Witnesses tell jury about injuries from SUV plowing into restaurant; defense attorney says driver wasn’t to blame

photo by: Kim Callahan/Journal-World
Brandon Vess appears Monday, Feb. 3, 2025, at his trial in Douglas County District Court.
“If it wasn’t for the concrete pillar that stopped the car,” Joe Whalen doubts that he’d be here today, he told a Douglas County jury Monday.
Whalen and two others — his daughter and her college roommate — were dining at a corner table at Big Mill restaurant on Ninth Street on Nov. 4, 2022. Whalen had driven down from Chicago to celebrate KU’s Dads Weekend with his freshman daughter. As the trio and two other relatives were preparing to leave the Ninth Street eatery, a large white SUV careened into the northwest corner of the building, injuring all three to varying degrees.
Deputy District Attorney David Greenwald, in his brief opening statement in the trial of Brandon Vess, told the jury that “the front of the restaurant functionally exploded — glass flying everywhere, bricks caving in” — a description that jurors got to assess for themselves as they watched video of the crash taken from inside the restaurant.
Vess was the driver of the 2005 Toyota Highlander that hit the building while he was drunk and going “excessively fast” in a 30 mph zone, according to police. A KBI scientist testified that Vess’ blood alcohol content was .16, or twice the legal limit.

photo by: Kim Callahan/Journal-World
Brandon Vess appears Monday, Feb. 3, 2025, at his trial in Douglas County District Court. His attorney, Nicholas Hayes, is at left.
Vess’ defense attorney, Nicholas Hayes, however, suggested to the jury in his opening statement that “something unexpected happened” that caused Vess to lose control of his vehicle. The unexpected thing was not precisely disclosed in his opening, but he assured the jury that it “could have happened to anyone,” and he accused the police of having “confirmation bias” in their investigation — a common defense tactic, the gist of which is that police “jumped to the conclusion” that best conformed to their beliefs and ignored other evidence.
Hayes tried to sow doubt about the integrity of the blood draw showing intoxication, and implied during cross-examination of witnesses that Vess’ brakes may have failed or that some kind of glitch in the computer of the car, which he called “destroyed” evidence, was responsible for the collision. He told jurors that it was a “cold and rainy night,” suggesting road conditions weren’t good — a claim that was rebutted by the state’s witnesses, who said driving conditions were fine.
Whalen, the visiting father, escaped with a cut to his hand, he said. But the two young women suffered more severe injuries, which they testified about in court as jurors viewed images of their bruised and cut legs. Both women had their backs to the window, so they had no warning as they were thrown by the sudden impact.
Whalen testified about the relief he felt when he saw the two women were “moving” after the wreck.
One of the women described painfully pulling her leg out of the rubble, and jurors were shown photos of bruises covering her thigh, calf and ankle. She said no bones were broken, as ER scans indicated, but there was “very significant” deep tissue bruising, and her leg is still “sensitive” almost two and a half years later, she testified.
The other woman, Whalen’s daughter, testified that the force of the collision knocked her into the table, and she sustained large cuts on her knee and shin, pictures of which the jury saw. The woman said that she had to get physical therapy for her knee injury and that her shin was scarred. Vess’ defense attorney asked to see the scar, and the woman lifted her pant leg and showed him, though it wasn’t clear how much the jurors saw as she remained seated in the witness box.

photo by: Kim Callahan/Journal-World
Lawrence Police Officer Daniel Palen discusses a photo of the Big Mill collision at the trial of Brandon Vess Monday, Feb. 3, 2025, at his trial in Douglas County District Court.
Brad Ziegler, who owns Big Mill, testified that it was his understanding from police officers that Vess’ car was going around 55 mph, though no officer who testified Monday gave a numerical answer regarding Vess’ speed, only that it was “excessive.” Ziegler also testified that Vess had no valid insurance to cover the expenses of repairing the building. Ziegler had told the Journal-World previously that he believed the high quality masonry work in the 1918 building had saved it from collapsing on impact.
The state also called Vess’ wife to the stand, where she recounted, seemingly reluctantly, how she and Vess had gone to a strip club that night, had gotten into an argument, from which Vess walked away, only to get in the Highlander alone at some point and begin the drive that ended with the crash and his being unconscious. Police body cam video played for the jury showed Vess’ wife, who stopped at Big Mill, telling police that he had been drinking that night. On the stand Monday, however, she was more circumspect on that detail.
The state wrapped up its case Monday afternoon, and Hayes indicated that he would call witnesses Tuesday morning to support the defense’s version of events that night.
Vess, 31, is out on bond, and is facing three felony counts of aggravated battery while driving under the influence, as well as misdemeanor counts of having no proof of insurance and reckless driving.