Appeal from the Circuit Court of Kane County; the Hon. Joseph
McCarthy, Judge, presiding.
JUSTICE WOODWARD DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 8, 1987.
The defendant, Steven V. Brajcki, appeals from his conviction for the offense of reckless homicide. The cause was tried without a jury and resulted in a finding of guilty. A sentence of 18 months' imprisonment was imposed. The facts are not in dispute.
On March 23, 1985, at approximately 2:30 to 3 p.m., defendant was driving his gray Camaro in a northerly direction on Binnie Road. He had a passenger, Greg Hodson, seated on the passenger side in the front of the car. At the same time, Robert Wielgoszinski was proceeding westbound on Huntley Road. At the point where Binnie Road runs into Huntley Road, Binnie Road ends. A driver must then turn either east or west on Huntley Road. At the intersection of these two roads, a stop sign is posted for traffic on Binnie Road. Wielgoszinski testified it had rained earlier in the day, the road was damp, and it remained overcast. His wife and daughter were also in the car. Wielgoszinski stated that the speed limit was 55 miles per hour on Huntley Road, and that just prior to the collision, he believed he was traveling about 45 miles per hour. As he entered the intersection of Binnie and Huntley Roads, Wielgoszinski testified that he suddenly saw the defendant's car directly in front of him. He stated it came from somewhere on his left but he never saw the car until it was in front of him. Wielgoszinski related that he collided with defendant's car almost immediately. He said he heard no brakes squealing, nor did he have any other warning of the defendant's approach. The front of his car struck the right front of defendant's auto. Mr. Wielgoszinski stated that there were no problems with visibility on Huntley Road, that he could see approximately a half mile ahead.
There was testimony indicating the Wielgoszinski's car came to rest about 20 to 30 feet from the north edge of Huntley Road, in a line with Binnie Road if extended northerly, and the defendant's car was nearly 60 to 75 feet from the north edge of Huntley Road beyond Wielgoszinski's car. There was testimony indicating that defendant's passenger, Hodson, was thrown from the vehicle upon impact. Another paramedic, Gary Neuw, testified to the fact that Hodson's body lay 30 feet north of where defendant's car came to rest. Hodson died several hours later as a result of the injuries he sustained in the accident.
Lon Swanson witnessed the accident from approximately 50 feet away, while in his car. He testified that he saw a car going north, nearing the stop sign on Binnie Road. The car was 30 to 40 feet from the stop sign on Binnie Road when Swanson first saw it. Swanson noted the car was going too fast to stop at the stop sign. As the defendant's car passed the stop sign, Swanson did not hear the car brake or honk its horn, or observe the car swerve to avoid the collision. Swanson testified the car "flew through the stop sign" and it was just "a blur" as it passed the stop sign.
From his post-accident analysis, State Trooper Roger Schmidt identified 66 feet of skid marks both before and after the stop sign on Binnie Road. He stated that the speed limit, posted on Binnie Road in both directions, is 40 miles per hour. It was Schmidt's opinion that anyone observing the speed limit on Binnie Road as they approach Huntley Road would have no difficulty stopping at the stop sign without going through the intersection. Another State trooper, Eric Norwood, determined that the brakes on defendant's car were in good working order.
One other person, Richard Maskell, observed defendant's car just prior to the accident. Maskell's testimony indicated that his house is a few hundred yards southwest of the intersection of Binnie and Huntley roads. The house is on a small hill overlooking Binnie and Huntley roads. He established a familiarity with the workings and speeds of automobiles as he used to be a competitive sports-car driver. He said he competed for two to three years. Just prior to the accident, Maskell was standing, looking out his front picture window. He first heard the sound of an engine roaring and the chassis noise from a car's suspension working at high speed over rough road. Maskell stated that such noise indicated a car traveling very fast. He further stated that within seconds after hearing the noise, he saw a gray Camaro headed eastbound "at a very high rate of speed. Of course it just flashed past the house." Based upon his experience, Maskell postulated that "it was being driven at the absolute limit you could keep it on the road. It was just hopping from bump to bump on that surface." Maskell estimated the car was traveling 50 to 70 miles per hour. Maskell testified that he drove Binnie Road northbound to Huntley Road virtually every day on the way to work for the four years he had lived there. On cross-examination, in response to a question regarding the number of accidents at that intersection, Maskell replied, "[a]s a matter of fact, I don't recall another accident at that intersection that I'm personally aware of in the four years we've been there."
As mentioned, the trial court found the defendant guilty of the offense of reckless homicide. The defendant raised four issues on appeal: (1) did the trial court err in its denial of defendant's motion for substitution of judges; (2) was the defendant proved guilty beyond a reasonable doubt of reckless homicide; (3) was improper evidence admitted sufficient to deprive defendant of his right to a fair trial; and (4) did the trial court fail to consider mandatory evidence while improperly considering other factors at the sentencing hearing so as to entitle defendant to a new hearing.
• 1, 2 Defendant first contends that his motion for substitution of judges was improperly denied. Defendant appeared before Judge McCarthy for arraignment on May 8, 1985. Defense counsel's associate was present. The matter was continued until May 22, 1985. At that hearing, the defendant filed his motion for substitution of judges. The written arraignment order entered that day by Judge McCarthy read: "This cause is assigned to Judge McCarthy for further proceedings herein." In addition, the following exchange took place between the judge and the defendant's counsel:
"THE COURT: Well, we're going to give the defendant time to file motion for discovery. We'll continue this matter for two weeks to Wednesday, May 22, at 9:00, Counsel. On or before that date the defendant will file his discovery motion herein and respond to the State's dscovery [sic] motion. And convey my admonition to Mr. David [defendant's counsel].
DEFENSE COUNSEL: I will Judge. At 9:00 on the 22nd. Correct?
DEFENSE COUNSEL: This ...