People v. Botsis

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People v. Botsis

State: Illinois

Court: 1st District Appellate

Docket No: 1-07-3118 Rel

Case Date: 02/02/2009

Preview:FIRST DIVISION February 2, 2009

No. 1-07-3118 THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SPYRIDON C. BOTSIS, Defendant-Appellant. ) ) ) ) ) ) ) ) ) ) ) Appeal from the Circuit Court of Cook County.

Honorable Timothy C. Chambers, Judge Presiding.

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.

1-07-3118 5.01(B); and (5) the trial court erred in allowing the State to present improper evidence to the jury. and sentences. FACTS At trial, Georgia Botsis, defendant's mother, testified she kept a file regarding defendant's medical condition. Botsis We affirm the convictions

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. time. Defendant was 17 at the When

Several tests were run; each came back normal.

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. Voula Asimacopoulos. Botsis contacted Dr.

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1-07-3118 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 After a follow-up visit one month later,

to drive for one month.

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. seizure or fainting spell. His tentative diagnosis was a

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 While Dr. Levy routinely encouraged

again after one month.

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 signed the

defendant was instructed not to drive.

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1-07-3118 instruction. Georgia Botsis testified defendant went back to Dr. Levy after the May 22 crash. dilantin for defendant. According to Botsis, Dr. Levy prescribed 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. Botsis said she and Dr.

Levy about not taking the medication.

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 Dr. Levy testified he told defendant "not

prescribed dilantin.

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 Dr. Levy said defendant never contacted

months and then drive.

him regarding a request to change or stop taking his medication. Defendant was scheduled for an appointment on July 7, 2004; it was canceled. 25 appointment. resume driving. Dr. Levy did not see defendant again after the May Dr. Levy never gave defendant permission to

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1-07-3118 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 Dr. Asimacopoulos said she

dosage and how it made him feel.

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 When asked what happened on May 22, defendant

fainting episodes.

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 Defendant told Dr. Rosenbaum he had It was Dr.

air conditioning in his car.

been prescribed dilantin but was no longer taking it.

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

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1-07-3118 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 The results were

defendant's heart rate and blood pressure. 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 Dr. Rosenbaum "didn't

refrain from driving a motor vehicle."

give him any specific time where he would be able to reinitiate driving privileges." Although defendant was scheduled for a

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1-07-3118 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 Dr. Dahman diagnosed

episodes where he lost consciousness. 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 Defendant

cut him off, but he could not recall all of the facts.

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1-07-3118 said he started to black out at the start of the crash. When

Saifuku spoke to Dr. Asimacopolouos 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. 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 Defendant appeals.

not prove he had a culpable mental state. Defendant's reasonable doubt argument concentrates on the reckless homicide conviction, with only a passing mention of the aggravated reckless driving charge. However, the bottom line

issue in both counts of the indictment is the same: was defendant acting recklessly when his car struck the cars in which Vanessa Grimes and Sharon Tracy were riding? The relevant question is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable

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1-07-3118 doubt. People v. Cunningham, 212 Ill. 2d 274, 278, 818 N.E.2d

304 (2004); People v. Ornelas, 295 Ill. App. 3d 1037, 1049, 693 N.E.2d 1247 (1998). It is the responsibility of the trier of

fact to determine the credibility of witnesses and the weight to be given their testimony, to resolve conflicts in the evidence, and to draw reasonable inferences from the evidence. Williams, 193 Ill. 2d 306, 338, 739 N.E.2d 455 (2000). People v. A

criminal conviction will not be reversed unless the evidence is so improbable or unsatisfactory that a reasonable doubt of defendant's guilt is justified. 94, 662 N.E.2d 1215 (1996). A defendant is guilty of reckless homicide when the State proves beyond a reasonable doubt that: (1) the defendant was operating a motor vehicle; (2) the defendant unintentionally caused a death while operating the vehicle; and (3) the acts which caused the death were performed recklessly so as to create a likelihood of death or great bodily harm to some person. See People v. Moore, 171 Ill. 2d 74,

720 ILCS 5/9-3(a) (West 2006); People v. Wilson, 143 Ill. 2d 236, 245, 572 N.E.2d 937 (1991). Illinois' reckless homicide statute does not require that a defendant must deliberately intend to kill a human being. Wilson, 143 Ill. 2d at 246. "If a person `unintentionally

kills,' even in the performance of a `lawful' act while

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1-07-3118 conducting himself `recklessly,' he commits the crime of reckless homicide." Wilson, 143 Ill. 2d at 246. Section 4-6 of the

Criminal Code of 1961 defines "recklessness" as follows: "A person is reckless or acts recklessly, when he consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow, described by the statute defining the offense; and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation." ILCS 5/4-6 (West 2006). Recklessness, as it applies to a reckless homicide prosecution, may be inferred from all of the facts and circumstances in the record viewed as a whole and may be established by the defendant's physical condition. People v. 720

Solis, 275 Ill. App. 3d 346, 355, 655 N.E.2d 954 (1995). In Wilson, the defendant was convicted of reckless homicide after the car he was driving crossed the center line on a sixlane highway and collided with an oncoming vehicle, killing a passenger in the defendant's car. Our supreme court concluded

the evidence was sufficient to support a finding that the defendant acted recklessly. Dr. Yeh, the doctor who diagnosed

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1-07-3118 Wilson's sleep disorder, testified the defendant told him he had been suffering from excessive drowsiness problems for a number of years, and the problem had recently been exacerbated by the defendant's weight gain. Dr. Yeh also testified the defendant

had informed him he had been falling asleep inappropriately for a number of years. The court found the evidence established the

defendant was aware of his sleep disorder for years prior to the collision. Wilson, 143 Ill. 2d at 247.

Our supreme court pointed to authority in this State and in other jurisdictions to support a finding of criminal recklessness where a defendant chooses to drive an automobile knowing he suffers from a condition that could cause him to fall asleep or lose consciousness at the wheel. See People v. Shaffer, 49 Ill.

App. 3d 207, 212, 364 N.E.2d 109 (1977) (Recklessness was established where it was shown the defendant had fallen asleep while driving on numerous occasions, and, therefore, was aware he suffered from a physical condition that made it hazardous for him to drive); People v. Decina, 2 N.Y.2d 133, 139-40, 138 N.E.2d 799 (N.Y. App. Div. 1956) (emphasis in original) ("[T]his defendant knew he was subject to epileptic attacks and seizures that might strike at any time. With this knowledge, and without anyone

accompanying him, he deliberately took a chance by making a conscious choice of a course of action, in disregard of the

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1-07-3118 consequences which he knew might follow from his conscious act, and which in this case did ensue"); State v. Gooze, 14 N.J.Super 277, 289, 81 A.2d 811 (N.J. Super. Ct. App. Div. 1951) (Under a reckless homicide statute similar to the Illinois statute, the court held defendant acted recklessly when he caused a death after losing consciousness while driving, based on evidence the defendant knew he suffered from a condition that could subject him to blackouts at unpredictable times). Our supreme court noted the rationale of these cases is that "a driver may be guilty of a crime in undertaking to drive when he knows he may black out or lose consciousness." Ill. 2d at 247-48. Wilson, 143

The court held Wilson chose to operate an

automobile "with the knowledge that he suffered from a condition that made it dangerous for him to drive," supporting a finding of recklessness on that basis "without any evidence of drinking alcoholic beverages." Wilson, 143 Ill. 2d at 248-49. The court

did say the evidence of recklessness was stronger because the evidence established alcohol consumption would aggravate the defendant's condition and he voluntarily consumed alcohol prior to driving. Wilson, 143 Ill. 2d at 249.

Here, the evidence was sufficient to support a finding that defendant acted recklessly. The evidence established defendant

knew he had at least three prior fainting incidents, including an

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1-07-3118 incident on May 22, 2004, that resulted in a minor crash. Dr.

Levy, defendant's neurologist, recommended defendant not drive for a "minimum of six months without recurrence of episodes" after defendant's November 2003 incident. Then, following

defendant's May 2004 crash, Dr. Levy instructed defendant "not to drive" for a "[b]are minimum of six months with no episodes" but to "be determined as things went along." Defendant was told he

and Dr. Levy "would need to discuss clearance to drive at a future point." resume driving. danger. Dr. Levy never gave defendant permission to The defendant had notice of the potential

An exact diagnosis was not required.

Dr. Rosenbaum diagnosed defendant with neurocardiogenic syncope, the common faint, on July 9, 2004. Dr. Rosenbaum told

defendant he represented the "most high risk" patient with syncope because he had "already proven himself to have syncope while seated behind the wheel of a car." Dr. Rosenbaum Dr. Rosenbaum

specifically told defendant "he should not drive."

instructed defendant "to refrain from driving a motor vehicle." Dr. Asimacopoulos, defendant's family physician, never told defendant directly or indirectly that he could resume driving. Like the defendant in Wilson, Botsis chose to operate an automobile knowing he suffered from a physical condition that made it extremely dangerous for him to drive. Defendant's

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1-07-3118 doctors testified defendant knew he could experience a blackout without warning while driving. Defendant was specifically

instructed by several doctors after the May 22 crash to stop driving; he never received permission to resume driving. Defendant, however, chose to ignore his doctors' instructions and resume driving in conscious disregard of the substantial risks associated with his actions. Defendant's reckless conduct

resulted in his loss of consciousness while behind the wheel of his car, causing a head-on collision that injured Sharon Tracy and killed Vanessa Grimes. The evidence, taken as a whole, established defendant acted with a conscious disregard of a substantial risk that he would cause great bodily harm or death by driving. The evidence was

sufficient to support convictions for reckless homicide and aggravated reckless driving. II. Pretrial Motions A. Motion to Suppress Statements Defendant contends the trial court erred by not granting his pretrial motion to suppress statements made to Highland Park police officer David Saifuku while being treated in the emergency room following the crash. Specifically, defendant contends that See Wilson, 143 Ill. 2d at 249.

as a result of being interrogated in the emergency room without being advised of his Miranda rights, his statements to Officer

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1-07-3118 Saifuku should have been suppressed as involuntary. His written

motion to suppress alleges only the failure to give defendant Miranda warnings. The testimony at the motion to suppress hearing showed that following the January 30 crash, defendant was taken by ambulance to the emergency room at Lutheran General Hospital. During

questioning at the hospital, defendant told Officer Saifuku he had three prior fainting incidents. of his treating doctors. David Saifuku testified he was employed as a Highland Park Police Officer on January 30, 2005, when he received an assignment to interview defendant regarding a crash. Defendant Defendant told him the names

was in the emergency room, immobilized on a backboard with a cervical collar on. Defendant was in a room separated from other During the interview,

rooms by a sliding door or curtain.

several people came in and out of the room, including defendant's family and Dr. Asimacopoulos. Saifuku introduced himself as a police officer and requested a blood and urine sample from defendant. Defendant voluntarily Saifuku

signed a release while a registered nurse was present.

proceeded to question defendant regarding the crash, without advising him of his Miranda rights. Defendant never told Saifuku Saifuku did not

he could not talk to him because he was in pain.

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1-07-3118 handcuff defendant or tell him he was under arrest. Saifuku admitted defendant was restrained on a backboard with a strap across his chest and arms during the interview. nurse pointed out that blood was coming out of the corners of defendant's mouth. Saifuku admitted he told the hospital staff, A

out of defendant's presence, he was there to get defendant's blood and urine samples with or without his consent. Although

Saifuku knew a fatal crash had occurred prior to questioning defendant, he did not know whether defendant would be charged with reckless homicide. Defendant testified he was restrained on a backboard during the questioning. His neck was collared and he had bands around When defendant asked Saifuku to

his head, shoulders, and legs.

release the strap across his head, Saifuku ignored the request. The nurses also ignored his request to remove the strap. asked whether he felt he could leave or terminate the questioning, defendant said no. Defendant was not told Saifuku When

was conducting a death investigation until after Saifuku had finished questioning him. Defendant admitted Saifuku asked for

his consent to collect blood and urine samples. The trial court denied defendant's motion to suppress, finding defendant was not in custody because Saifuku simply questioned defendant as he found him.

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1-07-3118 When reviewing a trial court's ruling on a motion to suppress, findings of fact and credibility determinations are accorded great deference and will not be reversed unless they are against the manifest weight of the evidence. 209 Ill. 2d 492, 505, 810 N.E.2d 472 (2003). People v. Braggs, The ultimate

question posed by the legal challenge to the trial court's ruling is reviewed de novo, however. People v. Nicholas, 218 Ill. 2d

104, 116, 842 N.E.2d 674 (2005). In Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694, 706-07 (1966), the United States Supreme Court held that prior to the start of an interrogation, a person being questioned by law enforcement officers must first "be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either appointed or retained," as long as that person "has been taken into custody or otherwise deprived of his freedom of action in any significant way." "The finding of custody is essential, as the

preinterrogation warnings required by Miranda are intended to assure that any inculpatory statement made by a defendant is not simply the product of `the compulsion inherent in custodial settings.' " People v. Slater, 228 Ill. 2d 137, 149-50, 886 N.E.2d 986 (2008), quoting Yarborough v. Alvarado, 541 U.S. 652,

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1-07-3118 661, 124 S.Ct. 2140, 2147, 158 L.Ed.2d 938, 949 (2004). The determination of whether a defendant is in custody involves two discrete inquiries: " `first, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave.' " Slater, 228 Ill. 2d at 150, quoting Braggs, 209 Ill. 2d at We therefore examine "the objective circumstances of the Stansbury v. California, 511 U.S. 318, 319-22,

505.

interrogation."

114 S.Ct. 1526, 1527-29, 128 L.Ed.2d 293, 296-98 (1994). We find the circumstances surrounding the interrogation supported the trial court's finding that defendant was not "in custody" for Miranda purposes. While we recognize defendant was

immobilized on a backboard in the emergency room during questioning, he was placed in that position by medical personnel to facilitate his treatment, not by, or for, Officer Saifuku. Removing the strap would be a medical decision, not a law enforcement judgment. Defendant never was handcuffed, See Slater, 228 Ill.

fingerprinted, or told he was under arrest. 2d at 156.

Nor was defendant told he was not free to terminate In addition to the medical personnel who came in

the interview.

and out of defendant's room during questioning, Saifuku testified defendant's family was present at times.

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1-07-3118 This fact situation is not close to that in People v. Dennis, 373 Ill. App. 3d 30, 866 N.E.2d 1264 (2007), relied on by the defendant. There, the State agreed defendant was under

arrest and in custody when he spoke to the police officer at the hospital. Dennis, 373 Ill. App. 3d at 46. Based on the record

before us, we see no reason to reverse the trial court's decision to deny the motion to suppress. See People v. Griffin, 385 Ill.

App. 3d 202, 212, 898 N.E.2d 704 (2008) ("we note the parties in this case did not argue

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