{ "id": 1096649, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SARAH K. NESTROCK, Defendant-Appellant", "name_abbreviation": "People v. Nestrock", "decision_date": "2000-09-08", "docket_number": "No. 2-98-0341", "first_page": "1", "last_page": "13", "citations": [ { "type": "official", "cite": "316 Ill. App. 3d 1" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "152 Ill. 2d 229", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5603261 ], "year": 1992, "pin_cites": [ { "page": "258" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/152/0229-01" ] }, { "cite": "265 Ill. App. 3d 105", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 872475 ], "year": 1994, "pin_cites": [ { "page": "109" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/265/0105-01" ] }, { "cite": "217 Ill. App. 3d 393", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5284255 ], "year": 1991, "pin_cites": [ { "page": "403" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/217/0393-01" ] }, { "cite": "142 Ill. 2d 258", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3236913 ], "year": 1990, "pin_cites": [ { "page": "323" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/142/0258-01" ] }, { "cite": "282 Ill. App. 3d 785", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 159473 ], "year": 1996, "pin_cites": [ { "page": "789" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/282/0785-01" ] }, { "cite": "76 Ill. 2d 289", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2982988 ], "weight": 2, "year": 1979, "pin_cites": [ { "page": "309-10" }, { "page": "310" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/76/0289-01" ] }, { "cite": "166 Ill. 2d 414", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 198914 ], "weight": 3, "year": 1995, "pin_cites": [ { "page": "436" }, { "page": "432" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/166/0414-01" ] }, { "cite": "299 Ill. App. 3d 732", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 221518 ], "year": 1998, "pin_cites": [ { "page": "736-37", "parenthetical": "holding that the amended statute \"prohibits the recording of any conversation without the consent of all parties regardless of any party's expectation of privacy\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/299/0732-01" ] }, { "cite": "284 Ill. App. 3d 7", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1260401 ], "year": 1996, "pin_cites": [ { "page": "14" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/284/0007-01" ] }, { "cite": "373 U.S. 427", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11718713 ], "weight": 3, "year": 1963, "opinion_index": 0, "case_paths": [ "/us/373/0427-01" ] }, { "cite": "163 Ill. 2d 507", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 477883 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "510" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/163/0507-01" ] }, { "cite": "115 Ill. 2d 47", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3179289 ], "weight": 3, "year": 1986, "pin_cites": [ { "page": "54" }, { "page": "56" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/115/0047-01" ] }, { "cite": "181 Ill. 2d 249", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 821403 ], "year": 1998, "pin_cites": [ { "page": "282" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/181/0249-01" ] }, { "cite": "257 Ill. App. 3d 1018", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2891586 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "1021-22" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/257/1018-01" ] }, { "cite": "213 Ill. App. 3d 928", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2605250 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "935-36" }, { "page": "935-36" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/213/0928-01" ] }, { "cite": "72 Ill. 2d 36", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5443247 ], "year": 1978, "pin_cites": [ { "page": "44" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/72/0036-01" ] }, { "cite": "122 Ill. 2d 176", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5550081 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "186-87" }, { "page": "189-90" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/122/0176-01" ] }, { "cite": "306 Ill. App. 3d 216", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1336046 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/ill-app-3d/306/0216-01" ] } ], "analysis": { "cardinality": 1108, "char_count": 28833, "ocr_confidence": 0.757, "pagerank": { "raw": 9.092635614662557e-08, "percentile": 0.505742226670358 }, "sha256": "4ae45c8190e65956864301415330535386754c46b6509a1c3834c64bf71bf7d6", "simhash": "1:9afeb6f02f419443", "word_count": 4734 }, "last_updated": "2023-07-14T16:10:00.608787+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SARAH K. NESTROCK, Defendant-Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE BOWMAN\ndelivered the opinion of the court:\nDefendant, Sarah K. Nestrock, was convicted of reckless homicide (720 ILCS 5/9 \u2014 3(a) (West 1996)) and subsequently sentenced to concurrent sentences of two years\u2019 imprisonment.\nThis court reversed defendant\u2019s conviction in People v. Nestrock, 306 Ill. App. 3d 216 (1999). Our supreme court denied the State\u2019s petition for leave to appeal but, under its supervisory authority, directed this court to vacate our opinion and ordered that we reconsider the appeal after allowing the parties to submit briefs on the issue of whether the Illinois eavesdropping statute requires the reversal of defendant\u2019s conviction and a remand for a new trial.\nIn addition to the eavesdropping issue, defendant contends she was denied a fair trial because (1) the State made several references to her membership in a social group for gay students, intending to prejudice her in the eyes of the jury; (2) the trial court allowed the State!s accident reconstruction expert to offer the opinion that defendant was conscious while driving her vehicle; (3) the trial court denied defendant\u2019s motion to suppress the tape-recorded conversation between defendant and one of her friends without conducting an evidentiary hearing; (4) the trial court did not allow defendant to offer as substantive evidence a statement that she made to an investigating police officer shortly after the accident; and (5) defendant did not receive the effective assistance of counsel. After considering the supplemental briefs, we come to the same conclusion as we did in our earlier opinion. The playing at trial of defendant\u2019s conversation recorded in violation of the eavesdropping statute requires the reversal of her conviction and a remand for a new trial.\nFollowing a car accident that caused the deaths of Stephen Cornelius and his eight-year-old son, Zachery, defendant was charged with reckless homicide and aggravated driving while under the influence of drugs (625 ILCS 5/11 \u2014 501(d)(1)(C) (West 1996)). Before trial, the State nol-prossed the charges that were based on driving under the influence of drugs.\nThe evidence at trial revealed that the accident in question took place on September 25, 1996, at the intersection of 79th Street and Clarendon Hills Road in Willowbrook. Defendant, who was driving a 1995 Ford Escort station wagon, was traveling south on Clarendon Hills Road when her car left the road and entered the ditch on the west side of the road. Defendant\u2019s car traveled through the ditch for approximately 300 feet, exited the ditch, traveled another 70 feet, and then ran into the driver\u2019s side of the Cornelius vehicle, a 1992 Pontiac Bonneville, which was stopped on 79th Street at a stop sign. Stephen Cornelius was driving the Bonneville, and Zachery was seated directly behind him. Barbara Hall, Stephen\u2019s wife and Zachery\u2019s mother, was also in the car at the time of the collision, as was the couple\u2019s 10-year-old daughter, Jane, who was seriously injured. The State\u2019s accident reconstruction expert opined that defendant\u2019s car was traveling 42 miles per hour at the time of impact. Defendant\u2019s accident reconstruction expert opined that her speed at impact was 31 miles per hour.\nAt trial, the State presented the theory that defendant purposely drove her car into and through the ditch in an attempt to either kill herself or feign suicide to attract the attention of her family and friends. Defendant testified that she was not trying to commit suicide. She stated that she remembered turning on her right turn signal and the next thing she remembered was being stopped next to a telephone pole.\nIn addition to other evidence that defendant was contemplating suicide, the State presented a tape-recorded conversation between defendant and Nagayo \u201cNick\u201d Heath, a close friend of defendant\u2019s at the time of the accident. The recorded conversation took place on the evening of September 26, 1996, the day after the accident.\nHeath testified that on the morning of September 26, 1996, he received a phone call from defendant, who said that she had hit a tree and was in the hospital. Later that day, defendant called Heath and another friend, Jason Taylor, at the home of Beth Johnson. Heath talked to defendant, who told him that she had killed two people. Heath testified that defendant said that \u201c[sjubliminally [she] pulled a Justin.\u201d This was a reference to another friend of defendant\u2019s, Justin Krause. Heath testified that on September 23, 1996, defendant told him that Krause had tried to kill himself by driving his car into a tree.\nFrom Beth Johnson\u2019s house, Heath then went to work, where he received a message from the Willowbrook police department. Heath spoke with Officer Andy Pellicioni and arranged to meet him the following day or the day after. From work, Heath went to Jason Taylor\u2019s house. Defendant called Taylor\u2019s house that night at 8 or 9 p.m. Heath spoke with defendant and asked her if she meant to commit suicide. Defendant did not respond. Taylor and Heath decided to tape-record their next conversation with defendant because they had been contacted by the police and wanted to protect themselves.\nDefendant paged Jason Taylor at about 10 p.m., and Taylor called her back. While Heath was talking to defendant, Taylor, who was listening on another extension, recorded the conversation. Defendant did not know that Taylor was recording the conversation. The record submitted to this court does not include the tape recording or a transcript of the tape recording. Certain portions of the tape, however, are quoted in the report of proceedings. These portions indicate that, during their conversation, Heath asked defendant, \u201cDid you or did you not wish to end your life?\u201d Defendant replied \u201cyes.\u201d Heath then said, \u201cOkay. That\u2019s a starting stone, it\u2019s somewhere for me to go from here. Now, we established why because of your family life, you know, and your new found friend, illness, what have you.\u201d Defendant again responded \u201cyes.\u201d\nBefore trial, defendant brought a motion to suppress her recorded conversation with Heath. She argued that the language of the Illinois eavesdropping statute (720 ILCS 5/14 \u2014 1 et seq. (West 1996)) barred the admission of the tape and that the investigating police officers had arranged and directed the tape recording without giving her any warning. The trial court ruled that Heath did not violate the statute by recording his own conversation with defendant and that this would be true even if the police department had instigated the recording.\nIn her posttrial motion, defendant asserted that it was error for the trial court to deny her motion to suppress without conducting an evidentiary hearing to establish whether the investigating police officers were involved, in the recording. Defendant did not request an evidentiary hearing during trial. During the hearing on the posttrial motion, the trial court asked counsel for defendant if he had any evidence that the Willowbrook police department instigated or arranged the tape recording. Defense counsel admitted that he had no such evidence. In ruling on the posttrial motion, the trial court noted that the evidence indicated that Heath recorded his conversation with defendant entirely of his own volition. The trial court further stated that suppression was not available to defendant under such a circumstance.\nWe first consider defendant\u2019s argument that the trial court erred by denying the motion to suppress without holding an evidentiary hearing to determine whether the Willowbrook police department instigated or arranged the recorded conversation. We note initially that, because defendant did not request an evidentiary hearing before or during trial, this issue is waived for the purposes of our review. People v. Enoch, 122 Ill. 2d 176, 186-87 (1988). This issue does not merit consideration under the plain error doctrine because there was no error and defendant has not shown that the failure to conduct an evidentiary hearing contributed to her conviction (see People v. Sullivan, 72 Ill. 2d 36, 44 (1978)).\nAt trial, Nick Heath, Jason Taylor, and Officer Pellicioni all testified that the police did not suggest, request, or otherwise arrange the recording. During the hearing on the posttrial motion, defendant conceded that she had no evidence to support her theory that the investigating officers were involved with the recording. We find this case analogous to People v. Govin, 213 Ill. App. 3d 928, 935-36 (1991). In Govin, the court considered whether it was error for the trial court to deny the defendant an evidentiary hearing on his motion to suppress tapes of a wiretap. Govin, 213 Ill. App. 3d at 935-36. The court held that the trial court correctly denied the request for an evidentiary hearing because the defendant did not specify which portions of the affidavit supporting the wiretap request were false and did not offer any evidence to support his claim that the affidavit contained false statements. Govin, 213 111. App. 3d at 935-36. In the present case, defendant presented no evidence to support her theory of police involvement; thus, there was no reason for an evidentiary hearing and no harm to defendant.\nWe must disagree, however, with the trial court\u2019s denial of defendant\u2019s motion to suppress. We conclude that the plain language of the Illinois eavesdropping statute bars the admission of the recording and that it was reversible error for the trial court to admit the recording into evidence. Although defendant failed to raise this issue in her appeal, we consider it because it involves, in our view, a grave error of law. As we stated in People v. Olsewski, 257 Ill. App. 3d 1018 (1994), \u201c[w]hile the general rule is that a reviewing court should not normally search the record for unargued and unbriefed reasons to reverse the trial court judgment, a reviewing court need not ignore grave errors of law which the parties on appeal either overlook or decline to address.\u201d Olsewski, 257 Ill. App. 3d at 1021-22; see also People v. Cortes, 181 Ill. 2d 249, 282 (1998).\nThe State contends that the supreme court\u2019s supervisory order casts doubt on the propriety of our reliance on Olsewski and Cortes and impliedly indicates that the supreme court did not consider the trial court\u2019s error to be grave. We do not take the supreme court\u2019s supervisory order to mean anything more than what it says. The supervisory order was silent regarding the substance of our conclusions on the eavesdropping issue. Accordingly, we cannot agree with the State that the supreme court disagreed with our determination that the trial court committed a grave error of law, and we stand by that determination.\nThe eavesdropping statute provides that a person commits eavesdropping when he:\n\u201c[u]ses an eavesdropping device to hear or record all or any part of any conversation unless he does so (1) with the consent of all of the parties to such conversation.\u201d 720 ILCS 5/14 \u2014 2(a) (West 1996). Effective December 15, 1994, section 14 \u2014 1(d) of the eavesdropping statute defined \u201cconversation\u201d as \u201cany oral communication between 2 or more persons regardless of whether one or more of the parties intended their communication to be of a private nature under circumstances justifying that expectation.\u201d 720 ILCS 5/14 \u2014 1(d) (West 1996). Section 14 \u2014 5 provides that any evidence obtained in violation of the statute is inadmissible in any civil or criminal trial, with the sole exception of trials for a person charged with violating the eavesdropping statute. 720 ILCS 5/14 \u2014 5 (West 1996).\nIn denying defendant\u2019s motion to suppress, the trial court relied on our supreme court\u2019s interpretation of the eavesdropping statute in People v. Beardsley, 115 Ill. 2d 47 (1986), and People v. Herrington, 163 Ill. 2d 507 (1994). In Beardsley, the supreme court held that the primary factor in determining whether eavesdropping has occurred is whether the nonconsenting participants \u201cintended their conversation to be of a private nature under circumstances justifying such expectation.\u201d Beardsley, 115 Ill. 2d at 54. Relying on Lopez v. United States, 373 U.S. 427, 10 L. Ed. 2d 462, 83 S. Ct. 1381 (1963), the court further held that the eavesdropping statute should not prohibit a party to a conversation from recording that conversation. Beardsley, 115 111. 2d at 56. Likewise, in Herrington, the supreme court held that \u201cthere can be no expectation of privacy by the declarant where the individual recording the conversation is a party to that conversation.\u201d Herrington, 163 Ill. 2d at 510, citing Beardsley, 115 Ill. 2d at 56.\nHowever, by adding the definition of \u201cconversation\u201d to the statute in 1994, the Illinois legislature \u201cextended the coverage of the eavesdropping statute to all conversations, regardless of whether they were intended to be private\u201d (People v. Siwek, 284 Ill. App. 3d 7, 14 (1996)). See also In re Marriage of Almquist, 299 Ill. App. 3d 732, 736-37 (1998) (holding that the amended statute \u201cprohibits the recording of any conversation without the consent of all parties regardless of any party\u2019s expectation of privacy\u201d). The amended statute was in effect at all times relevant to the present case. Based on the plain language of the statute and the fact that the conversation was recorded without defendant\u2019s consent, we cannot ignore the trial court\u2019s grave error of law in admitting the tape recording.\nThe State concedes that our interpretation of the eavesdropping statute is \u201cprobably correct,\u201d but asserts that (1) the conversation fell within a statutory exemption, (2) defendant waived any objection to the admission of the recording, and (3) the admission of the recorded conversation was harmless error. We disagree with all of these contentions.\nSection 14 \u2014 3 of the Criminal Code of 1961 (720 ILCS 5/14 \u2014 3 (West 1996)) sets forth certain activities that are exempt from section 14 \u2014 1. The State relies on section 14 \u2014 3(i), which provides that the following is not a criminal offense:\n\u201cRecording of a conversation made by or at the request of a person, not a law enforcement officer or agent of a law enforcement officer, who is a party to the conversation, under reasonable suspicion that another party to the conversation is committing, is about to commit, or has committed a criminal offense against the person or a member of his or her immediate household, and there is reason to believe that evidence of the criminal offense may be obtained by the recording.\u201d 720 ILCS 5/14 \u2014 3(i) (West 1996).\nAt trial, when the State asked Nick Heath why he and Jason Taylor decided to record their conversation with defendant, Heath responded, \u201cBecause we had no clue as to what was going on.\u201d The State asked Heath to clarify his statement, and the following question and answer took place:\n\u201cQ. What do you mean by that? Can you explain why you felt it was necessary to tape the conversation with Sarah Nestrock?\nA. At this time we knew that she was in an accident that we were not involved with. We were just the last two people to see her that day.\nI get a phone call at work from Willowbrook Police Department. And not knowing which way to turn, we thought it would be in our better interests to protect us.\u201d\nOn cross-examination the following colloquy occurred:\n\u201cQ. Now, sir, you went and talked about this conversation with Jason Taylor; is that correct?\nA. We touched on it briefly as a way to protect ourselves.\nQ. As a way to protect yourself? What were you going to protect yourself from, sir?\nA. We did not know at that time. We were both looking at each other with blank stares.\nWe received a telephone call about an accident to [szc] which we were not involved in about a friend. And we did not know what to do. We thought it would be in our better interests to tape the telephone conversation.\u201d\nWhen defense counsel asked Jason Taylor on cross-examination why he recorded the conversation with defendant, he answered:\n\u201cBecause we felt that we were getting kind of scared because the police were contacting us. We felt we had knew [sic] that Sarah \u2014 it was not an accident that she had went [sic] off the road. And we wanted something to back us up.\u201d\nIn light of the above testimony, we cannot accept the State\u2019s argument that Heath and Taylor suspected that defendant was about to commit a crime against them. It is clear from Heath\u2019s and Taylor\u2019s testimony that while they felt the need to protect themselves they did not suspect that defendant was about to commit a crime against them. Neither Heath nor Taylor mentioned any such suspicion when directly asked why they felt the need for protection. In fact, Heath testified that he did not know from what or whom he needed to protect himself. The State argues that \u201cit was not unreasonable for Heath and Taylor to believe that the defendant could ultimately implicate them in a charge of obstruction of justice, peijury, or even complicity in the reckless homicide.\u201d We need not decide whether such a suspicion was reasonable because the testimony establishes that neither Heath nor Taylor held such a belief. Therefore, the recording of their conversation with defendant does not come within the exemption.\nThe State also cites cases that stand for the proposition that evidence obtained by federal law enforcement officials in accordance with constitutional and federal statutory requirements is admissible in an Illinois court even though the evidence was not obtained in accordance with the Illinois eavesdropping statute. While the State contends that the principle behind these cases should prompt us to deem the conversation in question admissible, we decline to do so, finding no similarity whatsoever between the cases the State cites and the case before us.\nNext, the State maintains that defense counsel acquiesced in the admission of the tape and therefore waived the right to raise this issue on appeal. There are several grounds on which we could rule that defendant has waived this issue. However, it is well established that plain error is an exception to the waiver rule. People v. Enoch, 122 Ill. 2d 176, 189-90 (1988). As we have already explained, we consider the trial court\u2019s misapplication of the eavesdropping statute to be a grave error of law that we choose to address in spite of any waiver by defendant.\nThe State also argues that the admission of the tape recording was harmless error. We disagree. From those portions of the tape quoted in the report of proceedings, we conclude that the admission of the tape prejudiced defendant and was not harmless. The jury could have regarded defendant\u2019s admission that she meant to end her life as the equivalent of a confession that she acted in conscious disregard of a substantial and justifiable risk to the safety of others, which was the most strongly contested issue in the case. Although the State presented other evidence suggesting that defendant was contemplating suicide, we cannot say that the jury would have convicted defendant if the tape had not been admitted.\nThe case the State relies upon, People v. Taylor, 166 Ill. 2d 414 (1995), is distinguishable from the case at bar. In Taylor, the State presented testimony to a capital sentencing jury from two jail guards regarding the defendant\u2019s statements, which they heard through voice monitors placed in the jail cells. In determining that the defendant\u2019s counsel was not ineffective for failing to argue that the defendant\u2019s statements were obtained in violation of the eavesdropping statute, the court noted that the guards\u2019 testimony regarding the overheard statements did not \u201cdiffer effectively from the [picture of the defendant] created by the other evidence in aggravation.\u201d Taylor, 166 Ill. 2d at 436. The court had noted earlier that the record was \u201creplete with evidence amply supporting the jury\u2019s decision that there are no mitigating factors sufficient to preclude the imposition of a sentence of death.\u201d Taylor, 166 Ill. 2d at 432. Here, on the other hand, the evidence against defendant was closely balanced. Unlike the court in Taylor, we cannot say that the outcome would have been the same even if the improperly recorded conversation had not been admitted.\nThe State\u2019s final argument on this issue is that this court should engage in a balancing of defendant\u2019s rights and the victims\u2019 rights when deciding this case. The State cites the Rights of Crime Victims and Witnesses Act (Act) (725 ILCS 120/1 et seq. (West 1996)) and the crime victims\u2019 rights amendment to the Illinois Constitution (Ill. Const. 1970, art. I, \u00a7 8.1). Neither the Act nor the amendment lends any support for the approach the State suggests. This court certainly feels sympathy for the victims\u2019 grievous loss. However, as the State well knows, courts must base their decisions on the law, not on sympathy. At the risk of stating the obvious, the Act and the amendment do not alter the fundamental principles on which our legal system is based. Those principles mandate that a conviction based on illegally obtained, inadmissible evidence cannot stand.\nFor double jeopardy purposes, we find, after reviewing the record, that there was sufficient evidence for the jury to determine that defendant was guilty beyond a reasonable doubt. Therefore, the State may proceed with a new trial against defendant. See People v. Taylor, 76 Ill. 2d 289, 309-10 (1979). In so holding, we in no way imply that we have made a finding as to defendant\u2019s guilt or innocence that is binding on retrial. See People v. Taylor, 76 Ill. 2d at 310.\nWe next consider defendant\u2019s arguments that the trial court erred by (1) allowing the State to make references to defendant\u2019s membership in Cornerstones, an organization for gay students; (2) allowing the State\u2019s reconstruction expert to offer the opinion that defendant consciously drove through the ditch; and (3) barring defendant from offering as substantive evidence a statement she made to Officer Handzik following the accident. Preliminarily, we note that defendant did not object at trial to the State\u2019s references to Cornerstones or to the allegedly improper expert testimony. Nonetheless, we will consider these issues, along with the hearsay issue, in the interest of judicial economy, because they will likely arise during the new trial.\nDefendant claims that she was prejudiced by the State\u2019s references, both in opening argument and examination of several witnesses, to her membership in Cornerstones, an organization for gay students at the College of Du Page. Improper remarks by a prosecutor do not warrant reversal unless they were so prejudicial that they were a material factor in convicting the defendant. People v. Falconer, 282 Ill. App. 3d 785, 789 (1996). The standard of review in making this determination is similar to the plain error analysis. People v. Henderson, 142 Ill. 2d 258, 323 (1990).\nIn the present case, we find that the prosecutor\u2019s remarks were not improper and, consequently, they were not prejudicial. Two of the State\u2019s own witnesses belonged to Cornerstones, and the evidence indicated that defendant met these witnesses through Cornerstones. Defendant also testified that she was on her way home from a Cornerstones meeting when the accident happened. Clearly, there were reasons for the State to mention Cornerstones. The trial court, which was in the best position to determine whether the remarks were improper and prejudicial, found that the tone of the trial was not inflammatory and not prejudicial to defendant. Based on our review of the record, we agree with the trial court and conclude that the State\u2019s references to defendant\u2019s membership in Cornerstones did not deny her a fair trial.\nDefendant next asserts that the trial court improperly allowed the State\u2019s accident reconstruction expert, Jimmy Lee, to offer the opinion that defendant consciously drove through the ditch. Defendant claims that Lee\u2019s opinion was speculative. The admission of expert testimony is within the trial court\u2019s discretion, which we will not disturb absent an abuse of discretion. People v. Miles, 217 Ill. App. 3d 393, 403 (1991).\nWe begin by noting that we find no testimony in the record from Lee that defendant was a \u201cconscious\u201d driver at the time of the collision. Lee did offer the following testimony:\n\u201cQ. Sir, in addition to that, did you analyze or determine what, if any, sort of steering input was used on the Ford Escort prior to it hitting the Pontiac Bonneville?\nA. Yes.\nQ. And what are we talking about when we talk about steering input?\nA. An input is the driver\u2019s action; turns left, turns right or maintains.\nQ. This is an action that a conscious driver would do?\nA. Yes.\nQ. Were you able to determine if there were any steering input prior to the Escort hitting the Bonneville?\nA. Yes.\nQ. How many steering inputs were you able to find or determine?\nA. There\u2019s [szc] at least three significant inputs. The act of driving is not one input here, one input there, it\u2019s maintaining. So in my opinion the steering was maintained throughout the course of this path.\u201d\nIt appears to us that, when answering whether a steering input is something that a \u201cconscious\u201d driver would do, Lee was explaining the term \u201csteering input,\u201d not giving an opinion about defendant\u2019s mental state at the time of the accident. Furthermore, we agree with the trial court that Lee\u2019s opinion that defendant made at least three steering inputs while driving through the ditch was based on his review of the physical evidence and reconstruction of the events leading up to the collision. It was not error to allow this testimony.\nLast, we address defendant\u2019s argument that the trial court erroneously barred her from offering her statement to Officer Handzik as substantive evidence. According to the record, Officer Handzik was the first police officer who arrived at the scene of the collision and was the first person defendant spoke to after the accident. Officer Handzik testified that his conversation with defendant took place approximately 10 to 15 minutes after he arrived on the scene. Officer Handzik further testified that defendant told him that she intended to turn right from Clarendon Hills Road onto 79th Street and that she remembered activating her turn signal but was not aware of what happened up until her car came to rest. Before Officer Handzik gave this testimony, the trial court instructed the jury that his testimony about defendant\u2019s statement was being elicited only to demonstrate that the statement was made, and not for the truth of the statement.\nDefendant argues that the statement was an excited utterance and therefore should have been admitted as substantive evidence. We will apply an abuse of discretion standard to this issue, not a de novo standard as defendant urges. A reviewing court may review de novo a trial court\u2019s decision that a statement is hearsay when the determination does not involve fact finding or weighing the credibility of the witnesses. People v. Aguilar, 265 Ill. App. 3d 105, 109 (1994). In the present case, however, the trial court\u2019s determination of whether defendant\u2019s statement fell under the excited utterance exception involved fact finding and assessing the credibility of the witnesses. To qualify as an excited utterance, the proponent of the evidence must demonstrate \u201c(1) the occurrence of an event or condition sufficiently startling to produce a spontaneous and unreflecting statement; (2) absence of time to fabricate; and (3) a statement relating to the circumstances of the occurrence.\u201d People v. Smith, 152 Ill. 2d 229, 258 (1992). In the case before us, the trial court ruled that defendant did not establish that her statement was an excited utterance because she did not show a lack of opportunity to reflect and fabricate. Under the facts presented, the trial court did not abuse its discretion. Any future ruling on this issue will likewise depend on the facts presented on retrial.\nDefendant also argues that she was denied a fair trial due to ineffective assistance of counsel. In light of our determination to reverse defendant\u2019s conviction and remand this cause, we need not consider this argument.\nFor the reasons stated, we reverse defendant\u2019s conviction and remand this cause to the circuit court of Du Page County for a new trial.\nReversed and remanded.\nINGLIS and HUTCHINSON, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE BOWMAN" } ], "attorneys": [ "John F. Donahue, of Law Offices of Donahue, Sowa & Bugos, of Lisle, for appellant.", "Joseph E. Birkett, State\u2019s Attorney, of Wheaton (Martin E Moltz and Marshall M. Stevens, both of State\u2019s Attorney Appellate Prosecutor\u2019s Office, and Mary Beth Burns, Assistant Attorney General, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SARAH K. NESTROCK, Defendant-Appellant.\nSecond District\nNo. 2-98-0341\nOpinion filed September 8, 2000.\nJohn F. Donahue, of Law Offices of Donahue, Sowa & Bugos, of Lisle, for appellant.\nJoseph E. Birkett, State\u2019s Attorney, of Wheaton (Martin E Moltz and Marshall M. Stevens, both of State\u2019s Attorney Appellate Prosecutor\u2019s Office, and Mary Beth Burns, Assistant Attorney General, of counsel), for the People." }, "file_name": "0001-01", "first_page_order": 21, "last_page_order": 33 }