Appeal from the Circuit Court of Cook County; the Hon. JACQUES
F. HEILINGOETTER, Judge, presiding. Affirmed.
MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.
In a jury trial defendant was found guilty of the offenses of "disregarding a traffic light" and "involuntary manslaughter" as charged in the indictment. The jury found defendant not guilty of "operating a motor vehicle while under the influence of intoxicating liquor." Defendant was released on probation for the period of five years, with the first six months to be served in the Cook County House of Correction.
On appeal defendant contends that (1) his constitutional rights and statutory guarantees were violated when the prosecutor commented indirectly on defendant's failure to testify; (2) the prosecutor's closing argument was so improper and prejudicial that the defendant was denied his right to a fair trial; and (3) that the evidence presented in the trial court was not sufficient to prove defendant guilty beyond a reasonable doubt.
On the morning of May 3, 1968, at approximately 2:00 a.m., at the intersection of Lawrence Avenue and River Road in Schiller Park, an automobile driven by the defendant, Robert Acker, collided with a motorcycle driven by Charles Baka. Baka died as a result of the injuries received in the collision. There were no eyewitnesses to the actual collision. Traffic lights controlled the intersectional vehicular traffic.
A witness for the State, Fred Minch, testified that he and Baka were riding their motorcycles in a northerly direction on River Road. As Minch and Baka approached the intersection of River Road and Lawrence Avenue, Baka was 15 or 20 feet behind him. As Minch approached the traffic light it was changing to yellow. Minch made a left-hand turn, heading in a westerly direction on Lawrence Avenue. Just as he was turning the light changed to red. After he made the turn Minch stopped and turned around and saw the decedent stop at the red light. As Minch motioned to Baka, he saw a car coming up on Baka from the rear, which was almost a block away. Minch observed that the car was going pretty fast. There was a slight drizzle of rain, so Minch, after motioning to Baka, proceeded down Lawrence Avenue and stopped under a viaduct to wait for Baka. Minch did not see the collision, but he did notice that the lights on the deceased's motorcycle were working.
Police Officer John Hoagland testified that on May 3, 1968, he was in the vicinity of Lawrence Avenue and River Road at approximately 2:00 a.m. The intersection was illuminated by a big light in front of a lounge south of Lawrence Avenue. Hoagland was traveling alone in his squad car, heading south on River Road. He was stopped at a red light at the intersection of Lawrence Avenue and River Road and was in the outer lane closest to the curb. At that time he was observing the vehicle to his left which had one headlight. He heard a crash, looked up and saw a white object going across the front of his squad car and a yellow vehicle on River Road proceeding through the intersection. It was coming from the south, proceeding north. He again observed the traffic light, and it was red for the north-south traffic. He made a U-turn and proceeded "to give chase" to the yellow vehicle, which was swerving from side to side in the northbound lanes of River Road. He pulled up behind the vehicle, which was stopped approximately 759 feet from the intersection of Lawrence Avenue and River Road. The driver of the yellow vehicle (defendant) got out of his car, and Hoagland walked up to him and asked him what had happened, and defendant said he hit something. Defendant's clothing was very disarranged, and he appeared to stagger and leaned on the car for support. Hoagland noticed a strong odor of alcohol. Hoagland also testified, "I again asked him for identification and he took his billfold out and went through it and produced a New York driver's license."
After talking with defendant, Hoagland walked around to the front of defendant's vehicle and observed a motorcycle embedded in the front of the car. Upon searching the area, Hoagland found the deceased lying about six feet in front of the defendant's automobile or 765 feet from the point of impact. The deceased had nothing on his head and his shoes were missing. Hoagland then went back to the intersection of Lawrence Avenue and River Road and found part of a tool kit and parts of a motorcycle in the intersection, and on the side of the road approximately 30 to 40 feet from the center of the intersection he found a white helmet, which belonged to the deceased. This was the white object that he had seen going across the front of his squad car. He found one of the victim's shoes on the west side of River Road about 25 or 30 feet from the stoplight, about three feet off the pavement. The second shoe was found to the north of the stoplight on the east side of River Road about the same distance away.
Another witness for the State, Captain Paul Ellis of the Schiller Park police department, testified concerning defendant's general appearance after the collision. He noticed that defendant's breath had a moderate odor of alcoholic beverage, his clothing was disarranged and his walk was swaying. Although defendant passed several sobriety tests, it was the opinion of Captain Ellis that the defendant was under the influence of alcoholic beverage.
As previously noted, the jury returned verdicts of "guilty" of the traffic violation and involuntary manslaughter charges. They found defendant "not guilty" of the intoxication charge.
Initially considered is defendant's contention that he was not proved guilty beyond a reasonable doubt of either of the two offenses. Defendant argues that a charge of involuntary manslaughter requires proof of a conscious awareness of risk and a disregard of it. Both elements are necessary, and also the prosecution must prove that the causal connection with the death of another resulted from reckless and wanton conduct. Defendant's authorities include People v. Sikes, 328 Ill. 64, 159 N.E. 293 (1927), where it is said (p 74):
"Negligence, to become criminal, must necessarily be reckless or wanton and of such a character as to show an utter disregard of the safety of others under circumstances likely to cause injury."
Defendant asserts that there was no direct evidence that the defendant was going at an excessive rate of speed, and even if excessive speed had been proved, it alone would not constitute sufficient proof of recklessness for involuntary manslaughter. Defendant asserts that Officer Hoagland made no sequence test to determine if the northbound light was red simultaneously with the southbound light, and no direct evidence was offered that the defendant had in fact disregarded a traffic control signal. Defendant further asserts that the only evidence presented by the State consisted of after-the-fact testimony and pictures of the defendant's automobile after the collision, and from this circumstantial evidence they drew inferences of recklessness, and a judgment of conviction resting largely on circumstantial evidence and leaving serious doubt that the defendant was criminally negligent cannot stand. In People v. Crego, 395 Ill. 451, 70 N.E.2d 578 (1946), it is said (p 458):
"[W]here acts or circumstances are attributable to either an innocent or a criminal cause, the innocent hypothesis will be adopted. . . . In short, defendant's conviction cannot be sustained in the absence of proof of criminal negligence."
The State asserts that the indictment for involuntary manslaughter charged a violation of chapter 38, § 9-3(a) of the Ill Rev Stats, 1967, which reads:
"A person who kills an individual without lawful justification commits involuntary manslaughter if his acts whether lawful or unlawful which cause the death are such as are likely to cause death or great bodily harm to some individual, and he performs them recklessly."
The State maintains that in a conviction for involuntary manslaughter, it is only necessary to prove beyond a reasonable doubt that defendant's acts recklessly caused the death, and the State is not required to establish defendant's guilt beyond the possibility of a doubt. People v. Brown, 83 Ill. App.2d 411, 415, 228 N.E.2d 495 (1967).
The State notes that the defendant did not testify nor did he put on any witnesses to contradict the testimony of the State's witnesses. The State cites People v. Bartell, 386 Ill. 483, ...