APPEAL from the Circuit Court of Cook County; the Hon. EDWARD
FIALA, Judge, presiding.
MR. PRESIDING JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 19, 1979.
These consolidated appeals result from convictions after a bench trial involving Charles F. Ziegler, Jr. (Case No. 78-1138), and Jeffrey M. Stasik (Case No. 78-1262). These defendants were tried together with Thomas Orlando, who is not a party to this appeal. Ziegler was charged with reckless homicide (Ill. Rev. Stat. 1977, ch. 38, par. 9-3); failure to reduce speed to avoid a collision (Ill. Rev. Stat. 1977, ch. 95 1/2, par. 11-601(a)) and improper lane usage (Ill. Rev. Stat. 1977, ch. 95 1/2, par. 11-709). He was found guilty of reckless homicide and sentenced to non-reporting probation for one year. He was acquitted on the balance of the charges.
Defendant Stasik was charged with reckless driving (Ill. Rev. Stat. 1977, ch. 95 1/2, par. 11-503); improper lane usage (Ill. Rev. Stat. 1977, ch. 95 1/2, par. 11-709); drag racing (Ill. Rev. Stat. 1977, ch. 95 1/2, par. 11-504) and leaving the scene of an accident (Ill. Rev. Stat. 1977, ch. 95 1/2, par. 11-401). He was found guilty of improper lane usage and reckless driving and sentenced to one year of non-reporting probation and a fine of $1000 on the reckless driving charge. For improper lane usage, he was given a concurrent sentence of one year non-reporting probation.
In this court, Ziegler contends that the trial court used incompetent and improper evidence in arriving at its findings; evidence of speed was improperly admitted and considered; if only competent evidence had been considered the court would have found the defendant not guilty; and where a condition may be explained on the hypothesis of innocence, the court must accept the explanation. Defendant Stasik contends that the evidence does not support the findings of the trial court beyond a reasonable doubt and the sentence imposed upon Stasik was grossly disparate.
We will first summarize the evidence applicable to both defendants in this joint trial and we will then consider their respective contentions.
Dundee Road is a paved four-lane highway of great length, running east and west. The east and westbound lanes are divided by a median strip. As one drives westward on Dundee Road for about 4 or 5 miles commencing at Skokie Highway, he reaches the Sanders Road traffic light. Dundee goes upgrade and then down to pass over Illinois Toll Road No. 294. About a quarter of a mile west of this slight hill there is an entrance to Dam No. 1 of the forest preserve. This road enters into Dundee Road from the south but does not cross it.
On April 8, 1977, Stasik was driving a Volkswagen. A passenger named Baumeister accompanied him. Ziegler was driving a Mazda and Orlando was driving a Capri. Luben Antonoff (deceased), was sitting in the passenger seat of Ziegler's Mazda. All of these cars were going west on Dundee Road.
Darryl Frank testified for the People that when he was driving west on Dundee Road about at Skokie Highway, he noticed these three automobiles, which he described as a Volkswagen, a Capri and a Mazda. He watched them as they traveled west on Dundee. He testified the cars were racing and weaving in and out of traffic. He saw these cars cut off at least three other cars. At one time his own car was cut off by the Volkswagen. At times, the speed of these three cars exceeded that of the flow of traffic. All four automobiles halted for the red light on Sanders Road. The witness, Frank, was in the right-hand lane; the Volkswagen, driven by Stasik, was immediately behind him; and the Capri, driven by Orlando, was in the westbound left-hand lane along side of the Volkswagen. The witness saw Stasik speaking to Orlando.
The witness, Frank, attempted to outdistance the defendants when they started. The witness proceeded to the hill over the tollway and reached a speed of 70 miles an hour. As he began to go down the hill, he slackened speed to 65 or 70 and all three of the other cars passed him. They were going a great deal faster than he was and all pulled away from him. At that point, the witness saw a gold colored Chrysler automobile standing in the left-hand lane of the westbound portion of the road. This car was stopped for a left turn into the access road to Dam No. 1. From about a quarter of a mile away, the witness saw the brake lights and left-hand turn signal of this Chrysler, all in operation.
The other three automobiles kept on at the same rate of speed as they approached the standing car. None of their brake lights were shining. Stasik and Orlando, driving the Volkswagen and the Capri in the left lane, made a quick lane change and cut off a fourth car in front of Ziegler's Mazda which was moving in the right lane. As a result, the Mazda turned quickly to the left to pass around the left side of the car which applied brakes after it had been cut off by the Volkswagen and Capri. The Mazda crossed the median strip into the two eastbound lanes. Ziegler, driving the Mazda, recrossed the median strip into the westbound lanes but drove into the rear of the standing Chrysler waiting to make a left turn. The witness saw the Mazda apply its brakes an instant before the crash. Stasik and Orlando, driving the Volkswagen and Capri respectively, slowed down but then continued driving to the west. It is undisputed that the deceased, the passenger in the Mazda, came to his death as a result of the collision.
Jeffrey Stubitz testified for the State. He was sitting on his motorcycle on the right-hand portion of the road leading to Dam No. 1. At about 1:30 p.m., he was waiting to turn left in a westerly direction on Dundee. He moved his motorcycle about two feet northward into the eastbound lanes of Dundee. He observed the three cars, operated by the defendants, coming down the hill over the tollway. He pulled his motorcycle back. The three cars were "going pretty fast." The speed limit there was 50 miles per hour and the three cars were going faster than that. The three cars changed positions and were "butting in front of each other." The Volkswagen of Stasik was in the right lane of Dundee, together with the Capri. They were slightly ahead of but alongside of the Mazda. The Mazda was straddling both of the westbound Dundee lanes. The Capri and Volkswagen were so close that their sides were almost touching. The witness also saw the Chrysler car, which he identified as a Plymouth, stopped in the left lane for a left turn into the access road to Dam No. 1. The witness then saw the Volkswagen (Stasik) and the Capri (Orlando) cut off the Mazda (Ziegler). The Mazda went around the Volkswagen and Capri and was going so fast that it struck the rear end of the Plymouth. The Mazda stopped and the Plymouth went forward. The witness then saw both the Volkswagen and the Capri cross the median strip into the eastbound lanes of traffic. At this time they were only 6 or 7 feet from the witness. At one point, before the Mazda and Plymouth collided, the witness heard a "big bang." The witness could not tell if the Volkswagen and the Capri collided. They were going so fast that they were "kind of, like, sideways" on their axles. Both cars turned back into the westbound lanes and kept going.
Officer Michael Rompala, of the Wheeling police, was dispatched to the scene of the accident for investigation. He found the Mazda in an eastbound lane of Dundee Road. "The entire front of the vehicle was collapsed on approximately a 45-degree angle." The lower part of the body of the deceased was pinned in the Mazda. The Plymouth automobile was 285 feet west of the Mazda. The officer located the Capri about 200 feet west of where the accident occurred. The left front of the vehicle had new damage thereon.
The officer also testified that he received a call from an officer at the police station who had spoken to a person on the phone. This person stated that he had been involved in the accident. Officer Rompala then went to the parking lot of a restaurant about a half mile west of the accident. There he found the Volkswagen and the defendant Stasik. There was damage to the rear passenger side area of this car. Stasik told the police officer the car was damaged when he was hit from the rear while traveling west on Dundee Road. This testimony of the officer was corroborated by a series of ...