People v. McCracken

• Decision Date: 17 February 1989
• Docket Number: No. 87-0994,87-0994
• Citation: 179 Ill.App.3d 976,535 N.E.2d 36,128 Ill.Dec. 822
• Parties: , 128 Ill.Dec. 822 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Dale Patrick McCRACKEN, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 36

535 N.E.2d 36

179 Ill.App.3d 976, 128 Ill.Dec. 822

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Dale Patrick McCRACKEN, Defendant-Appellant.

No. 87-0994.

Appellate Court of Illinois First District, Fifth Division.

Feb. 17, 1989.

John Thomas Moran, The Law Offices of John Thomas Moran, Chicago, for defendant-appellant.

Richard M. Daley, State's Atty. of Cook County, Chicago (Inge Fryklund, Lynda A. Peters, Asst. State's Attys., of counsel), for plaintiff-appellee.

Justice COCCIA delivered the opinion of the court:

The defendant Dale Patrick McCracken was tried by the court without a jury. He was convicted of leaving the scene of an accident involving personal injuries, in violation of the Illinois Vehicle Code. (Ill.Rev.Stat.1985, ch. 95 1/2, par. 11-401(a).) We are of the opinion that there was sufficient evidence admitted below to support McCracken's conviction, and accordingly affirm the trial court's judgment.

McCracken was charged by complaint with the offenses of leaving the scene of an accident involving personal injuries, and failure to yield the right-of-way to a pedestrian. A third charge of drunken driving was dropped prior to trial. Trial was held on September 12, 1986, and September 15, 1986. Immediately prior to trial, however, the judge realized that he personally, and currently, was being represented by an attorney who was associated with defense counsel's law firm. The judge disclosed this fact in open court. He offered to recuse himself to the prosecution who declined his offer. Although defendant McCracken's attorney was present, he did not ask for recusal of the judge, or object to the offer made by the judge to the assistant State's Attorney.

The trial commenced with Susan Cipich, the complaining witness, testifying that on or about 9:30 p.m. on the evening of December 3, 1985, she left Loop College in the company of her math instructor, Paul Reichel. Reichel walked Cipich to her car, which was parked along Upper Wacker Drive and she, in turn, drove him to his car, which was parked along Lower Wacker Drive, in what is known as a service or access lane. Cipich parked next to Reichel's car. They remained in her car, talking for approximately 30 to 45 minutes. She then exited her car on the driver's side, in order to retrieve Reichel's briefcase from her trunk. While standing near the trunk of her car, she was struck by McCracken's car, sustaining serious injuries to her legs. As a result of impact, she was thrown under a nearby car. During this experience she heard the sound of screeching tires and a car pulling away.

Paul Reichel testified that as Cipich exited her car on the driver's side, he got out of the passenger's side. It was then that he heard the sound of tires screeching, looked and saw a car coming towards them at a high rate of speed, out of control, and swerving down the service lane. The approaching car, driven by McCracken, hit the rear bumper of Reichel's car, which was parked immediately west of Cipich's car, and then struck Cipich, pinning her legs against her car. McCracken's car did not stop after striking Cipich; instead, it raced off down the service lane.

Officer Lawrence Dolehide of the Chicago Police Department testified that at approximately 11 p.m. on the night of December 3, 1985, he was on his way back to his office, still in uniform, and driving his own vehicle eastbound along Lower Wacker Drive. As he did so he observed an eastbound, late model Pontiac in the main lanes of Lower Wacker Drive, three or four car lengths in front of him. As he approached Garvey Court, the Pontiac made an abrupt right turn and then an abrupt left turn into the eastbound service lanes. Officer Dolehide continued in the regular lanes, which run parallel to the service lanes. There was room for a car to drive through the service lane area without striking parked cars. He believed that the posted speed limit was 15 miles per hour at this point for local service lane traffic. However, the Pontiac, while in the service lane, had accelerated to 30 miles per hour, drove through a large puddle of water, lost control, and began fishtailing. The Pontiac then struck a pedestrian (Cipich), slid and then came to a stop at an angle, about 30 feet from the site of the collision. Someone in the back seat of the Pontiac turned around to observe the scene. One or two seconds after stopping, the Pontiac made a left turn, drove over a concrete abutment, and came out in front of Officer Dolehide's eastbound car. The Pontiac then "took off." There were no other cars or pedestrians in the vicinity. Officer Dolehide pursued the Pontiac, flashing his headlights, sounding his horn, and accelerating to 30 or 35 miles per hour in an effort to catch up to the Pontiac. The Pontiac stopped around lower Michigan Avenue, approximately two or two and one-half blocks east of the point of collision. Officer Dolehide informed the driver (McCracken) that he had struck a pedestrian and ordered him back to the scene of the accident. Officer Dolehide followed the driver back to the scene.

Officer Russell Ryan of the Chicago Police Department testified that about 10:45 p.m. on the date in question he was assigned to investigate an accident with injuries. Officer Ryan placed McCracken under arrest. The prosecution rested its case in chief after Officer Ryan's testimony, and McCracken moved for a directed finding of not guilty on both charges. The trial judge denied the motion.

Alice Markovic testified for the defense. She and McCracken worked for the same employer. She and Patricia True arrived at the Marquette Inn after work at about 5:30 p.m. on the night in question, where she consumed two glasses of wine. McCracken joined them around 6:30 p.m. McCracken, Markovic, and True left the Marquette Inn about 7 p.m., in order to look at the Christmas Tree in Daley Plaza and the window displays along State Street. At approximately 8:30 p.m., they went to the City Tavern, where Markovic had coffee, McCracken had a beer, and True had a glass of wine. They departed about 9:15 p.m. and proceeded to 101 North Wacker Drive. McCracken's company car was parked in the basement of that building, and he offered to drive the women home. They reached McCracken's car around 9:45 p.m. Markovic sat in the back seat, McCracken drove, and True was in the front passenger seat. They proceeded north and then east along Lower Wacker Drive. After entering the access or service lane, they came upon an icy spot or puddle, struck something, spun around, and went over the median strip into the express lane. Markovic did not see a pedestrian. Once McCracken regained control of his car, he continued east to a point where he could turn around and come back to the site. There was no opportunity to turn around for at least one or one and one-half blocks from the point of impact. Markovic was aware that there had been a collision with some object. She testified that McCracken did not stop before proceeding over the abutment. When the police officer caught up with them, McCracken had his turn signal on in order to come back west to the point of contact. There was no other reasonable place to turn around or stop the vehicle.

On cross-examination, Markovic admitted that there were no moving cars in front of them on the service road. Markovic denied that she and True were laughing when they spoke with Officer Ryan upon returning to the scene of the accident. McCracken's counsel did not object to the prosecution's question that elicited Markovic's denial of laughter. In response to a question by the trial judge, Markovic conceded that at all relevant times of this incident traffic was light.

Patricia True testified that on and prior to this date she worked with Markovic and McCracken. True had wine at the Marquette Inn and McCracken had a beer. At the City Tavern, she had a glass of wine that she did not finish, and McCracken had a beer which he did not finish. When they were in his car heading east on Lower Wacker Drive, she was turned around, facing the back seat, and talking with Markovic. The car hit a bump and began to slide, they hit something, and the car went over the median. At the time of collision True did not know that they had hit a human being. After crossing the median strip, they were discussing the fact that they hit something and were trying to figure out where to turn around. They travelled one-half block before meeting up with the police officer. They were already stopped at the next light waiting to turn left in order to return to the scene of the accident.

On cross-examination, True testified that she did not recall how much wine she had consumed at the Marquette Inn. She did not see what McCracken struck with his car, although she knew that he did strike something. It sounded as if they had struck a trash container. True denied that she was laughing when they returned to the accident site. Again, McCracken's attorney did not object to the prosecution's question that prompted True's denial.

McCracken testified that he had two beers at the Marquette Inn. He had another beer at the City Tavern, after looking at the Christmas displays. He, Markovic, and True then picked up his car, and entered Lower Wacker Drive. McCracken turned into the access lane or service lane of eastbound Lower Wacker Drive after passing Post Place. While in the process of accelerating, he hit some ice and a large hole, started skidding and fishtailing, and struck something. He jumped the barrier and came close to hitting the columns separating the eastbound and westbound express lanes. After jumping the abutment, McCracken hit his head on the roof of the car. While he was in the process of straightening his car out and stopping, someone said that they thought he had hit a dumpster. He was dazed and confused. He did not see a person in the service lane prior to the collision, and he did not realize that he had struck...