Appeal from the Circuit Court Du Page County No. 94--CF--1888 Honorable Ronald B. Mehling Judge, Presiding.
The opinion of the court was delivered by: Justice Inglis delivered the opinion of the court:
Defendant, Arthur Soteras, appeals his conviction of first-degree murder (720 ILCS 5/9--1(a) (West 1994)) of decedent, Cozette Jones, for forcing her vehicle off the road and into a rollover accident. We affirm.
Jones and her brother, Albert Weems, both worked at a restaurant in Elgin. Defendant owned a flower shop in partnership with Don Chiola.
During the afternoon of September 7, 1994, Jones and Weems were driving to work in Jones's Geo Tracker on the Eisenhower Expressway, when a Firebird driven by defendant cut in front of them. Jones honked her horn at defendant and defendant slammed on his brakes. The two cars eventually stopped on the shoulder of the expressway. Weems approached the Firebird with a part of "the Club," an anti-theft device, hidden behind his back. Jones also approached defendant's car and may have been armed with the other portion of "the Club." Weems exchanged words with defendant and Nick Chiola, who was a passenger in the Firebird. Defendant sprayed mace at Weems and Jones and, according to Weems, hit Jones in the face with the mist. Weems struck the Firebird's rear spoiler with his portion of "the Club." The Firebird drove away along the shoulder of the road. Weems, now driving the Tracker, tried to give chase, but soon lost the Firebird in traffic.
The Firebird exited the expressway and stopped for gas. Nick Chiola testified that when defendant noticed the damage caused by Weems's blow to the rear spoiler, they both became upset. Defendant and Nick Chiola got back into the car and reentered the Eisenhower expressway.
Weems and Jones in the meantime continued traveling along the Eisenhower Expressway. Shortly before the Mill Road exit, Weems noticed the Firebird in his rearview mirror and observed that it was "coming up fast in and out of traffic, just coming up fast." Weems testified that he maintained his speed and position in the center lane while the Firebird pulled alongside him in the right lane and began to crowd him by crossing into his lane.
Weems testified that defendant began to spray mace at the Tracker. Jones screamed for defendant to stop and began to roll up her window because she was inhaling the fumes. Weems maintained his speed of between 65 and 70 miles per hour while the Firebird continued to crowd him. Weems moved to the left lane and was immediately followed by the Firebird. The Firebird continued to crowd Weems, and Jones suggested that they exit at Lake Street in order to go to the police station there.
Weems moved from the left lane to the right lane. As he made this maneuver, he testified that he had lost sight of the Firebird. Weems also testified that, while he did not use his turn signal to change lanes, he did look behind him while he crossed the lanes. As he crossed the lanes, he felt a bump, then a hard bump and a constant push until he lost control of the car and it tumbled down the embankment by the side of the road.
Nick Chiola testified that, after both cars pulled onto the shoulder of the Eisenhower expressway, Weems and Jones came up quickly and started to hit the Firebird with clubs. Defendant sprayed mace at them and then drove away along the shoulder. Defendant and Chiola eluded the Tracker, left the expressway, and pulled into a gas station. After getting gas and observing the damage, they returned to the Eisenhower expressway.
As they were driving, defendant noticed the Tracker in the center lane and began weaving in and out of traffic in order to catch up to it. The Tracker moved to the left lane and the Firebird pulled alongside. Nick Chiola testified that he saw defendant stick his arm out of the window and indicate that the Tracker should pull over because defendant wanted to talk to Weems and Jones about the damage they had caused. In response, Weems and Jones were making hand gestures and swearing at them. Nick Chiola testified that both cars were swerving into each other's lanes and were a few feet apart. Nick Chiola testified that an object was thrown at the Firebird, possibly a can, and that he noticed Jones was holding a "silvery object." In response, defendant sprayed mace at the Tracker.
Nick Chiola testified that, after spraying the mace, defendant then moved to the right lane, maintaining a constant speed of between 65 and 70 miles per hour. The Tracker remained in the left lane. Nick Chiola testified that the Tracker then moved into the right lane about three to five feet in front of the Firebird and applied its brakes. Defendant did not brake to avoid the Tracker, but veered left, making a slight contact with the Tracker. Nick Chiola testified that he saw the Tracker go down the embankment. Defendant did not pull off the road but sped away, attempting to avoid a pursuing tow truck.
The Firebird exited the expressway on Thorndale Road, with the tow truck still in pursuit. After running a red light in an attempt to evade the tow truck, defendant was stopped in a motel parking lot by Cook County Sheriff's Deputy Farahat Levy.
Deputy Levy testified that he observed the Firebird run a red light. After stopping defendant, Levy testified that defendant explained that he was late for a golf outing. Levy further testified that a cursory check of the Firebird did not reveal any golf clubs. A later inventory check of the Firebird also failed to uncover any golf clubs.
The eyewitnesses to the rollover, Kelly Pysarenko, John Bratcher, Steven Kraft, and Lorenzo Guzman, all testified that, as they were traveling on the expressway on September 7, 1994, each noticed a Firebird speeding and weaving in and out of traffic until it caught up with a Geo Tracker. Each testified that the Firebird swerved toward the Tracker and crossed into the Tracker's lane. Each testified that they saw hands from the Firebird gesturing or throwing things at the Tracker. All but Pysarenko testified that they saw the Firebird accelerate and strike the rear of the Tracker and maintain contact until the Tracker left the road. Pysarenko testified that her view was obscured by other vehicles until she saw the Tracker rolling down the embankment by the side of the expressway.
The State presented the testimony of an accident reconstruction expert, Trooper Scott Thompson. Thompson testified that, in his opinion, the Firebird struck the rear of the Tracker, possibly several times, and that the Firebird may have underridden the Tracker and lifted up its rear end. Thompson further testified that, in his opinion, the collision caused the Tracker to begin to spin in a clockwise direction, that Weems's attempts to turn right exacerbated the spin, and that the car flipped over when the tires dug into the ground. In forming his opinion, Thompson relied upon police reports and witness statements, field sketches and photographs, his own measurements and those performed by an evidence technician, Illinois Department of Transportation survey information, and the report of a certified auto mechanic.
Defendant's accident reconstruction expert, Fred Monick, testified that, in his opinion, the Tracker and Firebird came into contact on only one occasion for less than a second and that the contact was very light. Monick testified that he observed no structural damage to the bumpers of the two cars and estimated that the difference in the relative speed of the two cars was no more than five miles per hour. Monick further testified that he believed that the contact was insufficient to send the Tracker into a spin. Monick testified that he based his opinions on his personal examination of the vehicles, pictures of the vehicles, the damage to the vehicles, and the vehicle manufacturers' collision damage testing on their bumpers.
The trial court found defendant guilty of first-degree murder (count V) (720 ILCS 5/9--1(a)(2) (West 1994)). In delivering its findings, the trial court emphasized the importance of the eyewitness testimony and placed little emphasis on the expert testimony. Defendant filed a motion in arrest of Judgement attacking the indictment and a motion for a new trial, both of which were denied. The court sentenced defendant to a 45-year term of imprisonment. Defendant timely appeals.
On appeal, defendant contends that (1) the indictment did not properly allege intent for murder; (2) defendant was prejudiced by the revelation of prior felony convictions during the jury waiver hearing; (3) the evidence was insufficient to prove him guilty of first-degree murder; (4) trial counsel was ineffective for failing to object to "incompetent evidence"; (5) defendant was prejudiced by the State's examination of Antonio Ascenscio; (6) the trial court misconstrued the evidence and law in its findings of fact; and (7) the State's expert testimony usurped the fact finder's role.
Defendant initially argues that the indictment was defective for failure to adequately set forth the requisite intent for murder. Count V of the indictment states that "defendant, without lawful justification, drove a motor vehicle into a motor vehicle occupied by Cozette D. Jones and Albert L. Weems, knowing such act created a strong probability of great bodily harm to [the victims], thereby causing the death of Cozette D. Jones." Defendant contends that count V of the indictment sets forth a charge more akin to aggravated battery than murder. Compare 725 ILCS 5/9--1(a)(2) (West 1994) (person "commits first degree murder if, in performing the acts which cause the death: *** he knows that such acts create a strong probability of death or great bodily harm to [the victim]") with 725 ILCS 5/12--4(a) (West 1994) ("A person who, in committing a battery, intentionally or knowingly causes great bodily harm, or permanent disability or disfigurement commits aggravated battery"). Defendant argues that the indictment is insufficient for failing to track the murder statute (725 ILCS 5/9--1(a)(2) (West 1994)). We disagree.
When a defendant challenges the sufficiency of the charging instrument by a motion in arrest of judgment, it is well settled that the instrument is sufficient if it "apprised the accused of the precise offense charged with sufficient specificity to prepare his defense and allow pleading a resulting conviction as a bar to future prosecution arising out of the same conduct." 725 ILCS 5/116--2(c) (West 1996); see also People v. Benitez, 169 Ill. 2d 245, 258 (1996); People v. Scott, 285 Ill. App. 3d 95, 98 (1996). Count V, challenged for the first time by a motion in arrest of judgment, meets the statutory requirements. Count V states that defendant was charged with first-degree murder and precisely lists the section of the Criminal Code of 1961 (720 ILCS 5/9-- 1(a)(2) (West 1994)). Moreover, the precise act with which defendant was charged, namely, driving his vehicle into the victims' vehicle, is also given in count V. Accordingly, we hold that count V adequately charged the offense of first-degree murder (720 ILCS 5/9--1(a)(2) (West 1994)).
We note that even under the more stringent standard of review pertaining to a pretrial motion to dismiss the indictment (see 725 ILCS 5/114--1 (West 1996); Scott, 285 Ill. App. 3d at 99), the indictment passes muster. It is "the well-established rule in Illinois that, in testing the sufficiency of a multicount indictment, elements missing from one count may be supplied by another count." People v. Johnson, 231 Ill. App. 3d 412, 423 (1992). Here, count I supplies the missing element, stating that defendant "drove a motor vehicle into a motor vehicle occupied by Cozette D. Jones and Albert L. Weems, knowing such act created a strong probability of death to [the victims], thereby causing the death of Cozette D. Jones." Thus, read together, counts I and V provide that defendant acted with the knowledge that his action created a strong probability of great bodily harm or death, which tracks the first-degree murder statute (720 ILCS 5/9--1(a)(2) (West 1994)). Additionally, both counts contain the name of the offense and the statutory provision alleged to have been violated. Accordingly, the indictment would be sufficient even under the more stringent standard of review applicable to a pretrial challenge.
Defendant also argues that the indictment failed to allege a specific intent for the crime of murder, relying upon People v. Muir, 67 Ill. 2d 86 (1977), and People v. Gilday, 351 Ill. 11 (1932). Murder, however, is a general intent crime. People v. Thomas, 266 Ill. App. 3d 914, 926 (1994); see also Muir, 67 Ill. 2d at 93 ("Section 9--1(1)(a)(2) *** encompasses situations where subjective intent to kill may be lacking, but where the defendant intentionally, and with disregard to the consequences, performs acts of obvious ...