People v. Alsup

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People v. Alsup

State: Illinois

Court: 5th District Appellate

Docket No: 5-05-0486 Rel

Case Date: 04/16/2007

Preview:NO. 5-05-0486
N O T IC E Decision filed 04/16/07. The text of this dec ision m ay b e changed or corrected prior to the P e t i ti o n for filing of a or the

IN THE APPELLATE COURT OF ILLINOIS

Re hea ring

FIFTH DISTRICT ________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Madison County. ) v. ) No. 03-CF-3441 ) RICHARD ALSUP, ) Honorable ) Ann Callis, Defendant-Appellant. ) Judge, presiding. ________________________________________________________________________ JUSTICE WEXSTTEN 1 delivered the opinion of the court: On January 28, 2005, a Madison County jury convicted the defendant, Richard Alsup, of knowing first-degree murder (720 ILCS 5/9-1(a)(2) (West 2002)), aggravated possession of stolen firearms (720 ILCS 5/16-16.1(a)(1) (West 2002)), unlawful possession of weapons by a felon (720 ILCS 5/24-1.1(a) (West 2002)), and aggravated possession of a stolen motor vehicle (625 ILCS 5/4-103.2(a)(7)(A) (West 2002)). On appeal, the defendant argues that the State failed to prove beyond a reasonable doubt that he committed first-degree murder and that erroneously admitted hearsay evidence denied him a fair trial. For the reasons that follow, we affirm. BACKGROUND On the morning of Tuesday, December 2, 2003, the defendant stole a 1995 GMC conversion van from an automobile dealership in Florissant, Missouri, and led police on a high-speed chase that began in Florissant at approximately 5:15 a.m., spanned an estimated
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disposition of the same.

Justice Wexstten was added to the panel after oral argument; he has read the briefs

and listened to the audiotape of oral argument. 1

28 miles, and ended tragically in Granite City, Illinois, at 5:36 a.m. During the course of the pursuit, the defendant disregarded no less than 12 traffic control devices, continuously ignored the lights and sirens of marked police cars, and deliberately forced oncoming vehicles off the road. The defendant drove through residential areas where the posted speed limit was 25 miles per hour at speeds in excess of 50 miles per hour. On Interstate 270, the defendant reached speeds exceeding 100 miles per hour and, at one point, "swerved over and tried to ram" a St. Louis County patrol car that had joined the chase. To circumvent stopped traffic, the defendant drove on shoulders and over medians and briefly traveled northbound in the southbound lanes of Illinois Route 111. Near the intersection of Illinois Route 157 and Interstate 270, the defendant "swerved rashly" to avoid "stop sticks" (i.e., portable spiked devices designed to deflate tires) that Glen Carbon police officers had placed in the road. On Illinois Route 203, the defendant nearly lost control of the van when maneuvering around stop sticks that a Madison County sheriff's deputy had placed in the road. At the intersection of Nameoki Road and Pontoon Beach Road in Granite City, the defendant drove through a red light at no less than 64 miles per hour and broadsided a 1996 Chevrolet Camaro driven by John C. Smith, one of several early morning commuters in the area at the time. The posted speed limit on both roads was 35 miles per hour, and Smith was traveling an estimated 21 miles per hour when he was hit. Smith was ejected from the Camaro as a result of the collision and died at the scene from blunt-trauma injuries to his head, face, chest, and abdomen. Two rifles that had been stolen in St. Louis the previous week were found inside the stolen van. When later interviewed at the Granite City police department, the defendant explained that he did not stop when the pursuit became dangerous because he was on parole and did not want to go back to prison. The defendant further indicated that during the chase, he was not concerned whether he might hurt himself or someone else because all he was thinking

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about was "getting away." The defendant acknowledged that he was responsible for the wreck because he "could have stopped at any time." Toxicology tests revealed that the defendant had not been driving under the influence of alcohol or drugs. At the trial, the defendant presented no evidence on his behalf, and defense counsel did not argue that the defendant was not guilty of aggravated possession of stolen firearms, unlawful possession of weapons by a felon, or aggravated possession of a stolen motor vehicle. Defense counsel urged the jury to find the defendant guilty of reckless homicide rather than first-degree murder, however, emphasizing that the defendant did not intentionally cause Smith's death. The State countered that the defendant knew that his acts created a strong probability of death or great bodily harm and was thus guilty of first-degree murder. The State argued that it would be inappropriate to find the defendant guilty of the lesser offense of reckless homicide given the totality of the defendant's conduct. The jury was instructed that to prove the defendant guilty of first-degree murder, the State had to prove that the defendant "performed the acts which caused the death of John C. Smith" and that, when doing so, the defendant "knew that his acts created a strong probability of death or great bodily harm." The jury was also instructed on the uncharged offense of reckless homicide. The jury found the defendant guilty on all counts. ANALYSIS Contending that the State failed to prove him guilty of first-degree murder but conceding that the evidence adduced at the trial was sufficient to establish that he committed the lesser-included offense of reckless homicide, the defendant initially asks that we reduce his conviction of murder to reckless homicide. When reviewing the sufficiency of the evidence supporting a conviction, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the offense beyond a

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reasonable doubt." People v. White , 221 Ill. 2d 1, 8 (2006). It is not the appellate court's function to retry the defendant, and we will not substitute our judgment for that of the trier of fact. People v. Collins, 214 Ill. 2d 206, 217 (2005). A reviewing court will only reverse a conviction if the evidence is so improbable, unsatisfactory, or inconclusive that it creates a reasonable doubt of the defendant's guilt. Collins, 214 Ill. 2d at 217. In its discretion, a reviewing court "may reduce the degree of an offense to a lesser[-]included offense when the evidence fails to prove the defendant guilty beyond a reasonable doubt of the greater offense." People v. Thomas, 266 Ill. App. 3d 914, 926 (1994). A defendant commits the offense of knowing first-degree murder when in performing the acts that cause the death of an individual, "he knows that such acts create a strong probability of death or great bodily harm." 720 ILCS 5/9-1(a)(2) (West 2002); see also Illinois Pattern Jury Instructions, Criminal, No. 7.01 (4th ed. 2000). "A person *** acts knowingly or with knowledge of *** [t]he nature or attendant circumstances of his conduct, described by the statute defining the offense, when he is consciously aware that his conduct is of such nature or that such circumstances exist." 720 ILCS 5/4-5(a) (West 2002). "A person *** acts knowingly or with knowledge of *** [t]he result of his conduct, described by the statute defining the offense, when he is consciously aware that such result is practically certain to be caused by his conduct." 720 ILCS 5/4-5(b) (W est 2002). A defendant commits the offense of reckless homicide when he unintentionally causes the death of an individual by operation of a vehicle and "his acts *** which cause the death are such as are likely to cause death or great bodily harm to some individual, and he performs them recklessly." 720 ILCS 5/9-3(a) (West 2002); see also Illinois Pattern Jury Instructions, Criminal, No. 7.09 (4th ed. 2000). "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

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constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation." 720 ILCS 5/4-6 (W est 2002). Apart from the fact that reckless homicide necessarily involves the operation of a vehicle, the basic difference between reckless homicide and knowing first-degree murder is the mental state that accompanies the conduct resulting in the victim's death. See People v. DiVincenzo , 183 Ill. 2d 239, 249 (1998). While the difference between the two offenses is not always easy to discern (People v. Melind , 179 Ill. App. 3d 836, 843 (1989)), the distinction "rests in the degree to which the acts [that the] defendant performed risk death or great bodily harm" (People v. Mifflin, 120 Ill. App. 3d 1072, 1077 (1984)). "Whether the particular acts of the defendant create a 'strong probability' of death or great bodily harm or whether they are 'likely' to cause death or great bodily harm is a question of fact to be decided under all the circumstances as presented to the trier of fact." Mifflin, 120 Ill. App. 3d at 1077; see also People v. Jennings , 268 Ill. App. 3d 439, 446 (1994) ("whether the defendant is guilty of murder [under section 9-1(a)(2) of the Criminal Code of 1961 (Ill. Rev. Stat. 1991, ch. 38, par. 9-1(a)(2))] because his acts created a strong probability of death or great bodily harm, or whether he is instead guilty of [reckless homicide] because his acts were merely reckless, is a question of fact for the trier of fact"). In People v. Thomas , 266 Ill. App. 3d 914 (1994), while driving a stolen car containing stolen property, the defendant led police on a high-speed chase through heavy traffic, ignoring the sirens and emergency lights of pursuing officers. Thomas , 266 Ill. App. 3d at 916-17. At one point during the chase, the defendant drove into oncoming traffic and almost struck another vehicle. Thomas , 266 Ill. App. 3d at 917. Beyond a hill that obstructed the view of an approaching intersection, the chase ended when the defendant sped through a red light and collided with a car that was traveling in the cross-traffic through a green light; the two people in the car that had the right-of-way died as a result of injuries sustained in the

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collision. Thomas , 266 Ill. App. 3d at 917. A jury found the defendant guilty on two counts of knowing first-degree murder, and on appeal, the defendant argued that "the evidence did not support convictions for first[-]degree murder[] but only supported convictions for reckless homicide." Thomas , 266 Ill. App. 3d at 917, 925. Affirming the defendant's convictions, the reviewing court disagreed and held that the evidence supported the jury's finding that the defendant "knew his acts created a strong probability of death or great bodily harm." Thomas , 266 Ill. App. 3d at 926. In People v. Stevens, 324 Ill. App. 3d 1084 (2001), the defendant led police on a highspeed chase that ended when he struck another vehicle and killed its driver. Stevens, 324 Ill. App. 3d at 1085, 1093. The reported details of the incident are as follows: "[The] defendant drove a stolen car at speeds in excess of 100 miles an hour, drove it on the shoulder of an expressway, weaved through traffic, refused to stop for marked police units, and drove it into the rear of the victim's vehicle. This caused the victim's vehicle to crash into a retaining wall and flip over five times. The defendant committed these acts while his passenger begged him to stop the car. The defendant refused, saying he was never going back to jail." Stevens, 324 Ill. App. 3d at 1093. The defendant pled guilty to knowing first-degree murder but later moved to withdraw his guilty plea. Stevens, 324 Ill. App. 3d at 1085-86, 1092. When affirming the trial court's denial of the defendant's motion to withdraw guilty plea, the appellate court, relying on Thomas , found that the record supported the finding that the defendant knew that his actions created a strong probability of death or great bodily harm. Stevens, 324 Ill. App. 3d at 1093. Here, the defendant's conduct is of the same character as that exhibited in Thomas and Stevens. The defendant, a paroled felon, was driving a stolen van containing stolen firearms when he drew the attention of law enforcement on the morning of December 2, 2003. With no intention of stopping and in total disregard for the rules of road, the defendant led police

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on a high-speed chase during which he committed numerous perilous acts. These acts included swerving over and attempting to ram a pursuing police car and, apparently attempting to leave accidents in his wake, deliberately forcing oncoming vehicles off the road. The chase went on for 28 miles, and only when the defendant sped through a red light and struck another vehicle did it end. Unfortunately, the defendant's conduct resulted in the death of an unwary motorist. Although the defendant contends that his actions should be viewed as mere reckless driving (see People v. Sienkiewicz, 208 Ill. 2d 1, 11 (2003) (noting that the only difference between reckless homicide and reckless driving is that reckless homicide requires that a death result from the defendant's conduct while reckless driving does not)), the jury could rationally have concluded that the defendant's conduct amounted to more than just a series of reckless acts and that the defendant was consciously aware but simply did not care that his conduct created a strong probability of death or great bodily harm. On appeal, the defendant suggests that Thomas and Stevens were wrongly decided and that we should reduce his murder conviction to reckless homicide in light of People v. Belk , 203 Ill. 2d 187 (2003). Upon examination, however, Belk can be construed as tacitly approving the holdings in Thomas and Stevens and is readily distinguishable from the present case in that it addressed convictions for felony first-degree murder, not knowing first-degree murder. In Belk , the defendant stole a van and led police on a high-speed pursuit that ended when he crashed into the rear of another vehicle, whose two occupants died as a result of injuries sustained in the crash. Belk , 203 Ill. 2d at 189-90. A toxicology test revealed that the defendant's blood-alcohol level was 0.19. Belk , 203 Ill. 2d at 190. The defendant was later convicted of two counts of felony murder (720 ILCS 5/9-1(a)(3) (West 1996)) predicated on aggravated possession of a stolen motor vehicle. Belk , 203 Ill. 2d at 191. On

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appeal, the defendant argued that his murder convictions should be reduced to reckless homicide convictions because felony murder requires proof of a forcible felony and aggravated possession of a stolen motor vehicle is not a forcible felony; the appellate court agreed and reduced the convictions. Belk , 203 Ill. 2d at 191. The State then appealed to the supreme court, arguing that the appellate court had erred in holding that the defendant's conduct did not fall under the purview of the felony-murder rule. Belk , 203 Ill. 2d at 189, 191. After discussing, inter alia , the statutory definition of forcible felony (720 ILCS 5/2-8 (West 1996)) and People v. Golson, 32 Ill. 2d 398 (1965)

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