Appeal from Circuit Court of Logan County Nos. 97CM317 98TR6321 Honorable David L. Coogan, Judge Presiding.
The opinion of the court was delivered by: Justice Garman
Defendant Keith V. Hasprey was convicted of one count of reckless driving, a Class A misdemeanor, under section 11-503 of the Illinois Vehicle Code (Vehicle Code) (625 ILCS 5/11-503 (West 1998)). The trial court sentenced him to 18 months' probation, a $1,000 fine plus costs, and $1,500 in restitution to Charles Robertson. Defendant argues the following on appeal: (1) the trial court erred by allowing the State to argue in its closing argument that, in order to convict defendant, it had to prove that defendant acted either willfully or wantonly, and not both; (2) the trial court erred in not declaring a mistrial when the jury delivered a note to the court asking, "How do you vote if you feel at this point and time both parties are at fault?"; and (3) the trial court erred in ordering defendant to pay restitution because restitution was not authorized under the Vehicle Code or the Unified Code of Corrections (Corrections Code) (730 ILCS 5/1-1-1 et seq. (West 1998).
On the morning of May 10, 1998, as Charles Robertson was driving to work in his Ford Escort on Fifth Street in Lincoln, Illinois, defendant attempted to pass him in his Dodge Ram pickup truck. As defendant passed, Robertson edged over the centerline, as a "reminder not to pass in town." Fifth Street is a two-lane street, and defendant had to edge almost over the curb on the other side to avoid the Escort. Defendant and Robertson agree that the two vehicles made contact during this incident, but dispute whose vehicle did the contacting. After passing Robertson, defendant pulled in front of him and stopped. Robertson also stopped. Defendant began to exit his truck, at which point Robertson backed up and took off on a side street. Robertson testified that he left the scene because he did not think there was any damage to the cars, he did not want to be late for work, defendant looked fairly angry at the time, and he felt he was in danger.
Defendant's friend, Chuck Taylor, was driving not far behind defendant because he and defendant had been on their way to play golf. Taylor stopped behind defendant on Fifth Street and asked what happened. Defendant told Taylor that Robertson had just hit him. Defendant had not obtained Robertson's license plate number or taken a good look at Robertson at that point. Taylor suggested, "[L]et's go get him."
Defendant and Taylor decided to pursue Robertson. Shortly thereafter, defendant spotted Robertson's Escort on a nearby side street. Defendant pursued Robertson on the side street, while Taylor took Fifth Street to attempt to cut Robertson off, in the event he emerged there. Defendant eventually caught up to Robertson, pulled beside him and motioned for him to pull over. Robertson did not pull over. Defendant pulled in front of Robertson and stopped as he did previously. Robertson again backed up his Escort and pulled away, heading toward Lincoln Parkway. Defendant again failed to obtain Robertson's license plate number or to take a good look at Robertson. Defendant continued the pursuit.
Defendant caught up to Robertson on Lincoln Parkway, a four-lane road, pulled beside him, and again motioned for him to pull over. Both vehicles were headed southbound in the southbound lanes at this point. During this pursuit, Robertson swerved behind defendant a couple of times and drove through the grassy center median of Lincoln Parkway into the northbound lanes, still heading southbound, attempting to escape from defendant. Defendant continued to pursue him. Defendant was able to catch up, and he again pulled in front of Robertson and stopped. By that time, Taylor had caught up to them and he pulled behind Robertson to "box him in." Defendant had maneuvered his truck so that it was perpendicular to Lincoln Parkway, straddling both lanes. Robertson began to back up, attempting to flee, and defendant began backing up simultaneously. Robertson testified that defendant slammed his truck into Robertson's Escort, pushed it sideways about three to four feet, and caused it to spin around so that Robertson's car was now facing Taylor's truck. Robertson looked at Taylor and raised his hands, which Taylor interpreted as Robertson asking, "What is going on?" Defendant testified that he did not intend to hit the Escort and that, in fact, it was the Escort that hit his truck. Taylor testified that because defendant's truck was three times the size of Robertson's Escort, the Escort was crushed from the collision. Robertson was afraid and scared "out of [his] wits" during the course of these events. Officer David Sieloff, who prepared the police report, testified that when Robertson came to the police station, he seemed "fearful of the other driver."
Immediately after the collision on Lincoln Parkway, Robertson again swerved over the center median into the northbound lanes and pulled off Lincoln Parkway onto a road leading to the Illinois Department of Corrections. Robertson called the police from there. Defendant and Taylor aborted their pursuit, proceeded to the golf course, and called the police from there.
Robertson was charged with reckless driving for edging over the centerline while defendant was attempting to pass him. Robertson pleaded guilty to the charge. Defendant was charged with two counts of reckless driving, but one charge was dismissed on the State's own motion before the trial. The two-day trial began on November 17, 1998.
At the beginning of the second day of trial, the court received a written question from the jury asking, "How do you vote if you feel at this point and time both parties are at fault?" After agreeing initially that an admonition to the jury not to discuss the case until all of the evidence was presented would be a sufficient response, defendant's counsel asked that a paragraph be added to the response also instructing the jury that the State was required to prove more than fault, and that this case was not about fault. Defendant feared that the jury misunderstood the law. The State objected, arguing that instructing the jury on the law before all of the evidence was concluded would only compound the problem. During the Discussion, defendant's counsel stated at various times that he would move for a mistrial if he was not satisfied with the court's response to the jury. He stated, "I'm going to move for a mistrial. I really don't honestly think this problem can be cured unless the jury is told right now that this case is not about fault. He also said, "Unless [the jury is] corrected *** immediately[,] I don't see how this can be anything other than a mistrial," and that he was "moving for a mistrial unless the court will instruct that the issue in this case is not fault." After considerable Discussion, the trial Judge suggested that the problem could be cured by adding a sentence to the bottom of the court's written response that, "This case is not about fault. It is about reckless driving." The State's Attorney agreed, as did defendant's counsel, stating: "I think we would agree to that sentence." Defendant's counsel also asked that the word "fault" be placed in quotation marks, and the trial Judge agreed. We have reviewed a copy of the written response to the jury that was included in the record, and it conforms with these stipulations. Finally, defendant's counsel confirmed that the response would be sent to the jury and read. The trial Judge concluded the Discussion by indicating that he was going to "tell [the jury] not to discuss among themselves, and that [he would] instruct as to the law, and *** [that they should] wait until [they] hear everything before [they] discuss it." Presumably, the trial Judge meant he would give this oral admonition to the jury in addition to sending back the written response.
The trial Judge then addressed the jury, stating:
"Each case is individual, each case is different, and we deliberate a verdict as jurors after all the evidence has been presented and after you're instructed as to what the law is. In this particular case[,] it is not proper to be discussing the case before all the evidence is in and before the instructions. *** [Y]ou have to wait until you have heard all the evidence and [been] instructed as to the law before you make any determination on guilt or innocence."
The court then asked if defendant was ready to proceed. Defendant's counsel responded in the affirmative and proceeded by calling defendant as a witness. Defendant's counsel did not object to the trial Judge's admonition to the jury or make any motion for mistrial.
At the close of all of the evidence, the record indicates that defendant's counsel made a motion in limine, off the record, asking that the court prohibit the State from arguing in its closing argument that it could establish the offense of reckless driving under section 11-503 of the Vehicle Code (625 ILCS 5/11-503 (West 1998)) by proving that defendant acted either willfully or wantonly. The parties' arguments with respect to defendant's motion were made on the record. Defendant argued that under People v. Paarlberg, 243 Ill. App. 3d 731, 612 N.E.2d 106 (1993), a showing of both willfulness and wantonness was required. In Paarlberg, the court discussed types of reckless driving under section 11-503 of the Vehicle Code. Although the Paarlberg court stated that reckless driving requires proof of a willful or wanton mental state, the court proceeded to define three categories of reckless driving that each required willful and wanton behavior. Paarlberg, 243 Ill. App. 3d at 735-36, 612 N.E.2d at 110-11.
After considering Paarlberg, the trial court denied defendant's motion in limine, noting that the plain language of section 11-503 defines reckless driving as driving with a ...