Appeal from Circuit Court of Macoupin County No. 00CF236 Honorable Joseph P. Koval, Judge Presiding.
The opinion of the court was delivered by: Justice Turner
In December 2000, the State charged defendant, Frederick E. Hood, with reckless homicide, aggravated driving under the influence of alcohol, illegal transportation of alcohol, and failure to yield to a pedestrian in the crosswalk, all in connection with a motor vehicle accident that resulted in a pedestrian's death. In May 2002, a jury found defendant guilty on all four counts. In June 2002, defendant filed a posttrial motion, which the trial court denied. In January 2003, the trial court sentenced defendant to three years in prison on the reckless homicide count.
On appeal, defendant argues (1) the trial court erred in allowing certain expert and rebuttal testimony, (2) he was denied a fair trial because of the prosecutor's alleged improper statements during closing arguments, and (3) the State failed to present evidence to sustain defendant's convictions for failure to yield to a pedestrian in a crosswalk and illegal transportation of alcohol. We affirm in part, reverse in part, and remand for a new trial.
On December 1, 2000, the State charged defendant by information with the offense of aggravated driving under the influence of alcohol (625 ILCS 5/11-501(d)(1)(C) (West 2000)), alleging that on November 28, 2000, he drove a 1986 Dodge Ram while under the influence of alcohol and was involved in a motor vehicle accident resulting in great bodily harm, permanent disability, or disfigurement to another and the proximate cause of those injuries.
On December 27, 2000, the State charged defendant by information with the offense of reckless homicide (720 ILCS 5/9-3(a) (West 2000)), alleging he, while under the influence of alcohol to a degree that rendered him incapable of safely driving and while acting in a reckless manner, performed acts likely to cause death or great bodily harm to an individual, in that he operated his vehicle, and after disobeying a stop sign, he struck a pedestrian in the crosswalk, causing the death of Marie L. Schwab. The State also charged defendant with the traffic offenses of illegal transportation of alcohol (625 ILCS 5/ 11-502(a) (West 2002)) and failure to yield to a pedestrian in the crosswalk (625 ILCS 5/11-1002(a) (West 2002)). Defendant pleaded not guilty and requested a jury trial.
In May 2002, defendant's jury trial commenced. David Smith testified he was driving with his girlfriend to pick up his son from school on November 28, 2000. He testified the inter-section of Main and Poplar in Mount Olive is a four-way stop. As he was stopped at the stop sign, he noticed a brown full-size van approaching the intersection "at a pretty good rate of speed." After the van's driver "made the corner," Smith saw a woman "about halfway through the crosswalk." She held her left hand up as to motion to the van's driver to stop, but the van struck the woman as she was "in the crosswalk." Smith observed the woman "go through the air and land on the pavement," and he proceeded to a nearby police station to summon help. On his way, he noticed the van's driver, identified as defendant, step out of the van "and kind of stumble and lean against the door."
Tricia Marietta, Smith's girlfriend at the time of the incident, testified the weather was overcast on November 28, 2000. She stated Smith had stopped at the intersection when she saw a vehicle that was not "slowing down" and hit the woman who was walking.
Ryan Gorman, a deputy with the Macoupin County sheriff's department, testified he responded to the scene of the accident on November 28, 2000. Gorman observed defendant leaning up against the side of his van holding a child. Upon conversing with defendant, Gorman noticed his eyes were "bloodshot and glossy," and his breath had a "strong odor of alcoholic beverage." Further, Gorman found defendant's "speech was mumbled together." Gorman stated defendant told him he was coming from a tavern in Mount Olive when he hit the victim. After defendant was arrested, Gorman conducted an inventory search of his van and found "a cooler that contained beer cans in it, some full, some empty." Gorman stated the beer was cold, and the cooler contained several open and full cans of beer. Upon leaving an officer's squad car to enter the hospital for a blood and urine draw, defendant "was staggering and uneasy as he walked." Based on his experience, Gorman believed defendant was intoxicated. From the time of the accident to defendant's urine test, Gorman stated he appeared "to be sobering up some."
Dr. Travis Hindman, a forensic pathologist, testified he performed an autopsy on Marie Schwab on December 19, 2000. Defense counsel stipulated to his credentials, and the trial court recognized him as an expert. Based on his expert opinion, Dr. Hindman found the cause of death to be brain trauma due to the injuries sustained in a pedestrian-vehicular collision. Dr. Hindman stated he has testified as a witness in the area of how the body metabolizes alcohol after it has been ingested. Defense counsel objected to Dr. Hindman testifying to any examination of blood samples as he was only disclosed as performing the autopsy. The trial court sustained the objection.
John Tandy, a patrolman with the Mount Olive police department at the time of the accident, testified that upon asking defendant what happened, he told the officer he stopped at the stop sign, turned left, heard a "thump or a thud," and stopped. Tandy noticed a strong odor of beer from defendant's breath, and his eyes were "glassy and bloodshot." Defendant leaned up against the door of the van "the whole time." Tandy asked defendant if he would be willing to undergo several field-sobriety tests, including the one-legged stand, the nystagmus test, and the turn-and-walk test, but he refused. Defendant told Tandy he had two beers at a local tavern. Tandy also testified to the cooler of beer found in defendant's van. He recalled seven unopened cans and five empty cans, with one open can partially full of a substance that smelled like beer. Tandy transported defendant to the hospital and described him as "uneasy on his feet," "stumbling," and "staggering a little bit." Tandy stated they waited an hour to an hour and a half before defendant's blood and urine were collected. During that time, defendant stood leaning up against the wall, but he "sobered up quite a bit."
The parties stipulated that defendant's blood test indicated a blood-alcohol content of 0.077. The trial court denied defendant's motion for directed verdict.
The defense called Bob Bonacorsi as its first witness. He testified he was driving west through Mount Olive on the date of the incident. He stated the sun was "so bad" that he had to roll down his window to look out "because [he] couldn't see anything." Bonacorsi testified this occurred in close proximity to the accident scene.
Danielle Shelton testified she saw defendant on the day of the accident between 1:30 p.m. and 2 p.m. as she was bartending at JC's Tavern. Defendant came in the tavern with "his little boy," stayed for 45 minutes, and had one beer. Shelton stated defendant did not appear to be under the influence of alcohol when he came in or when he left.
Mary Joanne Cartwright, owner of JC's Tavern, testified defendant came in the tavern on the date of the accident with his infant son. He did not appear to be under the influence of alcohol to her. She stated he had one beer.
Denise Vojas, a part-time employee at Tillie's Tavern in Mount Olive, testified defendant entered the bar on the date of the accident at around 1:30 p.m. While in the bar, defendant "had a bottle of Busch," ordered another, "drank half of it," and left after 25 to 30 minutes. According to Vojas, defendant did not appear to be under the influence of alcohol before or after he left.
Hervana Hood, defendant's mother, testified she was called to the scene of the accident to pick up defendant's son. She saw defendant standing "straight" at the side of his van holding his son. She stated defendant "was really upset." He did not appear to have trouble standing and was not slurring his words.
Defendant testified he kept a cooler in his van because he lived in a dry county in Arkansas. He stated the cooler contained some full and empty cans, was behind the driver's seat, and had been there for "a couple of days." Defendant testified he had three knee surgeries. He stated he arrived in Mount Olive from Arkansas at "about 1:30, 2 o'clock." He stopped at JC's Tavern to find "hired guns" to help him move some property. He had one beer and stayed for about 30 minutes. He left and went to Tilley's and "ordered a beer so [he] wouldn't seem rude." He also drank part of a second beer.
Defendant testified he approached the intersection at Poplar and Main in Mount Olive, and his son threw his bottle causing defendant to look back at him after stopping at a stop sign. Defendant then started to make a turn, but the "sun was in [his] eyes" and he "heard a thunk and immediately stopped." He did not see Schwab "in the crossroad." He exited his vehicle, yelled for help, and then attempted to comfort his crying son. Officer Tandy later told him he was under arrest for drunk driving, and defendant asked to take a field-sobriety test, but Tandy refused. Officer Tandy later took him back to Mount Olive, where defendant went to JC's Tavern to have a soda and find a ride home.
On cross-examination, defendant stated the cooler still had ice in it because he "put a blanket over it." The empty beer cans were in the cooler because he did not want to litter and his 13-year-old son recycles the cans. He ...