Appeal from the Circuit Court of Cook County; the Hon. Paul A.
O'Malley, Judge, presiding.
JUSTICE HARTMAN DELIVERED THE OPINION OF THE COURT:
Following a bench trial, defendant was found guilty of reckless homicide and sentenced to 30 months adult probation with eight months of periodic imprisonment and prohibited from operating a motor vehicle. The issues raised on appeal include whether: (1) defendant was proven guilty of reckless homicide beyond a reasonable doubt; (2) the indictment sufficiently set forth the elements of the reckless homicide offense; and, (3) the State's motion for a protective order was properly granted.
For the reasons given below, we affirm.
At about 9 p.m. on June 26, 1981, a motorcycle driven by defendant either struck or collided with eight-year-old Steve Sobieraj riding a bicycle near 8400 South Burley Avenue, resulting in the latter's death. The rear passenger on defendant's motorcycle, Anacleto Torres, stated that before the accident he told defendant not to "go fast." Defendant replied, "Don't worry about it." Defendant also told him that he was going to "catch up" to the driver of the first motorcycle. Defendant slowed down to swerve around a pickup truck and then accelerated to about 40 or 45 miles per hour in the middle of Burley Avenue when Torres heard a thump. Defendant did not cross the center line to travel in the west side of the street. Torres' head was turned and his eyes watery because of the wind. He did not see the center line or a child on a bicycle.
The victim's 13-year-old sister, Cindy Sobieraj, stated in effect that 10 to 12 children were playing in the area near the incident. Two motorcycles came, the second of which crossed the yellow line and hit the victim who was on the west side of Burley Avenue going toward 84th Street. The victim bounced up in the air, hit the ground and was dragged 140 feet. The testimony of Richard Sobieraj, age 16, substantially corroborated Cindy's testimony. He added that the victim was hit from behind while riding his bicycle against traffic. The examining physician was of the opinion that the victim was struck from behind.
Anna Carrillo's testimony *fn1 was essentially in accord with that given by Cindy and Richard Sobieraj. Her testimony, however, was contradicted by her prior statements to investigating police officers.
Jesus Bustos, the driver of the first motorcycle, stated that whenever he looked in the rearview mirror, defendant was in the proper lane. He did not see the accident.
According to the investigating officer, 84th and Burley was a predominantly residential area. Although not posted, the speed limit was 30 miles per hour. Motorcycle fragments were found on the west side of the street. The first spot of blood appeared near 8401 Burley about the center of the street. It "stopped" on the west side of the street around 8358 Burley. He did not find any skid marks.
Defendant testified on his own behalf. He was driving between 35-40 miles per hour in the right-hand lane of Burley. Suddenly, a bicycle darted out from two parked cars. The right side of his motorcycle hit the front of the bicycle. A photograph identified as People's exhibit No. 15A revealed that the front wheel of the victim's bicycle was deformed. Defendant identified a series of photographs showing damage to the right side of his motorcycle. He went to a "disco" that evening. The next morning, however, he voluntarily turned himself in to the police. In rebuttal, Richard Sobieraj stated that no cars were parked on Burley Avenue between the house and the corner of the block.
• 1 Defendant contends that the evidence failed to prove him guilty of reckless homicide beyond a reasonable doubt. He argues that the testimony of Cindy and Richard Sobieraj was biased because of their relationship to the victim. He asserts that the State's evidence was replete with conflicts in the testimony on vital questions of fact, particularly on the question of whether defendant was driving in the proper lane at the time of the accident. These contentions must be rejected. The circuit court properly could have found from the State's evidence that defendant failed to apply the brakes and that at the moment of impact was moving well in excess of the 30 miles per hour speed limit in the left-hand lane of a residential street where 10 to 12 children were playing. To reach this finding, the circuit court did not have to rely on the eyewitness testimony of Anna Carrillo which was impeached by her prior inconsistent statements to the investigating police. The testimony of Cindy and Richard Sobieraj by itself, if believed, demonstrated that defendant was in the wrong lane at the time of impact. In the exercise of its discretion as fact-finder, the circuit court did not have to believe the contrary testimony of defendant, Bustos, and Torres, particularly since the latter two did not view the collision. The evidence was not so unsatisfactory or improbable as to raise a reasonable doubt of defendant's guilt. People v. Ellis (1978), 74 Ill.2d 489, 496, 384 N.E.2d 331.
Defendant assigns error to the order denying his post-trial motion in arrest of judgment, maintaining that the indictment is insufficient. The indictment charges that:
"[H]e [defendant] * * * unintentionally and without lawful justification, while driving a motor vehicle, to wit: a motorcycle, recklessly performed acts in such a manner as were likely to cause death or great bodily harm to some individual and such acts caused the death of Steven Sobieraj, in violation ...