v.
Grunin
2022 IL App (1st) 200598
FIFTH DIVISION JUNE 17, 2022
No. 1-20-0598
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 18 CR 12063 ) ADAM GRUNIN, ) Honorable ) Joseph Michael Cataldo, Defendant-Appellant. ) Judge Presiding.
JUSTICE CUNNINGHAM delivered the judgment of the court, with opinion. Presiding Justice Delort and Justice Connors concurred in the judgment and opinion.
OPINION
¶1 Following a jury trial in the circuit court of Cook County, the defendant-appellant, Adam
Grunin, was found guilty of reckless homicide (720 ILCS 5/9-3(a) (West 2018)) and two counts of aggravated reckless driving (625 ILCS 5/11-503(a)(1), (c) (West 2018)). The circuit court
merged the aggravated reckless driving convictions with the reckless homicide conviction. The circuit court imposed concurrent sentences of four years’ imprisonment for reckless homicide, which merged with the three-year sentence for aggravated reckless driving. On appeal, Mr. Grunin contends that the State failed to prove him guilty beyond a reasonable doubt when “unrebutted
evidence” established that he suffered a focal seizure with loss of awareness prior to hitting the victims’ vehicle. Upon considering a petition for rehearing by Mr. Grunin and the response by the State, we again affirm the judgment of the circuit court of Cook County.
¶2 BACKGROUND
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¶3 On August 28, 2018, Mr. Grunin was charged with reckless homicide and aggravated
reckless driving following a motor vehicle collision on July 21, 2018, which caused the death of Alyssa Lendino and injured Tony Lendino and Amanda Lendino. [1] On January 7, 2020, a jury trial commenced. The evidence at trial established that on July 21, 2018, Mr. Grunin, who was driving a white Hyundai Sonata, was involved in two motor vehicle collisions. The first collision involved
Angelica Brito’s black Hyundai, and the second involved the Lendino’s silver Chevrolet Equinox.
¶4 Ms. Brito testified that on the afternoon of July 21, 2018, she was driving southbound in the left lane of Milwaukee Avenue in Wheeling, Illinois, with her two children in the back seat.
Suddenly, another vehicle hit the rear driver’s side of her vehicle. The vehicle that hit her then passed her on the driver’s side “[w]ithin seconds.” During cross-examination, Ms. Brito
acknowledged that she did not see inside the vehicle that hit her and only saw its movements “in the direction it traveled.”
¶5 Margaret Molitor, who was also driving southbound on Milwaukee Avenue at the same time on that day, testified that she changed lanes after seeing a white vehicle “coming fast” in her rearview mirror. The white vehicle hit a black vehicle, swerved, and then continued driving without slowing. Ms. Molitor could see that the white vehicle was being driven by a man who was looking forward with his hands on the wheel.
¶6 Linda Hawkins, who was traveling northbound on Milwaukee Avenue just past the intersection with Hintz Road, at the same time, testified that she saw a white vehicle approach, “swerve a little,” and then “straighten out.” The vehicle was traveling “very fast,” and its front end was “wobbling.” Ms. Hawkins watched in her side mirror, as the white vehicle passed her, and 200599
1-20-0598 then she observed the white vehicle crash into another vehicle. The white vehicle did not decelerate nor change lanes. During cross-examination, Ms. Hawkins did not remember telling police officers that the white vehicle swerved or that the driver lacked control. However, she told officers that she did not see the white vehicle’s brake lights activate prior to the collision.
¶7 Shaniqua Silva testified that she was in the back seat of a vehicle traveling southbound on
Milwaukee Avenue when a black vehicle almost struck the back of the vehicle that she was in. As
Ms. Silva looked back, the black vehicle “stall[ed] out” and hit a curb. She next saw a white vehicle
“fly up” from behind, straddling the left lane and median. The driver, a “heavier set” white man with one hand on the steering wheel, looked right and then toward his rearview mirror. The vehicle was traveling approximately 100 miles per hour and smoke was coming from its front. During cross-examination, Ms. Silva acknowledged that she may have told a police officer that the driver had his right hand on the steering wheel and that he looked to his left and then to the rearview mirror.
¶8 Michele Lendino testified that on the afternoon of July 21, 2018, she was driving her silver
Chevrolet Equinox and stopped at a red light at the intersection of Milwaukee Avenue and Hintz
Road. Her husband, Tony, was in the front passenger seat, her daughter, Amanda was behind
Michele, and her other daughter, Alyssa, was sitting behind Tony. Michele then heard “the most horrible sound,” and her vehicle began spinning. When the vehicle stopped, she kicked open a door, exited, and screamed for help. Michelle suffered facial lacerations, and the entire family was taken to a hospital.
¶9 The State entered stipulations that the emergency room physician who treated Tony would testify that he suffered fractures to three areas of the lower spine and four left ribs and an injury to his spleen. The emergency room physician, who treated Amanda, would testify that she suffered
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¶ 10 Joseph Kasper testified that on July 21, 2018, he was about to stop his delivery van at the intersection of Milwaukee Avenue and Hintz Road when he saw three vehicles colliding. He called
911 and tried to help the “mom” who exited one of the vehicles after the accident. His vehicle was equipped with a camera that filmed the accident. The video of the accident, which was admitted
into evidence and published to the jury without objection, is included in the record on appeal. The video showed a white vehicle hitting a light-colored vehicle stopped at a red light, pushing the light-colored vehicle into the intersection and causing it to collide with a black truck.
¶ 11 Radoslaw Swiecicki testified that, on the same day, he was approaching the intersection of Milwaukee Avenue and Hintz Road when a white vehicle passed “extremely fast” and hit another vehicle. The white vehicle did not change lanes, decelerate, or brake but “went straight.” After
calling 911, Mr. Swiecicki opened the white vehicle’s door, saw that the driver was “okay,” and left without talking to the driver. At trial, Mr. Swiecicki identified Mr. Grunin as the driver of the white vehicle.
¶ 12 Wheeling police officer Rick Richardson testified that when he arrived at the intersection of Milwaukee Avenue and Hintz Road, he observed that the driver of the white vehicle, who was still seated in the vehicle, had a laceration over his eye and a bloody face. At trial, Officer
Richardson identified Mr. Grunin as the driver of the white vehicle. Officer Richardson accompanied Mr. Grunin to a hospital in an ambulance. Mr. Grunin related his name, address, 200601
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place of employment, and the date but was confused and did not remember the accident, saying, “let me guess, I fell asleep.” Mr. Grunin stated he had worked from 11 p.m. to 7 a.m. the previous day and was tired. He said that his mother had told him to nap at his grandparents’ house. He also stated that he had to pack for a trip to San Diego.
¶ 13 The following day, Officer Richardson obtained video footage from a liquor store of traffic on Milwaukee Avenue at the time of the collision. The video footage was published to the jury and was included in the record on appeal. The video footage showed vehicles traveling on
Milwaukee Avenue, including a white vehicle moving very fast. When the video was played for the jury, Officer Richardson identified the vehicles of the defendant, Mr. Grunin, and the Lendino family.
¶ 14 During cross-examination, Officer Richardson testified that, at the hospital, Mr. Grunin stated that he had epilepsy and took antiseizure medication. Tests conducted on Mr. Grunin’s urine and blood were negative for “illegal substances,” and no alcohol or illegal drugs were recovered from Mr. Grunin’s vehicle. Prescription antiseizure medication was found inside Mr. Grunin’s
vehicle. Cell phone records did not indicate that Mr. Grunin was talking or texting at the time of the collision. Officer Richardson later learned that the address Mr. Grunin related in the ambulance was not his current address, nor was his description of his travel plans accurate. Mr. Grunin was traveling to San Francisco rather than San Diego as he had stated and he had not lived at the stated
address for several years. At the scene, Officer Richardson spoke with Ms. Silva and again later in greater depth. His report indicated that she stated that Mr. Grunin looked to the left and then into the rearview mirror.
¶ 15 Wheeling police sergeant Paul Hardt testified that on September 29, 2018, he was asked to videotape a route of travel southbound on Milwaukee Avenue as part of the investigation in this
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case. He filmed the route on a Saturday at 2 p.m. This video was admitted into evidence and published to the jury and is included in the record on appeal. It shows a route of travel that includes a curve in the road.
¶ 16 Park Ridge police sergeant Kirk Ashleman testified that he was trained in accident collision reconstruction, had worked in the field for approximately 20 years, and previously testified as an expert in accident collision reconstruction. Sergeant Ashleman knew defense expert Roger
Barrette and reviewed Mr. Barrette’s report in this case.
¶ 17 When Sergeant Ashleman arrived at the accident scene, he observed two vehicles, debris in the intersection, “road scars” in the southbound Milwaukee Avenue lanes, and postcollision tire marks. Sergeant Ashleman determined that following the collision of the two vehicles, the vehicles traveled 280 to 290 feet from the point of impact to “final rest.” Based on the distance traveled after impact, the impact speed was “very fast” and exceeded “highway speed.” As the vehicles came to final rest, they collided with a truck and would have traveled farther without that contact.
Sergeant Ashleman also received information about another crash involving the white vehicle that occurred approximately six-tenths of a mile or 3132 feet away. The configuration of the road between the two crash sites was “fairly straight,” with one “slight curvature” to the southeast on
Milwaukee Avenue.
¶ 18 The Lendino’s Chevrolet Equinox and Mr. Grunin’s Hyundai were equipped with airbag control modules (ACM) that record data before, during, and after a collision. When a vehicle is
started, it runs a diagnostic check on the restraint system and data is constantly entered into the ACM. When the ACM “sense[s]” a severe collision, it will record and store that data, including five seconds of precrash data. Sergeant Ashleman used this data to determine that, five seconds before impact, Mr. Grunin’s vehicle was traveling at 100.6 miles per hour, and right before the 200603
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Grunin’s vehicle, which opens as the accelerator is pushed, was open at 63% five seconds prior to impact, then closed slightly before opening to 74% at impact. Throttle percentage correlates to
pressure on the accelerator, and this data indicated that pressure on the accelerator was eased and then increased. This fluctuation led Sergeant Ashleman to conclude that Mr. Grunin was controlling the vehicle. However, the data did not show brake usage.
¶ 19 The ACM records steering in five-degree increments, and unless the wheel is turned more
than five degrees, the system records a zero reading. Here, for the five seconds prior to impact, the steering degree for Mr. Grunin’s vehicle was recorded as zero. Sergeant Ashleman’s review of the videos and still photographs from those videos did not show veering, although minor corrections made to maintain a straight path would comport with a zero reading. Sergeant Ashleman testified that this indicated that Mr. Grunin, as the driver, was exerting “steering input.” Sergeant Ashleman also opined that Mr. Grunin had to exert control on the wheel for the vehicle to travel as it did.
This resulted in the subsequent impact being “full-centered” because Mr. Grunin did not change lanes.
¶ 20 During cross-examination, Sergeant Ashleman acknowledged that, after reviewing Mr.
Barrette’s report, he told the State that Mr. Grunin exerted some degree of control over steering and acceleration. Sergeant Ashleman concluded that Mr. Grunin stayed in the same lane of traffic because he exerted steering control, which reflected the road’s configuration and crown, as well
as the vehicle’s front-end alignment, the effect of the prior accident, uneven wear on the tires, and tire pressure. A fail-safe mechanism is attached to a throttle, but Sergeant Ashleman did not review any evidence pertaining to that mechanism. Although the throttle data indicated that Mr. Grunin’s foot was moving back and forth, it did not indicate whether the movement was jerking or smooth.
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Sergeant Ashleman also performed a “time-distance” analysis to show the two vehicles’ locations five seconds before the collision. In the last five seconds before impact, Mr. Grunin’s vehicle traveled 764 feet and the Lendino’s vehicle traveled 191 feet.
¶ 21 The State then rested. The defense presented Roger Barrette, as an expert witness. He has
worked as an accident collision reconstruction specialist since 1986 and has also taught and published in the field. For this case, Mr. Barrette reviewed police records, videos, and photographs, and completed a “situationally complete reconstruction” of the collision. He also performed calculations to validate the ACM data and concluded the ACM reports were accurate. He completed time-distance and speed analyses as well. He explained that reconstructions are done to validate the reports’ contents and noted that Sergeant Ashleman did not perform a speed analysis.
¶ 22 Mr. Barrette opined that a driver’s foot moving back and forth, or twitching, could account for the fluctuation in throttle reflected in Mr. Grunin’s vehicle’s ACM report. He disagreed with
Sergeant Ashleman’s conclusion that Mr. Grunin maintained steering control, as it was unknown what “would cause the vehicle to stray off of its straight path.” Vehicles designed in the United
States have self-aligning torque, so that when a driver releases the steering wheel, the vehicle “goes
straight.” 2 “[N]o evidence” indicated “intentional driver control,” and there were paths in the approach to the intersection of Milwaukee Avenue and Hintz Road that Mr. Grunin could have used to avoid the collision. While Mr. Barrette agreed there was driver control during the first collision, he opined there was none in the five seconds preceding the second collision and no data indicated “intentional driver input” to avoid the collision.
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¶ 23 During cross-examination, Mr. Barrette testified that his reconstruction was consistent with the ACM data. He calculated the distance between the first and second accidents as 3120 feet compared to Sergeant Ashleman’s 3200 feet and the time at 27 seconds as opposed to Sergeant
Ashleman’s 29 seconds. Mr. Barrette stated that, in his experience, around 25% of the event data
recorders he examined indicated no braking in the five seconds prior to impact and “about half of the time” there was no steering input. Failure to brake could reflect driver distraction, and the maneuvering ability of a driver going 100 miles per hour was different than that of a driver going
10 miles per hour.
¶ 24 Mr. Barrette did not know whether Mr. Grunin attempted to brake or turn before the first accident or whether Mr. Grunin was distracted. On cross-examination, he acknowledged that Mr.
Grunin’s actions in failing to stop at the first accident, going around that vehicle, looking in the mirror, and accelerating were consistent with exerting control. Mr. Barrette had no knowledge of Mr. Grunin’s degree of attention or actions inside the vehicle but stated that a vehicle could travel straight without steering input when the “net effect” of the forces affecting the vehicle did not push it off a straight path. Mr. Barrette attested that Mr. Grunin’s vehicle could have traveled straight without his hands on the wheel because, after the bend in the road near the scene of the first accident, the road was straight to the location of the second collision. Additionally, the fluctuation in throttle may or may not have been caused by driver control.
¶ 25 During redirect examination, Mr. Barrette testified that there was evidence of driver control after the first collision but that hands on a steering wheel did not necessarily demonstrate control; rather, there could be unintentional control. He also testified that he had never previously reviewed a report that showed one vehicle approaching another at 100 miles per hour that did not also show braking or steering.
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¶ 26 Dr. Andres Kanner, a board-certified neurologist, testified as a defense expert witness. He
heads the epilepsy program at the University of Miami School of Medicine and has lectured and published in the field of epilepsy. Dr. Kanner described the human brain as a computer and epilepsy as “short circuits” in the brain. Following an epileptic seizure, a person experiences a
“postictal confusional state” as the brain “reboot[s].” Seizures in the temporal lobe may result in loss of awareness, motionless staring, “purposeless” movement of the hands, and stiffness.
Additional manifestations of a seizure include repeated blinking or side-to-side movement of the eyes, lack of movement in the limbs and body, tremors, twitching, and jerking, such that the person loses the ability to control his body. Dr. Kanner further explained that once a person is diagnosed
with epilepsy and medicated, he may continue to have “limited short circuits” with loss of awareness. Some people remain unaware of their seizures until witnesses alert them. Medication does not completely prevent the seizures from occurring.
¶ 27 Dr. Kanner reviewed Mr. Grunin’s medical records from his treating physicians, including those from neurologist Dr. Jessie Taber 3 and internist Dr. Robert Maslew. He opined that Mr.
Grunin’s short circuits were localized in the temporal lobe of his brain, which rendered Mr. Grunin unaware of events during his seizures. Dr. Kanner also reviewed Mr. Barrette’s report, witness statements, and police reports. He noted that emergency medical technicians (EMTs) found Mr.
Grunin to be confused and with no recollection of the accident. Mr. Grunin’s inability to describe events leading up to the accident and lack of knowledge about it were “classic” symptoms of an epileptic seizure. Although Mr. Grunin related his name in the ambulance, he was unable to give