People v. Bowman

• Decision Date: 20 April 2005
• Docket Number: No. 1-04-0253.,1-04-0253.
• Citation: 827 N.E.2d 1062,357 Ill. App.3d 290,293 Ill.Dec. 181
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. James BOWMAN, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

827 N.E.2d 1062

357 Ill. App.3d 290

293 Ill.Dec. 181

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. James BOWMAN, Defendant-Appellant.

No. 1-04-0253.

Appellate Court of Illinois, First District, Third Division.

April 20, 2005.

Rehearing Denied May 18, 2005.

Francis J. Coyle, Jr., Coyle, Gilman & Stengel, Rock Island, for Pete R. Harrison.

Raymond J. Conklin, Rock Island, David B. Mueller, Cassidy & Mueller, Peoria, for Metropolitan Property and Casualty Insurance Co.

Presiding Justice KARNEZIS delivered the opinion of the court:

Following a jury trial, defendant James Bowman was convicted of reckless homicide and aggravated driving under the influence of alcohol. He was sentenced to 14 years' imprisonment for reckless homicide and 12 years' imprisonment for aggravated driving under the influence, to run concurrently. Defendant now appeals and argues: (1) the trial court erred in giving a modified jury instruction; (2) the trial court erred in allowing photographs to be published to the jury; (3) he was denied his right to a fair trial; (4) the trial court erred in allowing opinion testimony: (5) the State made improper comments during closing argument; (6) the State failed to correct the false testimony of an eyewitness; and (7) the trial court erred in imposing the maximum extended term sentence. For the following reasons, we affirm the judgment of the trial court.

BACKGROUND

The evidence at trial established that on May 21, 2001, at approximately 1 p.m., Rosario Cruz walked his three-year old grandson, Alexander Esteban, to preschool located in the 1400 block of West Augusta Boulevard. When they arrived at the corner of Augusta Boulevard and Noble Street, the eastbound traffic on Augusta Boulevard had a green light. They waited for the light to change so they could cross Augusta Boulevard. When the light turned red and the walk signal appeared, Rosario and Alexander, walking hand-in-hand, proceeded to cross the street. When they reached the center of the eastbound lane, defendant's white pickup truck went through the red light and knocked Rosario and Alexander to the ground. After running the red light on Augusta Boulevard and hitting Rosario and Alexander, defendant continued to travel eastbound on Augusta Boulevard. An ambulance arrived and transported Rosario to the hospital, where he was treated for three broken ribs and a head laceration. Alexander was taken by ambulance to Children's Memorial Hospital, where he died from multiple injuries.

Martin Hernandez was driving the car directly behind defendant and was approximately 50 feet behind defendant's truck when he saw defendant run the red light. Hernandez saw two bodies lying in the intersection. Hernandez continued to follow defendant eastbound on Augusta beeping his horn in an attempt to get defendant to stop his truck. Defendant did not stop until he reached the intersection of Augusta Boulevard and Milwaukee Avenue where he hit a red Jeep. Hernandez then witnessed defendant back up 10 to 15 feet and hit the Jeep again before stopping. The driver of the Jeep, Jeremiah Flaherty, and Hernandez both got out of their cars and approached the driver's side of defendant's truck. Hernandez yelled at defendant, who did not respond. Hernandez then removed the keys from the ignition of the truck and helped defendant out. Hernandez testified that defendant's eyes appeared "red" and "kind of lazy." Flaherty testified that after defendant exited the truck, he observed defendant walk toward him. As he approached, defendant "said he was sorry." Defendant's speech was "kind of slurred," his "eyes were bloodshot" and he appeared to be "kind of out of it." He further described defendant's gait as "stiff" and slightly "off center." Flaherty did not smell alcohol, but opined that defendant was under the influence.

Officer Owen Vasquez of the Chicago police department arrived on the scene at approximately 1:10 p.m. He observed another officer helping defendant to the sidewalk. Officer Vasquez observed that defendant "was staggering" and "needed support for walking." Officer Vasquez also observed that defendant had "red eyes" and that his face was flushed. Defendant had a strong odor of alcohol on his breath and was unable to retrieve his wallet out of the rear pocket of his jeans.

After he spoke with witnesses at the scene, Officer Vasquez administered field performance tests to defendant. Officer Vasquez testified that defendant failed the one-legged stand/balance and walk-and-turn tests. Defendant also could not complete the finger-to-nose test. Officer Vasquez did not administer the horizontal gaze nystagmus test, which is recognized as the most accurate field sobriety test.

After observing defendant for 30 minutes, Officer Vasquez believed that defendant was under the influence of alcohol and placed defendant under arrest. While he was transporting defendant to the 13th District police station, Officer Vasquez noted a strong odor of alcohol coming from defendant. When they arrived at the police station, Officer Vasquez had to assist defendant in walking the 12 to 15 feet to the interview room. Defendant declined the opportunity to take a breath test and no chemical tests were performed.

After hearing all of the evidence, a jury found defendant guilty of reckless homicide, aggravated reckless homicide and aggravated driving under the influence. The trial court subsequently sentenced defendant to 14 years' imprisonment for reckless homicide and 12 years' imprisonment for aggravated driving under the influence, to run concurrently. This appeal followed.

ANALYSIS

Defendant first contends that he was denied his constitutional rights to due process and trial by jury when the court gave a non-pattern jury instruction that presupposed defendant's guilt.

Jury instructions are necessary to provide the jury with the legal principles applicable to the evidence presented so that it may reach a correct verdict. People v. Hopp, 209 Ill.2d 1, 8, 282 Ill.Dec. 173, 805 N.E.2d 1190 (2004). Supreme Court Rule 451(a) (177 Ill.2d R. 451(a)) provides that whenever the Illinois Pattern Jury Instructions (IPI) contain an applicable jury instruction and the court determines that the jury should be instructed on the subject, "the [IPI instruction] shall be used unless the court determines that it does not accurately state the law." Where no IPI instruction exists on a subject that the court determines the jury should be instructed, the court has the discretion to give a non-pattern jury instruction. People v. Ramey, 151 Ill.2d 498, 536, 177 Ill.Dec. 449, 603 N.E.2d 519, 534 (1992). Absent an abuse of discretion, we will not disturb the trial court's decision to instruct a jury using a non-pattern instruction. People v. Pollock, 202 Ill.2d 189, 211, 269 Ill.Dec. 197, 780 N.E.2d 669, 682 (2002). Whether a court has abused its discretion in giving a non-pattern instruction will depend on whether that instruction was accurate, simple, brief, impartial and a non-argumentative statement of the applicable law. 177 Ill.2d R. 451(a); Pollock, 202 Ill.2d at 211,269 Ill.Dec. 197,780 N.E.2d at 682.

A non-pattern jury instruction was necessary in this case given the United States Supreme Court's ruling in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). The Court in Apprendi held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi, 530 U.S. at 490, 120 S.Ct. at 2362-63, 147 L.Ed.2d at 455. In this case, the State was seeking to extend the penalty for the crimes charged beyond the statutory maximum. Consequently, the State offered modified versions of Illinois Pattern Jury Instructions, Criminal, Nos. 2.01 and 26.01 (4th ed.2000) (hereinafter IPI Criminal 4th), as well as special verdict forms as part of its proposed jury instruction in an effort to comply with the ruling in Apprendi. People v. Hester, 131 Ill.2d 91, 103, 136 Ill.Dec. 111, 544 N.E.2d 797, 803 (1989) (the use of modified or non-pattern IPI instructions is authorized when the pattern instructions do not accurately state the law). The defense objected to these modified instructions on the ground that they presupposed defendant's guilt. The instructions were given over the defense objection. The instructions read:

"The State has also alleged the additional facts that, during the commission of the offense, Alexander Esteban was under the age of twelve, and that Rosario Cruz was sixty years of age or older. I.P.I. Criminal No. 2.01 (Modified) Apprendi v. New Jersey, 530 U.S. 466, 102 [120] S.Ct. 2348 (2000).

If you find the defendant guilty of reckless homicide, aggravated reckless homicide or both, you should continue your deliberations to determine whether the State has proven beyond a reasonable doubt the fact that, during the commission of the offense, Alexander Esteban was under the age of 12.

* * *

If you find the defendant guilty of aggravated driving under the influence of alcohol, you should continue your deliberations to determine whether the State has proven beyond a reasonable doubt the fact that, during the commission of the offense, Rosario Cruz was 60 years of age or older. I.P.I. Criminal No. 26.01 (Modified) Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000)."

Defendant claims that the jury instructions given violated his right to due process and a trial by jury because the instructions contained an impermissible mandatory presumption that defendant was guilty of the offenses charged.

The due process clause of the fourteenth amendment of the United States Constitution requires the State to prove every element of a crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 316, 99 S.Ct. 2781, 2787, 61 L.Ed.2d 560, 571 (1979). The State may rely on presumptions and inferences in...