People v. Perry

2020 IL App (4th) 190094-U

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSEPH R. PERRY, Defendant-Appellant.

NO. 4-19-0094

APPELLATE COURT OF ILLINOIS FOURTH DISTRICT

May 8, 2020

NOTICE

This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the Circuit Court of Champaign County

No. 17CF610

Honorable Adam M. Dill, Judge Presiding.

JUSTICE TURNER delivered the judgment of the court.

Presiding Justice Steigmann and Justice Knecht concurred in the judgment.

ORDER

¶ 1 Held: The State's evidence was sufficient to prove defendant guilty of aggravated driving under the influence, defendant is not entitled to a new trial, and the circuit court did not abuse its discretion in sentencing defendant to four years' imprisonment.

¶ 2 In May 2017, the State charged defendant, Joseph R. Perry, by information with one count of aggravated driving under the influence of a drug (DUI) (625 ILCS 5/11-501(a)(6), (d)(1)(F) (West 2016)). After an October 2018 trial, a jury found defendant guilty of the charge. Defendant filed a motion for a judgment of an acquittal notwithstanding the verdict or, in the alternative, a motion for a new trial. After a January 2019 hearing, the Champaign County circuit court denied defendant's posttrial motion. At a February 2019 hearing, the court sentenced defendant to four years' imprisonment.

¶ 3 Defendant appeals, contending (1) the State's evidence was insufficient to prove him guilty beyond a reasonable doubt of aggravated DUI; (2) the circuit court erred by allowing Dr. Henry Moore, a trauma surgeon, to testify about the cause of the victim's death; (3) defendant was denied effective assistance of counsel because counsel failed to object to the admission of the results from his blood and urine tests; (4) the court erred by declining to give defendant's proposed jury instruction on the issue of proximate cause; and (5) the court abused its discretion by sentencing defendant to four years' imprisonment. We affirm.

¶ 4 I. BACKGROUND

¶ 5 The State's sole charge in this case alleged defendant drove a motor vehicle on December 28, 2016, at a time when he had an amount of a drug, substance, or compound in his breath, blood, or urine resulting from the unlawful use or consumption of cocaine and was involved in a motor vehicle accident that resulted in the death of Marjorie Roberts, and the violation was a proximate cause of Roberts's death. In July 2018, defendant filed a motion in limine, asserting the coroner's summary and Roberts's death certificate should be excluded from evidence because no autopsy was done on Roberts. The motion also sought to prohibit Jeff Zumwalt, the deputy coroner, and Paul Kursell, a nurse, from giving an opinion about Roberts's cause of death. In October 2018, defendant filed a second motion in limine, seeking to prohibit Dr. Moore from testifying about Roberts's cause of death. After a hearing, the circuit court granted defendant's first motion in limine without objection but denied defendant's second motion in limine.

¶ 6 On October 16, 2018, the circuit court commenced the jury trial in this case. The State presented the testimony of (1) Brandon Duvall, Roberts's grandson; (2) Dr. Moore, Roberts's treating physician in the emergency room; (3) Lisa Dixon, witness; (4) Brian Ahsell, police officer; (5) Russel Beck, police officer; (6) David Butler, police officer; (7) SarahMaxwell, nurse; (8) Mark Huckstep, evidence custodian; (9) Lora Furlong, Illinois State Police, evidence technician; (10) Alexandra Baluka, Illinois State Police forensic scientist; and (11) James Bednarz, Champaign police detective. The State also presented several exhibits, including a surveillance video of the accident. At the close of the State's evidence, defendant moved for a directed verdict, which the circuit court denied. Defendant did not present any evidence. The evidence relevant to the issues on appeal follows.

¶ 7 Duvall testified he last saw Roberts alive at 5 p.m. on the date of her death. Duvall had dropped her off at her home, which was a block from where she was struck by the vehicle. Roberts did not drive and used a walker to get around. She did enter her home unassisted on the date of her death. Duvall was at the hospital due to Roberts's accident within an hour of dropping her off at her home that day. Moreover, Duvall testified Roberts regularly frequented Blue Star convenience store (Blue Star) and Krispy Krunchy Chicken (Chicken Restaurant) on Bradley Avenue. At the time of her death, Roberts was able to get to those places on her own with the aid of a walker.

¶ 8 Dr. Moore testified he was employed by Carle Foundation Hospital as the head director of trauma services and the associate medical director for general surgery and neurology. In addition to medical school, Dr. Moore completed a five-year residency in general surgery and a one-year program for critical care and trauma. The circuit court first found Dr. Moore was an expert in "[t]rauma surgery and the medical determinations attendant thereto." Dr. Moore treated Roberts on December 28, 2016. When Roberts arrived in the emergency room, she was in cardiopulmonary arrest, which means her heart had stopped. The emergency medical technicians were performing cardiopulmonary resuscitation (CPR) on Roberts. Dr. Moore performed an initial assessment on Roberts and found Roberts had some instability of her highneck, deformities of both upper extremities, subcutaneous emphysema, and an unstable right knee. As to her neck, Dr. Moore explained one of the bones was probably out of place. He was concerned Roberts had a high spinal cord injury. Since they were never able to resuscitate Roberts, Dr. Moore did not confirm whether Roberts had a spinal cord injury. Dr. Moore also explained subcutaneous emphysema is air underneath the skin, which indicates air is coming out of a lung. Air usually escapes from a lung when a rib's fractured edge pokes the lung. A hole in the lung is called a pneumothorax. Dr. Moore testified Roberts probably had a small to moderate right pneumothorax, which they treated with needle decompression. Dr. Moore and the other medical professionals performed life saving measures for 15 minutes on Roberts but were unsuccessful. In his career, Dr. Moore had seen between 5000 to 8000 injuries from motor vehicle accidents. Dr. Moore explained Roberts had "quite a bit of force applied to her body," which only happens when someone is hit by a car, involved in a motor vehicle accident, or falls from a great height.

¶ 9 When Dr. Moore was asked for his opinion on the cause of Roberts's death, defendant objected based on Dr. Moore not being qualified to give an expert opinion on the cause of death. The circuit court overruled the objection after a lengthy side bar outside the presence of the jury. Dr. Moore opined Roberts died from blunt force trauma to her entire body. Since it was reported Roberts had been hit by a vehicle, Dr. Moore assumed the source of the trauma was the motor vehicle. Dr. Moore explained Roberts's injuries were consistent with her receiving a large amount of force transmitted on the right side of her body. Roberts likely had more injuries that Dr. Moore did not observe. Dr. Moore testified he was not trained in pathology and had never performed an autopsy. He had also never before been qualified to testify as an expert witness on the cause of a person's death.

¶ 10 Dixon testified she was born and raised in the area and returned to live in Champaign in 1997. On the evening of December 28, 2016, Dixon was driving on Bradley Avenue to meet friends in downtown Champaign. Dixon stopped at the stop sign at the corner of Bradley Avenue and McKinley Avenue, which was a four-way stop. She was located in the right lane closest to the curb and was heading east on Bradley. A pickup truck was stopped in the lane to the left of her and was also heading east. Dixon did not know the time but noted the sky was dark. She and the pickup truck took off from the four-way stop at around the same time. The pickup was going a little faster than she was and ended up ahead of her car in the left lane. Dixon did not think the pickup's speed was excessive. At some point, Dixon heard a loud sound, and the pickup stopped. She estimated the pickup was "at least half, if not more, of a car length in front of [her]" in the other lane when she heard the loud sound. Dixon could definitely see the pickup's taillights. Dixon did not see the pickup hit anything and did not see anyone crossing the road prior to her hearing the loud sound.

¶ 11 After hearing the loud sound, Dixon observed a body "flying in an arc form" through the air along with a wheelchair or walker. She explained the force of the impact forced the body into the air and she had to look in an upwards direction to see the body. The body and wheelchair/walker landed in her lane in front of her car. She testified the body and device was about 20 feet in front of her car. After Dixon saw the body on the ground, she slowed to a stop. Dixon made sure another car was not next to her and then got out of her car. About the same time, defendant walked to the back of his pickup and stated, "I didn't see her, I didn't see her." Additionally, Dixon testified the surveillance video, which was the State's exhibit No. 4, fairly and accurately depicted the collision scene as she saw it. During her testimony, the State played a short segment of the surveillance video showing defendant's pickup truck striking Roberts.

¶ 12 Officer Ahsell testified a call came in for an accident near the intersection of Bradley and Willis Avenues at 5:52 p.m. on December 28, 2016, and he was on the scene about five minutes later. Officer Ahsell described the area where the incident occurred. Bradley Avenue is an east-west running street. Willis Avenue runs north-south and then dead-ends into Bradley...