APPEAL from the Circuit Court of Cook County; the Hon. KENNETH
R. WENDT, Judge, presiding.
MR. JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:
David Dietschweiler (defendant) was indicted for involuntary manslaughter. (Ill. Rev. Stat. 1969, ch. 38, par. 9-3.) After a bench trial, he was found guilty but was admitted to probation for 5 years on condition that the first year be spent in the House of Correction under the Work Release Program. (Ill. Rev. Stat. 1971, ch. 38, par. 123-7.) He appeals.
In this court, defendant contends that the trial court erred in rejecting the testimony of two reconstruction experts and in permitting introduction of evidence regarding a prior suspension of defendant's driver's license for lack of "financial responsibility insurance." He also urges that he "is entitled to an acquittal because of the trial judge's erroneous finding of guilty on the charge of involuntary manslaughter"; the trial judge erred in allowing evidence of defendant's refusal to take a breathalyzer test and defendant did not intelligently and effectively waive his right to a jury trial. In addition, an issue regarding constitutionality of the statute under which defendant was indicted is raised in his reply brief.
The State responds that the expert testimony was properly excluded because seven eyewitnesses testified to the speed of defendant's car so that the expert testimony was unnecessary and impressively speculative; evidence of the prior suspension of defendant's license was properly received for purposes of impeachment; the trial court correctly found defendant guilty of involuntary manslaughter since the indictment properly charged that offense; admission of evidence of defendant's refusal to take a breathalyzer test was harmless error and the waiver of jury trial by defendant was understanding and effective.
It is unnecessary to state the testimony of each and all of the witnesses seriatim. A clear and sufficient understanding of the facts can be obtained from a description of the location involved and a summary of the basic evidence. On May 6, 1971, about 11:30 P.M., defendant was driving his automobile, alone, south on Harlem Avenue, in Chicago. In that area, Harlem Avenue has three lanes of traffic for travel in each direction with a median strip. At the block in question, 5600 south, the street narrows to two lanes in each direction. At that time, the street was being repaired. The construction zone was marked with barricades and flashing yellow lights. That morning the street had been oiled for repaving. The speed limit posted on Harlem Avenue was 35 miles per hour.
The Candlelight Theater is on the west side of Harlem Avenue in this 5600 block. Immediately north is a parking lot and next north a gasoline station. There is a large parking lot on the east side of the street. At the time in question, approximately 200 to 300 people were leaving the theater. Some were crossing Harlem Avenue to the parking facility on the east side. Some 50 to 75 people were on the sidewalk to the west in the area of the parking lot and the gasoline station. Defendant testified that at this time there were no pedestrians on the street or on the median strip and that he saw only a couple of people on the sidewalk. He did see the barricades and yellow flashing lights as he approached the scene of the occurrence.
Including police officers, the State called nine witnesses. Steve and Carol Fagiano had left the performance and entered their automobile. They were driving from the gasoline station in an easterly direction, intending to make a right turn to go south on Harlem Avenue. They both testified that there was another automobile ahead of defendant's car proceeding at a speed of about 20 miles per hour. This car had slowed to permit pedestrians to cross the street to the east parking lot. Defendant cut around this automobile to pass it on the right. However, he failed to correct his direction and struck the left front of their automobile with the right front of his own. At this time, the Fagiano car was either backing up to avoid the impact or was standing still. Also, there is varying testimony as to whether it was partly on the street or entirely within the gas station driveway at impact. There is testimony that after the collision, defendant's car veered sharply to the left toward the median for several feet, then back to the right, jumped the curb, knocked down and injured two pedestrians, pinned a third against a nearby building and stopped. The third pedestrian was killed.
An investigating officer testified that he saw no skid marks from defendant's car before the impact with the Fagiano car. He measured skid marks extending 56 feet from the point of collision to the curb and 10 feet of skid marks on the sidewalk. The distance from impact to the building against which deceased had been pinned was 118 feet. The officer found no indication that defendant's car had gone left toward the median and then right. Two other witnesses for the prosecution testified, however, that defendant's car had first veered to the left toward the median. This officer testified that in his opinion the minimum distance that defendant's car could have traveled, assuming that it darted left toward the median after impact, was 118 feet. In his opinion, the impact occurred in the curb lane of Harlem Avenue.
Another police officer testified that he interviewed the defendant in the station shortly after midnight. He found it extremely difficult to get answers. Defendant staggered when he walked, swayed when he turned and his breath smelled strongly of alcohol. In the opinion of the officer, defendant was then under the influence of alcohol. He told the officer that he had been drinking and that he had consumed four bottles of beer. He refused to take a breathalyzer test, a finger to nose test and a coin test. Two officers testified that defendant gave them different versions of the occurrence: that he was going south in the left lane when the Fagiano car pulled out and struck him; he was in the center lane when the car pulled out of the driveway and he could not stop in time; and also that he struck the left front of the other car with the left front of his car.
As regards the evidence of speed, Mrs. Fagiano estimated the speed of the defendant's car at 60 to 70 miles an hour. She had observed the vehicle for 4 to 5 seconds before the collision. Mr. Fagiano estimated the speed at 55 to 70 miles per hour after an observation of 4 to 7 seconds. He also told two police officers that defendant was driving at 60 miles per hour. Father Mens, one of the pedestrians, estimated defendant's speed at 60 miles an hour. He stated that it took 1 second from the impact until the car pinned the deceased against the building. Kathleen Kumiega testified that defendant was going too fast because people were crossing Harlem Avenue. Carmen Domingo described the speed as "very fast." Dorothy Kapsa, another pedestrian, testified that the speed was 40 to 45 miles per hour after impact as defendant's car approached her and that it took about 5 seconds for the car to stop thereafter. At the coroner's inquest, she had fixed the speed as at least 35 miles per hour.
Defendant testified that his speed was not over 20 miles per hour. He made this same statement to a police officer at the scene. He also testified that he looked at his speedometer immediately before collision with the Fagiano automobile and that he was then driving 30 miles per hour. A police officer testified that he had retraced defendant's path for 600 feet on Harlem Avenue and that in his opinion it would be possible for an automobile to reach a speed of 70 miles per hour from the point of entry on Harlem Avenue to the collision.
On the issue of intoxication, the police officer who arrived at the scene testified that he saw defendant leaning and swaying against a large flower pot in front of the theater and then watched him walk. Defendant had an odor of alcohol on his breath. In the opinion of this officer, he was under the influence of alcohol. Defendant testified that he went to a tavern after work on the date in question and drank four beers in the period of about 5 hours prior to 10 P.M. This statement is corroborated by a friend of defendant named James Klein. Their testimony is that each of them ate four hot dog sandwiches during this period of time. Defendant's witness expressed the opinion that defendant was not under the influence of alcohol when they separated at 10:15 P.M. He testified that defendant had a good reputation for truth, veracity and sobriety.
Another officer testified that defendant told him that he had a few beers at a friend's home. Defendant explained this with a statement that, since he had been in an accident, he thought it would sound better if he told police he was at a friend's home. Defendant also testified that, after he left Klein, he went to a parking lot where he spoke to a friend of his, made another stop for a short time, and then drove south on Harlem Avenue toward the theater.
Defendant's employer testified that defendant had an excellent reputation and that he had never seen him under the influence of alcohol. He employs defendant as a driver and defendant drives approximately 30,000 miles a year in performing his duties. Defendant testified that he was not under the influence of alcohol at the time of the accident. He testified that he saw no traffic to the right and thereupon changed lanes to pass the other car. At that time, he was going approximately 30 miles per hour. A car came out of the gas station and he could not stop in time. He jammed on the brakes and lost control. As a result of the accident, defendant was somewhat stunned and had a small cut on the top of his nose. He refused medical attention suggested to him by the police.
• 1 In our opinion, examination of this record discloses that there is ample evidence to support the finding of guilt of involuntary manslaughter. The scene presented is one in which it would be incumbent upon a person driving at that time and location to exercise extra care to avoid people crossing the street and automobiles which might be driving out from the gasoline station and parking area. Also, the flashing lights in connection with road repair should have warned any reasonable driver to use a great degree of caution. The necessary conclusion is that defendant was driving recklessly at an unreasonable rate of speed; that he was somewhat under the influence of alcohol; and ...