People v. Beck
State: Illinois
Court: 2nd District Appellate
Docket No: 2-96-0777
Case Date: 04/13/1998
No. 2--96--0777
_______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
_______________________________________________________________________________
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of Ogle County.
)
Plaintiff-Appellee, )
)
v. ) No. 94--CF--156
) 94--TR--5625
)
PAUL C. BECK, ) Honorable
) Richard E. DeMoss,
Defendant-Appellant. ) Judge, Presiding.
_________________________________________________________________________________
JUSTICE THOMAS delivered the opinion of the court:
Defendant, Paul C. Beck, was charged by information with two counts of
reckless homicide (720 ILCS 5/9--3(a) (West 1994)) and charged by complaint with
driving while under the influence of alcohol (625 ILCS 5/11--501 (West 1994)).
Following a jury trial in the circuit court of Ogle County, defendant was found
guilty on all charges. He was sentenced to concurrent 10-year prison terms for
the reckless homicide convictions and a concurrent 364-day jail term for the
driving while under the influence of alcohol (DUI) conviction. Defendant now
appeals his convictions and sentences. We affirm the reckless homicide
convictions and sentences but vacate the DUI conviction.
On the evening of November 26, 1994, Sandra Meadows was driving her Lincoln
Towncar southbound on Route 251 in rural Ogle County, Illinois. Her daughter,
Shawna Meadows, was in the front passenger seat, and her mother, Alleta Priest,
was in the rear passenger seat. At that same time, defendant was driving his
Ford van northbound on Route 251. The two vehicles collided, injuring Sandra and
defendant and killing Shawna and Alleta.
Following the collision on November 26, 1994, two blood-alcohol tests were
conducted on defendant. On November 14, 1995, defense counsel filed a pretrial
motion to exclude evidence of a doctor-ordered blood-alcohol test. On January
25, 1996, defense counsel filed a pretrial motion to suppress evidence of a
police-ordered blood-alcohol test taken later on. Following a February 8, 1996,
hearing on these pretrial motions, the doctor-ordered test was ruled admissible,
and the police-ordered test was suppressed. Trial was set for April 1, 1996.
On that day, defense counsel filed a motion to allow testimony concerning results
of the police-ordered blood-alcohol test, waiving his earlier objection to
admission of the test. The trial judge denied the motion.
At trial, Sandra Meadows testified that on the evening of November 26,
1994, she was driving her car southbound on Route 251. Her daughter, Shawna, was
riding in the front passenger seat while her mother, Alleta Priest, was riding
in the rear passenger seat. It was dry and clear outside. Meadows testified
that she had her headlights on and was driving approximately 50 to 55 miles per
hour, within the speed limit. As she was about to crest a hill, a van with no
headlights on suddenly appeared in her lane. She jerked to the left to avoid a
head-on collision. After her vehicle collided with the van, Meadows unbuckled
her seatbelt and lost consciousness. She was taken to St. Anthony s Hospital for
treatment of her injuries.
Ronald Quest, an Ogle County sheriff s deputy, testified that he was called
to the collision scene around 7:45 p.m. on November 26, 1994. When he approached
the Lincoln Towncar, he observed that the driver was pinned inside the car. The
front seat and rear seat passengers were dead. About an hour later, Quest left
the scene and went to St. Anthony s Hospital. At the hospital, he spoke with
defendant, who was being treated for his injuries in the emergency room. He
detected an odor of alcohol on defendant s breath and noted defendant s
bloodshot eyes and slurred speech. Based on his police experience, in which he
had previously observed approximately 100 persons who were under the influence
of alcohol, Quest informed defendant that he believed defendant was under the
influence of alcohol. Quest then read defendant his Miranda rights. Defendant
indicated that he understood his rights and waived them. Quest further testified
that defendant then told Quest that he had been at the Silver Dollar in Rochelle,
Illinois, between 6 and 7 p.m., where he drank four 10-ounce glasses of beer.
Defendant then left the Silver Dollar and had to have his van jump-started. He
was driving to a motel in Rockford, Illinois, when the collision occurred.
Defendant did not remember anything about the collision itself. On cross-
examination, Quest admitted that had he known of defendant s injury to his
tongue, he might have changed his mind about the cause of defendant s slurred
speech. He did not perform any field sobriety tests on defendant.
Scott Jaeger, a volunteer with the Lindenwood fire department rescue squad,
testified that he was called to the scene of the collision on the evening of
November 26, 1994. He saw that the two vehicles were positioned 10 to 15 feet
apart. He helped to extricate defendant from the van. Jaeger described
defendant as very combative. Defendant had a big gash on his forehead. Jaeger
testified that, in his experience as a rescue squad volunteer, accident victims
who had consumed alcohol tended to be less cooperative than those who had not.
After defendant was removed from the van, Jaeger observed two full beer cans and
a couple of empty beer cans sitting on the ground on one side of the van.
Martin Gorsuch, detective corporal with the Ogle County sheriff s
department, testified that he was called to the scene of the collision around
7:45 p.m. on November 26, 1994. When he arrived at the scene, he observed that
both vehicles had extensive front-end damage. The Lincoln Towncar was on the
east side of the road facing in a westerly direction. The van was in the middle
of the road facing in a southeasterly direction. He took photographs of the
scene and marked the vehicles so he could take measurements once they were
removed. Gorsuch further testified that there were two lanes at the point of
collision on Route 251. There were no skid marks on the roadway. There were a
number of gouge marks in the southbound lane, indicating to Gorsuch that maximum
engagement had occurred in the southbound lane. This finding was not
inconsistent with the possibility that the Lincoln Towncar had turned to the left
prior to impact. Gorsuch was at the scene 15 to 20 minutes before he departed
for St. Anthony s Hospital.
According to Gorsuch, when he arrived at the hospital he spoke with Deputy
Quest and then reinterviewed defendant in the emergency room while Quest was
present. He said that defendant understood his Miranda rights and agreed to
waive them. Defendant explained that he went to the Silver Dollar that
afternoon, where he had about four 10-ounce beers. He left the tavern and had
to have his van jump-started before traveling northbound on Route 251 to a motel
in Rockford. Defendant did not recall the collision itself. Gorsuch detected
an odor of alcohol on defendant s breath and noted defendant s bloodshot eyes and
slurred speech. Gorsuch believed defendant was under the influence of alcohol.
Gorsuch also testified that he spoke with defendant several days later as
he was being transported from the hospital to the Ogle County Jail. He was
advised of his Miranda rights and agreed to waive them. Defendant said that he
went to T.J. s Lounge and had a couple of beers before going to the Silver
Dollar, where he met up with a friend and consumed three to four 10-ounce beers.
He left the tavern and had to get his van jump-started. He did not remember the
collision. On cross-examination, Gorsuch admitted that had he known of
defendant s injury to his tongue, he might have changed his mind about the cause
of defendant s slurred speech. He did not perform any field sobriety tests on
defendant. Jaime Gomez, a trauma surgeon, testified that he was working at St.
Anthony s Hospital on the evening of November 26, 1994. He examined defendant
in the emergency room around 8:30 p.m. and ordered a set of blood tests to assist
in the diagnosis and treatment of defendant. The results of the tests were
communicated from the hospital lab to the emergency room through a computer. Dr.
Gomez repaired lacerations to defendant s scalp and tongue.
Renee Ballard, a phlebotomist at St. Anthony s Hospital, testified that she
was directed to draw blood from defendant on the evening of November 26, 1994.
She drew about five or six vials and delivered them to the hospital lab for
testing. Barbara Kaiser, a medical technologist at St. Anthony s Hospital,
testified that she performed a blood-alcohol test on defendant s blood at 8:58
p.m., which revealed a blood alcohol content of .1392 grams per 100 liters.
After the State rested its case in chief, defense counsel moved for a
directed verdict. The motion was denied.
Randy and Bobbie Arjes testified that they were traveling northbound on
Route 251 on the evening in question. They were traveling about 55 miles per
hour and came upon a white van traveling only 40 to 45 miles an hour. They
smelled exhaust fumes from the van. They pulled alongside the van at the stop
sign at the intersection of Routes 64 and 251. There were multiple lanes at the
intersection, allowing them to drive ahead of the van. As they topped a hill
about one-half mile ahead of the van, Randy noticed that the van s headlights
went out. Just before that time, Randy saw a vehicle heading southbound and told
Bobbie he thought there was going to be an accident. Bobbie turned around and
saw a flash of light that she thought was the impact of the two vehicles. The
Arjeses turned around and headed toward the crash site. Randy approached the
van. The driver said he was okay and to see if the people in the Towncar were
all right. Randy then tried to comfort the driver of the Towncar. In the
meantime, Bobbie ran to a farmhouse to call an ambulance.
James Watson, a bartender at T.J. s Lounge in Rochelle, testified that
defendant came to the bar on November 26, 1994, between 2:15 and 2:30 p.m.
Between the time defendant entered the bar and the time Watson left work at 5
p.m., defendant had consumed three glasses of beer.
John Williams, a friend of defendant s, testified that he arrived at T.J. s
Lounge between 4:30 and 5 p.m. on November 26, 1994. Defendant had two glasses
of beer with Williams at T.J. s Lounge. While there, defendant told Williams
that he had been having trouble with his van. They left T.J. s Lounge around
5:30 p.m. and walked three blocks to the Silver Dollar. Defendant drank one-half
of a beer there before leaving around 6:30 p.m.
James Coats, a bartender at the Silver Dollar in Rochelle, testified that
defendant came into the bar around 6 or 6:30 p.m. Coats could not recall whether
defendant came alone or with Williams. Defendant ordered a glass of beer and
consumed most of it before he left.
Defendant testified that he was 66 years old and married. He was a power
lineman by trade. A native of Florida, he traveled from there on a regular basis
to do work in Illinois. At the time of the incident he had been employed by
Rockford Electric Power to work on a lighting project at Rockford Airport. On
November 26, 1994, he flew from Florida to Chicago, arriving at 12:15 p.m. He
took a bus to Rockford, where he had left his 1984 Ford Econoline van. It was
both defendant s work vehicle and the place where he lived when he had work
assignments in the area. The van would not start. Defendant got it started
using a small battery charger. He then drove to Rochelle and entered T.J. s
Lounge around 3 p.m. While there he consumed three 10-ounce glasses of beer.
He and Williams left around 5:30 p.m. and walked to the Silver Dollar. Defendant
drank half of another glass of beer while there before leaving about 15 minutes
later. When he discovered his van would not start once again, he got assistance
having it jump-started. Defendant then headed for Rockford.
Defendant further testified that he drove only 40 to 45 miles per hour
toward Rockford. Although he had had problems with the automatic choke that day,
he had no difficulty with the van s steering and he was familiar with Route 251.
He did not recall whether there were any full beer cans in the van prior to the
collision. He testified that in the rear of the van there were two garbage bags
full of empty beer cans and pop cans, which he collected to be recycled.
Defendant also testified that as he was driving along Route 251 he was
passed by a car at the intersection of Routes 64 and 251. He continued driving
and could not recall anything about the accident itself. Following the
collision, he was taken to St. Anthony s Hospital to be treated for his injuries.
On cross-examination, defendant remembered talking only to one police officer in
the emergency room after the collision. He might have told the police that he
had consumed three or four glasses of beer at the Silver Dollar but could not
remember exactly what he said. He admitted that the beer he consumed prior to
the collision had some effect on him but stated that it did not affect his
ability to perform.
Following jury deliberations, defendant was found guilty of both counts of
reckless homicide as well as driving while under the influence of alcohol.
Defendant s motion for a new trial was denied. He was thereafter sentenced to
concurrent 10-year prison terms for the reckless homicide convictions and a
concurrent 364-day jail term for the DUI conviction. Defendant's motion to
reconsider the sentences was denied. He filed a timely appeal.
On appeal, defendant contends that (1) the State failed to prove him guilty
of reckless homicide beyond a reasonable doubt; (2) the trial court abused its
discretion in excluding evidence of a second blood-alcohol test administered upon
police instruction; (3) the trial court erred in instructing the jury on the
reckless homicide charges over defense objection; (4) the trial court abused its
discretion in sentencing him on the reckless homicide and DUI convictions; and
(5) the DUI conviction must be dismissed for violation of the one-act, one-crime
rule.
I
Defendant first contends on appeal that the State failed to prove him
guilty of reckless homicide (720 ILCS 5/9--3(a) (West 1994)) beyond a reasonable
doubt.
A conviction must be based upon proof beyond a reasonable doubt. People
v. Foules, 258 Ill. App. 3d 645, 653 (1993). A reviewing court's duty is not to
ask itself whether it believes the evidence establishes guilt, but whether the
evidence viewed in a light most favorable to the prosecution would allow any
rational trier of fact to find the essential elements of the crime proved beyond
a reasonable doubt. Foules, 258 Ill. App. 3d at 653. A reviewing court may not
substitute its judgment for that of the trier of fact on questions involving the
weight of the evidence or the credibility of the witnesses. People v. Winfield,
113 Ill. App. 3d 818, 826 (1983). A reviewing court will not reverse a
conviction unless the evidence is so improbable as to warrant a reasonable doubt
of the defendant's guilt. See People v. Eyler, 133 Ill. 2d 173, 191 (1989).
Section 9--3(a) of the Criminal Code of 1961 (Code) (720 ILCS 5/1--1 et
seq. (West 1994)) provides as follows with respect to the crimes of involuntary
manslaughter and reckless homicide:
"A person who unintentionally kills an individual without lawful
justification commits involuntary manslaughter if his acts whether lawful
or unlawful which cause the death are such as are likely to cause death or
great bodily harm to some individual, and he performs them recklessly,
except in cases in which the cause of the death consists of the driving of
a motor vehicle, in which case the person commits reckless homicide. 720
ILCS 5/9--3(a) (West 1994).
This court has recognized that a defendant is guilty of reckless homicide when
the State proves beyond a reasonable doubt that (1) he was operating a motor
vehicle; (2) he 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. People v. Ethridge, 243
Ill. App. 3d 446, 464 (1993). Intoxication is not an element of reckless
homicide; however, evidence of intoxication is probative on the issue of
recklessness. Ethridge, 243 Ill. App. 3d at 464. If the State introduces
evidence of intoxication in a reckless homicide case, it need only present some
evidence of intoxication from which, along with other circumstances, recklessness
may be inferred. People v. Smith, 149 Ill. 2d 558, 565 (1992). Whether
recklessness has been proved is an issue to be decided by the trier of fact.
Smith, 149 Ill. 2d at 565.
In the case at hand, count I of the information charged defendant with
reckless homicide in violation of section 9--3(a) of the Code in that he
while acting in a reckless manner, performed acts likely to cause the
death or great bodily harm to some individual in that he operated a motor
vehicle in a northerly direction upon South Rte. 251, Ogle County,
Illinois while under the influence of alcohol, causing his motor vehicle
to cross the center line and strike an oncoming vehicle, thereby causing
the death of Shawna L. Meadows.
Count II of the information also charged defendant with reckless homicide, using
identical language except for identifying the victim as Alleta Priest.
Applying the above-mentioned legal principles, we find that the evidence
presented in this case was sufficient to support defendant s reckless homicide
convictions. The record unequivocally establishes that defendant was operating
a motor vehicle and that he unintentionally caused the deaths of Shawna Meadows
and Alleta Priest. The record also establishes that defendant acted recklessly
in causing their deaths.
The State introduced ample evidence of defendant s intoxication, which was
probative on the issue of recklessness. It introduced into evidence the
testimony of two disinterested witnesses, James Watson and James Coats, who were
bartenders at T.J. s Lounge and the Silver Dollar, respectively. Watson
testified that defendant consumed three beers between 2:15 and 5 p.m. on the day
of the accident. Coats testified that defendant entered the Silver Dollar around
6 or 6:30 p.m. where he consumed most of another beer. The State introduced into
evidence the testimony of Deputy Ronald Quest and Detective Corporal Martin
Gorsuch, who spoke with defendant in the emergency room at St. Anthony s Hospital
following the collision. They each testified to having smelled alcohol on
defendant s breath, and they each testified that in their experience they
believed defendant was under the influence of alcohol. The State also introduced
into evidence the results of the doctor-ordered test, which revealed that
defendant had a blood alcohol level of .1392 grams per 100 liters following the
collision.
In addition to the intoxication evidence, the State also introduced other
evidence of defendant s recklessness. It offered testimonial evidence
establishing that defendant crossed over the center line and into the southbound
lane of traffic prior to impact. Sandra Meadows testified that, as she was
driving her car southbound on Route 251, defendant s van suddenly appeared in her
lane of traffic. Detective Corporal Gorsuch testified that there were a number
of gouge marks in the southbound lane, indicating that maximum engagement had
occurred in the southbound lane.
Despite this evidence of recklessness, defendant argues that the deaths of
Shawna and Alleta were caused by his van s mechanical failure. We find
defendant s argument to be without merit. Although there was evidence that
defendant had had problems starting the van on the day of the accident and that
the headlights had gone out prior to the collision, defendant testified that he
had had no difficulty with the van s steering. Unlike defendant s intoxicated
condition, the mechanical problems with the van did not provide a rational
explanation for the van's being in the oncoming lane of traffic at the time of
the collision. Moreover, the jury heard evidence as to the mechanical failure
defense and chose to disbelieve that theory.
We conclude that the evidence when viewed in a light most favorable to the
prosecution was sufficient to support a jury finding beyond a reasonable doubt
that defendant committed reckless homicide resulting in the deaths of Shawna
Meadows and Alleta Priest. Thus, we affirm defendant's convictions of reckless
homicide.
II
Defendant next contends on appeal that the trial court abused its
discretion in excluding evidence of a second blood-alcohol test administered upon
police instruction.
Following the collision, two blood-alcohol tests were conducted on
defendant at the hospital. The first test was doctor-ordered; the second test
was police-ordered. Defense counsel filed a pretrial motion seeking to exclude
the introduction of the doctor-ordered blood-alcohol test unless the State could
prove that the test was ordered by a physician on duty at the hospital and in the
regular course of treatment, that the test was performed by the hospital s own
laboratory, and that the written results were received and considered by the
physician on duty in the diagnosis and treatment of defendant. Defense counsel
later filed a pretrial motion seeking to suppress the police-ordered blood-
alcohol test on the basis of lack of reasonable grounds or probable cause.
At the hearing on the pretrial motions, the State s Attorney informed the
trial court that, while it did not concede the question of probable cause as to
the police-ordered blood-alcohol test, the State would agree not to present
evidence of the police-ordered test if the doctor-ordered blood-alcohol test was
found to be admissible. The trial judge ultimately found the doctor-ordered
blood-alcohol test, which revealed defendant s blood-alcohol level as .1392, to
be admissible. Thus, the motion to exclude the doctor-ordered test was denied.
With the State s assent, the motion to suppress the police-ordered test, which
revealed defendant s blood-alcohol level as .08, was granted.
On the first day of trial, defense counsel filed a motion to allow
testimony concerning the results of the police-ordered blood-alcohol test,
waiving his earlier objection to the admission of the test. Finding that a last
minute admission of the police-ordered test would be prejudicial to the State,
the trial judge denied the motion.
The decision to admit or exclude evidence is left to the sound discretion
of the trial judge, and that decision will not be overturned on review absent a
clear abuse of that discretion. People v. Hope, 168 Ill. 2d 1, 23 (1995). An
abuse of discretion will be found only in cases where the trial court s decision
is arbitrary, fanciful, or unreasonable or where no reasonable person would take
the view adopted by the trial court. People v. Harlacher, 262 Ill. App. 3d 1,
6 (1994).
We find that the trial court did not abuse its discretion in denying
defense counsel s motion to allow testimony concerning the results of the police-
ordered blood-alcohol test administered on defendant following the collision.
Defense counsel filed a pretrial motion seeking to suppress the results of that
test on January 25, 1996. That motion was granted and both sides prepared their
cases based on the admission only of the doctor-ordered blood-alcohol test. The
case proceeded to trial on April 1, 1996. The last minute introduction of
testimony concerning the results of the police-ordered blood-alcohol test would
have been highly prejudicial to the State. Even if we had found that the trial
court erred in not allowing the testimony concerning the police ordered blood-
alcohol test, we would find such error to be harmless in light of the
overwhelming evidence of defendant s intoxication on the night of the collision
as set forth above.
In light of our finding that the trial court did not abuse its discretion
in denying defense counsel s last minute motion to allow testimonial evidence
concerning the police-ordered blood-alcohol test, defendant alternatively
contends that he received the ineffective assistance of counsel.
There is a strong presumption that counsel s performance at trial was
competent. People v. Hooker, 253 Ill. App. 3d 1075, 1082 (1993). Trial
counsel s representation must be deemed effective unless counsel s performance
is both defective and prejudicial to the defense. Strickland v. Washington, 466
U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064 (1984). Due to
interests in judicial economy, a reviewing court may proceed directly to the
second prong and may first determine whether or not a defendant has suffered any
prejudice as a result of the alleged deficiency before ever determining that one
actually exists. See People v. Caballero, 126 Ill. 2d 248, 260 (1989). If the
ineffective assistance of counsel claim can be disposed of on the basis that the
defendant did not suffer prejudice, a reviewing court need not decide whether the
claimed errors were serious enough to constitute less than reasonably effective
assistance. See People v. Humphries, 257 Ill. App. 3d 1034, 1042 (1994).
In the interests of judicial economy, we examine whether the alleged
deficiency of defense counsel in failing to seek the admission of the results of
the police-ordered blood-alcohol test prior to the day of trial prejudiced
defendant. Had defense counsel sought to introduce such evidence in a timely
fashion, the trial court undoubtedly would have allowed its introduction.
However, even though the police-ordered test revealed defendant s blood-alcohol
level to be .08, lower than the doctor-ordered test revealing defendant s blood-
alcohol level to be .1392, we do not find that the police-ordered test results
would have caused the jury to find differently on the reckless homicide charges.
The doctor-ordered blood-alcohol test was not the only evidence of defendant s
intoxication. See People v. Bodoh, 200 Ill. App. 3d 415, 427 (1990) (a
determination of whether a person is under the influence of alcohol does not rest
solely on the results of chemical analysis). As discussed above, there was other
evidence that defendant not only was drinking shortly before the collision but
was intoxicated. Moreover, since the police-ordered blood-alcohol test was taken
hours later than the doctor-ordered blood-alcohol test, it would have been only
natural for those results to have revealed a diminished blood-alcohol level. See
Zoerner v. Iwan, 250 Ill. App. 3d 576, 577 (1993) (where blood alcohol tests
revealed diminishing alcohol levels of .247 at 4:11 a.m., .160 at 5:40 a.m., and
.010 at 1:44 p.m.). Finding, therefore, that defendant was not prejudiced by the
failure to allow testimony concerning the results of the police-ordered blood-
alcohol test, we find no ineffective assistance of counsel.
III
Defendant also contends on appeal that the trial court erred in instructing
the jury on the reckless homicide charges over defense objection.
In the present case, the State s proposed instruction No. 13 stated:
A person is under the influence of alcohol or other drugs for the purpose
of a reckless homicide when he drives a vehicle while the alcohol
concentration in his blood or breath is 0.10 percent or more.
The State s proposed instruction No. 17 stated, in relevant part:
If you find that at the time the defendant drove a vehicle that the
amount of alcohol concentration in the defendant s blood or breath was
0.10 percent or more, you may presume that the defendant was under the
influence of alcohol. You never are required to make this presumption.
It is for the jury to determine whether the presumption should be drawn.
You should consider all of the evidence in determining whether the
defendant was under the influence of alcohol.
Defense counsel argued that the giving of both instructions would be confusing
to the jury and specifically objected to the State s instruction No. 13. Defense
counsel argued that if defendant s blood-alcohol level was 0.10, the State s
instruction No. 17 merely allowed the jury to presume defendant was under the
influence of alcohol whereas the State s instruction No. 13 required the jury to
presume defendant was under the influence of alcohol. The trial court gave the
instructions despite defense counsel s objection to the State s proposed
instruction No. 13 (defense counsel did not object to the State s instruction No.
17) in light of the State s proposed instruction No. 17.
It is well established that every litigant is entitled to have the jury
instructed as to the law governing the case. Malek v. Lederle Laboratories, 125
Ill. App. 3d 870, 872 (1984). The instructions must be sufficiently clear so as
not to confuse or mislead the jury. Malek, 125 Ill. App. 3d at 872. According
to Supreme Court Rule 451(a) (134 Ill. 2d R. 451(a)), juries in criminal cases
must be instructed pursuant to the Illinois Pattern Jury Instructions (IPI),
Criminal, unless the court determines that the particular instruction does not
accurately state the law. See People v. Haywood, 82 Ill. 2d 540, 545 (1980);
People v. Testin, 260 Ill. App. 3d 224, 230 (1994). Absent a clear abuse of
discretion, a trial court s determination of the form in which an instruction is
given will not be disturbed on review. People v. Curtis, 262 Ill. App. 3d 876,
890 (1994).
The case at hand proceeded to jury trial in April 1996. Defendant was
charged with the crimes of reckless homicide and driving while under the
influence of alcohol. We do not find that the giving of the State s Instruction
Nos. 13 and 17 served to confuse the jury. The State s Instruction No. 13 went
to the reckless homicide charge whereas the State s Instruction No. 17 went to
the DUI charge. Both counsels had the opportunity during closing arguments to
clarify that these instructions related to separate charges and that the
presumption of State s instruction No. 13 did not relate to the presumption of
State s instruction No. 17.
Furthermore, we find that the State s instruction No. 13 was proper and did
not relieve the State of its burden of proof of the reckless homicide charges.
The State s instruction No. 13 was virtually identical to Illinois Pattern Jury
Instruction No. 7.09X (Illinois Pattern Jury Instructions, Criminal, No. 7.09X
(3d ed. Supp. 1996)) (hereinafter IPI Criminal 3d No. 7.09X (Supp. 1996)), which
reads:
A person is under the influence of alcohol or other drugs for the
purpose of aggravated reckless homicide when he drives a vehicle while
[(the alcohol concentration in his blood or breath is 0.10 percent or
more)(under the influence of alcohol or any other drug or drugs to the
degree which renders him incapable of safely driving)].
The Committee Note to that instruction expressly states that the instruction is
to be given in cases in which the defendant is charged with reckless homicide
including an allegation of intoxication. IPI Criminal 3d No. 7.09X, Committee
Note, at 81. Such is the case here. While committee comments are not the law,
the trial court is allowed to deviate from the suggested instructions and format
only where necessary to conform to unusual facts or new law (People v. Whitaker,
263 Ill. App. 3d 92, 98 (1994)), neither of which is present here. Despite the
fact that this instruction required the jury to presume defendant to be under the
influence of alcohol since defendant s blood-alcohol level was .1392, this
instruction did not require the jury to find defendant guilty of reckless
homicide based on that presumption. As discussed earlier, where the State
introduced evidence of intoxication, it still was required to introduce
additional evidence from which recklessness could be inferred. Here, the State
introduced evidence that defendant drove his vehicle into oncoming traffic.
We find that the trial court did not abuse its discretion in issuing the
State s instruction No. 13.
IV
Defendant next contends that the trial court abused its discretion in
sentencing defendant on the reckless homicide and DUI convictions.
A trial court is vested with considerable discretion in imposing a
sentence, and a sentence consequently will not be modified on appeal in the
absence of an abuse of that discretion. People v. Boclair, 225 Ill. App. 3d 331,
335 (1992). For a reviewing court to modify a sentence within the statutory
limits, it must appear to the court that the sentence imposed is a clear
departure from the spirit and purpose of the fundamental law and the
constitutional requirement that the sentence be proportionate to the nature of
the offense. People v. Luna, 234 Ill. App. 3d 544, 550 (1992). A sentence is
presumptively correct, and only where such presumption has been rebutted by an
affirmative showing of error will a reviewing court find that the trial court
abused its discretion. Luna, 234 Ill. App. 3d at 550-51.
Here, a jury found defendant guilty of two counts of reckless homicide,
ordinarily a Class 3 felony. See 720 ILCS 5/9--3(d)(2) (West 1994). However,
reckless homicide is bumped up to a Class 2 felony in cases where a defendant is
also proved to be under the influence of alcohol. See 720 ILCS 5/9--3(e) (West
1994). The possible sentence range for a Class 2 felony is a term of
imprisonment not less than 3 years and not more than 14 years (720 ILCS 5/9--3(e)
(West 1994)). Defendant was sentenced to concurrent 10-year prison terms for his
reckless homicide convictions. Thus, the sentences imposed for defendant s
reckless homicide convictions were within the legislative limitations. See
People v. Clemons, 179 Ill. App. 3d 667, 673 (1989) (where this court recognized
that when the sentence imposed is within the limits established by the
legislature, it will not be modified merely because a reviewing court might have
balanced the appropriate factors differently and imposed a different sentence).
The jury also found defendant guilty of driving while under the influence
of alcohol (625 ILCS 5/11--501 (West 1994)), a Class A misdemeanor (625 ILCS
5/11--501(c) (West 1994)) punishable by up to a year in prison (730 ILCS 5/5--8--
3(a)(1) (West 1994)). Defendant was sentenced to a concurrent 364-day jail term
for the DUI conviction. Because the finding that defendant was driving while
under the influence of alcohol was used to enhance the reckless homicide
convictions from Class 3 to Class 2 offenses, driving while under the influence
of alcohol served as a lesser included offense of reckless homicide. Consistent
with double jeopardy principles, defendant could not therefore be convicted and
sentenced on the lesser included offense of driving while under the influence of
alcohol. See People v. Eggerman, 292 Ill. App. 3d 644, 647 (1997) (double
jeopardy clause prohibits punishment for both greater and lesser included
offense).
Defendant argues that the trial court abused its discretion in sentencing
defendant because it considered improper evidence, specifically (1) verbal
statements of Sandra Meadows and her husband at the sentencing hearing; and (2)
a number of letters written by friends and a relative of the victims on behalf
of the victims that were included as part of the presentence report.
Victim impact statements concerning the effects upon the victim s family
are both relevant and admissible during the sentencing phase of the trial.
People v. Gonzales, 285 Ill. App. 3d 102, 104 (1996). Pursuant to the Rights of
Crime Victims and Witnesses Act, a crime victim includes a parent of a person
killed as a result of a violent crime. 725 ILCS 120/3(a)(3) (West 1994). Hence,
both parents of Shawna Meadows were entitled to present victim impact statements
at the sentencing hearing (see Gonzales, 285 Ill. App. 3d at 104 (the trial court
may consider victim impact evidence from more than one source)) and to do so
verbally in lieu of a written statement. As for the letters submitted by the
friends of the victims, the trial judge stated that he had considered the
presentence report. Even though the letters were included as part of the
presentence report, the trial judge did not specifically refer to any of the
letters submitted by the friends of the victims. Thus, while consideration of
the letters penned by persons other than family members or victims could have
been improper, from our review of the record it is clear that the trial court
gave no undue weight to the letters in imposing sentence.
Defendant also argues that the trial court abused its discretion in
sentencing defendant because it gave undue consideration to the aggravating
factor of the serious bodily harm caused by defendant s conduct.
Here, the trial court mentioned several factors in aggravation, including
the serious bodily harm, namely, the deaths of two individuals, caused by
defendant s conduct. The court s consideration of the deaths of the victims in
aggravation was improper because death is implicit in the offense of reckless
homicide. See People v. Allan, 231 Ill. App. 3d 447, 459 (1992). The
consideration of an improper factor in aggravation clearly affects the
defendant s fundamental right to liberty, and a court of review must remand such
a cause for resentencing, except in circumstances where the factor is an
insignificant element of the defendant s sentence. People v. Joe, 207 Ill. App.
3d 1079, 1085 (1991). In this case, it does not appear that the court placed
more emphasis on the deaths of the victims than other factors it specified in
aggravation, including the age of one victim being over 60 and the need to deter
others from committing a similar crime. At the sentencing hearing, the trial
court also noted that there were two victims, that defendant s blood-alcohol
level was .1392, that defendant had undergone alcohol counseling just months
prior to this accident yet still decided to drink and drive, and that defendant
could reoffend. Thus, we decline to remand for resentencing.
We find no abuse of discretion by the trial court in sentencing defendant
to concurrent 10-year prison terms on the reckless homicide convictions but
vacate defendant s conviction of DUI.
V
Defendant s final contention on appeal is that the DUI conviction must be
dismissed for violation of the one-act, one-crime rule.
The State urges that we find the issue to be waived. Defendant concedes
that he failed to raise this issue in the proceedings below. Accordingly, we
find the issue to be waived. See Frazier & Dallas v. Dettman, 212 Ill. App. 3d
139, 148 (1991) (the failure to raise an issue in the trial court constitutes a
waiver of the issue for purposes of appeal). Irrespective of waiver, we would
not need to address this issue in light of our reversal of defendant s conviction
of DUI on other grounds.
For the foregoing reasons, we affirm defendant's reckless homicide
convictions and sentences but vacate defendant s DUI conviction.
Affirmed in part and vacated in part.
GEIGER, P.J., and BOWMAN, J., concur.
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