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THIRD DIVISION
December 22, 2004

Following a bench trial, defendant, Pablo Mendoza, was convicted of reckless homicide,reckless homicide of an unborn child, and aggravated fleeing and attempting to elude a policeofficer. He was then sentenced to 24 years' imprisonment. On appeal, defendant contends thathis conviction must be reversed because the trial court relied on a mandatory statutorypresumption in effect at the time of trial that has since been held unconstitutional. He alsocontends that the trial court erred in allowing the emergency room doctor to testify that his namewas incorrect on his medical chart, and that he shrugged his shoulders on being told that twopeople died as a result of the automobile collision. We affirm.

At trial, Alsip police officer Jim Brongiel testified that about 4 a.m. on May 20, 2000, hewas on patrol when he received a call of a suspicious vehicle on 120th Street in Alsip, Illinois. Heproceeded to that location and saw a Chevrolet Suburban parked behind an apartment building. When Officer Brongiel illuminated the car with his spotlight, an Hispanic male stuck his head outof the passenger rear window and said something like "oh, shit, it's the police." The driver, lateridentified as defendant, then pulled away and Officer Brongiel activated his emergency lights andsiren and gave chase. As defendant turned onto Hamlin Avenue, he accelerated his speed andthen turned west onto 121st Place, driving at a speed of approximately 35 to 40 miles per hour. Defendant also made "somewhat wide" turns and was "swerving from left to right." Whendefendant got to the end of 121st Place, he turned south onto Harding and then turned east onto122nd Street, making a wide turn and disobeying a stop sign. He then made another wide turnsouth onto Avers Avenue and, after that, turned and drove through a stop sign east onto 123rdStreet.

Officer Brongiel testified that defendant accelerated as he drove on 123rd Street, and hedid not recall seeing brake lights when defendant approached the cross streets along 123rd Street. As he approached Kedzie Avenue, Officer Brongiel saw another vehicle heading north on Kedzie. He also saw that the light was red for eastbound traffic on 123rd Street and that defendantappeared to be pulling away from him. As he passed the traffic signal, defendant swerved slightly,then collided with the vehicle coming north on Kedzie.

After the collision, Officer Brongiel observed a woman lying on the street and defendantexiting his vehicle and walking toward the cemetery next to the road. Officer Brongiel drew hisservice weapon and ordered defendant to stop. Officer Brongiel took defendant into custody, andwhen he asked defendant if he realized what he had done, defendant shook his head and said "itdidn't matter."

Officer Brongiel further testified that his dash-mounted radar and camera recorded thechase on videotape. Officer Brongiel later viewed the tape, which showed the chase starting on122nd Street and Avers Avenue. The tape showed that defendant passed three speed limit signs,indicating a speed limit of 35 miles per hour, and that at one point in the chase, his squad car wastraveling at 71 to 73 miles per hour. The tape also indicated that the traffic light was red as theofficer approached the intersection at 123rd and Kedzie behind defendant, and that it was still redwhen defendant was in the middle of the intersection. In addition, the tape showed that the brakelights on defendant's vehicle went on momentarily at the time of the collision.

Giovanna DiRutigliano testified that she was with some friends on the morning of theincident, when one of her friends called for a ride. Two men in a Suburban picked them up andDiRutigliano identified defendant as the driver. She stated that she could smell marijuana uponentering the vehicle, but she did not see either of the men smoking this substance. After theydropped one of her friends off, they waited outside an apartment building. At this time,DiRutigliano switched seats and moved to the front of the vehicle.

Defendant was seated in the driver's seat when a police car pulled up. Defendant droveoff and the police officer turned on his flashing lights and followed them with his emergency lightson. DiRutigliano recalled one of the men saying "get rid of the heat." She further testified that asthey were driving with the police in pursuit, defendant was picking up speed. At one time, shelooked at the speedometer, which indicated that they were traveling about 80 miles per hour. Shetold defendant to stop and let her out because she was scared.

When they were a couple of feet away from the intersection at 123rd and Kedzie, she sawthat the traffic light was red and saw headlights coming from the right perpendicular street. Shetold defendant to stop and that they were going to crash, then felt the car pick up speed and travelthrough the intersection, colliding with the approaching vehicle. DiRutigliano admitted on cross-examination that her statement to the police did not include the fact that she had smelledmarijuana in the Suburban, that she saw the speedometer register 80, or that she observed the redlight on the traffic signal.

Doctor Alicia Shirakbari testified to treating defendant at the St. Francis emergency roomthe morning of the incident. Defendant told her that he was the driver of the vehicle, that he wasfleeing from the police because he did not have a driver's license, and that he hit another car. Doctor Shirakbari testified that defendant had a blood-alcohol level of .127 and that histoxicology screen was positive for marijuana and cocaine.

Doctor Shirakbari further testified that she told defendant that there were two fatalities. The prosecution then asked whether she saw defendant say or do anything in response. Defensecounsel objected on the grounds of relevance, but the trial court overruled the objection. DoctorShirakbari stated that defendant shrugged his shoulders and did not say anything. She alsotestified that defendant's initial medical record indicated that his name was "Nenbozh."

Alsip police sergeant Randy Kessler testified that he responded to the scene of theaccident on 123rd Street and Kedzie Avenue. The sergeant looked inside the Suburban and saw anickel-plated semiautomatic weapon inside the center console between the front seats.

Alsip police officer Mark Miller testified that he searched the Suburban after it was towedto the Alsip police station. He found and inventoried a handgun and a burnt marijuana cigarette.

Merrionette Park police officer John Cavazos testified that he responded to a callconcerning the incident in question. When he was a few blocks away from the intersection of123rd and Kedzie, he saw a Suburban collide with a smaller vehicle. Prior to and at the point ofimpact, he saw that the light was green for southbound traffic on Kedzie. He also saw two bodiesproject out of the smaller vehicle, then saw defendant exit the driver's side of the Suburban andclimb over a fence by the cemetery. Officer Brongiel stopped defendant at gunpoint and askedhim why he was running; defendant replied that he did not have a license.

Officer Cavazos was standing at the rear door of the ambulance while defendant was beingtreated on the scene and heard defendant tell the paramedics that his name was Pablo Babosa. Officer Brongiel followed the ambulance to the hospital, where he heard defendant correct hisname for hospital personnel. The officer was also present during defendant's initial treatment atthe hospital and heard him state to his female doctor and the nursing staff that he was driving thevehicle and was involved in an accident because he was running from the police. On cross-examination, the officer admitted that he did not include defendant's statements in his handwrittenreport.

At the conclusion of the State's case, the parties entered numerous stipulations, including alife and death stipulation regarding the victims, Michelle Burton and Sandra Macabee. Theparties further stipulated that if Dr. Rexene Worrell were called, she would testify that sheperformed an autopsy on the body of Michelle Burton, that a male fetus was recovered from heruterus, that at the time of the collision the fetus was alive, and that it would be Dr. Worrell'sexpert opinion that Burton's death was caused by the multiple injuries she sustained when she wasejected from her automobile after being struck by another vehicle. Dr. Worrell would furthertestify that she performed an autopsy on the body of Sandra Macabee and that it would be herexpert opinion that Macabee's death was caused by an automobile accident while she was apassenger in the automobile.

The trial court found defendant guilty of eight counts of reckless homicide, two counts ofreckless homicide to an unborn child, and two counts of aggravated fleeing and attempting toelude the police. In rendering its judgment, the trial court summarized the evidence in the case,stating that "[w]hile turning corners, the defendant turned somewhat wide and was swerving fromleft to right," defendant disobeyed two stop signs, the "Suburban, travelling at an excessive rate ofspeed, entered the intersection against the red light just as another vehicle was entering theintersection," defendant said he was fleeing from the police, and defendant had a blood alcoholconcentration of .127 and his toxicology screen was positive for cocaine and marijuana. Inconsidering the charges of first degree murder based on strong probability of death or great bodilyharm and reckless homicide, the trial court noted that the difference between the two was notalways easily discernible and that "these types of cases are very fact specific." The court thenfound that the facts in the case clearly showed that defendant acted recklessly prior to and at thetime of the fatal collision.

Defense counsel filed a motion for a new trial, arguing, inter alia, that the testimony of Dr.Shirakbari was speculative and without foundation, and generally insufficient to prove defendantguilty beyond a reasonable doubt. The trial court denied the motion. Defendant subsequentlyfiled a pro se motion for reconsideration of his sentence, and the trial court reduced his sentencefrom 27 years' imprisonment to 24 years.

In this appeal, defendant first contends that his conviction must be reversed because thetrial court applied the presumption contained in section 9-3(b) of the Criminal Code of 1961 (720ILCS 5/9-3(b) (West 2000)), which provided that being under the influence of alcohol or otherdrugs at the time of the alleged violation shall be presumed to be evidence of a reckless act unlessdisputed by evidence to the contrary. Defendant notes that after the trial court rendered itsdecision in his case, the supreme court found this provision to be an unconstitutional mandatorypresumption of recklessness. People v. Pomykala, 203 Ill. 2d 198, 209 (2003).

Defendant concedes that the prosecution did not rely on the section 9-3(b) presumption,mention it, or seek to apply it in any manner, and that the trial court also did not mention thepresumption in announcing its finding of guilt. He contends, however, that since the presumptionwas in effect at the time the trial court entered its finding, we must presume that the courtfollowed it. Defendant's argument is based on the long-standing principle that in a bench trial, thetrial judge is presumed to know the law and to follow it.

In presenting his argument, defendant acknowledges People v. Taylor, 344 Ill. App. 3d929, 937 (2003), where the court held that even though the retail theft statute at issue containedan unconstitutional mandatory presumption, the reviewing court could assume that the trial courtwas aware that the presumption was unconstitutional, and thus found defendant guilty withoutrelying on the presumption, inferring the requisite intent from the surrounding circumstances. However, defendant attempts to distinguish Taylor from the case at hand because in Taylor,unlike here, three previous courts had found the presumption mandatory and thusunconstitutional. Taylor, 344 Ill. App. 3d at 937. We disagree.

Although the supreme court had not yet ruled on the reckless homicide statute whendefendant's case was decided, the Third District Appellate Court had held the section 9-3(b)mandatory presumption to be unconstitutional. People v. Pomykala, 326 Ill. App. 3d 390, 394(2001). In addition, the supreme court had determined that in criminal law, mandatorypresumptions which shift the burden of production to defendant are unconstitutional. People v.Watts, 181 Ill. 2d 133, 147 (1998). Thus, as in Taylor, 344 Ill. App. 3d at 937, we may assumethat the trial judge was aware that the presumption was mandatory and thus unconstitutional andthat the court did not rely on it in finding defendant guilty of reckless homicide.

This assumption is supported by the record, which contains no indication that the trialcourt applied the section 9-3(b) presumption in determining defendant's guilt, and affirmativelydemonstrates that the court based its ruling on the considerable evidence establishing the elementsof the charged offense. The trial court made no mention of the section 9-3(b) presumption, statedthat the case was of a "fact specific" nature, and concluded that the facts of the case clearlyshowed that defendant acted recklessly prior to and at the time of the fatal collision. The courtspecifically identified the manner in which defendant was driving, that he was fleeing the policeand driving at excessive speeds, that he entered the intersection against a red light, and that hewas under the influence of alcohol and drugs. Accordingly, we reject defendant's contention andfind no cause for reversal. Taylor, 344 Ill. App. 3d at 937.

In reaching this conclusion, we also find defendant's reliance on Pomykala, 203 Ill. 2d at210, unpersuasive. Pomykala was tried before a jury that was specifically instructed on thesection 9-3(b) presumption and both counts of reckless homicide against defendant alleged that hewas under the influence of alcohol. Pomykala, 203 Ill. 2d at 210-11. This case, by contrast, wasa bench trial where the prosecution did not rely on or argue the section 9-3(b) presumption, andthe trial court's findings show that it did not apply the presumption but, rather, considered all therelevant facts in determining whether defendant acted recklessly. Additionally, six of the eightcounts of reckless homicide against defendant in this case mention not only defendant'sintoxication, but also the fact that he failed to stop at the red light.

Defendant next contends that his conviction must be reversed because of two allegedevidentiary errors that occurred at trial. Defendant argues that the trial court erred in allowingDr. Shirakbari to testify that his name was incorrect on his medical chart because this testimonywas inadmissible double hearsay. He also argues that it was error for the trial court to allow thedoctor to testify that defendant shrugged his shoulders on being told that two people died as aresult of the automobile collision because this testimony was irrelevant and violated the patient-physician privilege.

We note, initially, that these objections may be deemed waived. In order to preserve anissue for review, defendant must offer both an objection at trial and raise the matter with somespecificity in a posttrial motion. People v. Enoch, 122 Ill. 2d 176, 186 (1988); People v.Williams, 264 Ill. App. 3d 278, 285 (1993). Here, defendant did not object at trial to the doctor'stestimony that his name was incorrect on his medical chart` or raise any hearsay objection to thedoctor's testimony in his post-trial motion. Although defendant objected at trial to the doctor'stestimony regarding his response to the report of the fatalities in the crash on relevance grounds,neither relevance nor privilege was asserted as a basis of objection to the doctor's testimony in hisposttrial motion. Accordingly, we find these objections waived. Enoch, 122 Ill. 2d at 186.

Defendant urges this court, nevertheless, to reach the merits of his claims under the plainerror doctrine. The plain error doctrine is an exception to the waiver rule that may be invokedwhere the evidence at trial was closely balanced or where the claimed error is of such magnitudeas to have deprived defendant of a fair trial. Williams, 264 Ill. App. 3d at 285. We find the plainerror exception inapplicable to this case.

The record shows that the evidence was not closely balanced and that defendant's recklessconduct was clearly established by properly admitted evidence. The record also shows that thetrial court made no reference to the testimony objected to on appeal, and there is no indicationthat the court relied on improper evidence in finding defendant guilty.

Moreover, even if we were to find that the evidence was improperly admitted, these errorswere not of such magnitude as to deprive defendant of a fair trial. Williams, 264 Ill. App. 3d at285. The record shows there was other evidence that defendant provided a false name to lawenforcement personnel and shrugged off the consequences of his actions. Officer Brongieltestified that when he asked defendant if he realized what he had done, defendant shook his headand said "it didn't matter." Further, Officer Cavazos heard defendant tell the paramedics that hisname was Pablo Babosa. When viewed in light of this record, any prejudicial impact of thetestimony objected to on appeal was insufficient to constitute reversible error. Williams, 264 Ill.App. 3d at 287.

Accordingly, we affirm the judgment of the circuit court of Cook County.

Affirmed.

KARNEZIS, P.J., and HARTMAN, J., concur.