People v. Tracy

No. 3--96--0997
_________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 1997
_________________________________________________________________

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 13th Judicial Circuit,
) La Salle County, Illinois
Plaintiff-Appellee, )
)
v. ) No. 96--TR--4336
)
SHELLY R. TRACY, ) Honorable
) William Balestri,
Defendant-Appellant. ) Judge Presiding
_________________________________________________________________

JUSTICE McCUSKEY delivered the opinion of the court:
_________________________________________________________________

Following a jury trial, the defendant, Shelly R. Tracy, was
convicted of passing a school bus which was stopped for the purpose
of receiving or discharging pupils (625 ILCS 5/11--1414(a) (West
1996)). She was fined $150 and appeals her conviction.
On appeal, the defendant argues that: (1) the trial court
should have appointed a special prosecutor because Stephen R. Paul,
an assistant State's Attorney, testified at the defendant's trial;
(2) the trial court should have suppressed a statement the
defendant made to Paul; (3) the State failed to prove the corpus
delicti of the crime; (4) the evidence was not sufficient to prove
the defendant guilty beyond a reasonable doubt; (5) the defendant
was denied her right to a fair trial because the trial court
prevented her from presenting evidence to show Paul's bias against
her; (6) the trial court failed to properly instruct the jury; and
(7) section 11--1414 of the Illinois Rules of the Road (Rules of
the Road) (625 ILCS 5/11--1414 (West 1996)) is unconstitutional, or
unconstitutional as applied to her.
Following our careful review of the record, we find no merit
to any of the defendant's contentions and affirm.
FACTS
Donald Olson is the president of Olson Bus Service,
Incorporated. On October 31, 1995, Olson was driving a school bus
as a substitute for the regular bus driver. At 3:20 p.m., Olson
was picking up students at Seneca Grade School to take them home.
The bus he was driving was third in a line of seven buses which
were parked on a public street by the school. The buses had their
eight-way lights on, stop arms out, and the flashing lights on the
stop arms were working properly. All the lights on Olson's bus
were in proper working order and functioning on the day in
question. Olson saw a white Nova drive by the school buses. The
license plate number on the car was YDF 711. Olson could not see
who was driving the Nova or how many persons were in the car.
After the Nova passed his bus, Olson used his cellular telephone to
alert the Seneca police department.
George Lamboley, an officer with the Seneca police department,
received a call from the dispatcher regarding a white car passing
school buses. Lamboley asked the dispatcher to run the vehicle's
license plate number. The dispatcher informed the officer that the
car was registered to Lori Tracy. Olson later signed a traffic
citation against Lori Tracy. The citation was mailed to the home
address listed for Lori Tracy.
The first appearance date on the citation was December 6,
1995. On that date, Stephen R. Paul, an assistant State's
Attorney, called Lori's name in the courtroom. William Tracy,
Lori's father, and the defendant, Lori's mother, approached Paul
after they heard him call Lori's name. Lori's parents told Paul
that Lori was not coming because she lived in Chicago. According
to Paul, the defendant then told him that it was not right that
Lori had been charged with the offense because the defendant was
the person who passed the school buses. Subsequently, on February
28, 1996, the trial court granted the State's motion to enter a
nolle prosequi order and dismissed the charge against Lori with
leave to reinstate. On April 3, 1996, the defendant was charged
with committing the offense of passing a school bus.
On April 22, 1996, the defendant filed a motion for discovery.
The State's answer stated that its trial witnesses would be Olson
and Officer Lamboley. The answer was signed by Assistant State's
Attorney Paul. On July 3, 1996, the State filed an amended answer
to the discovery request. This answer listed Paul as a witness and
was signed by another assistant State's Attorney, Niels F.
Bringsjord. The defendant then filed a motion to suppress her
statements to Paul. This motion was denied on August 14, 1996,
following a hearing. On August 30, 1996, the defendant filed a
motion seeking the appointment of a special prosecutor because Paul
was going to testify as a witness. The trial judge noted that it
was within his discretion to appoint a special prosecutor. The
judge determined that a special prosecutor was not warranted in
this case because Paul was not the complaining witness.
A jury trial was held on September 17, 1996. Bringsjord
prosecuted the case. Olson and Officer Lamboley testified
regarding the occurrence, and Paul testified about the defendant's
statement. Paul told the jury that he was an assistant State's
Attorney and worked with Bringsjord. He testified that he
dismissed the charge against Lori after the defendant made her
statement to him on December 6, 1995. He said that he was not
assigned to prosecute the defendant's case. The trial court
sustained the State's objections to the defendant's questions on
cross-examination regarding Paul's involvement as a prosecutor in
the defendant's case. However, the original answer to the
defendant's discovery request, which was signed by Paul, was
admitted into evidence over the State's objection.
The defendant denied telling Paul that she passed the school
buses. She said that she had never in her life "passed a school
bus that was loading with the arms out and the lights flashing."
During cross-examination by the State, the defendant testified that
she was working as a teacher at the Seneca Grade School. She
testified she was teaching at the school on October 31, 1995. She
said she drove one of the five cars her family owned to school that
day. However, she said she didn't know which one she drove. She
testified the bell rings at 3:16 p.m. for dismissal, but she does
not get out of school until 10 or 15 minutes after the bell rings.
She did admit talking to Paul on December 6, 1995.
The jury began deliberations and sent the judge a note asking:
"What date were the charges against Lori Tracy officially dropped
[and] Shelly charged with the charge of passing a stopped school
bus?" The trial judge denied the defendant's request that the jury
be instructed that the charge against Lori had not been officially
dismissed. The judge wrote back to the jury that it was to "decide
the case based on the evidence presented in court and my
instructions on the law." The jury found the defendant guilty, and
the court imposed a fine of $150. The defendant's post-trial
motion was denied, and this timely appeal followed.
ANALYSIS
CRIME CHARGED
Section 11--1414(a) of the Rules of the Road provides that the
driver of a vehicle must stop before meeting or overtaking a school
bus stopped for the purpose of receiving or discharging pupils.
625 ILCS 5/11--1414(a) (West 1996). The section also states that
the school bus is required to have its signal arm extended and its
red signal lamps flashing when it is stopped to load or discharge
pupils. 625 ILCS 5/11--1414(b),(c) (West 1996). A person
convicted of violating subsection (a) is subject to a three-month
suspension of driving privileges and a mandatory $150 fine. 625
ILCS 5/11--1414(f) (West 1996). Section 11--1414(f) provides the
owner of a vehicle alleged to have violated subsection (a) may be
required to identify the operator of the vehicle. 625 ILCS 5/11--
1414(f) (West 1996).
ISSUES RAISED
I. Special Prosecutor
The defendant initially claims that a special prosecutor
should have been appointed because Paul, an assistant State's
Attorney, testified as a prosecution witness. We disagree.
A special prosecutor should be appointed where the State's
Attorney is "interested" in the cause or proceeding. 55 ILCS 5/3--
9008 (West 1996). A State's Attorney is "interested" for purposes
of the statute only where he is interested as a private individual,
or his office is a party to the action. People v. Morley, 287 Ill.
App. 3d 499, 504, 678 N.E.2d 1235, 1237 (1997); People v. Dall, 207
Ill. App. 3d 508, 530, 565 N.E.2d 1360, 1373 (1991). The decision
whether to appoint a special prosecutor rests with the discretion
of the trial court. Morley, 287 Ill. App. 3d at 504, 678 N.E.2d at
1237. In Morley, the court stated that a special prosecutor is not
required where a witness is employed by a State, county or local
agency, including the State's Attorney's office. Morley, 287 Ill.
App. 3d at 505, 678 N.E.2d at 1238.
Further, in Sommer v. Goetze, 102 Ill. App. 3d 117, 120, 429 N.E.2d 901, 903 (1981), the case primarily relied upon by the
defendant, this court held that the trial court abused its
discretion when it did not appoint a special prosecutor where "the
assistant State's Attorney was the complainant and key eyewitness."
(Emphasis added.) Here, in the case at hand, the trial court
specifically recognized that Sommer was distinguishable because
Paul was not the complaining witness. Accordingly, we find that
the trial court did not abuse its discretion when it refused to
appoint a special prosecutor.
II. Motion to Suppress Statements
The defendant next argues that the trial court should have
granted her motion to suppress the statement she made to Assistant
State's Attorney Paul. The defendant claims that the statement
should have been suppressed because: (1) it was made as part of
plea negotiations and was not admissible pursuant to Supreme Court
Rule 402(f) (134 Ill. 2d R. 402(f)); and (2) she was not advised of
her Miranda rights prior to making the statement. We disagree with
both contentions.
In ruling on the defendant's motion to suppress, the trial
court noted that the situation in this case was highly unusual.
Here, the defendant appeared at a first return date for a charge
against her daughter. She and her husband approached Paul and told
him that their daughter was not there because she lived in Chicago.
The defendant then voluntarily told Paul that it was not right that
her daughter had been charged because she was the person who passed
the school buses. The trial court noted that the defendant had not
been charged prior to making her statement. The court also
specifically found that the defendant's comment was not elicited by
Paul.
Supreme Court Rule 402(f) provides: "[i]f a plea discussion
does not result in a plea of guilty ***, neither the plea
discussion nor any resulting agreement, plea, or judgment shall be
admissible against the defendant in any criminal proceeding." 134
Ill. 2d R. 402(f). The defendant's voluntary and spontaneous
statement regarding a charge against her daughter was clearly not
part of a plea discussion. At the time the statement was made, the
defendant had not been accused of any crime and did not have a
reasonable expectation of negotiating a plea. See People v.
Ramirez, 244 Ill. App. 3d 136, 146, 613 N.E.2d 1116, 1123 (1993)
(statement is made during the course of a plea discussion only
where the accused exhibited a subjective expectation to negotiate
a plea and the expectation was reasonable under the totality of
objective circumstances). Accordingly, we find that Supreme Court
Rule 402(f) does not apply in this case.
Moreover, statements which are voluntarily made are admissible
at trial. See People v. Melock, 149 Ill. 2d 423, 447, 599 N.E.2d 941, 951 (1992). A person's entitlement to Miranda warnings is
triggered only when she is subjected to custodial interrogation or
otherwise deprived of her freedom in any significant way. Miranda
v. Arizona, 384 U.S. 436, 444, 16 L. Ed. 2d 694, 706, 86 S. Ct. 1602, 1612 (1966); Melock, 149 Ill. 2d at 439, 599 N.E.2d at 948.
Here, we find in this case, that the defendant was obviously not
subjected to custodial interrogation, nor was she deprived of her
freedom in any way. Accordingly, there is absolutely no merit to
the defendant's claim that she should have been warned that
anything she said could be used against her later in a court of
law. After reviewing the record, we conclude that the trial court
properly found there was no basis for suppressing the defendant's
statement.
III. Corpus delicti
Based on People v. Furby, 138 Ill. 2d 434, 563 N.E.2d 421
(1990), the defendant argues that the State did not prove the
corpus delicti of the case because no witness saw the defendant
driving the car which passed the school buses. Again, we disagree
with the defendant's argument.
In Furby, our supreme court reaffirmed its position that proof
of the corpus delicti of a crime may not rest exclusively on a
defendant's extrajudicial confession or statement. Furby, 138 Ill. 2d at 446, 563 N.E.2d at 426. The court noted that proof of guilt
for a criminal offense may be divided into proof: (1) that an
injury or loss occurred; (2) that the cause was criminal in nature;
and (3) that the accused was the offender. The court stated that
the first two components are termed the corpus delicti. Furby, 138 Ill. 2d at 445-46, 563 N.E.2d at 425. Essentially, then, proof of
the corpus delicti is proof that a crime occurred. The court in
Furby specifically said that "the identity of the accused as the
offender *** is not considered part of the corpus delicti."
(Emphasis added.) Furby, 138 Ill. 2d at 446, 563 N.E.2d at 425.
Accordingly, we find no requirement in the law that the defendant's
identity as the offender must be corroborated by evidence apart
from the defendant's own extrajudicial statements. People v.
Strickland, 154 Ill. 2d 489, 522-23, 609 N.E.2d 1366, 1381 (1992).
In this case, Olson testified that a white Nova drove by seven
school buses which were stopped to pick up students to take them
home after school. He testified that the arms of the buses were
extended and the lights were flashing. Olson's testimony was
sufficient to show that a violation of section 11--1414(a) of the
Rules of the Road had occurred. Olson's testimony was all that was
required to prove the corpus delicti of the crime. As a result,
the defendant's statement that she was the one who drove by the
school buses was only necessary to prove the identity of the
offender, not the corpus delicti of the crime. See Strickland, 154 Ill. 2d at 522-23, 609 N.E.2d at 1381.
IV. Reasonable Doubt
The defendant next claims that she was not proved guilty
beyond a reasonable doubt. When the sufficiency of the evidence is
challenged in a criminal case, the test on review is whether, after
viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. People
v. Collins, 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277 (1985).
Here, in this case, in addition to Olson's testimony, Officer
Lamboley testified that the car Olson observed was registered to
Lori Tracy, the defendant's daughter. Paul testified that the
defendant told him she was the person who passed the school buses.
At trial, the defendant admitted being at the school that day. She
also admitted driving one of the five cars owned by her family.
Based on the Collins standard, this evidence was sufficient for the
jury to conclude that the defendant was guilty beyond a reasonable
doubt.
V. Cross-examination of Paul
The defendant next contends she was denied her right to a fair
trial because she was prevented from showing the jury that Paul was
initially the prosecutor assigned to the case. Moreover, the
defendant argues that she was not allowed to introduce Lori's file
into evidence to show that the charge against Lori was dismissed
with leave to reinstate.
The law is well settled in this State that admission of
evidence collateral to an issue and offered to affect the
credibility of a witness rests within the sound discretion of the
trial court. People v. Batac, 259 Ill. App. 3d 415, 426, 631 N.E.2d 373, 382 (1994). Absent an abuse of that discretion, a
reviewing court will not disturb the trial court's ruling. Batac,
259 Ill. App. 3d at 426, 631 N.E.2d at 382.
In the case at hand, the defendant wanted to show that Paul
was biased against her because of his interest as a prosecutor in
the case. In fact, the jury was informed that Paul was a
prosecutor and worked with Bringsjord, who was prosecuting the
case. In addition, the answer to the defendant's discovery request
which was signed by Paul was admitted into evidence over the
State's objection. From our review of the record, we find that the
trial court did not abuse its discretion when it refused to allow
the additional, and cumulative, evidence the defendant sought to
introduce at trial.
Further, the trial court did not abuse its discretion when it
refused to admit the defendant's collateral evidence regarding
Lori's court file. Paul testified that the charge against Lori had
been dismissed. The record confirms that the charge was dismissed.
We agree with the trial court that the fact Lori's case was
dismissed with leave to reinstate was not relevant to the charges
against the defendant. For these reasons, we affirm the trial
court on this issue.
VI. Jury Instructions
The defendant next claims that the jury received improper jury
instructions. She specifically argues that the offense that
appeared on the verdict form was "passing a stopped school bus."
She contends that the verdict form was not accurate because it did
not include all the elements of the offense. We find no merit to
this contention.
The law is well settled that there is no requirement that the
jury verdict forms recite the precise elements of the crime so long
as the offense is properly identified. People v. Duffie, 193 Ill.
App. 3d 737, 742, 550 N.E.2d 691, 694 (1990). Where, as here, the
issues instruction specifically informed the jury of all the
elements of the offense, there is no error in submitting a more
general verdict form. Duffie, 193 Ill. App. 3d at 742, 550 N.E.2d
at 694. Moreover, it is well established that instructions are to
be considered as a whole and not singly. Duffie, 193 Ill. App. 3d
at 742, 550 N.E.2d at 694. Where the instructions, considered
together, correctly state the applicable law, a party may not
challenge an instruction which, standing alone, may not be
accurate. Duffie, 193 Ill. App. 3d at 742, 550 N.E.2d at 694.
After reviewing the record in this case, we find the instructions,
considered together, correctly state the applicable law.
Consequently, we find no error in the trial court's jury
instructions.
VII. Unconstitutionality of statute
The defendant finally argues that the statute she was
convicted of violating is unconstitutional because it precluded her
from being sentenced to court supervision. Again, we disagree.
Nothing in section 11--1414 of the Rules of the Road provides that
court supervision is not a permissible sentence. However, section
5--6--1(f) of the Unified Code of Corrections (Code) was amended,
effective August 2, 1995, to state that the provisions concerning
an order of supervision shall not apply to a defendant charged with
violating section 11--1414 of the Rules of the Road. 730 ILCS
5/5--6--1(f) (West 1996).
Even if this court considered the defendant's argument as a
challenge to the constitutionality of section 5--6--1(f) of the
Code, we find no merit to the argument. The defendant has not
cited any case law which states that this provision of the law is
an unconstitutional use of legislative power. Accordingly, the
defendant's claim fails.
For the reasons stated, the judgment of the circuit court of
La Salle County is affirmed.
Affirmed.
SLATER and HOLDRIDGE, JJ., concur.