APPEAL from the Circuit Court of Cook County; the Hon.
BENJAMIN S. MACKOFF, Judge, presiding.
MR. JUSTICE SIMON DELIVERED THE OPINION OF THE COURT:
The defendant, Rafael Salazar, was convicted after a jury trial on four counts of involuntary manslaughter, and sentenced to four 2- to 10-year terms to be served concurrently. The incident on which his guilt was based involved a collision on the Kennedy Expressway on February 24, 1973, between a car he owned and was driving and another vehicle, resulting in the death of four of the occupants of the other car.
Prior to the collision, a compact Chevrolet with a yellow body and black vinyl top, established at trial to be the defendant's, was seen speeding along the expressway in the southeastward lanes by five other motorists traveling in the same direction. The defendant's car was cutting across lanes, darting in and out of traffic and passing other cars at rates of speed up to or more than 70 miles per hour. The other motorists testified there were two occupants in the defendant's car, and one of them identified the defendant as the driver. The other occupant proved to be Angel Carrero, a friend and co-worker of defendant, who testified that defendant was the driver at the time of the collision.
At a point in the vicinity of the Addison Street exit, the defendant's car went off the roadway, hit the guardrail on the east side of the expressway, and in veering back onto the expressway struck the rear of an automobile in which the victims were riding. The impact forced the victims' car off the highway, into the guardrail on the left and then into an abutment. The car bounced off the abutment and came back on the expressway where it rolled over. The driver, James Freeman, his wife, his son and daughter were killed. Two other occupants of the car, Mr. Freeman's daughter, Charlotte, and son, Alvin, survived.
The defendant's car stopped momentarily and then swerved around the overturned car, leaving the scene at a high rate of speed. Witnesses got the license plate number of the car and it was the license issued to the defendant. At the time of the collision the pavement was dry and it was light.
Shortly after the collision a police patrol unit, alerted to look for the vehicle involved in the collision, located it parked on the street near an expressway exit a short distance south of the site of the collision. The officers who found it testified the doors of the car were locked, the license plates were missing, the hood was still warm from recent running of the engine, they observed fresh damage to the car's exterior, and they saw a liquor bottle on the front seat. Personnel assigned to the police crime lab opened the car, and in searching the inside found the bottle was an opened bottle of brandy. The bottle of brandy was admitted in evidence.
A short time after the defendant's car was located and the bottle inside the car recovered, the police received a report from the defendant that his vehicle had been stolen. The police went to defendant's residence approximately 2 hours after the collision, discussed the alleged theft of the car with him, and then returned with the defendant to the automobile which the defendant identified as his. The police asked the defendant to accompany them to a police station where he was placed under arrest later that night.
1 The defendant contends that the admission of the brandy bottle in evidence was error because it was the result of an unlawful search of defendant's car prior to its being reported stolen and prior to defendant's arrest, that his motion to suppress evidence found in the search of the car was improperly denied and that the court should have granted a rehearing at trial on his motion to suppress the evidence when he learned the brandy bottle was being offered in evidence. The warrantless search of an automobile which the police have reasonable grounds for believing was used in the commission of a crime is proper for the purpose of seeking incidents of the crime. (Chambers v. Maroney (1970), 399 U.S. 42, 26 L.Ed.2d 419, 90 S.Ct. 1975.) The police when searching the car knew of the collision, had a good description of the car, and in view of their observation of the damage had probable cause for believing it had been used in the commission of an offense. They were, therefore, justified in searching it for incidents of the crime without first obtaining a warrant, and the bottle was properly admitted into evidence as an incriminating item recovered during a valid search.
An additional justification for the search was that the trial testimony disclosed that the open bottle was on the front seat in plain view from the outside of the vehicle. People v. Joyner (1972), 50 Ill.2d 302, 310, 278 N.E.2d 756.
During trial, defense counsel claimed he did not know at the time of the pretrial hearing that the State had possession of the bottle. The court requested some proof of lack of such knowledge, but the defendant offered none. In any event the issue was not possession of the bottle, but how and in what manner the State obtained it. The pretrial hearing was full and complete, and defendant filed a memorandum in support of his pretrial motion setting forth his objections to the search of the car. The circuit court did not err in receiving the bottle in evidence.
2 The defendant complains of trial errors which he claims were prejudicial. First, Charlotte Freeman, 8 years old, was called as a witness by the State and walked to the witness stand in the presence of the jury. A voir dire examination was then held outside the presence of the jury, and the court concluded the child was not competent to testify. The defendant's objection is that Charlotte had difficulty walking as a result of the collision, and permitting the jury to observe her limping to the witness stand unreasonably inflamed the jury against the defense. The usual procedure is to object to the competency of a witness as soon as he is sworn. (People v. Sawhill (1921), 299 Ill. 393, 132 N.E. 477.) But, this need not be an inflexible rule. Charlotte Freeman was never sworn in the presence of the jury because of defense counsel's immediate objection to her competency and to her being on the witness stand while the jury was present. Although it would have been preferable not to have called Charlotte to the stand in the presence of the jury, we cannot in view of the other evidence in the case regard her fleeting appearance before the jury as so prejudicial that it is a ground for reversal.
3 Charlotte's brother, Alvin, 10 years old, was determined to be competent to testify after a lengthy voir dire examination outside the presence of the jury. The trial judge has the responsibility of determining the competency of a child witness; his decision will be reversed only in the event of a manifest abuse of discretion or misapprehension of some legal principle. (People v. Ballinger (1967), 36 Ill.2d 620, 225 N.E.2d 10.) The evidence does not establish that the court's ruling that Alvin was competent to testify was an abuse of discretion or for any reason improper. Alvin's testimony on direct examination related only to where the members of his family were sitting in his father's car immediately prior to the collision, and his testimony on that subject was not only clear, but unrefuted.
4 The defendant also objects to statements made by the prosecutor in closing arguments. One of the prosecutor's statements was that the defendant left Charlotte and Alvin fatherless and motherless. The State did not dwell upon this, and the brief reference to the children being left orphans was neither prejudicial nor unduly inflammatory. (People v. Jordan (1967), 38 Ill.2d 83, 230 N.E.2d 161; People v. Bernette (1964), 30 Ill.2d 359, 197 N.E.2d 436.) A prompt objection to the statement was immediately sustained. In view of the overwhelming evidence of the defendant's guilt, the statement, while improper, did not deprive the defendant of a fair and impartial trial. People v. Skorusa (1973), 55 Ill.2d 577, 585, 304 N.E.2d 630.
A second objection to the State's closing statement was the prosecutor's remark in rebuttal that the only people who knew how the collision took place were the five witnesses who testified, Charlotte and Alvin and "the two people who were in the defendant's ...