People v. Botsis, 1-07-3118.

• Decision Date: 02 February 2009
• Docket Number: No. 1-07-3118.,1-07-3118.
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Spyridon C. BOTSIS, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

902 N.E.2d 1092

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Spyridon C. BOTSIS, Defendant-Appellant.

No. 1-07-3118.

Appellate Court of Illinois, First District, First Division.

February 2, 2009.

Rehearing Denied March 4, 2009.

Jed Stone and John Curnyn, Stone & Associates, L.L.C., of Waukegan, IL, for Appellant.

Richard A. Devine, State's Attorney of Cook County (James E. Fitzgerald, and Janet C. Mahoney, of Counsel), Chicago, for Appellee.

Justice WOLFSON delivered the opinion of the court:

At around 3:45 p.m. on January 30, 2005, defendant Spyridon Botsis was driving to work on Lake Cook Road when he lost consciousness. Defendant's car crossed from the westbound lane of traffic into the eastbound lane and hit several other cars, killing Vanessa Grimes and injuring Sharon Tracy.

Following a jury trial, defendant was convicted of aggravated reckless driving and reckless homicide. He was sentenced to a 3-year prison term for reckless homicide and a concurrent 1-year prison term for aggravated reckless driving. On appeal, defendant contends: (1) the State failed to prove him guilty beyond a reasonable doubt; (2) the trial court erred in denying two critical pretrial motions; (3) the State committed several discovery violations; (4) the trial court erred by refusing to give paragraph 2 of the jury instruction I.P.I. 5.01(B); and (5) the trial court erred in allowing the State to present improper evidence to the jury. We affirm the convictions and sentences.

FACTS

At trial, Georgia Botsis, defendant's mother, testified she kept a file regarding defendant's medical condition. Botsis testified defendant had at least three prior fainting incidents: On June 6, 1999, and November 15, 2003, defendant fainted while he was using the bathroom; on May 22, 2004, defendant fainted while driving his car, which resulted in a minor crash when defendant rear-ended the car in front of him. After each of the three fainting episodes, defendant and his family sought medical advice to determine a diagnosis and treatment.

Botsis testified that following the June 1999 incident, defendant went to the emergency room. Defendant was 17 at the time. Several tests were run; each came back normal. When defendant was released, he went to see his pediatrician, Dr. Stein.

Following the November 2003 incident, defendant was taken to the hospital by ambulance. Defendant was prescribed medication and instructed not to operate any equipment that could be dangerous should another "seizure" occur. Botsis contacted Dr. Voula Asimacopoulos.

Dr. Asimacopoulos testified she went to the hospital on November 15, 2003, and referred defendant to a specialist, Dr. Levy. Dr. Asimacopoulos told defendant not to drive until he had a diagnosis and was treated.

Botsis testified defendant went to see Dr. Levy on November 24, 2003. Defendant told Botsis that Dr. Levy instructed him not to drive for one month. After a follow-up visit one month later, defendant told Botsis that Dr. Levy said he could drive.

Dr. Barry Levy, a neurologist, testified he saw defendant in his office on November 24, 2003. His tentative diagnosis was a seizure or fainting spell. Dr. Levy recommended defendant not drive for a "minimum of six months without recurrence of episodes." Dr. Levy said he never told defendant he could drive again after one month. While Dr. Levy routinely encouraged follow up visits before a patient drove again, he "didn't feel it was mandatory in this situation."

On May 22, 2004, defendant was involved in a minor traffic crash after he lost consciousness and drove into the back of a car. After the crash, defendant was treated by Dr. John Vozenilek, an emergency room physician at Glenbrook Hospital. After a physical exam revealed tongue lacerations, Dr. Vozenilek concluded defendant had a seizure. In his discharge papers defendant was instructed not to drive. Defendant signed the instruction.

Georgia Botsis testified defendant went back to Dr. Levy after the May 22 crash. According to Botsis, Dr. Levy prescribed dilantin for defendant. Botsis said defendant took it for a week and then stopped because it made him feel terrible and his tests came back negative. Botsis believed defendant had spoken to Dr. Levy about not taking the medication. Botsis said she and Dr. Asimacopoulos agreed to wean defendant off the dilantin.

Dr. Levy testified defendant returned to his office on May 25, 2004. When asked to describe his symptoms, defendant said he "suddenly lost consciousness" and his next recollection was with the paramedics. Dr. Levy diagnosed a seizure disorder and prescribed dilantin. Dr. Levy testified he told defendant "not to drive" for a "[b]are minimum of six months with no episodes" but to "be determined as things went along." Dr. Levy told defendant "we would need to discuss clearance to drive at a future point." Defendant was not told he could just wait six months and then drive. Dr. Levy said defendant never contacted him regarding a request to change or stop taking his medication. Defendant was scheduled for an appointment on July 7, 2004; it was canceled. Dr. Levy did not see defendant again after the May 25 appointment. Dr. Levy never gave defendant permission to resume driving.

Dr. Asimacopoulos testified that sometime after May 22, 2004, defendant called her to talk about a conversation he had with Dr. Levy. Defendant told Dr. Asimacopoulos that Dr. Levy said he should stay on dilantin and even increase the dose, even though his tests were normal. Defendant complained about the dosage and how it made him feel. Dr. Asimacopoulos said she never told defendant he should not take dilantin and never assisted him in weaning off the medication. After defendant said he wanted a second opinion, Dr. Asimacopoulos recommended Dr. Rosenbaum, a cardiologist. Dr. Asimacopoulos testified she never told defendant directly or indirectly that he could drive.

Dr. Richard Rosenbaum testified he met with defendant on July 9, 2004. Defendant told Dr. Rosenbaum about his prior fainting episodes. When asked what happened on May 22, defendant told Dr. Rosenbaum he was fatigued and running late to work when he had a seizure or lost consciousness, which resulted in hitting a car. Defendant explained it was a hot day and he did not have air conditioning in his car. Defendant told Dr. Rosenbaum he had been prescribed dilantin but was no longer taking it. It was Dr. Rosenbaum's understanding that defendant had been the one to decide to discontinue his medication. Dr. Rosenbaum testified defendant's recollection of his office visit with Dr. Levy "sounded as though Doctor Levy had given him instructions not to drive." Dr. Rosenbaum said defendant told him he had begun driving again approximately two weeks before his July 9 visit.

Dr. Rosenbaum made a differential diagnosis of neurocardiogenic syncope, the common faint. Dr. Rosenbaum said defendant could not anticipate when he would lose consciousness. Dr. Rosenbaum believed:

"[defendant] represented to me among the most high risk patients with neurocardiogenic syncope because I'm worried they won't have any warning. And he's already proven himself to have syncope while seated behind the wheel of a car."

When asked "what did you tell [defendant] specifically about driving," Dr. Rosenbaum said "I told him specifically he should not drive." Dr. Rosenbaum performed a "tilt table test" to study defendant's heart rate and blood pressure. The results were normal, which did not rule out syncope.

During the July 16 office visit, Dr. Rosenbaum prescribed defendant florniff, a steroid-like compound used to treat neurocardiogenic syncope. Dr. Rosenbaum instructed defendant "to refrain from driving a motor vehicle." Dr. Rosenbaum "didn't give him any specific time where he would be able to reinitiate driving privileges." Although defendant was scheduled for a follow-up appointment, Dr. Rosenbaum did not see defendant again after July 16, 2004. Dr. Rosenbaum admitted he wrote a letter to Dr. Asimacopoulos indicating that defendant should not drive for three to six months, and that he was concerned about defendant driving because he did not have any warning signs before losing consciousness.

Georgia Botsis testified defendant stopped driving after the July 9 appointment and did not drive again until six months later.

Dr. Marc Dahman testified he was working in the emergency room at Lutheran General Hospital on January 30, 2005, when defendant was brought in for treatment after the collision that resulted in the charges in this case. When Dr. Dahman spoke to defendant about what happened, defendant said he had lost consciousness. Defendant told Dr. Dahman he had three past episodes where he lost consciousness. Dr. Dahman diagnosed defendant as having a syncopal episode.

David Saifuku, since retired, testified he was a Highland Park Police Officer on January 30, 2005, when he interviewed defendant in the emergency room. Defendant told Saifuku he was driving westbound on Lake Cook Road on his way to work when he crossed the center line. Defendant said a green Honda may have cut him off, but he could not recall all of the facts. Defendant said he started to black out at the start of the crash. When Saifuku spoke to Dr. Asimacopoulos at the hospital, she gave him the names of defendant's doctors — Dr. Levy and Dr. Rosenbaum.

The jury found defendant guilty of reckless homicide (death of Vanessa Grimes) and aggravated reckless driving (injuries to Sharon Tracy). He was sentenced to a three-year prison term for reckless homicide and a concurrent 1-year prison term for aggravated reckless driving. Defendant appeals.

DECISION

I. Sufficiency of the Evidence

Defendant contends the State failed to prove him guilty beyond a reasonable doubt of reckless homicide and aggravated reckless driving. Specifically, defendant contends the State did not prove he had a culpable mental state.

Defendant's reasonable doubt...