Find Legal Information

SIXTH DIVISION
December 29, 2000

No. 1-99-1595 & 1-99-2560; Cons.

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 sentencedon only aggravated reckless homicide. The circuit court denied defendant's motion to vacate the verdict ofreckless 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 questionsby defense counsel to three individual prospective jurors regarding the State's burden of proof; (2) allowingthe jury to find him guilty beyond a reasonable doubt; (3) instructing the jury; and (4) refusing to vacate hisconviction for reckless homicide. We affirm.

During jury selection, the circuit court questioned prospective jurors as a group regarding defendant'spresumption of innocence, the State's burden of proof and that defendant's failure to testify could not beconsidered against him, and permitted defendant to address prospective jurors individually. However, thecircuit court refused specific supplemental questions by defense counsel to three individual prospective jurorsbecause the questions mixed the specific charges against defendant with those basic legal principles or wereredundant. Defendant exhausted his peremptory challenges.

Trial testimony revealed that on March 16, 1997, David Andrasco was traveling eastbound on 111thStreet toward the Burlington Railroad tracks. As he approached the tracks he saw "a body fly" and he pulledoff the road to see if he could help. At the same time, John Madden was traveling eastbound on 111th Streetwhen he heard a popping sound and saw a maroon Buick hit someone. Madden then saw the body roll offthe top of the car and go up in the air. Madden also pulled over and, after speaking to Andrasco, reenteredhis car and followed the Buick.

Madden caught up with the Buick approximately one mile away, pulled up next to it and asked thedriver if he knew that he had just been in an accident. The driver responded that he did not think he had hitanything. Madden then pointed out the Buick's broken windshield and told the driver that the police werecoming. The driver said he would turn around, but pulled into a gas station, exited a different entrance andcontinued on. Madden noted the Buick's license plate number and returned to the scene of the accident tospeak with police.

Oak Lawn police officer Ronald Stoklosa, an evidence technician, testified that he arrived at thescene at approximately 5:35 p.m., while it was still light outside. Officer Stoklosa testified that there was nocurb in the area but that there was an eight-foot-wide gravel shoulder. Officer Stoklosa noticed approximatelyfour fresh digs or scrapings in the gravel and some spray, which indicated something moving back to theroadway. Officer Stoklosa photographed the markings with both a Polaroid and a 35 millimeter camera andidentified some of the photographs at trial.

Oak Lawn police officer Robert Brewer, a patrol officer and accident investigator, arrived at the sceneat approximately 6:30 p.m. Officer Brewer measured and documented the location of all of the evidence andexamined 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 wascaved 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 onMorris Court in Lombard where he saw a vehicle backed into the garage. The vehicle had front-end damageand a shattered windshield, dents in the hood, some green fabric on the top edge of the hood and on the topedge of the windshield, and hair and flesh at the top of the windshield. Officer Stoklosa photographed thevehicle and identified the photographs at trial. He testified that the damage he saw was consistent with abody sliding across the top of the hood and impacting the windshield.

Lombard police officers Joseph Wagner and Christopher Bakken also arrived at the Lombardaddress and saw a vehicle, with a smashed windshield on the passenger side, backed into the garage. Asthe officers pulled into the driveway, another car pulled out of the garage. The driver, Charlotte Kraus, exitedthe car and approached Officer Wagner. She told him that her husband had been involved in an accidentand that they were on their way to report it. Defendant then exited the passenger side of the car and toldOfficer Wagner that he was coming from the St. Patrick's Day parade, where he had consumed two beersat 4:30 p.m. He also stated that he was involved in an accident on 111th Street just west of Cicero wherehe hit a construction barricade. He said he stopped and looked but did not see anything. Defendant alsostated 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 onhis breath, and slurred speech. Officer Bakken confirmed these observations and added that the defendantwas swaying while they spoke with him. Both Officers Wagner and Bakken concluded, based upon theirexperience, training and personal observation, that the defendant was unfit to drive a motor vehicle andarrested 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 perdeciliter of defendant's blood.

Dr. Albert Karl Larson, a forensic scientist employed by the Illinois State Police, testified that thedefendant's probable blood-alcohol level at the time of the accident was between .102 and .157 grams ofalcohol per deciliter of blood based upon the blood-alcohol test and metabolism rate of alcohol for humanbeings of .01 and.02 grams of ethanol per deciliter of blood per hour. Dr. Larson testified that a person'sblood-alcohol level can peak up to an hour after he has stopped drinking, and the consumption of food canadd an additional half hour. Dr. Larson admitted that if the defendant drank alcohol less than an hour beforethe 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 twobeers.

Dr. Larson testified that some of the effects of alcohol include a decrease in judgment and motorskills, as well as balance and vision problems, and that a person with an alcohol level between .102 and .157would 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 thatpeople 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 andtestified that the victim's injuries were consistent with a body impacting the front of a vehicle, hitting his headon the roof of the car, rolling off the vehicle and tumbling or sliding on a gravel surface. A toxicology examof the victim's blood revealed a blood-alcohol level of .216 grams of alcohol per deciliter of blood. The victimwas wearing green corduroy pants at the time of the accident and suffered a crushed skull and multipleinjuries.

Dr. Austin Gibbons, a retained defense witness, testified that the metabolism rate of alcohol forhumans 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 .0476