APPEAL from the Circuit Court of McHenry County; the Hon.
JAMES H. COONEY, Judge, presiding.
MR. JUSTICE WOODWARD DELIVERED THE OPINION OF THE COURT
Rehearing denied December 4, 1979.
Following a jury trial, defendant, Gary Campbell, was found guilty of murder, two counts of criminal damage to property over $150, reckless conduct, and criminal damage to property under $150. He was sentenced to concurrent prison terms of 14 to 21 years for murder, 1 to 3 years on each count of criminal damage to property over $150 and 364 days on each count of the reckless conduct and criminal damage to property under $150. Defendant appeals.
Louis Portalski testified for the State that he and David Klawes were employed by Boncosky Milk Transfer as truck drivers. During the early morning hours of October 20, 1976, Portalski and Klawes were each driving milk tankers in a northwesterly direction on Route 14. Portalski's truck was approximately 400 to 500 feet behind Klawes' truck as they both headed towards Wisconsin to pick up milk. As they approached North Ridgefield road, Portalski noticed Klawes' truck begin to drift off the road; he then felt his own truck go over a large object, giving him a severe jolt. He then observed Klawes' truck drive off the road and strike a small shed. Portalski pulled his truck over onto the shoulder and ran over to Klawes' truck; he opened the cab door, saw that Klawes was severely injured and sought help. A few minutes later a sheriff's deputy arrived. Later that morning, while returning from Wisconsin, Portalski discovered that his axle and brake housing had been damaged. He did not see any vehicles pass by at the time Klawes drove off the road. On cross-examination, he admitted that he had not seen any foreign objects on the road or the shoulder near the scene of Klawes' death.
The State then introduced testimony of several witnesses who had suffered either property damage or physical injuries due to objects striking their cars as they drove along Route 14 on October 20, 1976. Arthur Engle testified that while driving northwest on Route 14 he observed a vehicle driving erratically towards him going southeast. As the vehicle passed he heard a "swish" and then something came through the window. Engle lost control of his car and then managed to stop on the right hand shoulder of the road. He realized he couldn't move his right hand and had difficulty breathing. A passing motorist drove him to the hospital. As he was helped out of the car he noticed a small rock lying on the floor board of his car. Engle was hospitalized for 30 days suffering from a collapsed lung, broken ribs and a damaged arm muscle. He could not identify the vehicle that passed him, but believed it was dark blue or black in color.
Edward Dzierozynski testified that as he was driving towards Ridgefield on Country Club Road his windshield was struck by a foreign object which shattered the glass but did not penetrate the vehicle. Dzierozynski testified that he did not know if the vehicle which passed him at the time of the incident was a van.
John Zachwieja was driving northwest on Route 14. As he passed a car going in the other direction he felt a jar from his left front wheel. His left front tire blew out and he stopped to change it. He later returned to this location and found an indentation in the road and a white rock off the side of the road in a gulley. He later gave the rock to police. Zachwieja also was unable to identify the vehicle which passed him.
Lawrence Feezel was driving southeast on Route 14. As he passed Lenzies' Restaurant he saw several small rock fragments and the one large rock lying in the roadway. He was unable to avoid the large rock and drove over it causing his right tire to blow out. He later discovered his wheel rim was bent.
Joseph Susong, an auto mechanic who repaired the Engle and Zachwieja vehicles testified that the total damage to Engle's car was $546.73 and to Zachwieja's was $395.73. There was also testimony that it would cost in excess of $2000 to repair the damage to Klawes' truck.
Dr. Robert Stein, who at the time of the incident was the coroner's physician for McHenry County, performed an autopsy on Klawes. He testified that Klawes died as a result of severe cranial cerebral injury and partial decapitation, produced by a blunt object. Over defense objections, Dr. Stein used several full color photographs, set up on an easel, to demonstrate the partial decapitation.
The State also introduced testimony from a number of police officers, detectives and crime laboratory experts which established that the rocks which were found on Route 14, in Klawes' truck and in Engle's car, were stolen from the driveway of the Stonelake apartment complex. Rock chips from the recovered rocks were later found in the van allegedly used in the incident. The paint on the recovered rocks matched the paint which had originally been used on the rocks.
The State's occurrence witnesses were Daniel Craig, James Glasder and John and Joseph Shine, who originally were co-defendants on the same charges as the defendant here, and Kathy Coles and Ila Wright.
According to these witnesses, they were gathered in defendant's apartment in Algonquin, Illinois, drinking beer and smoking marijuana on the evening of October 19, 1976. The Shine brothers, Glasder and defendant agreed to accompany Craig in his van as he drove Coles and Wright home. Coles was dropped off first in Oakwood Hills near Crystal Lake, and Craig then drove northwest to Woodstock where Wright lived. During this drive Craig drove off the side of the road and hit a row of mailboxes located on the shoulder; he then backed up and hit them again. According to Joseph Shine and Ila Wright, someone threw an empty beer bottle out of the van; Wright thought at a sign while Shine stated that it was at a pickup truck; but neither knew who threw it. Craig thought that either Joesph Shine or defendant had thrown a beer bottle at a parked car.
According to Wright, as they approached the Stonelake Apartments where she lived, she heard defendant comment on the large white rocks which lined the driveway, and then someone else responded that they should pick up the rocks. However, none of the other witnesses remembered this exchange.
As Craig pulled the van out of the apartment complex, he stopped near the white rocks that lined the driveway, and the rest, including the defendant, began to load some of these rocks into the back of the van, intending to throw them at signs. Craig then drove north on Route 47 and then southeast on Route 14 towards Crystal Lake. During this drive, both Joseph and John Shine threw rocks at passing cars. After the rocks were thrown, John Shine saw a car pull over and turn around. Fearing that the driver might pursue them, they left Route 14 near Ridgefield, turned onto a back road and stopped the van. Defendant and Joseph Shine got out of the van and defendant indicated that he was going to hitch-hike home; however, the others told him that no more rocks would be thrown and that they would head for home.
After getting lost, Craig got back on Route 14 and again headed southeast towards Crystal Lake. Defendant was seated in back of the front seats on the engine cover while Glasder and John Shine were seated near the back doors. Seeing two trucks coming northwest on Route 14, Glasder and John Shine opened the rear doors of the van and hung out the back with rocks in their hands. John Shine and Glasder then each threw one or more rocks at the second truck. John Shine heard a thud as both the first and second trucks passed, but he did not see anyone throw a rock at the first truck. When they saw sparks coming from underneath the wheels of the second truck, they turned off onto a side road and, with defendant's help, kicked the remaining rocks out the side door of the van into a ditch by the side of the road. Craig then drove the others home.
The State called as witnesses the attorneys who had represented the four co-defendants. Over defense objections, these witnesses were permitted to testify to the terms of the plea agreements which their clients had entered into; namely, that the co-defendants had pleaded guilty to involuntary manslaughter of David Klawes and to the attempted murder of Louis Portalski; that their clients had not agreed to testify for the State as part of the plea agreements.
Defendant testified on direct examination that during the drive to Woodstock to take Ila Wright home, he threw two bottles, one at a road sign and the second at an abandoned car which was sitting on the grass off the side of the road. Later, leaving the Stonelake Apartments, defendant helped load rocks into Craig's van after someone had suggested picking up the rocks and throwing them at "parked cars, signs, and mailboxes." As the van drove down Route 14, defendant threw a beer bottle which he had just emptied at a sign on the shoulder of the road. He then heard someone say, "Here comes a car." Defendant did not see any rocks thrown but saw a car in the distance put on its brake lights and swerve. The van pulled off the road because everyone was afraid the car would follow them. When defendant indicated he was going to hitch-hike home, he was told that no more rocks would be thrown.
The van then drove down Route 14 a second time. The defendant further testified as follows:
"Q Where were you seated at this time?
A I was sitting in the back, right at the base of the engine cover.
Q Where were the others seated?
A Joe Shine was in the passenger seat. Dan Craig was in the driver's seat; John and Jim were in the back end of the van, by the doors.
Q What was the first thing that happened that you recall next?
A Well, I had asked somebody for a beer and then I opened it.
Q What were the others doing, do ...