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People v. Peshak

September 20, 2002

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
GARY PESHAK, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. Honorable Janice Bierman, Judge Presiding.

The opinion of the court was delivered by: Justice Quinn

UNPUBLISHED

Following a bench trial, defendant Gary Peshak was convicted of three counts of reckless homicide and two counts of aggravated driving under the influence of alcohol, resulting from the death of Winceta Skrzypek, who was struck and killed by a truck driven by defendant. He was sentenced to a four-year prison term on the reckless homicide convictions and a concurrent three-year term on the aggravated driving under the influence of alcohol convictions. On appeal, defendant contends: (1) that the reckless homicide statute under which he was convicted is unconstitutional; (2) that the State failed to prove him guilty beyond a reasonable doubt; (3) that the trial court erred in not sua sponte providing an interpreter for a witness for the prosecution; (4) that the trial court erred when it allowed a State witness to testify in violation of Supreme Court Rule 412 (188 Ill. 2d R. 412) regarding statements defendant allegedly made; and (5) that his sentence is improper. For the reasons set forth below, we affirm the judgment of the trial court.

BACKGROUND

Ambalal Patel testified that about 2:15 p.m. on July 17, 2000, he was in Mount Prospect heading west on Golf Road in the curbside lane at about 30 miles per hour. Prior to reaching Elmhurst Road, Patel saw a woman on the north side of Golf Road attempting to cross it heading southbound. In response, he slowed down his vehicle. While the woman was crossing the lane to the left of the one Patel was in, he saw a red truck strike her. Patel did not see the truck brake prior to striking the woman and did not see the driver of the vehicle that struck her.

On cross-examination, Patel testified that the woman who had been struck was not looking where she was crossing and was about 10 to 15 yards west of Country Lane Road, which was the nearest intersection. Patel stated that the woman was "running a little fast" at the time she was struck. Patel also stated that the vehicle in question was traveling around 30 or 40 miles per hour when it hit her and that it had "moved to its left side" before hitting the victim. Patel admitted telling Mount Prospect police shortly after the accident that the driver of the truck had tried to avoid hitting the victim.

Terry Thomas testified that at the time in question, he was in the front passenger seat of a minivan going westbound on Golf Road just east of Elmhurst Road when he saw a woman crossing the street. When the woman was almost to the center median, a red truck driven by defendant passed in the lane left of the lane Thomas was in. The truck then hit the woman, who was carried on the truck's hood, before falling off it when the truck came to rest on the center median. Thomas stated that when the woman saw the truck approaching, she attempted to get out of its path by running. He was unsure whether defendant attempted to brake the truck before hitting the victim. Following the accident, Jeffrey Easton, the driver of the vehicle Thomas was riding in, got out and tended to the victim.

On cross-examination, Thomas testified that defendant was nervous following the accident, but that he did not notice anything unusual about defendant's behavior. Thomas did not recall whether defendant was walking around the scene after the accident and stated that there was nothing unusual about defendant's speech at the time. Thomas stated that the victim was "nowhere near" the corner when she was struck and that he was unsure whether defendant swerved before striking her. According to Thomas, due to the speed defendant's truck was traveling, he was unable to slow down prior to hitting the victim.

Officer Addante of the Mount Prospect police department testified that about 2:20 p.m. on the day in issue, he arrived at the accident scene where he saw Winceta Skrzypek lying in the roadway. Addante checked the victim's pulse and breathing, and she was unresponsive to both. Addante then approached three men who were standing on the side of the road to determine who was driving the vehicle that struck Skrzypek. Addante testified that defendant was driving the vehicle that struck the victim and that when Addante arrived on the scene, it was resting on the median with flat tires.

On cross-examination, Addante stated that when he spoke with defendant following the accident, he was within three or four feet of him. From that distance, Addante did not notice the smell of alcohol on defendant's breath and did not notice anything unusual about the way he spoke. Addante testified that defendant did not have any problems standing and admitted that nothing regarding defendant's demeanor brought attention to the fact that the accident may have involved alcohol.

Officer Justin Beach testified that shortly after 3 p.m. he arrived at the accident scene. After speaking with Addante, Beach learned that defendant was the driver of the vehicle that had struck Skrzypek. Beach stated that from 10 to 15 feet away, he noticed that defendant had bloodshot eyes. After defendant was escorted to a squad car, Beach was informed by Sergeant John Dahlberg that when Dahlberg had opened the door of the car, he smelled a strong odor of alcohol inside the vehicle and, upon speaking with defendant, Dahlberg smelled a strong odor of alcohol on defendant's breath. Beach then asked, and defendant agreed, to complete a series of field sobriety tests.

Beach testified that when defendant recited the alphabet beginning with the letter "A," he spoke "very rapidly" until he reached the letter "T," then paused for about three seconds and successfully finished the alphabet. While defendant was performing this test, Beach could smell a "strong odor" of alcohol on his breath. When defendant took the same test a second time, he successfully completed it.

Defendant was also given the "one-legged stand" test and the "walk and turn" test. Beach stated that these tests were administered on a flat surface and that defendant failed both of them. Based upon defendant's performance on these tests, Beach concluded that defendant was unfit to be operating a motor vehicle.

On cross-examination, Beach testified that when he arrived at the scene and saw defendant, he was standing and did not appear to have a problem maintaining his balance. Beach stated that he did not smell alcohol on defendant's breath at the time he placed him in the squad car prior to administering the sobriety tests. Beach further stated that he did not notice anything about defendant which would indicate that he had been driving under the influence of alcohol until he was advised by Dahlberg that defendant smelled of alcohol. Regarding the "one-legged stand" test, Beach testified that although defendant successfully counted to 30 and did not put his foot down, defendant was swaying while the test was being administered. On the "walk and turn" test, defendant took each of the nine requested steps, but swayed when he turned.

Ruthe Howes, an attorney with the Cook County State's Attorney's office, testified that she met with defendant during the evening of July 17, 2000. Defendant told her that on the day of the accident, he had been working at a construction site in Lake Forest. On his way to work that morning, defendant had purchased a 1.75 liter of vodka. At the construction site, defendant had a "couple" of drinks consisting of vodka and 7-up before eating lunch. After lunch, defendant had "a couple of drinks in the afternoon" before leaving for home. Howes stated that defendant told her that as he was about to get into the lane on Golf Road that turns left onto Elmhurst Road, his vehicle struck the victim. Defendant told Howes that he did not see the victim until he hit her and that as soon as he realized he had hit something, he stopped the vehicle. Howes further stated that she was informed by defendant that, at the time of the accident, he was traveling near the posted speed limit of 40 miles per hour and he had swerved his truck in an attempt to avoid hitting the victim. Howes also testified that about 6:25 p.m. the day of the accident, she went to the accident scene. There, she saw a bottle of vodka in the cab of defendant's truck, which had a "strong odor" of vodka inside it.

On cross-examination, Howes admitted to not including anything about the smell of alcohol in defendant's truck in the notes she had prepared in connection to the case. On redirect, Howes testified without objection that defendant told her that he would take responsibility for driving under the influence of alcohol, but he would not take responsibility for the reckless homicide. On recross, Howes admitted that defendant's statements with respect to taking responsibility on the charges were also not included in her notes.

Officer Richard Tracy, an evidence technician with the Mount Prospect police department, testified that a cup, which contained about a teaspoon of liquid, was recovered from the console of defendant's truck. A bottle of "Skol" vodka, with about three-quarters of its contents gone, was also recovered from defendant's vehicle. Tracy testified that there were no skid marks from defendant's truck present at the scene.

Sergeant John Dahlberg, who testified as an expert in the field of accident reconstruction, stated that he arrived at the scene about 3 p.m. on the day at issue. Once there, Dahlberg was informed by defendant that he had been traveling slightly below the 40-mile-per-hour speed limit westbound on Golf Road when the victim came "out of nowhere" and entered into his path. Dahlberg, while sitting in the backseat of a squad car with defendant, detected a "relatively strong odor of alcoholic beverage emanating from his breath." Dahlberg testified that defendant's eyes were "bloodshot" and "glassy." When Dahlberg asked defendant whether he had consumed any alcohol prior to the accident, defendant was "very hesitant" to answer and did not commit to an answer.

Based upon the condition of the truck defendant was driving, Dahlberg concluded that the damage was consistent with defendant's version of events that he had attempted to avoid hitting the victim prior to impact. Dahlberg further testified that there were no tire marks in the area before the location where the victim was struck and that tire marks past the area did not come from defendant's truck.

On cross-examination, Dahlberg testified that prior to speaking with defendant, he had not been told that the accident was alcohol related. Dahlberg stated that during his conversation with defendant, he had no problem understanding him. He also stated that there appeared to be "a lack of pre-impact braking and a lack of post-impact braking" on defendant's part.

The parties stipulated that the vodka bottle and cup recovered from defendant's vehicle contained ethyl alcohol. The parties further stipulated that based upon a blood sample taken from defendant at 5:40 p.m. the day of the accident, his blood-alcohol concentration (BAC) was .13.

The parties also stipulated that if called as a witness at trial, Officer Szmergalski of the Mount Prospect police department would testify that he spoke with Jeffrey Easton, the driver of the vehicle in which Terry Thomas was a passenger, after the accident. Easton told the officer that he saw the victim step off the curb and look to her left. When she saw the approaching traffic, the victim ran in front of the truck driven by defendant and he "tried to swerve to avoid hitting her."

After the parties rested, the court heard closing arguments. It then found defendant guilty of three counts of reckless homicide and two counts of aggravated driving under the influence of alcohol. Defendant was subsequently sentenced and he now appeals.

ANALYSIS

I. Constitutionality of the Reckless Homicide Statute

Defendant first contends that section 9-3(b) of the Illinois Criminal Code of 1961 (720 ILCS 5/9-3(b) (West 2000)), the reckless homicide statute, is unconstitutional.

The statute provides:

"(b) In cases involving reckless homicide, being under the influence of alcohol or any other drug or drugs at the time of the alleged violation shall be presumed to be evidence of a reckless act unless disproved by ...


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