Appeal from the Circuit Court of Cook County. No. 97 CR 13722 Honorable Thomas F. Carmody, Jr., Judge Presiding
The opinion of the court was delivered by: Justice O'brien
Defendant James A. Kraus appeals a jury conviction and judgment for aggravated reckless homicide. Defendant was convicted of both aggravated reckless homicide and reckless homicide but was sentenced on only aggravated reckless homicide. The circuit court denied defendant's motion to vacate the verdict of reckless homicide as a violation of the one-act, one-crime rule. Defendant appeals.
On appeal, defendant contends the circuit court erred in: (1) refusing specific supplemental questions by defense counsel to three individual prospective jurors regarding the State's burden of proof; (2) allowing the jury to find him guilty beyond a reasonable doubt; (3) instructing the jury; and (4) refusing to vacate his conviction for reckless homicide. We affirm.
During jury selection, the circuit court questioned prospective jurors as a group regarding defendant's presumption of innocence, the State's burden of proof and that defendant's failure to testify could not be considered against him, and permitted defendant to address prospective jurors individually. However, the circuit court refused specific supplemental questions by defense counsel to three individual prospective jurors because the questions mixed the specific charges against defendant with those basic legal principles or were redundant. Defendant exhausted his peremptory challenges.
Trial testimony revealed that on March 16, 1997, David Andrasco was traveling eastbound on 111th Street toward the Burlington Railroad tracks. As he approached the tracks he saw "a body fly" and he pulled off the road to see if he could help. At the same time, John Madden was traveling eastbound on 111th Street when he heard a popping sound and saw a maroon Buick hit someone. Madden then saw the body roll off the top of the car and go up in the air. Madden also pulled over and, after speaking to Andrasco, reentered his car and followed the Buick.
Madden caught up with the Buick approximately one mile away, pulled up next to it and asked the driver if he knew that he had just been in an accident. The driver responded that he did not think he had hit anything. Madden then pointed out the Buick's broken windshield and told the driver that the police were coming. The driver said he would turn around, but pulled into a gas station, exited a different entrance and continued on. Madden noted the Buick's license plate number and returned to the scene of the accident to speak with police.
Oak Lawn police officer Ronald Stoklosa, an evidence technician, testified that he arrived at the scene at approximately 5:35 p.m., while it was still light outside. Officer Stoklosa testified that there was no curb in the area but that there was an eight-foot-wide gravel shoulder. Officer Stoklosa noticed approximately four fresh digs or scrapings in the gravel and some spray, which indicated something moving back to the roadway. Officer Stoklosa photographed the markings with both a Polaroid and a 35 millimeter camera and identified some of the photographs at trial.
Oak Lawn police officer Robert Brewer, a patrol officer and accident investigator, arrived at the scene at approximately 6:30 p.m. Officer Brewer measured and documented the location of all of the evidence and examined the victim's bicycle. Officer Brewer testified that he observed blood spatters and fresh skid marks, scuff marks, and gouge marks in the shoulder of the roadway. The rear wheel of the victim's bicycle was caved in and pinned against the frame of the bike.
Officer Stoklosa ran the license plate number given to him by Madden and went to a residence on Morris Court in Lombard where he saw a vehicle backed into the garage. The vehicle had front-end damage and a shattered windshield, dents in the hood, some green fabric on the top edge of the hood and on the top edge of the windshield, and hair and flesh at the top of the windshield. Officer Stoklosa photographed the vehicle and identified the photographs at trial. He testified that the damage he saw was consistent with a body sliding across the top of the hood and impacting the windshield.
Lombard police officers Joseph Wagner and Christopher Bakken also arrived at the Lombard address and saw a vehicle, with a smashed windshield on the passenger side, backed into the garage. As the officers pulled into the driveway, another car pulled out of the garage. The driver, Charlotte Kraus, exited the car and approached Officer Wagner. She told him that her husband had been involved in an accident and that they were on their way to report it. Defendant then exited the passenger side of the car and told Officer Wagner that he was coming from the St. Patrick's Day parade, where he had consumed two beers at 4:30 p.m. He also stated that he was involved in an accident on 111th Street just west of Cicero where he hit a construction barricade. He said he stopped and looked but did not see anything. Defendant also stated that he had not consumed any alcohol since he left the parade.
Officer Wagner testified that the defendant had glassy, bloodshot eyes, a strong odor of alcohol on his breath, and slurred speech. Officer Bakken confirmed these observations and added that the defendant was swaying while they spoke with him. Both Officers Wagner and Bakken concluded, based upon their experience, training and personal observation, that the defendant was unfit to drive a motor vehicle and arrested defendant. Neither officer conducted a field sobriety test or administered a breathalyzer test.
A blood-alcohol test conducted on the defendant at 10:55 p.m. revealed .047 grams of alcohol per deciliter of defendant's blood.
Dr. Albert Karl Larson, a forensic scientist employed by the Illinois State Police, testified that the defendant's probable blood- alcohol level at the time of the accident was between .102 and .157 grams of alcohol per deciliter of blood based upon the blood-alcohol test and metabolism rate of alcohol for human beings of .01 and.02 grams of ethanol per deciliter of blood per hour. Dr. Larson testified that a person's blood-alcohol level can peak up to an hour after he has stopped drinking, and the consumption of food can add an additional half hour. Dr. Larson admitted that if the defendant drank alcohol less than an hour before the accident or if he had something to eat, the lower number in his range could be lower than .100. However, Dr. Larson explained that a person who had consumed only two beers at 4:30 p.m. should not have a blood-alcohol concentration of .047 at 10:55 p.m. and concluded that defendant must have had more than two beers.
Dr. Larson testified that some of the effects of alcohol include a decrease in judgment and motor skills, as well as balance and vision problems, and that a person with an alcohol level between .102 and .157 would be expected to exhibit some of these characteristics. Defendant's slurred speech, bloodshot eyes, swaying and smell of alcohol at 6:35 p.m. were consistent with this range. Dr. Larson further testified that people can be "under the influence of alcohol" at .09 or even .08 grams of alcohol per deciliter of blood.
A forensic pathologist from the Cook County medical examiner's office performed an autopsy and testified that the victim's injuries were consistent with a body impacting the front of a vehicle, hitting his head on the roof of the car, rolling off the vehicle and tumbling or sliding on a gravel surface. A toxicology exam of the victim's blood revealed a blood-alcohol level of .216 grams of alcohol per deciliter of blood. The victim was wearing green corduroy pants at the time of the accident and suffered a crushed skull and multiple injuries.
Dr. Austin Gibbons, a retained defense witness, testified that the metabolism rate of alcohol for humans can vary from .006 to .04 grams of ethanol per deciliter of blood per hour. He admitted it was "unlikely" that a person could consume only two beers at 4:30 p.m. and have a blood-alcohol level of .047 6½ hours later.
Karen Geiger and her mother Elizabeth Bingen also testified for the defense. At approximately 5:15 or 5:25 p.m. on the date of the accident, Geiger and Bingen were returning from the South Side Irish parade. As they approached the intersection of 111th Street and Cicero Avenue (approximately one-quarter to one-half mile before the railroad tracks), the women noticed a man on a bicycle at the curbed island by the right turn lane. Geiger saw the man fall off his bike twice, once when he caught himself as he was falling into a van and again when he fell to the ground, got up and remounted his bike. Bingen testified that she believed the man was intoxicated.
John Goelbecker, a consulting engineer retained by defendant as an accident reconstruction expert, testified that glare from the sun and the victim's dark clothing could have contributed to the accident. Goelbecker further testified that, based upon his examination of the scene a week after the accident and the estimated speed of the defendant's vehicle, the accident occurred in the right-hand lane of the roadway, not on the shoulder as determined by police.
On appeal, defendant first contends the circuit court erred in refusing supplemental voir dire of three specific prospective jurors regarding defendant's presumption of innocence, the State's burden of proof and that defendant's failure to testify could not be considered against him during deliberations. Defendant admits the circuit court questioned the prospective jurors as a group with respect to these legal issues, but erred in refusing specific supplemental questions to three prospective jurors by defense counsel on those legal principles.
The relevant portions of voir dire are:
Prospective Juror Walkowitz
"DEFENSE COUNSEL: * * * [D]oes the offense that is charged of reckless homicide, does that affect your feeling about the presumption of innocence, that particular charge in and of itself?
ASSISTANT STATE'S ATTORNEY [(ASA)]: Judge, I will object to that.
THE COURT: Yes. Sir, is there anything about the nature of the charges that would affect your ability to be fair and impartial in this case?
THE COURT: All right, you can ask that question. We are not going to get into specifics here. This is voir dire, please.
DEFENSE COUNSEL: Well, in regard to, sir, regarding the presumption of ...