Appeal from the Circuit Court of Johnson County. No. 00-CF-90 Honorable Michael J. Henshaw, Judge, presiding.
Justices: Honorable Gordon E. Maag, J.
Honorable Terrence J. Hopkins, P.J., and
Honorable James K. Donovan, J.,
The opinion of the court was delivered by: Justice Maag
Following a bench trial in the circuit court of Johnson County, William R. Barham (defendant) was convicted of two counts of reckless homicide arising from an automobile accident. Defendant was sentenced to a term of four years' imprisonment and an additional term of mandatory supervised release on each count. The sentences were to run concurrently. On appeal, defendant contests the sufficiency of the evidence to support the convictions. Defendant also contends that the trial court erred in its rulings on a number of evidentiary issues and in sentencing defendant on each count of reckless homicide when the convictions were based on the same acts.
A fatal automobile accident occurred on Illinois Route 147, approximately one-half mile north of Simpson, Illinois, between 11:30 p.m. and midnight on October 14, 2000. Defendant and Jerry Isom, both of whom were employees of the Illinois Department of Corrections, were in the vehicle. The vehicle went off the roadway and down an embankment and crashed into a tree. Jerry Isom died as a result of massive injuries he suffered in this accident.
The evening had started with a fund-raising event for a state representative. Defendant drove to the Harrisburg airport, along with Jerry Isom, to transport the Director of Corrections to the event. Defendant, the warden at Shawnee Correctional Center, was driving his state-issued Chevrolet Impala. The fund-raiser was held at Southeastern Illinois College. Alcoholic beverages were not served. After about an hour, the director indicated that he was ready to leave. Defendant and Jerry Isom transported him back to the airport and then met some colleagues at the Lakeside Bar and Grill (Lakeside). They arrived at Lakeside a little before 6 p.m.
Major Mike Mott, a corrections supervisor and friend of defendant, testified that he bought the first round of drinks. He ordered a Miller Lite beer for defendant. No one else in the party was drinking that brand of beer. Mott testified that he saw defendant drink only one beer that night. He stated that defendant left the table and went to his car several times throughout the evening to make telephone calls. Mott said that defendant was making calls because of an incident that occurred when they had first arrived at Lakeside. A politician had approached the table and expressed his displeasure that the men had attended the fund-raiser. Mike Mott testified that he was a friend of defendant and that he knew him well. He noted that defendant had been sick for several days preceding the fund-raiser.
There was conflicting evidence regarding the amount of alcohol that defendant had been served that evening. The State called three servers from Lakeside, who stated that they had worked defendant's table. Amanda Hogg testified that she served defendant one beer at about 7 p.m. and that she did not see him after his group moved to a table outside. Ashley Roper, who worked 14½ hours at Lakeside that day, testified that she served three beers to defendant. Sheila Miles, who also worked 14½ hours, testified that she served defendant about four or five beers. Neither Roper nor Miles could specifically recall what she served to other members of the group or any patron other than defendant that evening. None of the servers could state that defendant consumed the beers they delivered to him or how much beer defendant consumed that evening. A bar tab for defendant's party showed that two Miller Lite beers had been served. No one testified that defendant was intoxicated or that he was behaving erratically that evening. Defendant and Jerry Isom left the bar and headed home to Vienna between 10:30 p.m. and 11 p.m.
At approximately 12:02 a.m. (on October 15, 2000), Daniel Stockdale was driving from his girlfriend's home to his own on northbound Illinois Route 147 when he spotted a white vehicle off the road and down the embankment. Daniel and his girlfriend had driven past this same stretch a little earlier, about 11:30 p.m., and had not noticed the vehicle, so he stopped to investigate. As he approached the vehicle, Daniel noticed that the passenger side was wrapped around a tree. He also noticed that the driver's side door was open. He peered in and saw defendant leaning against the steering wheel. Daniel returned to his girlfriend's house to call for help. Daniel explained what he had seen to his girlfriend's father, Charles James. James called 9-1-1.
Daniel returned to the accident scene about 10 minutes later accompanied by James. Emergency personnel had not yet arrived. While Daniel parked his car, James approached the vehicle. James saw that defendant was trying to exit the vehicle. James encouraged defendant to stay in the car until help arrived, but defendant pulled himself out of the vehicle and then lay on the ground. James said that defendant seemed to be having trouble breathing but that he did not notice any active bleeding or any obvious injures to defendant. Daniel and James stayed with defendant and talked with him until medical personnel arrived. Daniel and James were within a few feet of defendant's face. Neither detected the odor of an alcoholic beverage on defendant's breath.
Johnson County sheriff's deputies arrived at the scene at approximately 12:16 a.m. Deputy Schierbaum conducted a quick assessment of defendant as he lay on the ground. He did not detect the smell of any alcoholic beverage on defendant's breath. Johnson County medics arrived at the scene at approximately 12:27 a.m. Paramedic Cheila Ellis made an assessment of defendant, immobilized his spine, and placed him in an ambulance. In her initial assessment, she noted that defendant had several hematomas on the top of his head, that lung sounds on his right side were diminished, and that his right pupil was nonreactive to light. She started an IV of normal saline and lactated ringers solution. At that time, defendant was alert and responsive. He did not have trouble speaking. Ellis asked defendant if he had been drinking and defendant responded yes. She stated that the inquiry was normal procedure and that the question is asked in order to determine whether it is safe to give certain medications to a patient. Ellis testified that she noted a smell of alcoholic beverages coming from defendant's breath. Illinois state trooper Jay Hall, who had been dispatched to the scene, was present in the ambulance when Ellis questioned defendant. Trooper Hall stated that he noticed the smell of alcoholic beverages on defendant's breath. At 12:50 a.m., Trooper Hall informed defendant that he was under arrest for driving under the influence of alcohol.
Defendant was transported from the scene at 1:06 a.m. The ambulance took him to Lourdes Hospital in Kentucky for further treatment. As a part of the hospital's protocol, a serum blood-alcohol test was ordered in the emergency room. The phlebotomist made the blood draw sometime between 1:45 and 2 a.m. At approximately 2:20 a.m., defendant went into respiratory failure while in the radiology department. He was intubated and transferred to the intensive care unit. Trooper Hall attempted to interview defendant at approximately 3:30 a.m. Defendant was non-responsive, so Trooper Hall ordered a nonvoluntary blood draw using an Illinois State Police kit. This sample was obtained for investigative purposes. The blood was drawn by the hospital phlebotomist at approximately 3:32 a.m. Defendant remained hospitalized in the intensive care unit for several days. He was treated for a traumatic brain injury and other injuries.
Jerry Isom was trapped in the vehicle. His legs were pinned between the seat and the floorboard on the passenger side of the vehicle. His torso and head were lying across the middle of the hood. Emergency medical personnel detected a weak pulse and requested assistance from the Vienna fire department. Fire department personnel noted that the driver's door was the only door that could be opened without force, so they removed the roof in order to gain access to the interior of the vehicle. Resuscitation efforts were commenced immediately after Isom was extricated from the vehicle. He was transported to Lourdes Hospital, where he was pronounced dead shortly after he arrived.
Defendant was indicted on three counts of reckless homicide and two counts of aggravated driving under the influence of alcohol. Following a three-week bench trial, the trial court found defendant guilty on counts II and III of the indictment. As to count II, the court found that defendant was guilty of reckless homicide and caused the death of Jerry Isom by driving a vehicle while he was under the influence of alcohol to a degree that rendered him incapable of safely driving and by driving at a speed greater than was reasonable and proper considering existing traffic conditions and the safety of persons properly on the roadway. As to count III, the court found that defendant was guilty of reckless homicide and caused the death of Jerry Isom by operating a motor vehicle at a speed that was greater than was reasonable and proper with regard to existing traffic conditions and the safety of persons properly on the road. The court also found defendant guilty of one count of aggravated driving under the influence of alcohol (count IV), but the court vacated that conviction prior to sentencing because that count contained the same allegations as those set forth in count II of the indictment.
Initially, defendant claims that the evidence was insufficient to prove beyond a reasonable doubt (1) that he was operating the vehicle at the time of the accident, (2) that he was operating the vehicle recklessly, and (3) that at the time of the accident, he was under the influence of alcohol to a degree that rendered him incapable of safely operating the vehicle.
When reviewing the sufficiency of the evidence to support a conviction for reckless homicide, we must consider whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Smith, 149 Ill. 2d 558, 565, 599 N.E.2d 888, 891 (1992). A defendant is guilty of reckless homicide if he causes the death of a person while driving a motor vehicle and the acts which caused the death are such that they are likely to cause death or great bodily harm to some individual and are performed recklessly. People v. Bonzi, 65 Ill. App. 3d 927, 931, 382 N.E.2d 1300, 1302 (1978). A person acts recklessly when he consciously disregards a substantial and unjustifiable risk that his acts are likely to cause death or great bodily harm to some individual and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation. People v. Potter, 5 Ill. 2d 365, 368, 125 N.E.2d 510, 511 (1955); People v. Jakupcak, 275 Ill. App. 3d 830, 838, 656 N.E.2d 442, 448 (1995). Recklessness may be inferred from all the facts and circumstances in the record and may be established by evidence of the physical condition of the driver and his manner of operating the vehicle. Smith, 149 Ill. 2d at 565, 599 N.E.2d at 891; People v. Gosse, 119 Ill. App. 3d 733, 738, 457 N.E.2d 129, ...