People v. Turner

2018 IL App (1st) 170204

97 N.E.3d 140

The PEOPLE of the State of Illinois, Plaintiff–Appellee,

v.Simuel TURNER, Defendant–Appellant.

No. 1–17–0204

Appellate Court of Illinois, First District, SIXTH DIVISION.

Filed February 2, 2018

Rehearing denied March 14, 2018

Stephen L. Richards, of Chicago, for appellant.

Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg and Christine Cook, Assistant State’s Attorneys, of counsel), for the People.

OPINION

JUSTICE CUNNINGHAM delivered the judgment of the court, with opinion.

¶ 1 Defendant-appellant Simuel R. Turner appeals from his conviction and sentencing upon two counts of aggravated driving under the influence of alcohol (DUI). For the following reasons, we affirm the judgment of the circuit court of Cook County.

¶ 2 BACKGROUND

¶ 3 Shortly after 10 p.m. on July 2, 2011, the defendant's pickup truck collided with a motorcycle carrying two persons. The driver of the motorcycle, James McFall, was killed; his wife, Kasey McFall, sustained serious injuries. The defendant was taken to the emergency room at St. James Hospital, where two blood samples were drawn from him. The first blood draw was taken pursuant to a physician's order as a part of his emergency room treatment, at approximately 10:46 p.m. At the request of police, nurses performed a second blood draw for inclusion in a "DUI kit" shortly after midnight on July 3, 2011. Both tests indicated that the defendant's blood alcohol content was above the legal limit. The defendant was charged with 10 counts of aggravated driving under the influence of alcohol and reckless homicide.

¶ 4 Before trial, the defendant moved to suppress the results of the second blood test used in the DUI kit. At a hearing on the motion, the defendant testified that at the hospital, he was asked for a blood sample "around three to four times" by nurses, in the presence of police. He stated that he "continually asked the reason why they wanted to draw blood" but was given no reason. He also stated that he expressed his wish to speak to an attorney. He further testified that at some point he was told "that in order for me to go home that I would have to give a blood sample." He claimed that he never consented to the DUI kit blood draw.

¶ 5 Ryan Murphy, who was an officer of the Matteson Police Department in July 2011, testified at the pretrial hearing that he was dispatched to the accident site, where he saw the defendant before he was transported to the hospital. A short time later, Officer Murphy observed the defendant at the hospital. He noted that the defendant's speech was slurred and "his eyes were glassy and blood shot." He requested that medical personnel obtain a blood sample for a DUI kit; he was present when the blood was drawn. Officer Murphy testified that he was not present for the earlier blood draw.

¶ 6 In arguing for suppression of the DUI kit, the defendant's counsel asserted that the blood draw was unlawful pursuant to the United States Supreme Court's decision in Missouri v. McNeely , 569 U.S. 141, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013). The State argued that McNeely was distinguishable and that the DUI kit blood draw was permissible under section 11–501.2 of the Illinois Vehicle Code (Code), which states that "if a law enforcement officer has probable cause to believe that a motor vehicle driven by * * * a person under the influence of alcohol * * * 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." 625 ILCS 5/11–501.2(c)(2) (West 2010).

¶ 7 In its findings, the trial court first noted that because the defendant was taken to the emergency room for purposes of treatment, the initial blood draw was admissible under section 11–501.4 of the Code. Id. § 11–501.4. With respect to the second blood draw, the trial court did not find that the defendant refused or was coerced. The trial court proceeded to find that the second blood draw was admissible under section 11–501.2(c)(2) of the Code. The trial court thus denied the motion to suppress. The defendant's motion to reconsider that ruling was denied.

¶ 8 A bench trial commenced in September 2014. The State's first witness was Kasey McFall, who did not remember anything from the collision. She described her injuries from the accident, which led to insertion of a metal rod in her left leg and limited her ability to use her left arm.

¶ 9 The State next called Cheryl Feldner Gozzi. On the evening of July 2, 2011, Gozzi was driving westbound on Vollmer Road when she approached the intersection of Vollmer Road and Cicero Avenue. She recalled a car in front of her was "slowing down for the yellow light, so I was slowing down as well." As she was in the right lane, a motorcycle passed her on the left and proceeded into the intersection. She testified repeatedly that the traffic light was yellow at that time. Gozzi heard an impact but did not see the collision.

¶ 10 Melvin Respress testified that on the night of the collision, he was driving westbound on Vollmer Road in the right-hand lane as he approached the intersection with Cicero Avenue. He recalled that "the light was yellow and there was a motorcycle in front of me." He testified: "I was stopping and it appears as though the motorcycle was as well. I think he may have decided that, okay, I can still get this light; so he—he seemed to accelerate and went * * * through the intersection." Respress also saw a truck heading eastbound on Vollmer Road that began to make a left-hand turn onto Cicero Avenue.

¶ 11 Respress recalled that the motorcycle's rear wheel was "shaking back and forth, which looked like it couldn't stop at that point because of the acceleration" and that the motorcycle "made impact with the truck." Respress "c[ould] not say for sure" what color the traffic light was when the motorcycle entered the intersection.

¶ 12 On cross-examination, Respress testified that the motorcycle switched into the left lane, and initially slowed down before accelerating into the intersection. Asked by defense counsel if "the motorcycle entered the intersection as the light was changing from yellow to red," Respress answered: "I'm not one hundred percent sure of that."

¶ 13 The State next called Luciana Cardona. Cardona acknowledged that she had an outstanding warrant in another case, but she agreed that the State made no promises to her in connection with her trial testimony in this case. Cardona testified that she was driving north on Cicero Avenue when she approached the intersection, where she planned to turn left onto Vollmer Road. She stopped at the intersection because she had a red light. As she was waiting for her light to change, she noticed that the lights for traffic on Vollmer Road turned yellow. She recalled that "when I looked over to my left I seen a truck coming. I thought that it was gonna stop, but it just [kept] going through the yellow light." The truck was heading east, "getting ready to make a left-hand turn going north on Cicero." She saw the truck "[j]ust go through the yellow light" and stated that it "never slowed down." She did not see the collision.

¶ 14 Officer Ryan Murphy also testified at trial. When he arrived at the crash scene, he saw a "motorcycle partially under the front end of the truck." He also saw the body of James McFall and then saw Kasey McFall, who was "wrapped around the stop light pole" on the northwest corner of the intersection.

¶ 15 Similar to his testimony at the suppression hearing, Officer Murphy recalled that the defendant's "speech was slurred and mumbled" when he spoke to hospital staff and that his eyes were "glassy and bloodshot." Officer Murphy stated that he gave a nurse a DUI test kit containing vials for blood and urine samples. He observed a nurse perform a blood draw for the DUI kit, which he placed into the evidence locker at the police station.

¶ 16 Dana Escamilla, a nurse, recalled speaking with the defendant in the emergency room. According to Escamilla's records, the defendant admitted to Escamilla that he was drinking alcohol before the accident. Escamilla testified that a physician ordered "standard lab work" for the defendant, and so Escamilla drew blood samples for the hospital's lab. Escamilla's notes indicated the first blood draw was conducted at 10:46 p.m. The lab work indicated a blood alcohol serum level of 0.168. Escamilla's notes also indicated that another nurse, Nicole Pisterzi, conducted a separate blood draw at 12:11 a.m. on July 3, 2011, as part of a DUI kit. Pisterzi also testified that she performed a blood draw after Officer Murphy requested a DUI kit.

¶ 17 Officer Raymond Smith testified that he recovered the DUI kit from the evidence locker on July 5, 2011, and transported it to the Illinois State Police Crime Lab (crime lab) in Joliet on July 7. He acknowledged that the DUI kit was not refrigerated during this time period.

¶ 18 An evidence technician at the crime lab in Joliet testified that she received the DUI kit on July 7, 2011, and placed it in a refrigerated vault. She subsequently mailed the DUI kit to the Springfield crime lab for testing. The DUI kit was not refrigerated when it was mailed.

¶ 19 On July 13, 2011, the DUI kit was received by Alexandra Baluka of the Illinois State Police Division of Forensic Services in Springfield. She opened the DUI kit, inventoried it, and labeled each vial. One vial contained 8 milliliters of blood, and the second had 7 milliliters. She put the samples in a refrigerated storage vault to be reviewed by an analyst.

¶ 20 Dareea Patrick Paiva, a forensic scientist with the crime lab in Springfield, testified as an expert in the field of forensic toxicology. She described her procedure for analyzing blood samples for alcohol content using gas chromatography, which she testified was a scientifically accepted methodology.

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