two loud booms, and

“then it was eerily *** quiet.” (We note that immediately prior to the defendant’s collision with

SUV 105, a recording taken from the vantage point of Parmley’s squad car shows four

firefighters standing on the east side of engine 102 near the front of the engine’s passenger

compartment before they begin running.) Hite looked up and noted the dark conditions because

the only remaining emergency lighting came from his SUV. Hite immediately inquired about the

whereabouts of his firefighters. No one could find Brown. Hite confirmed that just prior to the

second accident, the road conditions remained slick and snow continued to blow across I-39.

¶ 33 Thomas testified that he and 5 other firefighters arrived at mile marker 6 in engine

102. Thomas, who sat in the front passenger seat, told the driver, volunteer firefighter Robert

Dicken, to enter the highway two miles north of the accident site. While on an I-39 overpass,

Thomas stated that he could see the ambulance and Hite’s SUV. Thomas estimated visibility at 3

to 4 miles and described the conditions on I-39 as “a little bit snow packed in the passing lane,

clean in the driving lane, [and] a little bit of cross wind.” Thomas added that “[i]t was more

blowing than snowing,” in that the existing snow was primarily caused by the wind “picking up

the snow off the fields” instead of naturally occurring snowfall. Dicken testified that the road

conditions were “spotty but not snow covered” and he was able to drive at a “fairly decent

speed” on I-39, which he estimated was “close to 40 [to] 45 mile[s] per hour.”

¶ 34 As they traveled to the accident site, Thomas conferred with Hite by radio and

directed Dicken to travel in the left southbound lane to execute “a block.” Thomas explained that

because Hite informed him that the semi and trailer were located in the median, he wanted to

-9­ position engine 102 to block the southbound left lane and force traffic into the southbound right

lane and away from the two emergency medical technicians working in the median. Thomas also

noted that the end of the trailer was “hanging out into the [left] lane a little bit,” which further

necessitated the blocking of that lane. After Dicken executed the block, Thomas exited the

vehicle and ordered the firefighters to stay in the engine’s cab. Thomas then conferred with Hite.

¶ 35 Just prior to leaving the accident site, Thomas had been standing in the median

near engine 102 observing southbound traffic for about 40 minutes, which was one of his

responsibilities. Thomas stated that southbound traffic was reacting to the emergency lighting by

slowing down and moving over into the right lane. Thomas confirmed Hite’s account of the

positioning of the squad car and SUV 105 in relation to engine 102, and Thomas noted all had

their respective emergency lights activated. As he was waiting to leave, Thomas saw the lights of

an approaching vehicle, which he estimated was 1½ miles away. At that moment, Thomas did

not know which lane the vehicle was in or the type of vehicle that approached. No other vehicle

lights appeared in the southbound lanes at that moment. About a mile away, Thomas recognized

that the approaching vehicle was a semi.

¶ 36 When the semi was about one-half mile away, Thomas became concerned

because the semi (1) remained in the left southbound lane, (2) did not signal its intent to move

into the right southbound lane, and (3) did not provide any indication that it was slowing its

approach. As defendant’s semi approached, Thomas came to the “realization that this [semi]

wasn’t slowing down” because he did not hear screeching or squealing tires, or see any

illuminated turn signal or four-way hazard lights. When Thomas determined that a collision was

certain to occur, he yelled out to his fellow firefighters that the driver was not going to stop and

urged them to run. As he fled, Thomas saw and heard the semi impact SUV 105. Thereafter,

- 10 ­ Thomas heard three more distinctive “pops” that he surmised were (1) the semi colliding into the

rear of the squad car, (2) the front of SUV 105 colliding with the rear of engine 102, and (3) the

semi colliding with the rear of engine 102. Thomas then heard someone over his radio calling for

the status of firefighting personnel. As Thomas began the process of extricating two firefighters

who were trapped in SUV 105, Hite informed Thomas that he had found Brown. Thomas

estimated that Brown was lying on I-39 about 60 to 70 feet from where he had been standing

monitoring southbound traffic.

¶ 37 Volunteer firefighter Tyler Scott Cobler testified that he traveled to the accident

site in SUV 105, along with Modine and volunteer firefighters Ben Smith and Brown. Smith

drove and received orders from Modine, who was seated in the front passenger seat. Cobler sat

behind Modine, and Brown sat behind Smith. Cobler traveled to the accident site using the same

route as engine 102. After entering the southbound lanes of I-39, SUV 105 stopped at a

turnaround, which Cobler confirmed was a mile north of the accident site. From that location,

Cobler saw the emergency lighting at the accident site. Cobler exited SUV 105 and for about the

next 30 to 45 minutes, he performed duties consistent with alerting southbound traffic to slow

down. Cobler observed that southbound traffic was slowing down and moving into the right lane

as a result of their efforts. Cobler confirmed that after returning to their initial seating positions,

SUV 105 left the turnaround, proceeded to the accident site, and parked in the left southbound

lane. Cobler noted that a squad car was parked to the left of SUV 105.

¶ 38 Smith, Modine, and Brown exited SUV 105. Cobler remained seated behind the

front passenger seat. Sometime thereafter, Smith returned to SUV 105. Cobler then recalled

looking over his left shoulder and seeing a truck approaching. Cobler then heard “some

commotion,” “people yelling outside,” and Smith looking in the rear view mirror “as if

- 11 ­ something was coming.” Cobler provided the following account regarding Brown’s attempt to

reenter SUV 105: “[Brown] attempted to get in. It appears that [Brown] thought that he could try

to outrun [the semi] and then at that point he slammed the door and that was the last that I saw of

him.” Immediately prior to the impact, Cobler did not hear any screeching or squealing that

would indicate the semi was braking. Cobler braced for the impact. After feeling as if he went

airborne, SUV 105 hit engine 102 and “just exploded at that point.” Afterward, Cobler attempted

to exit SUV 105, but fellow firefighters told Cobler to stop moving.

¶ 39 Smith substantially corroborated Cobler’s account of the events that occurred with

regard to SUV 105, adding that (1) the road conditions on I-39 were “slick” and “[i]t was still

snowing”; (2) he did not exceed “35 or 40 miles an hour” when traveling on I-39; (3) Parmley’s

squad car, engine 102, and SUV 105 all had sequential lighting flashing from left to right; and

(4) defendant hit SUV 105 “a matter of minutes” after SUV 105 parked behind engine 102.

¶ 40 Testimony provided by the McLean county coroner revealed that the cause of

Brown’s death was “multiple blunt force injuries as a result of being struck by a semi.”

¶ 41 3. The State’s Offer of Proof

¶ 42 Outside the jury’s presence, the State provided an offer of proof to address the

trial court’s concern regarding the relevancy of expert testimony that on the day before Brown’s

March 5, 2013, death, defendant violated section 395.3(a)(2) of the Federal Regulation by

continuing to drive after a 14-hour time period had elapsed. The following testimony was

provided by Charles Baird, an Illinois State Police trooper, who as part of his responsibilities as a

commercial motor vehicle officer investigated accidents involving semis, which included

investigating a driver’s duty status records.

¶ 43 Drivers engaged in interstate commerce are required to maintain a record—

- 12 ­ referred to as a driver’s log—as part of their licensing. Each log reflects the driver’s activity

within a 24-hour period. The categories a driver must record are comprised of the following four

parts: (1) on duty, driving; (2) on duty, not driving; (3) sleeper berth; and (4) off duty. The on

duty, driving category is self-explanatory and pertains to the time a driver spends driving. The on

duty, not driving category pertains to employment duties that do not involve driving, such as

vehicle loading or maintenance. The sleeper berth category records the time a driver spends

exclusively within the sleeping compartment of the vehicle. The off-duty category records the

time when a driver has “no responsibility for his truck or his [cargo].” Such off-duty time could

include meals or showering at a rest stop. The 14-hour rule concerns the time a driver can spend

on duty either driving or not driving during the 24-hour period each log records.

¶ 44 Defendant’s driving log for March 4, 2013, documented that from 7:30 a.m. to

11:15 a.m. defendant entered an on duty status—comprised of driving or not driving—and

traveled approximately 218 miles (from Billings, Montana, to Glendive, Montana). Defendant

then entered an off-duty status for 4½ hours (from 11:15 a.m. to 3:45 p.m.). At 3:45 p.m.,

defendant resumed his on-duty status and drove a total of approximately 429 miles, arriving in

Barnesville, Minnesota, at midnight. During this 429-mile trip, defendant documented that he

entered an “on duty, not driving” status on three separate occasions, with each occasion lasting

15 minutes. Because defendant began his day at 7:30 a.m., he was required to complete any on-

duty responsibilities—either driving or not driving—by 9:30 p.m. to comply with the 14-hour

rule. Defendant’s self-documented on-duty activities, however, ceased at midnight, which

represented a 2½-hour violation of the 14-hour rule.

¶ 45 Defendant’s log for March 5, 2013, documented that (1) from midnight on March

5, 2013, to 10:30 a.m., defendant entered a sleeper-berth status and (2) from 10:30 a.m. to 1:45

- 13 ­ p.m., defendant was off duty. Defendant then entered an on-duty status (driving or not driving)

for the next seven hours, before colliding with SUV 105 at approximately 8:45 that evening.

Baird agreed that on March 5, 2013, (1) defendant’s “sleeper berth time [was] well within the

regulations” and (2) defendant did not violate the rule against driving longer than 11 hours.

¶ 46 In response to the court’s questioning, Baird confirmed that no citation was issued

to defendant for the 14-hour rule violation because the violation was a past offense and not a

current offense. Baird also confirmed that on March 5, 2013, defendant did not violate any aspect

of section 395.3(a)(2) of the Federal Regulation.

¶ 47 Following argument, the trial court ruled that it would allow Baird’s testimony

regarding the 14-hour rule violation, reasoning as follows:

“The court *** did have a difficult time understanding, just based on arguments,

where these alleged log book violations came in. *** The court does have a better

understanding *** based upon the *** witness[es’] testimony who have testified

***. There have been several witnesses *** who had testified that [defendant’s]

vehicle did not slow or change lanes or take any evasive maneuvers prior to this

accident occurring despite the fact that there [were] lights on the scene[.] [T]he

fact that there [were] arrows indicating to move to the right lane as [defendant]

was approaching the first accident scene and that was not done. That creates some

thought in the court’s mind as to what potentially was going on with regard to

[defendant]; whether there was a lack of function; whether there was some sort of

sleeping with regard to what was going on as he was approaching the accident

scene and why the left lane was not yielded into the right lane ***. The court

further understands that there can be a number of explanations for that. The court

- 14 ­ understands that the road was slick ***. The court *** [has] not heard [anything]

regarding speed or anything of that nature at this point in time. So the court

understands there could be a number of explanations. But one particular

explanation could be ***, based upon what [the court has] heard ***, is that there

is an inattentiveness to what was going on up ahead with regard to the accident

scene. These log[-]book violations, the court understands there is no violation on

the date in question. But there was this alleged, potentially diminuendoes [sic]

violation that occurred within [24] hours of the accident occurring. And the court

could see, from circumstantial evidence, where that may play a role in terms of

this alleged potential circumstantial inattentiveness that was potentially happening

while approaching the accident scene in between. This court understands that

there could be other issues with regard to why the lane was not yielded. However,

one possible explanation that the jury could consider would be an inattentiveness.

***

The court thinks that the alleged violations that did occur within the [24-]

hour period would be relevant to that particular issue and would be probative for

the jury to hear.”

¶ 48 4. The Remaining Evidence Presented

¶ 49 John Dittmer, an Illinois State Police master sergeant, testified as an expert in

crash reconstruction and provided the following testimony.

¶ 50 Upon arriving at the accident site at 12:35 a.m. on March 6, 2013, Dittmer

acknowledged that the weather conditions at mile marker 6 had changed from those that existed

at the time of defendant’s collision. Specifically, (1) the snow plows had “pretty much cleared up

- 15 ­ some of [I-39], (2) the amount of slush buildup on I-39 had been reduced, (3) “[t]he wind had

subsided slightly,” and (4) “the snow was coming down a lot lighter.”

¶ 51 Dittmer used a linear momentum equation to estimate the minimum speed

defendant’s semi was traveling just prior to the initial collision with SUV 105, explaining that a

basic law of physics provides that the energy introduced into a system must equal the energy

used or dissipated by the system. Applying that rule, Dittmer explained further that the energy

created by the momentum of defendant’s semi just prior to the collision must equal the energy

consumed by the vehicles that were damaged and displaced by that energy burst. The required

variables involve determining the weight of each vehicle and the distances that they traveled as a

result of the energy applied. A third required variable—the “coefficient of friction”—takes into

account the amount of resistance that a surface exerts on substances moving over it. To illustrate

that concept, Dittmer explained further that if a person was wearing socks, he could slide over

tile much more easily than sliding on a carpeted floor. Applying those variables, Dittmer

calculated that at the moment of impact, defendant’s semi was traveling at a minimum speed of

at least 37.36 miles per hour.

¶ 52 Dittmer acknowledged that (1) semis are equipped with “event data recorders”

that could provide speeds that are not dependant on calculations; (2) he had not received training

on event data recorders; (3) he testified that the road conditions were icy but used a coefficient of

friction for heavy snow to calculate defendant’s minimum speed; (4) using a coefficient of

friction for ice would have resulted in a five-mile-per-hour reduction in defendant’s minimum

speed; (5) he used an incorrect, lighter weight for defendant’s semi; and (6) he based his

conclusion that defendant did not brake on statements provided by the first responders.

¶ 53 Kevin Hoop, an Illinois State Police lieutenant, testified as an expert in crash

- 16 ­ reconstruction and provided the following testimony.

¶ 54 At 10:30 p.m. on March 5, 2013, Hoop was working as a shift commander when

he heard a radio call indicating that a firefighter had been struck by a vehicle. Approximately 30

to 40 minutes later, Hoop arrived at the accident site and spoke to Parmley. After receiving an

initial report and surveying the accident site, Hoop asked Dittmer to come to the scene to assist

with the investigation. Thereafter, Hoop contacted defendant and acquired documentation, which

included his license, registrations, proof of insurance, and his driver’s log book. After consulting

with Parmley and Brutlag and further surveying the accident site, Hoop issued defendant two

citations for failing to (1) comply with Scott’s law and (2) reduce speed in hazardous conditions.

Sometime later that night, Hoop spoke with defendant in his squad car, and defendant stated that

he saw a truck in front of him and attempted to brake, but he could not stop his semi.

¶ 55 Hoop reviewed Dittmer’s accident reconstruction report and acknowledged that in

his linear momentum calculation, Dittmer used a lighter weight for defendant’s semi, explaining

that prior to weighing defendant’s semi, an automobile defendant had been transporting was

removed. Hoop noted that using the correct weight would have resulted in a minimum speed that

was higher than the minimum speed Dittmer calculated. Hoop agreed with the coefficient of

friction Dittmer used to calculate defendant’s minimum speed, explaining that the road

conditions were a “mixture of ice and snow on the roadway that day.” Based on his review of all

the evidence and Dittmer’s calculations, Hoop concluded that (1) defendant’s semi “possessed

too much energy entering into that *** crash site” and (2) defendant failed to comply with

Scott’s law in that “he should have merged into the right traffic lane to safely pass that crash

site.”

¶ 56 Hoop admitted that (1) in previous sworn testimony, he described the road

- 17 ­ conditions on I-39 as “literally a sheet of ice”; (2) as written, it would have been impossible for

defendant to comply with section 11-907(c)(1) of the Vehicle Code because there was no

nonadjacent lane that defendant could have traveled in; and (3) in questioning defendant

repeatedly about why he hit SUV 105, defendant consistently responded that he applied his

brakes but could not stop. Hoop noted that photographs taken of I-39 after defendant’s collision

showed snow on the pavement. Hoop also noted that section 11-907(c)(2) of the Vehicle Code

requires a vehicle to reduce speed when approaching an accident site but defendant “slammed

right through all the vehicles that were parked in the left lane.”

¶ 57 Baird, who testified as an expert in the field of commercial motor vehicles,

offered statements consistent with the representations he made during the State’s offer of proof

concerning defendant’s March 4, 2013, violation of the 14-hour rule.

¶ 58 The jury was shown a video from the vantage point of Parmley’s squad car, which

was parked behind engine 102 on the left shoulder of southbound I-39. At certain points, the

State would stop the video and Parmley would describe what was being depicted. Parmley

testified that ice was on the interstate and the wind was blowing but visibility was not restricted.

The resulting collision terminated the video recording. Parmley described defendant’s semi as

the “Titantic coming through our original accident scene.” After the accident, Parmley

successfully stopped southbound traffic on I-39 and attempted unsuccessfully to revive Brown.

Parmley then made contact with defendant and asked him, “Do you know how fast you were

going[?]” Defendant responded, “Not more than 50 miles an hour.”

¶ 59 Thereafter, the State rested its case.

¶ 60 E. Defendant’s Motion for a Directed Verdict

¶ 61 Following the presentation of the State’s case in chief, defendant made an oral

- 18 ­ motion for a directed verdict, in which he argued that the State had not satisfied its burden of

proof with regard to the element of recklessness. Defendant argued further that taking into

account the totality of the circumstances, the collision that occurred was a tragic accident. The

court denied defendant’s motion, reasoning as follows:

“The court *** takes the evidence in the light most favorable to the nonmoving

party, which is the State ***. The court will not go through all of the specific

witnesses’ testimony with regard to what it believes is the testimony in the case

***, but the court would note that all the witnesses have testified that the weather

was poor on the night in question, that the roadway was slick and snow-covered[,]

and that the vehicles were traveling slowly on the night in question and slowing

down slower than their normal speeds as they approached the scene ***. All of

the witnesses have testified to the lighting of the scene itself as they were

approaching the scene. The firefighters all testified to what lights were on the

vehicles, the troopers did as well, and by all indications the scene was well lit

before the time of the accident and where the scene was warning motorists that

something was going on ahead. That is what the court believes that the evidence

shows.

The court believes that the evidence is sufficient *** to show allegedly

that the defendant’s vehicle did not slow to the point to where he needed to slow

*** to avoid coming in contact with the vehicles on the night in question. The

court further believes that there is an alleged Scott’s [L]aw violation by failing to

yield that passing lane and getting into the right lane prior to the accident

occurring. The court further thinks that there is circumstantial evidence that

- 19 ­ potentially could show a logbook violation that potentially caused or contributed

to the accident itself.

Considering those three factors, the court does believe that the evidence is

sufficient *** to proceed forward with the case[.] [T]he motion for directed

verdict will be denied.”

¶ 62 Defendant did not present any evidence.

¶ 63 F. The Jury’s Verdict and Defendant’s Sentencing Hearing

¶ 64 Following deliberations, the jury found defendant guilty of reckless homicide.

¶ 65 In April 2014, defendant filed, in pertinent part, a motion for a judgment

notwithstanding the verdict (judgment n.o.v.), arguing that the State’s evidence was insufficient

to support a guilty finding.

¶ 66 At his May 2014 sentencing hearing, the trial court first addressed defendant’s

motion for a judgment n.o.v., ruling as follows:

“[T]his is a matter that was taken up somewhat similar on the motion for directed

verdict at the close of the State’s case, and the court issued specific rulings at that

point in time[.] *** The charge was reckless homicide that was pled, and the court

*** did believe there was evidence in terms of a jury being able to determine that

the speed was improper as alleged in the bill of indictment, that the evidence was

sufficient, that ** defendant *** did not yield the lane to an emergency vehicle

with its lights illuminated, and that was for the jury to decide as to whether that

constitutes recklessness.

The court thinks the evidence was sufficient to go to the jury[.] [T]he court

thinks that the evidence was sufficient for the jury to return the verdict that was

- 20 ­ sent in the instructions. So the motion for judgment [n.o.v.] will be denied.”

¶ 67 The trial court then held defendant’s sentencing hearing, at which defendant

provided the following statement in allocution:

“I deeply regret what happened, your honor, but at the time

of the accident I had been [a] truck driver for over a month and I

was driving south on [I-]39 and the roads seemed to be clear up

north. And while I saw the emergency lights, I assumed that

they’re on the right side and moved over from the right lane to the

left lane and [began] slowing down. When I realized that

emergency vehicle on the left lane, I tried to stop my vehicle and I

couldn’t and lost control and [the] accident happened. *** [M]y

heart goes out for *** Brown’s family and everybody who got hurt

in that accident.”

¶ 68 Thereafter, the trial court sentenced defendant to four years in prison.

¶ 69 This appeal followed.

¶ 70 II. ANALYSIS

¶ 71 Defendant primarily argues that the State failed to prove him guilty beyond a

reasonable doubt. Defendant alternatively argues that the trial court erred by denying his motion

in limine. As to his alternative argument, defendant contends that the court abused its discretion

when it permitted the jury to consider alleged violations of (1) the 14-hour rule and (2) Scott’s

Law because that evidence lacked probative value, was irrelevant, and was prejudicial. Because

we agree with defendant’s first argument and certain aspects of defendant’s alternative

assertions, we reverse defendant’s conviction and sentence. We conclude that the State’s case

- 21 ­ was utterly bereft of any evidence showing a conscious disregard of anything.

¶ 72 A. The Offense of Reckless Homicide

¶ 73 As previously noted, a person commits reckless homicide when (1) while driving

a motor vehicle, (2) the person “unintentionally kills an individual without lawful justification

*** if his acts whether lawful or unlawful *** are such as are likely to cause death or great

bodily harm,” and (3) those acts were performed recklessly. 720 ILCS 5/9-3(a) (West 2012). As

applied to the offense of reckless homicide, “A person is reckless or acts recklessly when that

person consciously disregards a substantial and unjustifiable risk that [his acts are likely to cause

death or great bodily harm], and that disregard constitutes a gross deviation from the standard of

care that a reasonable person would exercise in the situation.” 720 ILCS 5/4-6 (West 2012); see

also 720 ILCS 5/9-3(a) (West 2012).

¶ 74 “Recklessness may be inferred from all the facts and circumstances in the record

and may be established by evidence of the physical condition of the driver and his manner of

operating the vehicle.” People v. Barham, 337 Ill. App. 3d 1121, 1127, 788 N.E.2d 297, 302

(2003). Proof of negligence alone, however, cannot sustain a finding of recklessness. Id. “While

an accident may result from negligence, mere negligence is not recklessness.” People v. Cook,

2014 IL App (1st) 113079, ¶ 40, 10 N.E.3d 410. “Where an occurrence may be equally attributed

to either a negligent cause or a criminal cause, the burden of reasonable doubt cannot be

sustained and the negligent cause will be adopted.” Barham, 337 Ill. App. 3d at 1127, 788

N.E.2d at 302.

¶ 75 B. The State’s Burden

¶ 76 We have purposefully restated the elements of reckless homicide to reemphasize

that by charging defendant with that offense, the State had to prove beyond a reasonable doubt

- 22 ­ that on March 5, 2013, defendant recklessly operated his semi on the icy road conditions that

existed that evening. In other words, the State had to prove that defendant consciously

disregarded the danger posed by the less-than-ideal road conditions and, in so doing, engaged in

conduct that represented a gross deviation from established norms society expects reasonable

persons to undertake given those circumstances.

¶ 77 Although a Scott’s Law violation is not an element of the offense of reckless

homicide, the State sought to use that violation as probative on the issue of defendant’s alleged

reckless conduct on the night of the collision. The State also sought to introduce defendant’s

violation of the 14-hour rule in the same manner—that is, that defendant’s violation of the 14­

hour rule during the previous day was probative on the issue of his alleged reckless conduct that

occurred the following night. Defendant sought to bar such evidence, arguing that both the

Scott’s Law and 14-hour rule violations lacked probative value, were irrelevant, and were highly

prejudicial. The trial court rejected defendant’s arguments and permitted the jury to consider that

evidence on the issue of defendant’s recklessness.

¶ 78 C. Defendant’s Contentions

¶ 79 1. Defendant’s Motions for a Directed Verdict and Judgment N.O.V.

¶ 80 By raising a sufficiency of the evidence argument, defendant implicitly challenges

the trial court’s denial of his motion for a directed verdict at the close of the State’s case and, by

extension, the court’s denial of his posttrial motion for judgment n.o.v. See Maple v. Gustafson,

151 Ill. 2d 445, 453 n.1, 603 N.E.2d 508, 512 n.1 (1992) (“It is important to note that motions for

directed verdicts and motions for judgments n.o.v., although made at different times, raise the

same questions, and are governed by the same rules of law.”). We choose to address defendant’s

challenge as such.

- 23 ­ ¶ 81 “When, at the close of the State’s evidence or at the close of all of the evidence,

the evidence is insufficient to support a finding or verdict of guilty[,] the court may and on

motion of the defendant[,] shall make a finding or direct the jury to return a verdict of not guilty,

enter a judgment of acquittal[,] and discharge the defendant.” 725 ILCS 5/115-4(k) (West 2012).

A directed verdict or a judgment n.o.v. is appropriate when a trial court concludes, after viewing

all of the evidence in a light most favorable to the State, that no reasonable juror could find that

the State had met its burden of proving the defendant guilty beyond a reasonable doubt. People v.

Withers, 87 Ill. 2d 224, 230, 429 N.E.2d 853, 856 (1981); People v. Johnson, 334 Ill. App. 3d

666, 676, 778 N.E.2d 772, 781 (2002).

¶ 82 At the close of the State’s case, the evidence before the jury showed that on the

evening of March 5, 2013, an accident occurred on I-39 at mile marker 6 between a semi and a

pickup truck towing a trailer of auto parts. The firefighters and other first responders who arrived

at the scene of the accident consistently described the road conditions on I-39 as (1) “slick”

(Hite, Smith), (2) “icy” (Dittmer), (3) “spotty” (Dicken), (4) “snow packed” (Thomas), and

“literally a sheet of ice” (Parmley), with drifting snow crossing over I-39 on a cold and windy

but clear night. Despite this weather, each firefighter who drove an emergency vehicle testified

that his respective rate of speed on I-39 in response to the initial accident site was between 35 to

45 miles per hour. Specifically, Hite characterized the speed that he traveled in his SUV to the

accident site as a “safe but moderate speed” of between 35 to 40 miles per hour. Dicken, who

drove engine 102, stated that he drove to the accident site at a “fairly decent speed” of between

40 to 45 miles per hour. Smith, who was driving SUV 105, stated that he did not exceed 40 miles

per hour in responding.

¶ 83 The evidence presented by the State also showed that mere minutes after Hite

- 24 ­ halted the traffic control duties being performed by the firefighters traveling in SUV 105,

defendant approached mile marker 6 at a speed of not more than 50 miles per hour. Defendant

told Hoop that when he saw SUV 105 stopped in the left southbound lane he was traveling in, he

attempted to brake but could not stop. The State’s expert testified that defendant’s minimum

speed at the time he collided with SUV 105 was a fraction over 37 miles per hour.

¶ 84 Although several firefighters testified that they did not hear any screeching or

squealing of tires that might indicate that defendant attempted to slow his speed, we deem that

testimony to be of minimum probative value, if any. The State failed to solicit expert testimony

regarding the type of noise a person might expect to hear, if any, when a semi of the type

defendant was driving would attempt to brake on an icy road like I-39 on the night in question.

The jury was correctly instructed that it could consider its own observations and experiences in

life as it evaluated the testimony, but the question of what sound a braking semi on an icy road

would make is beyond the ken of the average juror. Jurors’ common experiences with the

screeching and squealing of tires caused by a vehicle’s hard braking on dry pavement does not

apply to icy roads. If the State wished to argue the absence of braking noises was significant,

then it should have provided expert testimony to support this claim. The absence of such

testimony renders the State’s argument idle speculation.

¶ 85 What we just reviewed was essentially the State’s case when the trial court denied

defendant’s March 2014 oral motion for a directed verdict at the close of the State’s case. In

denying that motion, the court found that the evidence, considered in a light most favorable to

the State, showed that (1) circumstantial evidence of a potential log book violation could be

considered a contributing or causal factor of the collision, (2) defendant violated Scott’s Law by

failing to change his lane of travel, and (3) defendant failed to sufficiently slow down to avoid

- 25 ­ the collision. When the court denied defendant’s April 2014 motion for a judgment n.o.v., the

court reiterated the findings it made when denying defendant’s motion for a directed verdict.

¶ 86 For the reasons that follow, we conclude the trial court erred by denying the

motion for a directed verdict and, later, the motion for a judgment n.o.v.

¶ 87 2. The Log Book Violation

¶ 88 We reject the State’s claim that evidence regarding defendant’s violation of the

14-hour rule on March 4, 2013, was relevant to the issue of defendant’s alleged recklessness on

March 5, 2013, the night of the collision at issue. The trial court’s decision to require the State to

make an offer of proof showing how a violation of the 14-hour rule was relevant to the facts of

this case was entirely appropriate, given the concerns the court initially expressed about that

relevancy. Unfortunately, the court overcame its concerns and admitted this evidence. That was

error.

¶ 89 We conclude that the trial court abused its discretion by ultimately allowing the

jury to consider that evidence. See People v. Patrick, 233 Ill. 2d 62, 68, 908 N.E.2d 1, 58 (2009)

(a trial court abuses its discretion when its ruling is arbitrary, fanciful, or where no reasonable

person would take the view adopted by the trial court). The contention that a technical violation

of the 14-hour rule the previous night is probative on the issue of recklessness the next night

because that violation suggests defendant may have been inattentive as he approached the

accident site due to fatigue is not only wildly speculative but also highly prejudicial. This record

contains not a shred of evidence that defendant was fatigued at the time of the accident. We

emphasize that the record shows that immediately following the technical violation on March 4,

2013, defendant spent the next 10½ hours in the sleeper berth of his semi in satisfaction of the

underlying spirit and intent of the Federal Regulation, which is to ensure drivers are well-rested

- 26 ­ before embarking on a new 14-hour day of activity.

¶ 90 3. Scott’s Law Violation

¶ 91 As to the issue of defendant’s alleged Scott’s Law violation, we conclude that

such evidence had minimal probative value, if any, but we also view it as minimally prejudicial.

After all, one can hardly dispute that if defendant realized in time the left lane was blocked and

he needed to move to the right lane, then he would have done so if the icy roads permitted that

maneuver. That is essentially all Scott’s Law says.

¶ 92 4. Defendant’s Speed

¶ 93 The State characterizes defendant’s speed as “not more than 50 miles per hour”

despite its own expert evidence that defendant’s speed at impact was, at a minimum, slightly

above 37 miles per hour. We earlier mentioned the speeds at which the firefighters and police

officers said they drove when traveling on I-39 to reach the accident site, and defendant’s speed

was consistent with—and generally less than—those speeds. Regardless of the actual speed

defendant may have been traveling that night, “evidence of excessive speed, by itself, is not

sufficient to sustain a conviction of reckless homicide.” Barham, 337 Ill. App. 3d at 1130, 788

N.E.2d at 305. Instead, the “evidence of excessive speed, combined with other circumstances

that would indicate a conscious disregard of a substantial risk likely to cause death or great

bodily harm to others such that a reasonable person would act differently under the same

circumstances, is sufficient to establish reckless homicide.” Id. In this regard, the State posits that

defendant’s speed, “combined with the precarious weather conditions” and defendant’s failure to

decrease his speed or move into the right southbound lane, was clearly reckless. The State’s

argument is wholly unpersuasive.

¶ 94 The best that can be said of the State’s case is that defendant may have been

- 27 ­ inattentive for a few seconds (perhaps adjusting his radio or engaging in some similar activity)

and then failed to realize the left lane was blocked as he unsuccessfully attempted to brake his

huge semi at night on an icy highway in blowing snow. Such brief inattention (if it even

occurred) falls far short of the conscious disregard of a substantial and unjustifiable risk that

establishes a gross deviation from the standard of care that the State needed to prove beyond a

reasonable doubt. This evidence does not come close to meeting that standard.

¶ 95 III. CONCLUSION

¶ 96 For the foregoing reasons, we reverse defendant’s conviction and sentence.

¶ 97 Reversed.

- 28 ­