People v. Whitlock

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Appellate Court Date: 2019.04.16

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People v. Whitlock, 2018 IL App (1st) 152978

Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.

Caption DARRELL WHITLOCK, Defendant-Appellant.

District & No. First District, Sixth Division

Docket No. 1-15-2978

Filed December 28, 2018

Decision Under Appeal from the Circuit Court of Cook County, No. 10-CR-8302; the

Review Hon. Lawrence E. Flood, Judge, presiding.

Judgment Affirmed.

Counsel on James E. Chadd, Patricia Mysza, and Maria A. Harrigan, of State

Appeal Appellate Defender’s Office, of Chicago, for appellant.

Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg,

Tasha-Marie Kelly, and Christine Cook, Assistant State’s Attorneys,

of counsel), for the People.

Panel JUSTICE HARRIS delivered the judgment of the court, with opinion.

Justices Cunningham and Connors concurred in the judgment and

opinion.

OPINION

¶1 Defendant-appellant, Darrell Whitlock, was arrested by Chicago police after the car he was

driving crashed into another vehicle, killing its occupant. After his arrest, the State charged

defendant with felony murder, attempted first degree murder of a peace officer, possession of a

controlled substance, aggravated battery, criminal damage to government property, and

aggravated fleeing. Thereafter, the State amended the felony murder charge to knowing

murder and added a count of reckless homicide. Defendant sought to dismiss these new

charges under the speedy trial statute, but the motion was denied by the trial court. Defendant

proceeded to trial before a judge on the knowing first degree murder, reckless homicide,

aggravated battery, and possession counts. The court found defendant guilty on the reckless

homicide count and not guilty on all other charges. The trial court then sentenced defendant to

30 years’ imprisonment.

¶2 Before this court, defendant raises two issues: (1) whether the knowing first degree murder

and reckless homicide counts should have been dismissed because the State violated the

speedy trial statute by failing to bring those charges within the required statutory time frame

and (2) whether his Class 2 reckless homicide conviction should be reduced to a Class 3

offense because the State failed to prove he knew he was fleeing from police officers

immediately before the crash that killed the victim.

¶3 For the reasons stated more fully below, we agree with the trial court that defendant’s

speedy trial rights were not violated. We affirm defendant’s Class 2 reckless homicide

conviction. The evidence presented by the State at trial was sufficient for the finder of fact to

conclude defendant knew he was fleeing from the Chicago police.

¶4 JURISDICTION

¶5 On April 22, 2015, the trial court entered a guilty verdict for reckless homicide (Class 2).

Defendant filed a motion for a new trial, which the court denied on June 11, 2015. On August

4, 2015, defendant was sentenced to 30 years in prison. Defendant filed a motion to reconsider

his sentence, which the court denied on September 3, 2015. A notice of appeal was filed

September 14, 2015. Accordingly, this court has jurisdiction pursuant to article VI, section 6,

of the Illinois Constitution and Illinois Supreme Court Rules 603 and 606, governing appeals

from a final judgment of conviction in a criminal case entered below. Ill. Const. 1970, art. VI,

§ 6; Ill. S. Ct. Rs. 603, 606 (eff. Feb. 6, 2013).

¶6 BACKGROUND

¶7 On December 2, 2009, the State charged defendant-appellant, Whitlock, with three counts

of felony murder, three counts of attempted murder, possession of a controlled substance with

intent to deliver, eight counts of aggravated battery, two counts of criminal damage to

government property, and six counts of aggravated fleeing. The State reindicted defendant on

May 3, 2010. Count I changed from felony murder to knowing murder creating a strong

probability of death or great bodily harm and two counts of reckless homicide were added.

¶8 On September 25, 2013, defense counsel filed a motion to dismiss the knowing murder and

reckless homicide charges based on an alleged violation of section 103-5(a) of the Code of

Criminal Procedure of 1963 (commonly known as the Speedy Trial Act) (725 ILCS 5/103-5(a)

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(West 2012)). After hearing arguments from both the State and defense counsel, the trial court

denied the motion to dismiss. The trial court found the knowing murder and reckless homicide

counts were proper because the charges were not “new and additional.” Defendant then

proceeded to a bench trial.

¶9 At defendant’s bench trial, the evidence established that on November 2, 2009, Chicago

police officer Zdanys conducted narcotics surveillance at West 65th Street and Yale Avenue

after receiving information from a nearby business owner that there was a “narcotics line”

being conducted outside the business. After speaking to the business owner, Officer Zdanys

viewed some video footage of the area. As a result of the conversation and video, the officer

began to look for an older blue minivan. Officer Zdanys did not see a minivan at this location

but did see cars lining up. The cars remained there for a short period of time and eventually

Officer Zdanys followed one of those cars to the 6200 block of South Wabash Avenue, about a

half-mile away. At 62nd Street and Wabash Avenue, the officer observed the car parking

behind other cars but did not see the subject minivan. He departed the location shortly

afterward because he needed “more help to set up a good surveillance.”

¶ 10 The next day, November 3, 2009, Chicago police captain Sanchez was assigned to the

Chicago Police Department and Drug Enforcement Administration’s High Intensity Drug

Trafficking Area task force, which “targeted narcotics offenders with a high propensity for

violence.” Captain Sanchez’s team included 8 to 10 officers from the Chicago Police

Department including Officers Utreras, Zdanys, Norway, and Wilson. The team was

investigating a person selling narcotics out of a minivan on the south side of the city of

Chicago.

¶ 11 On this day, Captain Sanchez drove a black Ford Edge, and his partner in the vehicle was

Officer Utreras. Officers Zdanys and Norway were in a brown Buick LaCrosse. While those

two cars were “covert vehicles,” both were equipped with blue and red strobe lights on top of

the front windshield, oscillating front headlights, and strobe parking lights on the back, front,

and sides of the vehicles. The team was using unmarked cars, “two-man” cars equipped with

police lights, “because at some point we know that those vehicles will have to be used as

enforcement vehicles.” Officer Wilson was alone in his surveillance vehicle, which was not

equipped with emergency equipment. While the officers were in civilian clothes, they all wore

marked Chicago Police Department protective vests, had their police stars displayed around

their necks or belts, and also wore their duty gun belts. Captain Sanchez testified his vest was

“clearly marked [with] police on it” and also had “an embroidered star.” The word “POLICE”

was also in big gold letters on the back of his vest. Officer Zdanys’s vest had “Police” on the

front pocket. According to Officer Wilson, the team anticipated “making a stop on the

individuals involved in the narcotics transaction in that area” so they all wore marked police

vests for their own safety.

¶ 12 The team went to 65th Street and Yale Avenue around 6 a.m. to investigate a “dope line.”

Captain Sanchez and Officer Zdanys explained that a dope line occurred “when a group of

individuals form a line and someone pulls up or sometimes they open their—their drug hours

and they end up selling to every single person in that line.” This allows narcotics sales to be

done “very quickly.” The police team viewed the video provided by the business owner prior

to driving to the location that morning. The officers were again looking for a blue, older model

minivan. The team set up both fixed and roving surveillance once there. Officer Wilson set up

stationary surveillance at 65th Street and Yale Avenue.

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¶ 13 Tyree Smith testified that he had known defendant from the neighborhood for “quite a

while.” Defendant picked Smith up around 6 a.m. so that Smith could do his “dealing” at 62nd

Street and Wabash Avenue. Smith denied receiving heroin from defendant. Smith sold drugs

for himself and “quite a few peoples.”

¶ 14 When the officers initially arrived at 65th Street and Yale Avenue, they saw neither a

“dope line” nor the minivan. Officers Zdanys and Norway radioed their team members that

they were relocating to the secondary location at 62nd Street and Wabash Avenue. At that

location, Officer Zdanys saw a group of cars on one side of the street but still did not see the

older model blue minivan. Officers Zdanys and Norway decided to circle the block. When they

returned to the corner, they saw the blue minivan parked in front of several cars facing

northbound.

¶ 15 Officers Zdanys and Norway then drove past the blue minivan and saw defendant in the

driver’s seat. Officer Zdanys also saw a man, later identified as Tyree Smith, standing at the

first vehicle in the line of cars, engaging in what Officer Zdanys believed to be an illegal drug

transaction. Smith sold to “numerous cars” at that location, and the officers did not stop the

transactions but continued to drive down the street. They notified Captain Sanchez that the

“drug operation” they were looking for was located at 62nd Street and Wabash Avenue.

¶ 16 As Officer Zdanys drove the brown Buick LaCrosse, he made eye contact with defendant.

Officer Zdanys testified “I think they kind of knew we were the police. I think the gig was up.”

Smith left defendant’s van to sell to a third buyer and saw two white men. Smith could not

remember if defendant yelled at him to come back to the minivan. After passing the minivan,

Officer Zdanys, looking from his rear view mirror, noticed Smith running back toward the

minivan. Officer Zdanys saw Smith enter the van. In his trial testimony, Smith claimed he did

not recognize the two white men as police officers.

¶ 17 Smith and defendant “rolled off in a rapid—like a rapid pace.” Officers Zdanys and

Norway made a U-turn and followed the minivan. Smith knew the brown car was following

him and defendant. Around 7:30 a.m., Officers Zdanys and Norway radioed the other team

members what had just occurred.

¶ 18 Captain Sanchez and Officer Utreras drove to join Officers Zdanys and Norway, who had

continued to relay the path defendant and Smith were driving in the minivan. Officer Zdanys

had not yet activated his emergency police lights on the brown LaCrosse because he was

waiting for other team members to arrive.

¶ 19 Officer Zdanys followed the van to 63rd Street and King Drive, where the minivan stopped

in the right lane at King Drive, facing eastbound. Officers Zdanys and Norway pulled up

behind the minivan. Captain Sanchez then drove up to the corner. While the light was still red,

Captain Sanchez drove his car in front of the minivan and parked perpendicular to it thereby

blocking the minivan. Upon exiting his vehicle, Captain Sanchez announced his office and saw

defendant shake his head “no.” The parties stipulated that this was not recorded in any police

report.

¶ 20 Captain Sanchez and Officer Zdanys activated the emergency lights in their vehicles.

Officer Zdanys saw Captain Sanchez’s car had all its lights activated as it came on the scene.

Officers Zdanys and Norway exited their car and began to approach the minivan from each

side. Upon seeing the officers, Smith raised his hands and defendant reversed the minivan into

Officer Zdanys’s car and then went forward, hitting Captain Sanchez’s car. The minivan’s side

mirror struck Officer Zdanys’s shoulder while also trapping him between the minivan and a

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Jeep stopped in the left turn lane. Smith claimed he did not know the men in the cars were

police. However, Officer Zdanys approached the driver’s side door yelling “Police, let me see

your hands. Police. Let me see your hands.”

¶ 21 A blue Jeep driven by Robert Myers was stopped in the left turn lane at the intersection of

63rd Street and King Drive. He saw a blue minivan approach the light “at a high rate of speed”

and then veer to the right of his Jeep before stopping at the intersection. Myers had his

windows up, and music played in his car while he sat at the stoplight. Myers saw a white man

with a gun partially out of the sport-utility vehicle (SUV) but could not hear anything and did

not notice any markings on the clothing indicating the individual was a police officer. He did

not see any emergency lights on but also did not notice the car behind the minivan nor did he

see the officers approaching from behind.

¶ 22 Officers Norway, Zdanys, and Utreras all claimed they were screaming “police” while

simultaneously ordering the occupants out of the minivan. Officer Utreras opened the

passenger side door of his car and announced his office by yelling “Police.” He drew his

weapon but kept it pointed at the ground. He had not completely exited his SUV because of a

fear of being pinned if the minivan moved forward. Myers saw the passenger of the black SUV

pull out a gun but remain partially in the vehicle. Upon seeing the minivan strike Officer

Zdanys, Officer Utreras fired a single shot through the van’s front window. Officer Zdanys

heard the gunshot. Myers immediately moved his Jeep after hearing the gunshot.

¶ 23 Defendant shifted the minivan into drive and “squealed the tires” before trying to drive

through the opening between Captain Sanchez’s car and Myers’s Jeep. Smith claimed the

defendant moved the car forward to get out of harm’s way. Officer Wilson watched the

minivan “ram[ ] the cars.” Defendant’s minivan struck the rear of Captain Sanchez’s car,

“forcing it to turn a little bit.” Defendant then “sideswiped” the Jeep before accelerating at a

high rate of speed eastbound on 63rd Street.

¶ 24 All witnesses agreed the minivan was traveling at a high rate of speed. Officer Utreras

testified the defendant was driving “at least” 60 miles per hour. Smith claimed that they were

going “probably 75, maybe more.” Officer Wilson attempted to follow. He was traveling at 45

miles per hour but was unable to gain any ground on the minivan. Captain Sanchez also

engaged in the pursuit. Myers noticed the flashing oscillating lights on the unmarked cars as

they left to pursue the minivan.

¶ 25 As defendant sped down 63rd Street, Smith looked in the rear view mirror and saw the cars

giving chase. He claimed that the police did not have their emergency lights on until after they

passed King Drive. As the chase occurred, 42-year-old Valerie Davis left her house driving

near 63rd Street and St. Lawrence Avenue to go to work. Jackie Brown was also driving on his

way to work and was stopped at the corner of 63rd Street and St. Lawrence Avenue facing

westbound. Brown saw Davis’s car traveling northbound on St. Lawrence Avenue, which had

the green light. The traffic on 63rd Street had the red light. As Davis proceeded through the

intersection, Brown observed the minivan driven by defendant also enter the intersection and

collide with the driver’s side door of Davis’s car. He believed the minivan was going 60 to 70

miles per hour. Officer Wilson, driving behind defendant, observed the collision and never saw

defendant brake. Brown testified, “[t]hat [Davis’s] car spun out of control, it slammed into the

side of my car on the driver’s side, then spun behind me.” The minivan then spun around, and

the rear of the minivan also hit the front of Brown’s car. Smith was scared and did not look

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forward, then “all of the sudden” he heard and felt a crash and was “shoved into the dash board

[sic].” The airbags deployed.

¶ 26 Davis’s car continued past Brown’s car for about 60 to 70 feet, while the minivan came to

a stop on the front of Brown’s car. Officer Wilson observed Davis’s car “launch” 100 to 150

feet east and land in the westbound lane on 63rd Street. As Captain Sanchez and Officer

Utreras chased the minivan, they observed an “explosion” and further saw “a huge amount of

smoke and dust.” As they reached 63rd Street and St. Lawrence Avenue, they realized

defendant struck another car. When officers arrived, they found both defendant and Smith in

the minivan. Brown saw the police draw their guns within a few seconds of arriving. Officer

Wilson got out of his car and drew his weapon. He then approached the passenger side of the

van, announced his office, and ordered both men to raise their hands and exit the vehicle.

Smith complied but was “woozy, slow to respond.”

¶ 27 Brown went over to Davis’s car and saw that she looked like she had been knocked out. He

tried to reach into the car and wake her up, but an officer yelled at him to stop. Officer Wilson

found Davis unconscious and unresponsive. He yelled for Captain Sanchez to call an

ambulance. He observed her neck to be in an “unnatural position,” and he could detect no

pulse. Both Brown and Officer Wilson testified that the video footage obtained from a nearby

church accurately reflected the events of the accident.

¶ 28 Officer Wilson returned to the minivan and noticed numerous blue-tinted plastic bags of

suspected narcotics on the floor and in the dashboard area. He also observed money and cell

phones. Smith was taken out of the minivan, placed into an ambulance, and taken to St.

Bernard Hospital. He was released the same day and arrested for possession of a controlled

substance. Davis was transported to Christ Hospital, where her family was informed that she

had died from her injuries. Smith pled guilty to narcotics possession and was sentenced to eight

years in prison.

¶ 29 The parties entered into several stipulations. They agreed the crash scene was

photographed, videotaped, and evidence was recovered. The bullet Officer Utreras fired was

recovered from inside the dash of the minivan. The shell casing was recovered from the

passenger side floor board of the Ford Edge driven by Captain Sanchez. Also recovered was

$50 and large bags that contained 100 smaller bags of 35.6 grams of suspected heroin, 44 of

which tested positive for a total of 15.7 grams of heroin.

¶ 30 The parties stipulated that if called to testify Assistant State’s Attorney (ASA) Collins

would state that Smith spoke with her and Detective Fassl after his arrest. In a written

statement to the ASA, Smith admitted he sold heroin for the defendant, he knew the two white

men at 62nd Street and Wabash Avenue were police, and defendant yelled for him to return to

the minivan. He claimed defendant shoved the drugs into the glove compartment and knew the

white men at 63rd Street and King Drive were police officers. He also told the ASA that

defendant put the minivan in reverse and then heard the gunshot.

¶ 31 It was also stipulated that ASA Peterson presented Smith to a Cook County grand jury the

day after the crash and he testified as follows: he sold heroin for defendant; defendant picked

him up on November 3 at 6:30 or 7 a.m.; they went to 62nd Street and Wabash Avenue to sell

heroin; Smith sold heroin to two people there because they called defendant and, when he went

to make the third sale, defendant called him back to the minivan; Smith believed he was called

back because defendant realized the white men were police; it was not normal for defendant to

call him back when customers were still waiting; he gave the heroin and cash back to

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defendant; defendant placed the drugs in the dash board; the Buick made a U-turn and followed

them and he believed that to be a police car; after being blocked in at 63rd Street and King

Drive, he raised his hands because he believed the men were police because “ain’t no white

people going to try and rob us doing this”; and he heard the gunshot after defendant reversed

the minivan. The State rested.

¶ 32 Defendant made a motion for a directed finding, which the trial court denied. It was then

stipulated that Officer Utreras told Detective Dougherty, who then told Officer Strugala that

Officer Utreras fired a shot at the vehicle as it was driving at him. It was further stipulated that

Captain Sanchez did not tell investigating officers that he announced his office and defendant

shook his head.

¶ 33 After hearing the above testimony and evidence, the trial court concluded defendant “was

aware” that the Chicago police were behind him and in front of him at the corner of 63rd Street

and King Drive. The trial court then entered a finding of guilty on the reckless homicide

charge. The trial court entered a not guilty finding on the other charges. Defendant’s motion for

a new trial was denied.

¶ 34 At sentencing, the State argued for the maximum allowable sentence, 30 years. Defendant

had been convicted of murder at 15 or 16 years old and finished serving his 27-year sentence in

2005. He also pled guilty to possession with intent to deliver and received a 4-year sentence in

2006. Defendant apologized to the victim’s family. After reviewing the aggravating and

mitigating factors, the trial court sentenced defendant to 30 years’ imprisonment. The motion

to reconsider sentence was denied.

¶ 35 This timely appeal followed.

¶ 36 ANALYSIS

¶ 37 In his first issue, defendant argues the trial court erred when it failed to dismiss the

knowing first degree murder charge (720 ILCS 5/9-1(a)(2) (West 2016)) and reckless

homicide charge (id. § 9-3(e-7)(2)) filed after defendant had been in custody for over 120 days.

The Speedy Trial Act provides “[e]very person in custody in this State for an alleged offense

shall be tried by the court having jurisdiction within 120 days from the date he or she was taken

into custody unless delay is occasioned by the defendant.” 725 ILCS 5/103-5(a) (West 2016).

The remedy for a speedy trial violation is dismissal of the charges. Id. § 103-5(d). The parties

agree there are no factual disputes in the record and the issue presented is purely a question of

law. Therefore, a de novo standard of review applies. People v. Dunnavan, 381 Ill. App. 3d

514, 517 (2008).

¶ 38 When the State charges a defendant at different times with factually related offenses, as

occurred here, the speedy trial guarantee is tempered by compulsory joinder. People v.

Williams, 204 Ill. 2d 191, 198 (2003). The relevant compulsory joinder provision states:

“(a) When the same conduct of a defendant may establish the commission of more

than one offense, the defendant may be prosecuted for each such offense.

(b) If the several offenses are known to the proper prosecuting officer at the time of

commencing the prosecution and are within the jurisdiction of a single court, they must

be prosecuted in a single prosecution *** if they are based on the same act.” 720 ILCS

5/3-3 (West 2016).

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Illinois courts have explained how the compulsory joinder provision and speedy trial provision

affect a defendant’s rights:

“Where new and additional charges arise from the same facts as did the original

charges and the State had knowledge of these facts at the commencement of the

prosecution, the time within which trial is to begin on the new and additional charges is

subject to the same statutory limitation that is applied to the original charges.

Continuances obtained in connection with the trial of the original charges cannot be

attributed to defendants with respect to the new and additional charges because these

new and additional charges were not before the court when those continuances were

obtained.” People v. Williams, 94 Ill. App. 3d 241, 248-49 (1981).

Illinois courts enforce this rule in order to “close a loophole [that] would [otherwise] allow the

State to circumvent a statutorily implemented constitutional right [to a speedy trial].”

Williams, 204 Ill. 2d at 207. The rationale for the rule is to ensure defendant has “adequate

notice of the subsequent charges to allow preparation of a defense.” People v. Phipps, 238 Ill.

2d 54, 67 (2010). Illinois courts therefore apply the Williams rule “only when the subsequent

charge filed by the State is ‘new and additional.’ ” People v. Staake, 2016 IL App (4th)

140638, ¶ 51, aff’d, 2017 IL 121755. “If the original charging instrument gives a defendant

adequate notice of the subsequent charges, the ability to prepare for trial on those charges is not

hindered in any way.” Phipps, 238 Ill. 2d at 67.

¶ 39 Before this court, defendant argues the knowing first degree murder and reckless homicide

charges, filed 179 days after he was taken into custody, were “new and additional” charges and

therefore subject to dismissal.

¶ 40 We agree with the trial court that knowing first degree and reckless homicide were not

“new and additional” counts for the purpose of a speedy trial analysis. Pursuant to Phipps, our

analysis begins by comparing the original and subsequent indictments. Id. “The focus is on

whether the original charging instrument gave the defendant sufficient notice of the

subsequent charges to prepare adequately for trial on those [new] charges.” Id.

¶ 41 Illinois law is settled, and courts in this state have repeatedly affirmed only one offense of

murder exists even though it may be committed in numerous ways. See People v. Smith, 233

Ill. 2d 1, 16 (2009) (“While our statute describes three ‘types’ of murder, first degree murder is

a single offense. As we have explained on numerous occasions, ‘ “the different theories

embodied in the first degree murder statute [citation] are merely different ways to commit the

same crime.” ’ [Citation.]”); see also People v. Maxwell, 148 Ill. 2d 116, 137 (1992) (“Illinois

law recognizes only a single offense of murder, which may be committed in a variety of

ways.”). In Maxwell, the supreme court explained, “[j]ust as the method of committing murder

is not integral to the offense and therefore need not be specified in the charging instrument

[citation], *** the precise statutory theory of the offense of murder is not a matter that must be

specifically alleged.” Maxwell, 148 Ill. 2d at 137.

¶ 42 After reviewing the indictments in the case, defendant was sufficiently apprised that the

State would attempt to prove defendant committed murder when he caused the death of Davis.

The original 2009 indictment apprised defendant that the State intended to seek a first degree

murder charge against defendant for the crash which resulted in Davis’s death. Additionally,

the 2010 indictment gave defendant notice that the State would proceed under the knowing

theory of murder instead of felony murder theory in the death of Davis. The change in murder

theory between the two indictments is of no consequence because the original indictment

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placed him on notice that he could be tried for murder under any of the three murder theories

recognized in Illinois. See id.

¶ 43 Both indictments provided notice to defendant of the conduct he would need to defend

against. The 2009 felony murder charge was based on the chain of events set in motion by

defendant (i.e., fleeing in the minivan and striking Davis). The 2010 knowing murder charge

was based on defendant “strik[ing] and kill[ing] Valerie Davis with a motor vehicle.”

Moreover, the original indictment also contained several counts of aggravated fleeing or

attempting to elude a police officer. These counts gave defendant notice that his conduct after

fleeing 63rd Street and King Drive would be an issue he needed to defend against.

¶ 44 We also agree with the State that the reckless homicide count was not “new and

additional.” As already explained, the 2009 indictment put defendant on notice that he would

have to defend himself against “the chain of events that caused the death of Valerie Davis.”

The “chain of events” broadly referred to defendant’s use of the minivan on November 3,

2009, which crashed into and killed Davis. More specifically, the original indictment put

defendant on notice that the State intended to hold him accountable for the death Davis and he

should prepare his defense related to his conduct in driving and hitting her. We again note that

defendant was also charged with aggravated fleeing or attempting to elude a police officer

based on his conduct in driving the minivan. This also gave him notice of what he would have

to defend against. Phipps, 238 Ill. 2d at 69 (noting the critical point of speedy trial analysis is

whether the original indictment gave defendant adequate notice to prepare his defense to the

subsequent charge).

¶ 45 Importantly, defendant cannot demonstrate prejudice as a result of the new indictment. The

State originally indicted defendant in December 2009 and then reindicted him in April 2010.

Defendant’s motion seeking dismissal on speedy trial grounds was filed 3½ years later in

September 2013. Defendant did not go to trial until April 2015. Based on the almost five-year

gap between the reindictment and trial, defendant cannot complain the reindictment resulted in

a “trial by ambush.” Defendant was also not at risk of being exposed to double jeopardy.

Illinois’s recognition of a single offense of murder means “ ‘[a] conviction on any one of the

theories of first degree murder operates to bar a second trial on a theory not prosecuted.’ ”

People v. Cooper, 194 Ill. 2d 419, 429 (2000) (quoting People v. Daniels, 187 Ill. 2d 301, 316

(1999)). The trial court’s not guilty finding on the knowing murder charge prevents the State

from later retrying defendant for felony murder or intentional murder in the death of Davis.

¶ 46 For the reasons stated above, we conclude that defendant’s statutory right to a speedy trial

and compulsory joinder were not violated by the addition of the knowing murder and reckless

homicide charge. Those charges were not “new and additional” for speedy trial and

compulsory joinder purposes.

¶ 47 In his second issue, defendant argues the State failed to present sufficient evidence to

convict him of reckless homicide in the death of Davis. He argues that the evidence failed to

demonstrate he knew the individuals who stopped him and subsequently chased him were

police officers. Since he did not know the men were police, he argues his conviction should be

reduced from a Class 2 conviction to a Class 3 conviction.

¶ 48 When a defendant argues the evidence was insufficient to sustain his conviction, the

inquiry is whether, after viewing the evidence in the light most favorable to the State, any

rational trier of fact could have found the defendant guilty beyond a reasonable doubt. People

v. Collins, 214 Ill. 2d 206, 217 (2005). In reviewing the sufficiency of the evidence, the

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appellate court will not retry the defendant. People v. Smith, 185 Ill. 2d 532, 541 (1999). It is

the trier of fact’s function to assess witness credibility, weigh and resolve conflicts in the

evidence, and draw reasonable inferences from the evidence. People v. Williams, 193 Ill. 2d

306, 338 (2000). While the trier of fact’s findings regarding witness credibility are entitled to

great weight, the determination is not conclusive. Smith, 185 Ill. 2d at 542. The fact that the

fact finder accepted testimony as true does not guarantee that it was reasonable to do so. People

v. Cunningham, 212 Ill. 2d 274, 280 (2004). However, an appellate court will only reverse a

conviction where “no rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” Smith, 185 Ill. 2d at 541.

¶ 49 Subsection (e-7) provides that a reckless homicide charge can be a Class 2 felony if the

defendant “was operating a vehicle while failing or refusing to comply with any lawful order or

direction of any authorized police officer.” 720 ILCS 5/9-3(e-7) (West 2016).

¶ 50 In arguing that he could not have been aware the individuals who stopped and subsequently

chased him were police officers, defendant relies on the testimony of copassenger Smith, and

Myers, who was in the Jeep at the corner of 63rd Street and King Drive. Myers testified that he

did not see police lights or hear the officers yell “police” while stopped at the corner. He did

admit that he had his windows rolled up and he was playing music inside his car. At trial, Smith

denied any knowledge that the white individuals who confronted them at 63rd Street and King

Drive were police. He claimed not to have seen police lights or any identifying characteristics

on the officers’ clothes.

¶ 51 We reject defendant’s exclusive reliance on the testimony of Smith and Myers.

Defendant’s argument is premised on reweighing the evidence, rejecting the trial court’s

factual findings, and substituting his view of the evidence for the trial court’s view. People v.

Abdullah, 220 Ill. App. 3d 687, 693 (1991) (a reviewing court has neither the duty nor the

privilege to substitute its judgment for the trier of fact). The trial court heard the testimony of

Smith and Myers, but also heard from several of the police officers involved in the encounter.

In finding defendant guilty, the trial court chose to believe the testimony of the police.

¶ 52 The trial court’s reliance on the testimony of the officers involved was not unreasonable.

The officers all testified to identifying themselves as police at the initial encounter at 63rd

Street and King Drive. Upon pulling perpendicular to defendant’s minivan, Captain Sanchez

activated police lights, which included red and blue strobe lights in the front of the windshield

that “permeated forward,” along with oscillating front headlights and a “mars bar.” Officer

Zdanys could see the police lights of Captain Sanchez’s car from where he stood behind the

minivan. Upon seeing Captain Sanchez, Officer Zdanys activated the emergency lights on his

car. Officer Zdanys then exited his vehicle and announced his office by yelling “Police!”

Captain Sanchez also exited his vehicle and announced his office. Officer Utreras also

announced his office after exiting his vehicle to confront defendant. Moreover, all the officers

testified to wearing various pieces of clothing embossed with the word “Police.” Each officer

also had their police star visible.

¶ 53 At trial, Smith may have denied having knowledge that the individuals were police, but his

police statement and grand jury testimony conflict with this and indicate he and the defendant

were aware the individuals were police from the time they first encountered them at 62nd

Street and Wabash Avenue. Moreover, his trial testimony did establish that he knew it was the

police chasing them after defendant had fled from the corner of 63rd Street and King Drive.

This is confirmed by the video evidence, which shows officers arriving at the scene of the crash

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with their emergency lights activated. While Myers denied noticing the men were officers

when the initial confrontation occurred, he admitted he noticed the activated police lights when

the officers began their pursuit of defendant’s minivan.

¶ 54 After reviewing the evidence in a light most favorable to the State, a finder of fact could

reasonably conclude the defendant was aware the men confronting him at the intersection of

63rd Street and King Drive were Chicago police. We therefore affirm his Class 2 reckless

homicide conviction.

¶ 55 CONCLUSION

¶ 56 For the foregoing reasons, we affirm the trial court’s finding that no violation of the Speedy

Trial Act occurred. We affirm defendant’s conviction for reckless homicide (Class 2).

¶ 57 Affirmed.

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