Appeal from the Circuit Court of Madison County. No. 08-CF-2607 Honorable James Hackett, Judge, presiding.
The opinion of the court was delivered by: Justice Welch
Rule 23 order filed 2012 IL App (5th) 110299 July 9, 2012;
Motion to publish granted
JUSTICE WELCH delivered the judgment of the court, with opinion. Justices Goldenhersh and Wexstten concurred in the judgment and opinion.
¶ 1 The defendant, Mark Ikerman, was found guilty of two counts of aggravated driving while under the influence (DUI) of alcohol resulting in two deaths (625 ILCS 5/11-501(d)(1)(F) (West 2008)), two counts of failure to report an accident involving two deaths (625 ILCS 5/11-401(b) (West 2008)), and two counts of aggravated driving with a blood-alcohol level of .08 or more resulting in two deaths (625 ILCS 5/11-501(d)(1)(F) (West 2008)). During sentencing, the trial court noted that the two convictions for aggravated DUI and two convictions for aggravated driving with a blood-alcohol level of .08 or more merged for sentencing purposes. The court further noted that the two convictions for failure to report an accident also merged for sentencing. Thereafter, the court sentenced the defendant to 10 years in prison on the aggravated-DUI convictions and 5 years in prison on the failure-to-report convictions, which was to run consecutively to the aggravated-DUI sentence.
¶ 2 The defendant only challenges his aggravated-DUI convictions and sentence on appeal. Specifically, the defendant argues (1) the State failed to prove beyond a reasonable doubt that he had a blood-alcohol content (BAC) of .08 or more, (2) the State failed to prove beyond a reasonable doubt that he was intoxicated at the time of the offense, (3) the State failed to prove beyond a reasonable doubt that he was the proximate cause of the deaths of the victims, Donald Legens, Sr., and Donald Legens, Jr., and (4) the trial court abused its discretion at sentencing by failing to consider the mitigating factors presented by him and by denying his request for probation. For the following reasons, we affirm.
¶ 3 On November 17, 2008, the State charged the defendant by amended information with two counts of aggravated DUI for his involvement in a motor vehicle accident that resulted in two deaths and with two counts of failure to report an accident involving those two deaths. On October 7, 2010, the State also charged the defendant by information with two counts of aggravated driving with a blood-alcohol level of .08 or more resulting in two deaths. On October 18, 2010, the defendant waived his right to a jury trial, and the case proceeded to a bench trial. The evidence adduced at trial established that in the late-night hours of November 13, 2008, Donald Legens, Sr., was traveling in his Kia with his 10-month-old son, Donald Legens, Jr., on Pontoon Road in Granite City. As he was driving, the vehicle ran out of gas, and he parked in the far right lane of the four-lane road.
¶ 4 Stephanie Barks was driving home from work on November 14, 2008, at approximately 12 a.m., when she approached two vehicles stopped by a train on West Pontoon Road. After the train passed, the vehicle in the left-hand lane crossed the railroad tracks and continued traveling on West Pontoon Road. However, the vehicle in Barks's lane, the right-hand lane, did not move. Therefore, Barks was forced to move into the left lane and pass the stopped vehicle. As she crossed the railroad tracks, she noticed a man walking toward the vehicle carrying a small child and a gas can. She also observed that the vehicle's headlights were on. She continued driving until she was stopped at a stoplight at the next intersection. As she was stopped at the light, she watched the man from her rearview mirror until the light turned green.
¶ 5 Also on the same night shortly after midnight, Kerri Yount was traveling west on Pontoon Road when she observed a vehicle parked in the same lane that she was driving (the far right lane). She was approximately two car lengths away when she observed the vehicle parked in her lane with no lights. Consequently, she slammed on her brakes and swerved out of the lane to avoid a collision. As she approached the vehicle, she noticed a man standing behind the vehicle carrying something. It appeared the man was getting ready to step off the side of the road. She did not notice another person near the vehicle. She believed that she would have hit the parked car and the man if she had not been paying attention.
¶ 6 According to Yount, the man had an unusual reaction to almost getting hit. He gave her a "blank stare," as if he did not care that he was almost hit by a vehicle, and then continued "doing what he was doing." She considered stopping to offer assistance but ultimately decided against it because he was a "strange man" and it was dark and after midnight. Instead, she called the police to request an officer be dispatched to assist the man. She noted that the particular stretch of road where the car was parked was not illuminated and was under construction. She was driving slower than the speed limit because it was very dark and she was afraid of hitting something.
¶ 7 Minutes later, before the police arrived, the defendant was driving home on Pontoon Road following a night of playing pool at Mac and Mick's tavern. He was driving his employer's tow truck. The defendant was traveling in the same lane as the parked Kia and ultimately collided with the vehicle. His tow truck pushed the Kia 364 feet until the vehicles came to rest on a dirt embankment on the north side of the road. The defendant then backed up and left the scene of the crash.
¶ 8 Amber Pace was driving toward the scene of the accident when she observed a tow truck with no front end and no headlights traveling in the opposite direction. She believed that the tow truck was traveling faster than the speed limit of 30 or 35 miles per hour. Pace observed the tow truck for approximately 30 to 40 seconds and did not observe it swerve. As she crossed the railroad tracks, she noticed a wrecked blue SUV on a dirt embankment to her right. She then noticed a body lying in the middle of the road. She parked her vehicle in the road, stopped oncoming traffic before the body was hit, and called 9-1-1. Pace described the area as "not brightly lit, but *** not pitch dark." She observed debris scattered over the four lanes of traffic. She did not realize a baby was involved in the accident until she saw the baby being put in the ambulance.
¶ 9 Gary Poss lived on the south side of Pontoon Road, near the area where the crash occurred. That night, he heard a "massive noise," which sounded like an explosion. After hearing the noise of the crash, he walked to the scene and observed a "massive amount" of debris in the street and a lot of smoke. He also observed the taillights of a large vehicle rapidly leaving the scene. He opined that the truck was rapidly leaving the scene because it was "bouncing all over the railroad tracks." He did not see the SUV until the next morning. He testified that many of the street lights in the area were removed due to the construction of a new overpass. However, some nearby businesses had large parking lot lights that provided the area with some illumination.
¶ 10 Arriving at the scene shortly after the accident, Granite City police officer Eric Bailey observed a body lying in the road and noted the individual was deceased. He also observed debris on the road. He testified that an infant was injured in the vehicle crash, but he did not see the baby until he observed the baby being put in the ambulance.
¶ 11 Michael Mize observed the damaged tow truck sitting in the middle of the road when he was driving on West Pontoon Road on the night of the accident. According to Mize, the tow truck had significant front-end damage and did not have front headlights. He noticed the tow truck because he thought it peculiar that the truck would be at the accident scene before any emergency vehicles. He observed the truck leave the scene and decided to follow it because it was obvious that a car accident had occurred. As he turned around to follow the truck, he noticed the SUV on the embankment. He followed the truck for approximately six or seven miles until it turned into a driveway to a trailer court. Mize then went to the Pontoon Beach police department to report the accident. He gave the officers at the police department the truck's license plate number and informed them that he believed the truck had been involved in a hit-and-run accident.
¶ 12 Sharon Hildreth received a phone call from the defendant at approximately 1 a.m. on November 14, 2008. The defendant told her that he had been in a vehicle accident, but he did not know what he hit because he had blacked out. He said that the whole front of his truck was damaged, and he left the accident scene because he was drunk. She estimated that the conversation lasted 30 to 45 minutes. While on the phone with the defendant, she heard police officers knocking on his door for approximately 15 to 20 minutes. She knew the knocking was from police officers because the defendant told her. Several times during the phone conversation she advised the defendant to open the door and talk to the officers; however, he refused because he was drunk and scared. She characterized the defendant's speech as slurred and said he was "all over the place." However, the defendant's speech was not so slurred that she was unable to understand him. He was very emotional during the conversation, and he admitted several times that he was drunk. After the defendant was taken into custody (this occurred approximately seven hours after the crash), Hildreth visited him in jail. During the visit, he blamed her for everything and told her that he was drinking following the accident because he had a toothache.
¶ 13 Jamie Mitcherson was on the same pool league as the defendant. Prior to the accident, the defendant and Mitcherson were playing pool at Mac and Mick's tavern until approximately 10:30 or 11 p.m. Mitcherson observed the defendant drinking mixed drinks throughout the night, but was unable to say exactly how many drinks the defendant had because he never personally saw the defendant order a drink. He did not know how intoxicated the defendant was that night. However, he did not remember seeing the defendant without a drink in his hand. He had known the defendant for approximately three years, but had never seen him "totally intoxicated."
¶ 14 Chris Modrusic, a Pontoon Beach police officer, was dispatched to 2900 Sand Road because the department had received a call of a fatal hit-and-run accident and a witness had identified the suspect's vehicle at this location. He arrived at the residence at 12:27 a.m. and identified the truck as described by the witness. When he approached the truck, he noticed it had extensive front-end damage and smoke was coming from the engine compartment. As he approached the trailer, he heard someone running around inside.
¶ 15 Gary Brooks, a detective with the Granite City police department, arrived at the trailer after Modrusic. Because he had orders to make contact with the occupant of the trailer, he approached and began knocking on the doors and windows. He heard movement inside the trailer, but no one answered the door. He believed that he knocked on the door off and on pretty loudly for at least one hour. After approximately 30 to 45 minutes, he could hear snoring coming from inside the trailer. The tow truck was eventually impounded by the police department, and he left to make sure the truck was secured inside the department's tow-impound building. He then went to the accident scene and transported the Kia to the impound building before returning to the suspect's trailer to wait for a search warrant. The warrant was not executed until approximately 7:20 a.m. on November 14. After the warrant was obtained, officers entered the trailer and found the defendant inside. The defendant was taken into custody, and Brooks transported him to the Granite City police department.
¶ 16 Kenneth Wojtowicz, a detective with the Granite City police department, had a brief conversation with the defendant before he was transported to the police department. The defendant admitted that he was the driver of the truck.
¶ 17 Later, while at the station, the defendant spoke with Wojtowicz and another officer concerning the events of the past night. He told the officers that he drove his tow truck to Mac and Mick's tavern the previous night to play pool in his pool league. He arrived at approximately 7:30 or 8 p.m. He admitted drinking two to three mixed drinks at the tavern no later than 9 p.m. While at the tavern, he ate some pizza at approximately 9:30 p.m. He left the tavern at approximately 10 p.m. and went to Wal-Mart to get dog food. He told the officers that he never went into Wal-Mart that night because he started feeling "weird" and began experiencing chest pains. He left the Wal-Mart parking lot and drove straight home. He did not have anything to drink once he arrived home. He repeatedly insisted that his truck was not damaged and that he was not involved in an accident. He maintained that he did not remember noticing any damage to his truck. He denied making any phone calls after he returned home and denied that he was intoxicated that night. He also denied hearing the police officers knocking on his doors and windows. He further denied talking on the phone with a female.
¶ 18 The defendant eventually admitted that he remembered hitting something, backing up, and then going home. He explained that he blacked out and "snapped to" as a result of the crash. However, he left without looking to see what he hit, and he did not know that he hit another vehicle. Once he arrived home, he called Hildreth. He admitted that he talked to Hildreth a second time before the police officers took him into custody, and she informed him that he had hit a person that night.
¶ 19 The officers prepared an alcohol influence report, which indicated that the defendant had red and/or glassy eyes, a dry mouth, and a confused appearance. It also indicated that the officers detected the faint odor of alcohol on his breath. Following the interview, the defendant was taken to the emergency room at Gateway Regional Medical Center because he consented to a blood and urine sample. The parties stipulated that if Dareea Patrick-Paiva, a forensic scientist employed by the Illinois State Police, was called as a witness, she would testify that, within a reasonable degree of scientific certainty, the results of the defendant's blood test would indicate the presence of ethanol at a concentration of .020 grams per 100 milliliters.
¶ 20 At trial, Kris Gebke, a traffic crash reconstruction officer with the Illinois State Police, testified that he arrived at the accident scene at approximately 2:30 a.m. on November 14. As part of his reconstruction duties, he surveyed the scene, examined the tow truck and the Kia, and took photographs of the area. He testified that on initial impact, the Kia collapsed from front to rear five feet and the rear frame was exposed. The tow truck pushed the Kia 364 feet and the truck's final resting place was on top of the car's frame. He observed indentations in the road caused by the rear frame of the car being pushed downward into the road, but did not observe any preimpact marks indicating that the tow truck had braked prior to impact. He calculated the postimpact speed of the two vehicles to be 43 miles per hour. He calculated the preimpact speed of the tow truck to be a minimum of 50 miles per hour. He testified that the speed limit on West Pontoon Road was 35 miles per hour. ...