FILED
2016 IL App (4th) 150703 September 28, 2016
Carla Bender
NO. 4-15-0703 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. ) Greene County
GARRY L. HILLIS, ) No. 13CF100
Defendant-Appellant. )
) Honorable
) James W. Day,
) Judge Presiding.
JUSTICE APPLETON delivered the judgment of the court, with opinion.
Justices Harris and Steigmann concurred in the judgment and opinion.
OPINION
¶1 A jury found defendant, Garry L. Hillis, guilty of aggravated driving under the
influence of alcohol (DUI) (625 ILCS 5/11-501(d)(1)(F) (West 2012)), and the trial court
sentenced him to five years’ imprisonment. He appeals on two grounds: (1) the court abused its
discretion by granting a motion in limine by the State and by denying his own motion in limine,
and (2) it was unproved that he was the driver. We find no abuse of discretion in the rulings on
these motions in limine, and looking at all the evidence in the light most favorable to the
prosecution, we conclude that a rational trier of fact could find, beyond a reasonable doubt, that
defendant was the driver. Therefore, we affirm the trial court’s judgment.
¶2 I. BACKGROUND
¶3 A. The Charge
¶4 In the information, the State charged defendant with committing the offense of
aggravated DUI (625 ILCS 5/11-501(d)(1)(F) (West 2012)) in that, on May 2, 2013, he drove a
Ford F-150 pickup truck on Illinois Highway 108 in Greene County, Illinois, while under the
influence of alcohol and was involved in a motor vehicle accident, which proximately caused the
death of Brandy Gilbert.
¶5 B. The Motions and Orders in Limine
¶6 Before the jury trial, the parties filed motions in limine. The rulings on two such
motions are at issue in this appeal.
¶7 1. The State’s Motion To Bar a Physician,
Charles Earnshaw, Jr.,
From Reconstructing the Accident
¶8 In its “Motion in Limine No. 2,” the State said it anticipated the defense would
call a physician, Charles Earnshaw, Jr., as an expert witness. (The State’s “Motion in Limine No.
1” is not at issue in this appeal.) The State argued that although, judging by his curriculum vitae,
Earnshaw “[might] be qualified to testify as to matters that pertain[ed] to [i]nternal [m]edicine,”
he lacked “the requisite formal education, experience, or scientific expertise to qualify him to
testify as to matters discussed in his report as related to accident reconstruction and occupant
placement.”
¶9 According to Earnshaw’s curriculum vitae, he has a bachelor’s degree in
chemistry and a medical degree. He is a retired physician who specialized in internal medicine.
Apparently, he never has taken any classes in accident reconstruction (at least none are listed
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under the heading of “Education”), and his curriculum vitae nowhere mentions any training or
experience in that field.
¶ 10 Nevertheless, in a report he wrote for defense counsel, Earnshaw stated:
“I protracted the angle of the slope from the shoulder of the highway to the base
of the pole[,] and this angle is between [12] to 15 degrees downward. Assuming
highway speeds and a rain[-]slicked asphalt road[,] the victims’ truck probably
struck the pole between [40] to [60 miles per hour]. *** The front passenger door
received damage that was relatively minor[,] with the major impact occurring to
the truck frame behind the front passenger seat and door. A passenger in the rear
seat would have experienced the full impact. If [Gilbert] had been the restrained
or even unrestrained passenger[,] I doubt that her injuries would have been nearly
as severe. If[,] on the other hand[,] she had been the unrestrained driver[,] she
would have been hurled at vehicle speed at the roof, door, door frame, and
[defendant’s] left side with great force. This scenario would best explain the
severity and location of her injuries[,] including the bruising of her left anterior
thigh from contact with the steering wheel. If [defendant] had been the
unrestrained driver[,] he would have suffered severe right[-]sided head and chest
injuries but probably less severe than those of [Gilbert]. In addition[,] [Gilbert]
would have in all likelihood suffered significant left[-]sided injuries when he
struck her. If [defendant] had been a restrained driver[,] his injury would probably
be a seatbelt bruise from the left shoulder to his right hip. *** In conclusion[,] I
feel that [Gilbert] was the unrestrained driver and [defendant] was the restrained
passenger in this accident but do not have enough evidence to be certain.”
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¶ 11 Because Earnshaw apparently had no education, training, or experience in
accident reconstruction, the State requested, in “Motion in Limine No. 2,” that the trial court bar
him from “testifying as an expert in matters regarding the reconstruction of the accident
involving the [d]efendant, *** and that before any attempt to elicit testimony of the same from
*** Earnshaw ***, the proper foundation *** be demonstrated outside the presence of the jury.”
¶ 12 On April 9, 2015, in a pretrial conference, the trial court granted the State’s
“Motion in Limine No. 2.” The order reads: “State motion to deny witness granted.”
¶ 13 2. Defendant’s Motion To Bar an Accident Reconstructionist,
Nathan S. Shigemura, From Opining, on the Basis of Injury Patterns,
Who the Driver Was
¶ 14 The State disclosed an expert, Nathan S. Shigemura, who, according to
defendant’s motion in limine, was “a relatively well-known ‘crash reconstruction’ expert in the
State of Illinois.” Defendant admitted that Shigemura was “definitely qualified to opine on how
the crash in this case occurred,” but he argued that Shigemura was unqualified “to opine on who
was driving the vehicle at the time of the crash[,] because he base[d] that opinion on the extent of
the injuries to [defendant] and Ms. Gilbert, without having any medical training or education.”
¶ 15 Shigemura already had given his opinion that defendant was the driver. He had
expressed this opinion in a letter of December 6, 2013, to the Greene County sheriff, Robert D.
McMillen. A copy of Shigemura’s letter to McMillen is in the record; it is attached to
defendant’s motion in limine as exhibit A.
¶ 16 In Shigemura’s letter, under the heading “Occupant Kinematics” (referring to the
movement of vehicle occupants in a crash), he begins by describing how the accident happened:
the pickup truck slid diagonally to the right and into a utility pole, as illustrated in a drawing.
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(Emphasis in original.) The impact was in the area of the passenger door, near the side mirror.
The front-seat passenger, Shigemura explains to McMillen, would take the brunt of the impact:
“[T]he front[-]seat passenger would move to the right and forward[,] into the
collision region[,] and would sustain severe injuries, predominantly to the right
side. The driver’s injuries would be less severe than the passenger’s since the
driver would be f[a]rther from the collision region and not moving into the
collision region. The passenger would also be [in between] the driver and
collision region[,] thus providing shielding and cushioning for the driver. Ms.
Gilbert sustained severe injuries[,] including skull fractures[,] as a result of the
crash. The magnitude and locations of the injuries sustained by Ms. Gilbert
indicate that she was in the immediate area of the impact at the time of the
collision. These injuries led to the death of Ms. Gilbert.
[Defendant] sustained minor injuries, described as ‘bumps and bruises[,]’
in the collision and was treated and released from the hospital the night of the
crash. Minor cuts were located on the right arm of [defendant]. While at the
hospital[,] [defendant] ‘was complaining of his side hurting.’ When examined at
the Greene County [s]heriff’s [o]ffice two days after the crash, [defendant] had
soreness and a red mark to the left chest area. The bottom of the steering wheel of
the truck was bent forward. The damage to the steering wheel and the
soreness/red mark to the left chest area of [defendant] are consistent with [his]
striking the steering wheel with his left chest area as [he] moved to the right and
forward at the time of the collision with the pole. At the time of the collision, the
steering wheel would have been turned to the left in an unsuccessful attempt to
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bring the vehicle back onto the roadway (which also caused the counterclockwise
rotation of the vehicle). Because the steering wheel would have been turned to the
left, the bottom of the steering wheel would have rotated up to the ‘three o’clock’
position[,] where it was struck by [defendant].
Thus, evaluation of the information available, inspections of the scene and
[the] Ford truck[,] and analyses of the vehicle motion and occupant motion[,] with
related injury pattern, all indicate that [defendant] was the driver and Ms. Gilbert
was the passenger of the Ford truck at the time of the crash.”
¶ 17 Defendant argued in his motion in limine: “[I]t is clear that Mr. Shigemura’s
opinion that the [d]efendant was the driver is primarily based upon the injury pattern he observed
in the medical records in this case. *** And since Mr. Shigemura has NO general or specialized
medical training or experience, he cannot, as a matter of law, depend on the medical records to
reach his conclusion.” (Emphasis in original.) Therefore, defendant requested the trial court to
“enter an [o]rder limiting the State’s expert witness opinion to that evidence related to accident
reconstruction and not the medical records in this case.”
¶ 18 In the pretrial conference of April 9, 2015, the trial court “[d]en[ied] [defendant’s]
mot[ion] to eliminate Shig[e]mura as a witness,” to quote the order.
¶ 19 C. Evidence in the Jury Trial
¶ 20 1. The Testimony of Michael Lovel
¶ 21 Michael Lovel was a Carrollton police officer. The evening of May 2, 2013, he
was on his regular patrol. At approximately 11:15 p.m., a dispatcher radioed him that the Greene
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County sheriff’s office had requested the assistance of the Carrollton police with an accident
west of Carrollton, on Illinois Highway 108. Lovel drove to the scene of the accident.
¶ 22 It had been raining off and on throughout the evening. It was a little muddy out, a
little slick. At the first set of “S” curves, Lovel saw a broken utility pole and drooping power
lines. After parking his squad car in a position that would warn eastbound drivers of the downed
power lines, he got out and began descending the embankment, toward a pickup truck, which had
come to rest in a field below.
¶ 23 He encountered defendant on the way down the embankment. Defendant “was
visually upset, frantically running about[,] and he *** came up the embankment screaming that
‘She needs help[!] She needs help[!] We need to get her to the hospital[!]’ ” The truck was
pointing away from Lovel, toward the south, and at first he did not see to whom defendant was
referring. Then defendant led him around the truck, to a woman lying on the ground, on her left
side, 10 to 15 feet from the driver’s side of the truck. Defendant told him it was Brandy
Gilbert—and, in fact, Lovel was acquainted with both her and defendant, having (in a
professional capacity) interacted with them on previous occasions. The right side of Gilbert’s
face was red and swollen, and she appeared to be bleeding from the right rear of her head. Her
hair was blood-soaked. Defendant lifted her arm, and it fell down limply when he released it.
¶ 24 Lovell called emergency medical services and the fire department. As he waited
for them to arrive, the wind picked up, and it began to rain, so he got a blanket out of his squad
car and covered Gilbert with it to keep her warm. Soon the paramedics arrived. Deputy Sheriff
Chris Weller also arrived. Lovel helped the paramedics carry Gilbert up the embankment and
into an ambulance. Defendant also was taken away in an ambulance, or so Lovel assumed (he
was concentrating on Gilbert).
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¶ 25 He never asked defendant what had happened or who had been the driver.
¶ 26 2. The Testimony of Chris Weller
¶ 27 On May 2, 2013, the dispatcher notified Weller of a single-vehicle crash that had
occurred about four miles west of Carrollton, “on the first set of ‘S’ curves.” Weller was 20 to 30
minutes away. Upon arriving, he saw fire trucks; ambulances; another police officer; a snapped
utility pole; power lines close to the ground; and “a black truck pointed south on the south side of
the road[,] in the field.” Two people were being loaded into ambulances. The ambulances left.
¶ 28 Weller walked down the embankment. He testified: “It was rainy. It was cool. It
was slippery. *** [The truck] had been hit on the passenger side, like on the passenger side
corner post.” Gilbert was the registered owner of the truck, or so Weller “believe[d].” (Actually,
it was undisputed that defendant was the registered owner of the truck. A 2013 Illinois
registration card found in the truck named him as the owner, and later in the trial, he testified he
was the registered owner.)
¶ 29 When a state trooper arrived at the scene, Weller went to Boyd Hospital to find
out the condition of the two occupants of the pickup truck. Gilbert was unconscious and in
critical condition, and she was going to be flown out. She had a “trauma or wound *** on the
right side of her head” and “lacerations *** on her right shoulder.” Defendant, however, was in a
condition to talk. When the state trooper, named Goodman, came to the hospital, he or Weller
read defendant his rights and asked him what had happened. Defendant explained what had
happened, including who the driver was. (When defense counsel, on cross-examination, asked
Weller what defendant’s answer was to the question of who had been the driver, the prosecutor
objected on the ground of hearsay, and the trial court sustained the objection.)
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¶ 30 Subsequently, Weller attended two further interviews of defendant. Defendant
was consistent in what he said in all the interviews. During one of the interviews, defendant
lifted up his shirt and showed “he had a mark on his chest.” Defense counsel asked Weller:
“Q. Did you, while you were standing there, being videotaped, make a
mark—make a hand signal across from his right shoulder to his lower hip and say,
‘Yeah, passenger seat restraint.’?
A. I don’t recall.
Q. Is it possible?
A. I don’t recall. That state—
Q. If it were videotaped, it would show, would it not?
A. Yeah, it would, but I don’t recall.
Q. Okay.
A. That’s been a long time ago. I don’t recall what I did.”
¶ 31 A couple of days after the accident, Weller also interviewed “a Ms. Stewart at
Moto Mart in Carrollton.” He asked her if she saw Gilbert the day of the accident. Stewart
replied that she had. According to Stewart, Gilbert stopped by the Moto Mart in the afternoon, to
get some cash with her debit card, but “[t]he debit machine was broke[n],” and she could not get
any cash. At the time, Gilbert “was driving the vehicle,” and nobody was with her. Gilbert
“always drove the vehicle to work,” Stewart told Weller.
¶ 32 3. The Testimony of Brandi Field
¶ 33 Brandi Field is a master trooper with the Illinois State Police. More specifically,
she is a crime scene investigator. A search warrant authorized her to search the persons of
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defendant and Gilbert; collect deoxyribonucleic acid (DNA), fingerprints, and handprints from
them; and search the pickup truck.
¶ 34 On May 4, 2013, she went to the Greene County sheriff’s office to meet with the
sheriff, to photograph defendant, and to take standards from him. Pursuant to the search warrant,
she took cheek swabs and a hair sample from him, and she obtained his fingerprints and palm
prints. She also took photographs of him. As shown by the photograph labeled People’s exhibit
A-5, his “left side [was], just under the nipple line[,] *** just a hair redder.” She saw nothing out
of the ordinary on his chest, shoulders, and back. On the back of his hands and on his forearms
were some small nicks or abrasions, evidently from the tiny cubes of broken glass that had flown
through the cab of the truck when the passenger window exploded. Between the eyebrow and
eyelid of his right eye, he had a small abrasion like a pinprick and some reddish discoloration.
¶ 35 Next, Field “went to where the vehicle was secured,” Pyatt Towing Company.
She described the exterior of the truck as follows:
“A. It was a black pickup truck with a gray interior. The significant
damage on the passenger side—looked like something underneath—undercarriage
and looked like it had been rolled[,] but the whole passenger side was just laid
open like a can opener. It was, um, the window was broken on the passenger side,
on that side. The other windows were intact. It looked like that damage had been
focused on that passenger side.”
¶ 36 She described the interior of the truck as follows:
“A. There was food, like carry-out food, strewn all in the passenger
floorboard. There was a cell phone in the floorboard of the passenger side, front.
There [were] items, personal items, in the back seat. *** [I]t was like a half-cab
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so there was a bunch of stuff stacked back there. But besides a lot of red, blood-
like substance, there was glass throughout the vehicle from the—it looked like
from the front passenger door and from that little side window behind the
passenger door that was broke[n] out.”
¶ 37 Field’s photographs are in the record. It appears, from these photographs, that the
passenger-side mirror is broken off. The passenger door—which, Field testified, would not
open—is dented, wavy, and scraped, starting from where the mirror used to be and going back.
From front to rear, the damage on the passenger side becomes progressively worse. The
extended-cab area, behind the passenger door, is more deeply bashed in, and the bed of the truck
on the passenger side has its skin peeled back. The leaf springs are knocked loose from the
passenger rear wheel.
¶ 38 It also appears, from these photographs, that the driver’s seat, the center console
(which is in the down position), the middle seatbelt, and the passenger’s seat are stained with
splotches of a red, blood-like substance. These red splotches appear to begin on the left half of
the passenger seat and to become bigger and more extensive in the area of the middle console
and on the driver’s seat. A red, blood-like substance appears to be thinly smeared and printed all
over the plastic end-part of the middle console, where a cup would be inserted, and kernels of
glass are down inside the cup receptacle. On the passenger floorboard, near the passenger door,
is a white Styrofoam container, which is split and muddy but appears to have no red stains on it.
Also on the passenger floorboard are some hamburger buns, which do not appear to be squashed
or bloodied. On the floor hump between the driver floorboard and the passenger floorboard are
two slices of white bread, a hamburger bun, and French fries, none of which appear to be
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squashed or bloodied. Strips of what appears to be grilled steak are also scattered among these
items, on the hump and the passenger floorboard.
¶ 39 People’s exhibit B-45 is a photograph of a 2013 Illinois registration card showing
defendant as the owner of this truck, a 1986 Ford pickup truck. People’s exhibit B-46 is a
photograph of his proof of insurance for the truck (the expiration date is September 22, 2012).
¶ 40 After looking at the truck; taking photographs; swabbing the red, blood-like
stains; and collecting long strands of hair, some of which was stuck to the driver’s-side
windshield, Field went to the hospital to look at Gilbert and collect samples from her. By the
time Field arrived at the hospital, Gilbert was brain-dead and was being prepared for organ
harvesting.
¶ 41 Field found a wooden fragment in Gilbert’s blood-matted hair and saw what
appeared to be little slivers of wood on her forehead. The injuries on her right side were quite
severe: she had “significant scratches and abrasions on the right shoulder,” and on the right side
of her head, lacerations were stapled together. “[T]hroughout the back of her neck and in front
and kind of on her chest,” she “had quite a bit of those little lacerations and stuff that you very
commonly see with broken glass, the cube glass that comes from *** those side windows during
crashes.” Her right ear was filled with blood and fluids. There were no visible injuries on the left
side of her head. There was a bruise, however, on her left thigh.
¶ 42 Field took photographs of Gilbert lying on a bed in the hospital. It appears, from
these photographs, that the shoulder wound consists of three, four, or five closely spaced
lacerations roughly parallel to one another, covered and held shut with a strip of transparent
medical tape. These lacerations are on top of the shoulder (that is, on the horizontal plane of the
shoulder), starting near the tip of the shoulder and extending toward the neck. The right side of
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her face and neck and her right shoulder near the base of her neck have many little nicks, or
dicing lacerations. She also appears to have these dicing lacerations on her upper right forehead,
where they are especially plentiful.
¶ 43 One photograph shows Field spreading the hair on the right side of Gilbert’s head
to reveal a Y-shaped fragment of wood sitting on top of blood. Also on the right side of her head,
about a couple of inches above her ear and a little to the front, just inside the hairline, is a
laceration stapled shut with four staples. Slightly to the left of that laceration is another
laceration, stapled shut with a single staple. A photograph shows blood pooled in her right ear
canal, and the ear looks raw and bruised above the canal. No injuries are visible in a photograph
of the left side of her face.
¶ 44 A report by a forensic scientist, Aaron Small, revealed that the blood samples
Field had collected from the floor between the driver’s seat and door, the driver’s side dash, the
driver’s seat, the middle console, and the passenger seat all tested as a DNA match for Gilbert.
¶ 45 On cross-examination, Field testified she noticed no abnormality in the steering
wheel; to her, it did not look bent. Although she had removed the cover from the steering wheel
to have the red, blood-like substance on the cover analyzed, it never was analyzed. There was
mud on the truck pedals but no actual footprint. Although the middle seatbelt, which Field had
cut loose and collected, was stained with a red, blood-like substance, there appeared to be
nothing significant on either of the other two seatbelts (i.e., the driver’s seatbelt and the right
passenger’s seatbelt).
¶ 46 4. The Testimony of Rob McMillen
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¶ 47 Rob McMillen, the Greene County sheriff, interviewed defendant on May 4,
2013, at the sheriff’s office and asked him to show any injuries or physical complaints.
Defendant lifted up his shirt, and McMillen photographed “some discoloration” “underneath the
left nipple area.”
¶ 48 Defense counsel asked McMillen:
“Q. Did you—[d]uring the interview, before that, or after the picture was
taken, did you and Deputy Weller—Weller trace the nature of the injury across
his chest, from left shoulder to right—right shoulder to left?
A. I believe so.
Q. And make a comment that could be a passenger seat restraint?
A. I don’t recall that.”
¶ 49 In the interview at the sheriff’s office, defendant denied he was the driver. Weller
reported that when he interviewed defendant earlier, in the hospital, defendant likewise denied he
was the driver. (The prosecutor elicited that testimony.)
¶ 50 Because the injuries to the right side of Gilbert’s body were so severe, however,
and because defendant’s injuries were, by contrast, mild, and because the impact had been on the
right side of the pickup truck, which seemingly corresponded with Gilbert’s right-sided injuries,
McMillen was skeptical that Gilbert had been the driver. Therefore, he telephoned crime scene
services at the Illinois State Police and requested help in determining occupant placement. As it
turned out, occupant placement was beyond the expertise of crime scene services, but a crime
scene investigator named LeMasters recommended a private contractor, Shigemura, as an
accident reconstructionist who was qualified to determine occupant placement. So, McMillen
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telephoned Shigemura, and the county hired him. At Shigemura’s request, McMillen sent him
“all evidence reports, anything [they] had so he [could] review it.”
¶ 51 5. The Testimony of Nathan S. Shigemura
¶ 52 In 1989, Shigemura began working as an accident reconstructionist for the
Illinois State Police. To become a certified reconstructionist for the state government, he had to
complete four courses totaling 200 hours, and he had to pass an examination.
¶ 53 Not only was he certified by the State of Illinois, but he also was accredited by an
international organization, the Accreditation Commission for Traffic Crash Reconstructionists.
He likewise had to pass an examination to obtain that accreditation.
¶ 54 Ever since his retirement from the Illinois State Police in 2002, Shigemura had
been working full-time as a private consultant in accident reconstruction. He had taught many
classes and had cowritten textbooks on the subject. He had reconstructed “hundreds and
hundreds” of crashes. He had testified as an expert in Montgomery, Macoupin, Greene, Jersey,
Sangamon, Menard, St. Clair, and Madison Counties, as well as in a couple of counties outside
Illinois.
¶ 55 In the fall of 2013, Greene County hired him to reconstruct the accident that had
occurred on Illinois Highway 108 and to determine the seating positions of the two occupants of
the truck, defendant and Gilbert, at the time of the accident. He reviewed the documentation,
including the medical records and the police reports. He looked at the pickup truck. He visited
the scene of the crash.
¶ 56 In his testimony, he described the scene of the crash and how the accident had
happened:
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“A. Well, the location, basically, was—it’s an east-west road, two-lanes,
[s]tate [r]oute, and the road, for an eastbound vehicle, the road curves to the left.
Once you enter the curve to the left, you go a little ways[,] and then the road
curves back to the right and heads by east again [sic]. In the initial curve for an
eastbound vehicle that curves to the left, the vehicle, in this particular crash, failed
to negotiate the curve fully and left the roadway to its right, went down an
embankment, went down in a grassy area for—a fair distance and struck a power
pole with the passenger side of the vehicle. The impact caused the power pole to
snap[,] and the vehicle rotated and came to rest several feet past the power pole.”
It was near the passenger-side mirror that the truck first made contact with utility pole,
Shigemura said. The truck then raked the pole along the passenger door until the pole snagged on
the rear door of the extended cab, causing the truck to rotate. The occupants and anything else
inside the cab of the truck would have been hurled toward the pole.
¶ 57 The passenger would have received more force than the driver, Shigemura
explained, because the passenger was closer to the impact. Similarly, the driver of a bus hit head-
on, in the front, would feel more of an impact than people sitting in the rear of the bus.
Shigemura inferred that the passenger in the pickup truck was unrestrained, because the webbing
of the passenger seatbelt did not have any blood on it and because glass cubes were down inside
the seatbelt buckle. “[I]f it was buckled, the glass pieces wouldn’t get down that far.”
¶ 58 Shigemura continued (referring to a diagram):
“The person sitting right here[,] [in the passenger seat,] sustained a lot of injury,
especially if that person was not wearing their seatbelt. And many times, for
example, in [a] 90-degree collision like this, even if you are wearing your seatbelt,
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many times it’s not going to go well for you because the impact zone is right
where you’re sitting. *** This person, the driver, will sustain less injury,
especially in the direction the driver is moving[,] because the driver is f[a]rther
away from the collision, f[a]rther away from the impact zone. The f[a]rther away
you are, the force, you feel less of the force. *** Now[,] I don’t say it’s
minimal[;] I’m just saying it gets less as you move away from the collision force.
[Gilbert] sustained significantly more severe injuries than [defendant] did.
She had cuts and dicing—dicing [is] little-bitty cuts on your skin, because as the
glass shatters, safety glass shatters into small, circular kind[s] of pieces, and as it
shatters, when it shatters, it blows out. I mean it just explodes[,] and flying glass
will cut you[,] and we get those characteristic cut patterns that we call ‘dicing’ on
the side of her face. You also see the—the severe injury and trauma to the head.
In some of the photographs, you saw a wood, a piece of wood in the scalp,
presumably from the pole itself because the pole is now intruding into the side of
the vehicle, the window is now shattered out[,] and she engages with the pole also
because the door panel is—is intruding into the passenger compartment and the
window is no longer there[,] so there’s no barrier between her and the pole now.”
¶ 59 The driver, Shigemura testified, would have been thrown toward the rear-view
mirror and perhaps would have clipped the steering wheel. And, indeed, according to Shigemura,
there was evidence that just this had happened, in that “[t]he bottom arc of the steering wheel
was bent forward” and defendant had a bruise on his left side, where, apparently, he had caught
the steering wheel with his body. Although Field testified the steering wheel had sustained no
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damage, Shigemura disagreed: he, too, had photographed the steering wheel, and even in the
photographs that Field had taken, he could see it was bent.
¶ 60 The prosecutor asked Shigemura:
“Q. So, based on your review of everything that you were provided by the
[s]heriff and your independent investigation of the scene and of the science that
you perform to do that, were you able to develop an opinion[,] with a relative [sic]
degree of scientific certainty[,] as to where the occupants were in the vehicle at
the time of the crash?
A. Yes.
Q. And what was the opinion?
A. I believe the female was the passenger at the time of the crash and the
male was the driver at the time of the crash.”
¶ 61 On cross-examination, defense counsel asked Shigemura the number of previous
felony cases in which he had been hired to determine which occupant of a vehicle was the driver.
Shigemura answered: “I don’t remember that particular topic being the specific focus of any
felony investigation.” He added, however, that although this was his “[f]irst trial case” in which
he had testified on occupant placement, it was not the first case in which he had determined
occupant placement (“just because I haven’t had a trial doesn’t mean I haven’t done this before,
many times”).
¶ 62 Shigemura admitted, on cross-examination, that the greatest impact was when the
utility pole snagged on the structural post behind the passenger seat. Nevertheless, he insisted:
“That doesn’t mean that [the sideswiping is] inconsequential. You [sideswipe] something, you
could get very good forces and very good intrusion[,] as we saw by looking at this particular
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vehicle.” It had to be borne in mind that the sheet metal of the passenger door was flexible.
Because sheet metal to some extent “pop[ped] back out” after it was hit, the collision in that area
“look[ed] more superficial”—but “[it was] not.” Although a greater impact was on the way, the
initial impact should not be discounted. The grass was wet, the treads on the rear tires of the
truck were not very good, and as the driver struggled to get back onto the road, the truck rotated
counterclockwise, “present[ing] that passenger side to the pole,” and “bam, hits it, shags, snap,
rotates, down.” “[T]he initial contact was penetrating enough and broke out the window enough
to allow the person sitting there to strike what’s right outside the window. You have the
horizontal striations on her shoulder that look like brushing up against a pole as in the—as where
the head strikes are occurring.”
¶ 63 Defendant, as the driver, could not have sustained the injury to his left side by
striking Gilbert, as the passenger, because the two of them would have moved parallel, in the
same direction, until they struck something. Also, if defendant had been sitting in the passenger
seat, he would have been “covered with cuts,” as Gilbert was, because the buckling of the
passenger door exploded the window of that door.
¶ 64 6. The Stipulation
¶ 65 The parties stipulated that (1) on May 2, 2013, a black Ford F-150 extended-cab
pickup truck was involved in an accident; (2) at the time of the accident, defendant had a blood
alcohol level above 0.08 per 100 milliliters of whole blood; and (3) the accident resulted in, and
was the proximate cause of, Gilbert’s death.
¶ 66 7. The Testimony of Suzanne Holmes
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¶ 67 The State rested, and the trial court denied defendant’s motion for a directed
verdict. The defense then called Suzanne Holmes as its first witness.
¶ 68 Holmes testified that, during the evening of May 2, 2013, she was working as a
cook at Thirsty’s Tavern in Eldred, Illinois, and that defendant came in with his fiancée, Gilbert.
The two of them were frequent patrons of the tavern, and in fact, Gilbert herself worked there
part-time. “They were celebrating [defendant’s] birthday, havin[g] a good time, cuttin[g] up.”
They were outside a lot with Holmes, in the kitchen (the kitchen was in a wire enclosure outside
the tavern).
¶ 69 When Gilbert and defendant were ready to leave, they ordered take-out food, as
they usually did. Holmes cooked the food and brought it into the tavern. Gilbert paid for the food
and, keys in hand, said: “ ‘I’m going to take his drunken ass home.’ ” Defendant was already
outside at that time—smoking, Holmes presumed. She did not see him and Gilbert get into the
truck; nor did she see them leave. Instead, she and her friends ran next door, through the pouring
rain, to the American Legion.
¶ 70 Four or five days after the accident, defendant came to Thirsty’s Tavern and
showed Holmes the bruises he had sustained in the accident.
¶ 71 8. The Testimony of Garry Hillis, Sr.
¶ 72 Defendant’s father, Garry Hillis, Sr., testified that, about three days after the
accident, defendant “was complaining about his ribs.” He had a “yellowish bruise mark ***
underneath his breast.”
¶ 73 9. The Testimony of Lela Groves
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¶ 74 The day after the accident, defendant’s aunt, Lela Groves, saw bruising on
defendant’s body. She did not see his chest, but she saw a red mark on the right side and
extending down toward the hip.
¶ 75 10. The Testimony of Ryan Baker
¶ 76 Ryan Baker, who described himself as defendant’s “very good friend,” testified
he saw “seatbelt marks” on defendant and that these marks became progressively more visible in
the days after the accident. He testified:
“A. They kept getting deeper and deeper, you know, like a bruise does,
you know. They start out kind of light. Then, you know, they just start settin[g] in.
They start turnin[g] yellow and dark purple and stuff.
Q. Sort of the rainbow?
A. Yeah, sort of like a rainbow.
Q. All right. So you say that you saw at [sic] him at least three or four
times?
A. Yeah.”
¶ 77 11. The Testimony of James Hall
¶ 78 James Hall is a traffic accident reconstructionist and the proprietor of J.W. Hall
and Associates, a business that does “forensic collision analysis.” To become an accident
reconstructionist, he took classes at various colleges. He began working as a reconstructionist for
the Illinois State Police in 1981, simultaneously starting his own private practice. He had
investigated around 600 accidents for the Illinois State Police. Since his retirement from there in
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1997, he had continued as an independent contractor, averaging about 50 cases a year. He also
had taught college courses in accident reconstruction. He had never testified in a felony case
before, but he had testified in civil cases.
¶ 79 The defense had hired him to determine which of the two occupants, defendant or
Gilbert, was driving the pickup truck at the time of the accident. To make that determination,
Hall inspected the truck, which was at a salvage yard; he went to the scene of the accident; and
he looked through the photographs, the police reports, and “the hospital reports.”
¶ 80 Illinois Highway 108, Hall testified, “was straight until there was a curve to the
left.” At the beginning of the curve, the truck went off to the right and toward the utility pole.
The truck sideswiped the utility pole on the right side, about a fourth of the way behind the front
edge of the passenger door, and then, keeping contact with the utility pole, the truck rotated
counterclockwise to a support pillar behind the passenger seat (the B pillar), where the
maximum, heavy impact and the deepest penetration occurred.
¶ 81 With the initial impact, the occupants would have moved only “slightly” to the
right, Hall explained (“some movement to the right but not [so] fantastic a movement”), because
it was, as of yet, only an oblique, sideswiping impact. The next impact, the impact of the B pillar
with the utility pole, was the major one and would have caused the most damage to the
occupants. They would have moved violently in the direction of that impact, toward the B pillar,
toward the right rear of the cab. Hall was unable to say whether the passenger had a seatbelt on,
but in any event, the passenger would have gone backward, into the padding of the passenger
seat, where the B pillar was.
¶ 82 The driver, if unrestrained, would have come out worse, Hall testified, because
the driver would have had “more running speed” than the passenger. The driver would have
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flown to the right, striking the middle console—which evidently was in the down position at the
time of the crash, judging by the blood on its surface and the lack of blood inside the console—
and would have struck the left side of the passenger, who, by contrast, would have had “only ***
a slight movement to the right,” since he “already [was] there.” Thus, Hall would expect the
passenger to have injuries on both the left side and the right side of the body: on the right side
from contact with the right rear of the cab and on the left side from being struck by the
unrestrained driver. (Hall assumed, from defendant’s account, that Gilbert was unrestrained,
because defendant stated he woke up in the passenger seat and saw her lying at his feet, on the
passenger floorboard.) But the injuries to the unrestrained driver would be greater, in Hall’s
opinion.
¶ 83 On cross-examination, the prosecutor asked Hall why Gilbert, compared with
defendant, had so many dicing injuries from the flying glass if, as Hall theorized, she was farther
away from the exploding passenger window. Hall answered that because defendant, as the
passenger, was pushed to the rear and to the right, most of the flying glass from the passenger
window bypassed him.
¶ 84 Having reviewed the medical reports, Hall was aware of the severe, fatal injuries
to the right side of Gilbert’s body, and in his report, he “acknowledged the importance of injury
patterns in determining *** who the driver was.” But he disagreed with Shigemura that the
injury patterns enabled one to say, to “a reasonable degree of accident[-]reconstruction
certainty,” that Gilbert was the passenger. In Hall’s view, it was impossible for any accident
reconstructionist to opine, to a reasonable degree of accident-reconstruction certainty, who the
driver was in this case—but he thought that Gilbert was the driver.
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¶ 85 He blamed the uncertainty partly on the police. By his understanding, out of all
the blood samples taken from the cab of the truck, the only blood tested was the smear of blood
on the dash, by the vehicle identification number—and it was Gilbert’s blood. Hall admitted,
though, that if defendant had dragged Gilbert from the passenger seat, he could have gotten her
blood on his hands and smeared it on the dash.
¶ 86 12. Defendant’s Testimony
¶ 87 Defendant testified that Gilbert had been his fiancée and that they had lived
together for three years.
¶ 88 On May 2, 2013, he got off work at 5:30 or 5:45 p.m. Gilbert took her children to
her mother’s house because she and defendant intended to go to Thirsty’s Tavern and celebrate
his birthday—and, besides, they always went to Thirsty’s Tavern on Thursday nights, for the
raffle drawing. They tarried a while at home, drinking beer, and then, around 6:15 or 6:30 p.m.,
they left Carrollton for Thirsty’s Tavern, in Eldred.
¶ 89 They went in the Ford F-150 pickup truck (the truck which, later that evening,
would strike the utility pole). Gilbert, exclusively, was the driver of the truck that entire evening,
and defendant was the passenger. Although the title was still in his name, she had been driving
the F-150 for six to eight months preceding the accident, and he had been driving a different
truck, a “[1997] Z71 extended[-]cab truck.” She drove the F-150 to work every day. “It was her
truck.” During those six to eight months, he drove the F-150 only “[o]ccasionally” and “not
much at all.” He did not drive it on May 2, 2013, and as of that date, it had been probably a
month since he last drove it.
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¶ 90 Before leaving Carrollton in the early evening of May 2, 2013, they pulled into
Moto Mart, and Gilbert parked the truck and went in to get cash and cigarettes while defendant
waited in the passenger seat. Then Gilbert drove them to Thirsty’s Tavern.
¶ 91 They were at the tavern from approximately 6:30 to 10:30 p.m. Defendant
“probably had 12 beers” and “4 or 5 shots.” That was, he admitted, “a lot of booze,” and he did
become “intoxicated.” He was sure he had more to drink that night than Gilbert.
¶ 92 When he and Gilbert were ready to go, they ordered take-out food from the beer-
garden grill, as was their custom. Holmes, the cook, brought in their food, and Gilbert paid for it.
Defendant went outside and smoked a cigarette, waiting on Gilbert. Holmes and Gilbert came
outside and talked for a while. He told Gilbert, “ ‘I’m goin[g] and getting[g] in the truck. ***
Come on.’ ” It was “pouring down rain,” and he climbed into the passenger seat of the F-150.
Two to five minutes later, Gilbert climbed into the driver’s seat, and they left Thirsty’s Tavern.
¶ 93 She drove east, took the Hillview blacktop, and then exited to Illinois Highway
108. Defendant testified:
“[A]fter Cole Hill[,] I fell asleep. I don’t remember nothing after that.
Q. What’s the next thing you remember?
A. Waking up.
Q. And describe to the jury what you observed and what—what happened.
A. Whenever I came to, we was—we was in a field[,] I could tell[,] and
Brandy was slumped over in the floorboard. And I shook her two or three times,
said, ‘Brandy, Brandy.’ She didn’t respond, didn’t respond at all.”
¶ 94 Gilbert was facedown on the passenger floorboard, defendant testified, and his
legs were pinned against the seat. He took his seatbelt off and tried to open the passenger door,
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pushing it with his arm, but it would not open. So, he climbed out through the driver’s door,
grabbed Gilbert by the hips and the pants, and, gripping the steering wheel with his other hand
and slipping and sliding and falling down in the mud, he managed to pull her over the
floorboards and out of the cab. “She wasn’t responsive at all[,] but she was gurgling on blood.”
He found his cell phone in the truck and brought the phone outside, but it was raining, and he
was having difficulty with water on the screen, so he went back into the truck and made a call.
Defense counsel asked:
“Q. All right. Do you remember who you called?
A. My mother was the first person I called because I didn’t know how to
get ahold of the police station and I know we’re not set up for 9-1-1.
Q. Did you have any luck contacting your mother?
A. No, I did not have no luck contacting my mother at all[,] so my next
step was, I know that we don’t have 9-1-1, but I thought if I call 9-1-1, surely it
would get to them and they can figure out where we’re at.
Q. Did you actually make contact with 9-1-1?
A. Yes, I did.
Q. And did you have a conversation with anybody?
A. Yes, I did.
Q. Basically, what did they say?
A. They said that—asked me where I was. I said, ‘I’m not for sure. We’re
along [Illinois Highway] 108.’ I said, ‘We’re along [Illinois Highway] 108 for
sure.’ I said, ‘I know that we were headin[g] back eastbound when we left.’ And
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they said that there was downed power lines so that’s probably where [it] was at,
is what the lady told me.”
Because of the downed power lines, the 911 dispatcher advised defendant to remain in the
vehicle and assured him that help was on the way.
¶ 95 Soon after defendant called 911, Lovel arrived. Defendant testified:
“A. I—I ran to him. I said, ‘I need help.’ I said, ‘She’s in bad shape.’ I
said, ‘You gotta help me.’ And he said to just calm down. He said, ‘Stay where
you are. There’s downed power lines,’ he said. He said, ‘So just stay there.’ He
said, ‘I’ll be there in a minute.’ So he got over to me[,] and he bent down[,] and
he said, ‘She’s breathin[g], Garry, She’s breathin[g]. Just calm down,’ he said.”
¶ 96 On cross-examination, defendant testified he always wore his seatbelt and that he
did not remember whether Gilbert wore her seatbelt on this occasion. “[A] lot of times she didn’t
wear her seatbelt,” he testified. The prosecutor asked him:
“Q. You never, if you always wear your seatbelt, you never harped on her,
I mean she’s the—your fiancé[e]. She’s raising these two kids that you care about.
You never asked her to, ‘Hey, please wear your seatbelt?’
A. That’s your choice if you want to wear your seatbelt, I feel.”
¶ 97 When further questioned by the prosecutor, defendant denied pulling Gilbert out
over the seats; he insisted he pulled her out over the passenger floorboard and the driver
floorboard.
¶ 98 Also, during its cross-examination of defendant, the State presented evidence that
he attempted to call his mother not once, but twice, before calling 911: his first call to her lasting
102 seconds and his second call to her lasting 80 seconds.
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¶ 99 On this evidence, the jury convicted defendant. The trial court later sentenced him
as stated.
¶ 100 II. ANALYSIS
¶ 101 A. Barring Earnshaw From Performing Accident Reconstruction
¶ 102 1. The Scope of the Trial Court’s Ruling
¶ 103 Defendant says in his reply brief: “It is important to note tha[t] not only was
specific testimony of [d]efendant’s medical expert pertaining to accident reconstruction
excluded, but that the medical expert was prevented entirely from testifying regarding matters
that are indisputably within his competency, such as injury analysis.”
¶ 104 The trial court’s order of April 9, 2015, says: “State motion to deny witness
granted”—but what did the court mean by “deny witness”? When interpreting an order of the
trial court, we interpret it “in a reasonable manner,” of course, “so as to give effect to the
apparent intention of the trial court.” Kiefer v. Rust-Oleum Corp., 394 Ill. App. 3d 485, 494
(2009). That means interpreting the order “from the entire context in which [it was] entered, with
reference to other parts of the record[,] including the pleadings, motions[,] and issues before the
court and the arguments of counsel.” Id. The context of the ruling “State motion to deny witness
granted” was the State’s “Motion in Limine No 2.” In that motion, the State requested the court
not to bar Earnshaw from testifying at all but, more narrowly, to bar him from “testifying as an
expert in matters regarding the reconstruction of the accident.” Therefore, it is unclear that “deny
witness” meant denying Earnshaw the right to testify at all regarding the injuries Gilbert and
defendant had suffered in the accident. It could be argued that, in context, “deny witness” meant
denying Earnshaw the opportunity to reconstruct the accident for the jury.
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¶ 105 In his opening oral argument, defendant’s appellate counsel remarked that, in
hindsight, his job would have been easier if trial counsel had requested the trial court to clarify
its ruling regarding Earnshaw. Recently, in People v. Daniels, 2016 IL App (4th) 140131, ¶ 72,
we held that insomuch as the trial court’s ruling on the defendant’s motion in limine was
ambiguous, the defendant, the appellant, should have sought clarification from the trial court so
that, on appeal, the record would be clear and guesswork would be unnecessary. We realize that,
in April 2015, when the trial court ruled on the motions in limine in the present case, Daniels did
not yet exist, but this holding in Daniels proceeds ineluctably from two related principles that
have been around for a long time.
¶ 106 The first principle is the presumption of regularity. “[A] presumption of regularity
*** attaches to the proceeding in the trial court,” and the appellant has the burden of rebutting
that presumption by showing, from the record, that an error did indeed occur. People v. Schomer,
64 Ill. App. 3d 440, 445-46 (1978). If it is unclear from the record that an error occurred—if, for
example, the order that the appellant challenges could reasonably be interpreted in either of two
ways, one of which would yield a correct ruling and the other an erroneous ruling—the
presumption of regularity is unrebutted.
¶ 107 The second, related principle is that the would-be appellant must make an
adequate record while in the trial court. A party who would appeal must ensure the record is
clear and ample enough to substantiate the claims of error he or she intends to raise in the appeal.
People v. Carter, 2015 IL 117709, ¶ 19; Foutch v. O’Bryant, 99 Ill. 2d 389, 392 (1984). Say, for
example, that a party appeals an order of the trial court but because the order contains ambiguous
language that the party never requested the trial court to clarify, we cannot tell if the order really
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is erroneous: that party, as the appellant, has failed to make a record adequate to support his or
her contention of error, and the ambiguity will be resolved against the appellant.
¶ 108 The cryptic language “deny witness,” taken in context, fails to convince us that
the trial court’s ruling regarding Earnshaw extended beyond accident reconstruction. We are
unconvinced that the court barred him from testifying to the injuries defendant and Gilbert had
suffered—matters that would have been, as defendant says, “indisputably within his
competency.” In short, the presumption of regularity is unrebutted in this respect, and we resolve
the ambiguity against defendant as the appellant. See Schomer, 64 Ill. App. 3d at 445-46.
¶ 109 2. Earnshaw Has Medical Experience But, Apparently,
No Experience in Traffic-Accident Reconstruction
¶ 110 Because Earnshaw practiced medicine in hospitals and in private practice, from
1974 to 2007, defendant disagrees with the State that Earnshaw lacks “ ‘training or job
experience in any area that is related to accident reconstruction.’ ” Defendant argues the trial
court should have denied the State’s “Motion in Limine No. 2.”
¶ 111 We scrutinize this ruling through the lens of a deferential standard of review, the
most deferential standard of review recognized by the law (People v. Hancock, 2014 IL App
(4th) 131069, ¶ 121). We will defer to the ruling on a motion in limine unless we find the ruling
to be an abuse of discretion. People v. Kirchner, 194 Ill. 2d 502, 539 (2000). Even if we
disagreed with the trial court’s ruling, our mere disagreement would not be enough to make the
ruling an abuse of discretion. Hancock, 2014 IL App (4th) 131069, ¶ 121. Rather, the ruling is an
abuse of discretion only if the court “acted arbitrarily, exceeded the bounds of reason, or ignored
or misapprehended the law.” (Internal quotation marks omitted.) Id.
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¶ 112 Given that definition of an “abuse of discretion,” we disagree the trial court
abused its discretion by deciding that the ability to determine the placement of people within a
motor vehicle at the time of a crash did not follow from the ability to diagnose and treat injuries.
The court was not required to find that just because Earnshaw was qualified to diagnose and
treat, say, a skull fracture sustained in a traffic accident, he was qualified to infer where the
patient was sitting in the vehicle at the time of the accident. A doctor in internal medicine is not,
ipso facto, a traffic-accident reconstructionist.
¶ 113 We agree with defendant that taking classes in accident reconstruction is not
necessarily the only way someone could acquire expertise in accident reconstruction. It is
theoretically possible that on-the-job “experience” also could impart such expertise. Ill. R. Evid.
702 (eff. Jan 1, 2011); Favia v. Ford Motor Co., 381 Ill. App. 3d 809, 816 (2008). The record
appears to contain no evidence, however, that Earnshaw’s on-the-job experience as a physician
specializing in internal medicine equipped him to opine who the driver was in this accident. He
never claimed, for example: “I have found, from taking the medical histories of numerous
victims of sideswiping passenger-side accidents, that the unrestrained driver typically suffers
catastrophic right-sided injuries comparable to those that Gilbert suffered, whereas the restrained
passenger typically suffers only minor injuries comparable to those that defendant suffered.” Cf.
id. at 818 (“[I]t was not fanciful, arbitrary[,] or unreasonable for the trial court to allow the police
[officers] to give causation testimony, based on their years of experience and real-world
expertise as accident investigators.”).
¶ 114 Granted, doctors are qualified to opine whether an injury is accident-related or
preexisting. We agree with defendant when he says: “Illinois case law is replete with physicians
who have testified, based on observation and experience, regarding their opinion of whether a
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claimant was injured [as a result of the accident in question].” Jackson v. Seib, 372 Ill. App. 3d
1061, 1073 (2007). Causation, however, was not even at issue in this case. The parties stipulated
that Gilbert’s fatal injuries were caused by the accident. Therefore, it was unnecessary for a
physician to take the stand and opine, as medical experts traditionally have done, whether the
injured person’s condition resulted from the accident or, alternatively, preexisted the accident.
See, e.g., id.; Ford v. Grizzle, 398 Ill. App. 3d 639, 649 (2010). The stipulation took the issue of
causation off the table. See People v. Woods, 214 Ill. 2d 455, 469 (2005).
¶ 115 Occupant placement was still on the table, but we are aware of no case holding
that an experienced physician, simply by virtue of being an experienced physician, can determine
occupant placement in a traffic accident. We are aware of no case holding that because a
physician is qualified to opine whether an injury resulted from a traffic accident, a physician is
qualified to opine whether the patient was the driver or the passenger. Therefore, we cannot say
that, in granting the State’s “Motion in Limine No. 2,” the trial court “ignored recognized
principles of law.” State Farm Fire & Casualty Co. v. Leverton, 314 Ill. App. 3d 1080, 1083
(2000). And without being informed specifically how the education and experience of a
physician specializing in internal medicine equips that physician to determine which of the two
occupants of a wrecked vehicle was the driver, we cannot characterize the ruling as “arbitrary” or
“unreasonable,” either. (Internal quotation marks omitted.) People v. Illgen, 145 Ill. 2d 353, 364
(1991). Determining who, of two occupants, was the driver in an accident is different from
determining whether an injury resulted from the accident. Thus, we find no abuse of discretion in
the granting of the State’s “Motion in Limine No. 2.”
¶ 116 3. The Alleged Violation of the Sixth and Fourteenth Amendments
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¶ 117 Defendant complains that by granting the State’s “Motion in Limine No. 2,” the
trial court deprived him of his right under the sixth and fourteenth amendments (U.S. Const.,
amends. VI, XIV) to present testimony in his own defense.
¶ 118 We disagree that the trial court’s ruling violated either of those constitutional
amendments. “The accused does not have an unfettered right to offer testimony that is
incompetent, privileged, or otherwise inadmissible under standard rules of evidence.” Taylor v.
Illinois, 484 U.S. 400, 410 (1988). “In the exercise of this right [to present witnesses in his own
defense], the accused, as is required of the State, must comply with established rules of
procedure and evidence designed to assure both fairness and reliability in the ascertainment of
guilt and innocence.” Chambers v. Mississippi, 410 U.S. 284, 302 (1973). Illinois Rule of
Evidence 702 (eff. Jan. 1, 2011) is a reasonable rule of evidence. It is not arbitrary. By requiring
that a witness be “qualified *** by knowledge, skill, experience, training, or education” to offer
proposed expert testimony (Ill. R. Evid. 702 (eff. Jan. 1, 2011)), Rule 702 aims to “assure both
fairness and reliability in the ascertainment of guilt and innocence” (Chambers, 410 U.S. at 302).
Therefore, the sixth and fourteenth amendments do not exempt defendant from the requirements
of Rule 702.
¶ 119 B. Allowing Shigemura To Rely on Injury Patterns
in His Determination of Occupant Placement
¶ 120 Defendant argues: “Shigemura *** does not possess the foundational medical
skills that would allow him to determine what fatal injuries are, how injuries compare with one
another, or comment about the relative severity of any injury and causation for certain injuries.”
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¶ 121 Actually, Shigemura did not have to determine that Gilbert had suffered fatal
injuries in the crash. The parties stipulated to that fact. The parties stipulated that “the accident
resulted in, and was the proximate cause of, Gilbert’s death.”
¶ 122 Surely, if Gilbert died of the injuries she sustained in the crash and if defendant,
by contrast, was released from the hospital the next day, you would not need medical training to
perceive that her injuries were more severe than his injuries.
¶ 123 Shigemura went on to opine that because Gilbert sustained more severe injuries
than defendant, she must have been closer to the point of impact, i.e., she must have been in the
passenger seat rather than in the driver’s seat. Defendant argues that, without medical training,
Shigemura was unqualified to offer that opinion. He argues that an accident reconstructionist
lacking medical training is unqualified to correlate occupant placement with the injury patterns
documented in medical records.
¶ 124 Actually, Shigemura’s testimony fell within the realm of physics, not medicine.
He could have done essentially the same analysis if the two occupants of the pickup truck had
been crash dummies in a simulated right-sided collision. He could have opined that crash dummy
No. 2 must have been the passenger because it had severe damage on its right side, compared to
crash dummy No. 1, which had little damage.
¶ 125 A traffic-accident reconstructionist has written:
“When damage occurs within a vehicle, this, along with occupant injuries, can
often answer such questions as who was driving and whether occupants wore lap
belts or shoulder harnesses.
The laws of physics assist the reconstructionist in examining the issue of
‘who was driving.’ When unrestrained drivers and passengers ride in a vehicle
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that hits some object, the occupant kinematics often offer solutions to the
perplexing dilemma of deciding who was driving and who was not.
A typical case has two people in a vehicle that runs off the road and into a
tree. When the police arrive, there is one dead body in the car and one inebriated
fellow sitting on the edge of the road. The vehicle belongs to the alcohol-
influenced individual, and witnesses will state they last saw him driving away
from the local watering hole. But chances are he will advise police that he and the
decedent swapped places down the road and that he, the drunk, was asleep when
the accident happened.
A careful examination of the vehicle, the location of damage, and the
direction of force, plus the position of the deceased and the nature of the bodily
injuries may confirm or rule out the possibility or probability that that person was
driving. ***
*** [T]he reconstructionist may want to discuss occupant injuries with the
pathologist, attending physician, or coroner. The location and nature of injuries to
individuals can be matched with damage to vehicle interiors.” Joseph E. Badger,
Reconstruction of Traffic Accidents, in 9 Am. Jur. Proof of Facts 3d 115, § 15, at
153 (1990).
¶ 126 Note that, in this quoted passage, the traffic-accident reconstructionist is not the
one who diagnoses the injuries. Rather, he or she obtains that diagnosis from physicians and
other qualified medical personnel, as Shigemura did in the present case by reading the medical
records.
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¶ 127 It is true that Shigemura also looked at photographs of the occupants’ injuries, but
when doing that, he could just as well have been looking at photographs of the damage inflicted
on inanimate objects that were in the cab of the truck at the time of the accident—such as crash
dummies. In sum, we conclude that Shigemura stayed within the realm of accident
reconstruction and out of the realm of medicine—or, more precisely, for purposes of our
standard of review, the trial court reasonably concluded he did so—and thus, we find no abuse of
discretion in the denial of defendant’s motion in limine. See People v. Williams, 188 Ill. 2d 365,
369 (1999).
¶ 128 C. Proof, Beyond a Reasonable Doubt,
That Defendant Was the Driver
¶ 129 To find defendant guilty of aggravated driving under the influence of alcohol (625
ILCS 5/11-501(d)(1)(F) (West 2012)), the jury had to find, among other elements, that he was
driving the Ford F-150 pickup truck at the time of the accident. Defendant argues that, as a
matter of law, the evidence in support of that element fails to satisfy the standard of proof
beyond a reasonable doubt.
¶ 130 Defendant acknowledges that, on appeal, we should view all the trial evidence in
the light most favorable to the prosecution and decide whether any rational trier of fact could
find, beyond a reasonable doubt, that defendant was the driver. See People v. Cunningham, 212
Ill. 2d 274, 278 (2004). For essentially five reasons, he regards the evidence as unsatisfactory
with respect to that element of the offense.
¶ 131 First, no eyewitness testified he was the driver, just as in People v. Jefferson, 1 Ill.
App. 3d 484 (1971), and People v. Ammons, 103 Ill. App. 2d 441 (1968), no eyewitness testified
that the defendants were the drivers—and in those cases, the appellate court reversed the
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convictions of driving under the influence (Jefferson, 1 Ill. App. 3d at 486-87; Ammons, 103 Ill.
App. 2d at 445). The facts in Jefferson and Ammons, however, are not the facts in the present
case. Jefferson and Ammons are distinguishable if only because, in both of those cases, an
eyewitness testified that he or she, rather than the defendant, actually was the driver at the time
of the charged offenses. In Jefferson, Verna Malone testified that she, rather than the defendant,
was driving the car when it skidded into a post. Jefferson, 1 Ill. App. 3d at 485. Similarly, in
Ammons, a “witness named Wright” testified that he, rather than the defendant, executed the
passing maneuver that prompted the traffic stop. Ammons, 103 Ill. App. 2d at 444. In the present
case, by contrast, no eyewitness (other than defendant) testified to seeing who was in the driver’s
seat when the pickup truck left the parking lot of Thirsty’s Tavern. True, by the same token, no
eyewitness testified to seeing defendant driving—but as defendant admits, the identity of a driver
can be proved by circumstantial evidence. See People v. Lurz, 379 Ill. App. 3d 958, 969 (2008).
¶ 132 Second, defendant argues that the testimony of his family members and the
photographs in the record prove he was bruised from the passenger seatbelt, thereby
corroborating his testimony that he was the passenger rather than the driver. The passenger
seatbelt would have gone diagonally across defendant’s torso, from the right shoulder to the left
hip. Garry Hillis, Sr., never testified to seeing a diagonal bruise from defendant’s right shoulder
to his left hip. Instead, he testified to seeing a “yellowish bruise mark *** underneath his breast.”
Likewise, the photographs show no diagonal bruise but merely a faint area of redness under his
left breast. (And, we might add, it is unclear how defendant, as a passenger, would have been
bruised diagonally from the shoulder strap if, as Hall opined, the passenger would have been
thrown to the right rear—seemingly away from the shoulder strap.) Lela Grove testified she saw
a red mark on defendant’s right side and extending down toward his hip. Arguably, a bruise in
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that position would be more suggestive of a driver’s seatbelt than a passenger’s seatbelt. Ryan
Baker testified to seeing “seatbelt marks,” but he did not specify their location.
¶ 133 Third, defendant notes what Stewart told Weller: Gilbert drove to the Moto Mart
the afternoon of the accident and tried to get some cash from the “debit machine.” Even if
Gilbert drove in the afternoon, however, it does not necessarily follow that she was the driver
that evening. Also, we note a possible contradiction between her statement and defendant’s
testimony: Stewart told Weller that Gilbert was alone when she stopped by Moto Mart, whereas
defendant testified he was with Gilbert.
¶ 134 Fourth, defendant argues that Hall’s testimony corroborates his testimony that he
was the passenger and Gilbert was the driver. But a reasonable trier of fact could have believed
Shigemura over Hall. “It is for the trier of fact to evaluate the expert testimonies and weigh their
relative worth in context. [Citation.] When the expert testimonies offer divergent conclusions,
the jury is entitled to believe one expert over the other.” (Internal quotation marks omitted.)
People v. Sims, 374 Ill. App. 3d 231, 251 (2007). Defendant says: “The fact that James Hall’s
conclusion contradicted Nathan Shigemura’s testimony tends to weaken Shigemura’s opinion.”
Not necessarily. Insomuch as Hall’s testimony contradicted Shigemura’s testimony, the jury
could have found Hall’s testimony to be unconvincing: the jury could have decided that
Shigemura was right and that Hall was mistaken. See id. After all, there is commonsensical
appeal to the idea that, in a sideswiping collision on the passenger side, the occupant with the
severe right-sided injuries and the extensive dicing lacerations was the passenger, as opposed to
the occupant who suffered relatively minor injuries and fewer dicing lacerations. See Parks v.
Fuller, 111 S.E.2d 755, 765 (Ga. Ct. App. 1959). Judging from the photographs admitted in
evidence, the injuries that Gilbert sustained do not look like the type of injuries one would expect
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to receive from being hurled into the soft body of a passenger. Rather, she looks as if she hit a
utility pole with her right shoulder and the right side of her head. According to Shigemura’s
testimony, the passenger would have “engaged with” the utility pole, through the exploding
window, as soon as the truck slid diagonally into the utility pole.
¶ 135 Fifth, defendant argues: “Additionally significant is the fact that Brandy Gilbert
owned the vehicle.” Citing People v. Kizer, 365 Ill. App. 3d 949, 962 (2006), he notes: “It has
been recognized in DUI cases that when the identity of the driver is unknown, the jury may infer
that the owner of the vehicle was driving.” Actually, it appears that defendant was the registered
owner of the Ford F-150 truck, the truck involved in the accident. People’s exhibit No. 45 is a
photograph of a 2013 Illinois registration identification card found in the truck, and the
registration card has defendant’s name on it. The license-plate number on the registration card,
1138851, matches the license-plate number on the truck, as shown in People’s exhibit No. 7.
Defendant even testified he was the registered owner. It would be possible for a rational trier of
fact to find that defendant was the owner of the F-150 truck. And to quote defendant’s own
argument, such a trier of fact “may infer that the owner of the vehicle was driving.”
¶ 136 To be sure, defendant testified that Gilbert, rather than he, was the driver; but the
jury did not have to believe him. “[I]t is not our role to reweigh the evidence received by the
jury, but rather to determine whether any rational trier of fact could have found the elements of
the crime beyond a reasonable doubt.” People v. Purdle, 212 Ill. App. 3d 594, 597 (1991). A
rational jury could have found, beyond a reasonable doubt, that defendant was the driver.
¶ 137 III. CONCLUSION
¶ 138 For the foregoing reasons, we affirm the trial court’s judgment. We assess $75 in
costs against defendant.
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¶ 139 Affirmed.
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People v. Hillis
Court: Appellate Court of Illinois
Date filed: 2016-09-28
Citations: 2016 IL App (4th) 150703, 65 N.E.3d 357
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