_______________________________________________________________________________________________

JUSTICE TURNER delivered the opinion of the court:

In December 2000, the State charged defendant,Frederick E. Hood, with reckless homicide, aggravated drivingunder the influence of alcohol, illegal transportation ofalcohol, and failure to yield to a pedestrian in the crosswalk,all in connection with a motor vehicle accident that resulted ina pedestrian's death. In May 2002, a jury found defendant guiltyon all four counts. In June 2002, defendant filed a posttrialmotion, which the trial court denied. In January 2003, the trialcourt sentenced defendant to three years in prison on thereckless homicide count.

On appeal, defendant argues (1) the trial court erredin allowing certain expert and rebuttal testimony, (2) he wasdenied a fair trial because of the prosecutor's alleged improperstatements during closing arguments, and (3) the State failed topresent evidence to sustain defendant's convictions for failureto yield to a pedestrian in a crosswalk and illegaltransportation of alcohol. We affirm in part, reverse in part,and remand for a new trial.

I. BACKGROUND

On December 1, 2000, the State charged defendant byinformation with the offense of aggravated driving under theinfluence of alcohol (625 ILCS 5/11-501(d)(1)(C) (West 2000)),alleging that on November 28, 2000, he drove a 1986 Dodge Ramwhile under the influence of alcohol and was involved in a motorvehicle accident resulting in great bodily harm, permanentdisability, or disfigurement to another and the proximate causeof those injuries.

On December 27, 2000, the State charged defendant byinformation with the offense of reckless homicide (720 ILCS 5/9-3(a) (West 2000)), alleging he, while under the influence ofalcohol to a degree that rendered him incapable of safely drivingand while acting in a reckless manner, performed acts likely tocause death or great bodily harm to an individual, in that heoperated his vehicle, and after disobeying a stop sign, he strucka pedestrian in the crosswalk, causing the death of Marie L.Schwab. The State also charged defendant with the trafficoffenses of illegal transportation of alcohol (625 ILCS 5/11-502(a) (West 2002)) and failure to yield to a pedestrian in thecrosswalk (625 ILCS 5/11-1002(a) (West 2002)). Defendant pleadednot guilty and requested a jury trial.

In May 2002, defendant's jury trial commenced. DavidSmith testified he was driving with his girlfriend to pick up hisson from school on November 28, 2000. He testified the inter-section of Main and Poplar in Mount Olive is a four-way stop. Ashe was stopped at the stop sign, he noticed a brown full-size vanapproaching the intersection "at a pretty good rate of speed." After the van's driver "made the corner," Smith saw a woman"about halfway through the crosswalk." She held her left hand upas to motion to the van's driver to stop, but the van struck thewoman as she was "in the crosswalk." Smith observed the woman"go through the air and land on the pavement," and he proceededto a nearby police station to summon help. On his way, henoticed the van's driver, identified as defendant, step out ofthe van "and kind of stumble and lean against the door."

Tricia Marietta, Smith's girlfriend at the time of theincident, testified the weather was overcast on November 28,2000. She stated Smith had stopped at the intersection when shesaw a vehicle that was not "slowing down" and hit the woman whowas walking.

Ryan Gorman, a deputy with the Macoupin Countysheriff's department, testified he responded to the scene of theaccident on November 28, 2000. Gorman observed defendant leaningup against the side of his van holding a child. Upon conversingwith defendant, Gorman noticed his eyes were "bloodshot andglossy," and his breath had a "strong odor of alcoholicbeverage." Further, Gorman found defendant's "speech was mumbledtogether." Gorman stated defendant told him he was coming from atavern in Mount Olive when he hit the victim. After defendantwas arrested, Gorman conducted an inventory search of his van andfound "a cooler that contained beer cans in it, some full, someempty." Gorman stated the beer was cold, and the coolercontained several open and full cans of beer. Upon leaving anofficer's squad car to enter the hospital for a blood and urinedraw, defendant "was staggering and uneasy as he walked." Basedon his experience, Gorman believed defendant was intoxicated. From the time of the accident to defendant's urine test, Gormanstated he appeared "to be sobering up some."

Dr. Travis Hindman, a forensic pathologist, testifiedhe performed an autopsy on Marie Schwab on December 19, 2000. Defense counsel stipulated to his credentials, and the trialcourt recognized him as an expert. Based on his expert opinion,Dr. Hindman found the cause of death to be brain trauma due tothe injuries sustained in a pedestrian-vehicular collision. Dr.Hindman stated he has testified as a witness in the area of howthe body metabolizes alcohol after it has been ingested. Defensecounsel objected to Dr. Hindman testifying to any examination ofblood samples as he was only disclosed as performing the autopsy. The trial court sustained the objection.

John Tandy, a patrolman with the Mount Olive policedepartment at the time of the accident, testified that uponasking defendant what happened, he told the officer he stopped atthe stop sign, turned left, heard a "thump or a thud," andstopped. Tandy noticed a strong odor of beer from defendant'sbreath, and his eyes were "glassy and bloodshot." Defendantleaned up against the door of the van "the whole time." Tandyasked defendant if he would be willing to undergo several field-sobriety tests, including the one-legged stand, the nystagmustest, and the turn-and-walk test, but he refused. Defendant toldTandy he had two beers at a local tavern. Tandy also testifiedto the cooler of beer found in defendant's van. He recalledseven unopened cans and five empty cans, with one open canpartially full of a substance that smelled like beer. Tandytransported defendant to the hospital and described him as"uneasy on his feet," "stumbling," and "staggering a little bit." Tandy stated they waited an hour to an hour and a half beforedefendant's blood and urine were collected. During that time,defendant stood leaning up against the wall, but he "sobered upquite a bit."

The parties stipulated that defendant's blood testindicated a blood-alcohol content of 0.077. The trial courtdenied defendant's motion for directed verdict.

The defense called Bob Bonacorsi as its first witness. He testified he was driving west through Mount Olive on the dateof the incident. He stated the sun was "so bad" that he had toroll down his window to look out "because [he] couldn't seeanything." Bonacorsi testified this occurred in close proximityto the accident scene.

Danielle Shelton testified she saw defendant on the dayof the accident between 1:30 p.m. and 2 p.m. as she wasbartending at JC's Tavern. Defendant came in the tavern with"his little boy," stayed for 45 minutes, and had one beer. Shelton stated defendant did not appear to be under the influenceof alcohol when he came in or when he left.

Mary Joanne Cartwright, owner of JC's Tavern, testifieddefendant came in the tavern on the date of the accident with hisinfant son. He did not appear to be under the influence ofalcohol to her. She stated he had one beer.

Denise Vojas, a part-time employee at Tillie's Tavernin Mount Olive, testified defendant entered the bar on the dateof the accident at around 1:30 p.m. While in the bar, defendant"had a bottle of Busch," ordered another, "drank half of it," andleft after 25 to 30 minutes. According to Vojas, defendant didnot appear to be under the influence of alcohol before or afterhe left.

Hervana Hood, defendant's mother, testified she wascalled to the scene of the accident to pick up defendant's son. She saw defendant standing "straight" at the side of his vanholding his son. She stated defendant "was really upset." Hedid not appear to have trouble standing and was not slurring hiswords.

Defendant testified he kept a cooler in his van becausehe lived in a dry county in Arkansas. He stated the coolercontained some full and empty cans, was behind the driver's seat,and had been there for "a couple of days." Defendant testifiedhe had three knee surgeries. He stated he arrived in Mount Olivefrom Arkansas at "about 1:30, 2 o'clock." He stopped at JC'sTavern to find "hired guns" to help him move some property. Hehad one beer and stayed for about 30 minutes. He left and wentto Tilley's and "ordered a beer so [he] wouldn't seem rude." Healso drank part of a second beer.

Defendant testified he approached the intersection atPoplar and Main in Mount Olive, and his son threw his bottlecausing defendant to look back at him after stopping at a stopsign. Defendant then started to make a turn, but the "sun was in[his] eyes" and he "heard a thunk and immediately stopped." Hedid not see Schwab "in the crossroad." He exited his vehicle,yelled for help, and then attempted to comfort his crying son. Officer Tandy later told him he was under arrest for drunkdriving, and defendant asked to take a field-sobriety test, butTandy refused. Officer Tandy later took him back to Mount Olive,where defendant went to JC's Tavern to have a soda and find aride home.

On cross-examination, defendant stated the cooler stillhad ice in it because he "put a blanket over it." The empty beercans were in the cooler because he did not want to litter and his13-year-old son recycles the cans. He testified he never refusedto take any breath or blood tests.

Following defendant's testimony, defense counsel made amotion in limine to exclude any rebuttal testimony from Dr.Hindman concerning blood-alcohol content. The trial court deniedthe motion.

The State called Dr. Hindman in rebuttal. The trialcourt found Dr. Hindman to be qualified as an experttoxicologist. Then, the State recalled Officer Tandy, whotestified defendant was 5 feet 7 inches tall and weighed 160pounds on November 28, 2000, based on his driver's licenseinformation. The State recalled Dr. Hindman to testify to ahypothetical as to his opinion on the blood-alcohol level for anindividual, 5 feet 7 inches tall, 160 pounds, having 2.5 to 2.7512-ounce beers at around 2:30 p.m. and blood tested at 5:40 p.m. Dr. Hindman opined the blood-alcohol level of that individual atthat time would be 0.0255. If a hypothetical person had a 0.077blood-alcohol level at 5:40 p.m., based on the rate of reduction,the person's level at 3 p.m. would have been 0.114.

Officer Gorman testified in rebuttal that defendantrefused to submit to any field-sobriety tests. Following closingarguments, the jury found defendant guilty of reckless homicidebased upon driving under the influence of alcohol, aggravateddriving under the influence of alcohol involving a personalinjury motor vehicle accident, illegal transportation of alcoholin a motor vehicle, and failure to yield to a pedestrian in acrosswalk.

In June 2002, defendant filed a posttrial motion,arguing, inter alia, the trial court erred in allowing Dr.Hindman to testify as a rebuttal witness. In November 2002, thetrial court denied the motion. In January 2003, the trial courtsentenced defendant to three years in prison on the recklesshomicide count. The court found the offense of aggravateddriving under the influence was a lesser-included offense ofreckless homicide and vacated the jury verdict on the formeroffense. This appeal followed.

II. ANALYSIS

A. Dr. Hindman's Testimony

Defendant argues the trial court erred in allowing Dr.Hindman to testify to reverse extrapolation in his rebuttaltestimony. We agree.

In its February 2001 answer to discovery, the Statelisted Dr. Hindman as the Sangamon County coroner and as apossible witness, along with attaching the forensic scientistreport. During defendant's jury trial, defense counsel objectedto Dr. Hindman's proposed testimony regarding reverseextrapolation of alcohol since he was disclosed as the one whoconducted the autopsy of the victim. The trial court sustainedthe objection, finding the State could not elicit testimony fromDr. Hindman concerning reverse extrapolation in its case in chiefbecause it failed to apprise defense counsel of the proposedtestimony in pretrial discovery. After defendant testified, theState noted its intention to call Dr. Hindman as a rebuttalwitness. Defense counsel made a motion in limine to exclude Dr.Hindman's rebuttal testimony, which the trial court denied. Inrebuttal, the trial court found Dr. Hindman qualified as anexpert in toxicology.

Defendant's argument on appeal centers on whether (1)Dr. Hindman had the qualifications to testify to reverseextrapolation, (2) the State's failure to disclose Dr. Hindman asan expert in reverse extrapolation was error, (3) Dr. Hindman'stestimony lacked a proper foundation, and (4) the trial courterred in allowing Dr. Hindman's rebuttal testimony.

1. Expert Qualifications

Defendant argues the State failed to establish Dr.Hindman as an expert on reverse extrapolation. We find defendanthas forfeited this argument on appeal.

"To sustain an argument for appeal, both an objectionat trial and a written posttrial motion raising the objection arerequired." People v. Reynolds, 302 Ill. App. 3d 722, 730, 706N.E.2d 49, 55 (1999), citing People v. Enoch, 122 Ill. 2d 176,186, 522 N.E.2d 1124, 1130 (1988). Here, defendant failed toraise the issue of Dr. Hindman's qualifications in his posttrialmotion, and defense counsel did not argue this issue at theposttrial hearing. Thus, defendant has forfeited this argumenton appeal.

2. Failure To Disclose

Defendant argues the State failed to disclose Dr.Hindman as an expert in reverse extrapolation of alcohol, causinghim prejudice. We agree.

"[T]he purpose of the discovery rules is to protect theaccused against surprise, unfairness, and inadequatepreparation." People v. Heard, 187 Ill. 2d 36, 63, 718 N.E.2d58, 73 (1999). Although compliance with discovery rules ismandatory, the State's failure to comply with discovery rulesdoes not require reversal of a defendant's conviction absent ashowing of surprise or unfair prejudice. People v. Robinson, 157Ill. 2d 68, 78, 623 N.E.2d 352, 357 (1993). The defendant hasthe burden of showing surprise or prejudice. Heard, 187 Ill. 2dat 63, 718 N.E.2d at 74.

Supreme Court Rule 412(a)(i) (188 Ill. 2d R. 412(a)(i))requires the State, as part of pretrial discovery and upon thedefendant's request, to supply the defendant with the names ofpersons whom the State intends to call as witnesses. SupremeCourt Rule 412(a)(iv) (188 Ill. 2d R. 412(a)(iv)) requires theState to disclose "any reports or statements of experts, made inconnection with the particular case, including results ofphysical or mental examinations and of scientific tests,experiments, or comparisons, and a statement of qualifications ofthe expert."

In this case, the State listed Dr. Hindman as apossible witness in its pretrial discovery and attached theforensic scientist report. Defense counsel could thus reasonablyconclude Dr. Hindman would testify to the autopsy he performed onthe victim. With nothing else, defense counsel could notreasonably conclude prior to trial that Dr. Hindman would offerhis expertise on reverse extrapolation of alcohol. Had defensecounsel been aware of such testimony, he could have attempted tocall his own experts to refute Dr. Hindman's conclusions.

We recognize discovery in civil cases is conducted muchdifferently than discovery in criminal cases. For example,Supreme Court Rule 213 (177 Ill. 2d R. 213(g)) governing civilcases requires the parties to identify the subject on which theexpert witnesses will testify as well as the opinions the expertswill offer. This requirement is noticeably lacking in Rule 412. Nonetheless, we note that Rule 412(a)(iv) requires the State toprovide statements of experts regarding "scientific tests,experiments, or comparisons" made by the experts. 188 Ill. 2d R.412(a)(iv). Here, the doctor used extrapolation to compare ahypothetical person's blood-alcohol concentration to theextrapolated blood-alcohol concentration of defendant ifdefendant had consumed 2 3/4 beers as he testified. Thus, theState arguably failed to disclose comparisons made by its expertunder Rule 412(a)(iv). Moreover, even if the calculations of thedoctor were not technically comparisons under the rule, its seemsclear his calculations regarding reverse extrapolation shouldhave been disclosed to defendant under the spirit of the rule. Finally, although these calculations were apparently not reducedto writing prior to the doctor's testimony, we believe the Statewas aware of the calculations before questions were posed to thedoctor.

As noted in People v. Sims, 244 Ill. App. 3d 966, 612N.E.2d 1011 (1993), "[t]here are numerous criminal cases wherebyexperts were allowed to testify even when their existence was notfully disclosed or the gist of their testimony was not fullyrevealed to defense counsel." Sims, 244 Ill. App. 3d at 993, 612N.E.2d at 1032-33, citing People v. Carr, 188 Ill. App. 3d 458,544 N.E.2d 978 (1989); People v. Fleming, 155 Ill. App. 3d 29,507 N.E.2d 954 (1987); People v. Scheidt, 142 Ill. App. 3d 844,492 N.E.2d 248 (1986); People v. Jackson, 131 Ill. App. 3d 128,474 N.E.2d 466 (1985); People v. Taylor, 107 Ill. App. 3d 1019,438 N.E.2d 565 (1982); People v. Davis, 105 Ill. App. 3d 129, 434N.E.2d 13 (1982). Although several of these cases questionedwhether any discovery violation had occurred, none based itsdecision on that issue alone. Instead, all of the courtsultimately hinged their decisions on whether the defendant hadbeen unfairly surprised and prejudiced.

Here, the State indicated it did not know Dr. Hindmanwas qualified to testify to reverse extrapolation until theafternoon of the trial's first day. The trial court noted thatif it was a surprise to the State, it was "a bigger surprise tothe defendant." Moreover, the State had evidence in thetoxicology reports that defendant's blood-alcohol level was 0.077at 5:40 p.m. The State should have foreseen expert testimonywould be needed if it desired to present evidence of defendant'sblood-alcohol level at the time of the accident. This shouldhave been presented in the State's case in chief, but as stated,the trial court prohibited the State's belated attempt to presentthe evidence because of prejudice to defendant due to lack ofnotice. However, admitting the doctor's testimony as rebuttalevidence did not lessen the prejudice to defendant, and we arenot persuaded this prejudice may be ignored merely because theevidence was used as "rebuttal."

"The duty to disclose rebuttal witnesses, as with allwitnesses, arises when the State has formed the intent to callsuch a witness." People v. Bock, 242 Ill. App. 3d 1056, 1067,611 N.E.2d 1173, 1181 (1993).

"The law regarding disclosure of rebuttalwitnesses in criminal cases is well settled. Until the prosecutor forms the intent to callthe witness, disclosure is not required.[Citation.] This court has held that'[b]ecause the State may not know if awitness will be called in rebuttal until thedefense testimony is heard, the State neednot inform the defense of its intention tocall a rebuttal witness until that intentionis formed.' [Citation.] When the Statefails to make timely disclosure of a rebuttalwitness, the trial court is not required toexclude the rebuttal witness' testimony. (People v. Bock (1993), 242 Ill. App. 3d1056, 1068, 611 N.E.2d 1173[, 1181].) InBock, defendant objected to the State'sdecision to call a rebuttal witness who wasidentified on the morning of the trial. Defendant alleged that, because the witnesswas disclosed on the day of the trial, he hadnot had an opportunity to do anyinvestigation. However, defendant did notrequest a continuance and the court allowedthe witness to testify. On appeal, theappellate court held that the defendant wasnot prejudiced by the testimony of therebuttal witness. (Bock, 242 Ill. App. 3d at1069[, 611 N.E.2d at 1182].) The courtreasoned that defendant had an opportunity tointerview the rebuttal witness, failed torequest a continuance to conduct furtherinvestigation and cross-examined the witnessduring trial." People v. Weber, 264 Ill.App. 3d 310, 315-16, 636 N.E.2d 902, 906(1994).

Here, after the trial court excluded Dr. Hindman'stestimony in the State's case in chief, the State could then haveindicated its intention to call him on rebuttal if defendantdecided to testify. Instead of informing defendant then, theState waited until after defendant testified and then sought tooffer Dr. Hindman's testimony on rebuttal. While we agree theState cannot know with certainty the substance of a givendefendant's testimony, here, we note the State in its case inchief had already elicited Tandy's testimony that defendantclaimed he had consumed only two beers.

More troublesome is the nature of this "rebuttal"testimony. The testimony was not presented to counter a defensewitness's testimony on defendant's blood-alcohol concentration. Instead, the State argues the testimony was offered to rebutdefendant's testimony that he had consumed 2 3/4 beers. However,the doctor's evidence went beyond rebutting defendant's claim andbeyond rebutting the testimony of defendant's lay witnesses, whoopined defendant was not under the influence of alcohol. Thedoctor's testimony allowed the State to request and be given thethird paragraph of Illinois Pattern Jury Instructions, Criminal,No. 23.30, which instructs the jury in pertinent part that "[i]fyou find beyond a reasonable doubt that at the time the defendantdrove a vehicle that the amount of alcohol concentration in thedefendant's blood or breath was 0.08 or more, you may presumethat the defendant was under the influence of alcohol." IllinoisPattern Jury Instructions, Criminal, No. 23.30 (4th ed. 2000)(hereinafter IPI Criminal 4th No. 23.30)). Thus, the doctor'stestimony, if believed, did more than simply rebut defendant'sevidence. It introduced into the case a presumption againstdefendant and in favor of the State.

The trial court abuses its discretion when it fails toeliminate the prejudice against defendant by a discoveryviolation. People v. Hood, 229 Ill. App. 3d 202, 216, 593 N.E.2d805, 815 (1992). Because of the prejudice to defendant here andgiven the unique circumstances of this case, we find the trialcourt abused its discretion in allowing Dr. Hindman's testimonyon rebuttal. Accordingly, defendant's conviction for recklesshomicide must be reversed and a new trial ordered. Because ofour decision to reverse defendant's reckless homicide conviction,we need not address his remaining issues on Dr. Hindman'srebuttal testimony and the State's closing arguments.

B. Guilt Beyond a Reasonable Doubt

Defendant argues the State's evidence was insufficientto sustain the convictions for failure to yield to a pedestrianin a crosswalk and for illegal transportation of alcohol. Wedisagree.

When reviewing a challenge to the sufficiency of theevidence, in a criminal case, the relevant inquiry is whether,when viewing the evidence in the light most favorable to theprosecution, any rational trier of fact could have found theessential elements of the crime beyond a reasonable doubt. People v. Pollock, 202 Ill. 2d 189, 217, 780 N.E.2d 669, 685(2002). The trier of fact has the responsibility to determinethe credibility of witnesses and the weight given to theirtestimony, to resolve conflicts in the evidence, and to drawreasonable inferences from that evidence. People v. Ortiz, 196Ill. 2d 236, 259, 752 N.E.2d 410, 425 (2001). A court of reviewwill not overturn the verdict of the fact finder "unless theproof is so improbable or unsatisfactory that there exists areasonable doubt of the defendant's guilt." People v. Maggette,195 Ill. 2d 336, 353, 747 N.E.2d 339, 349 (2001).

1. Failure To Yield to a Pedestrian in a Crosswalk

Section 11-1002(a) of the Illinois Vehicle Codeprovides as follows:

"When traffic control signals are not inplace or not in operation the driver of avehicle shall yield the right-of-way, slowingdown or stopping if need be to so yield, to apedestrian crossing the roadway within acrosswalk when the pedestrian is upon thehalf of the roadway upon which the vehicle istraveling, or when the pedestrian isapproaching so closely from the opposite halfof the roadway as to be in danger." 625 ILCS5/11-1002(a) (West 2002).

At trial, David Smith testified he witnesseddefendant's van strike Schwab while she was in the crosswalk. Hestated defendant's van approached the intersection "at a prettygood rate of speed," and the pedestrian in the crosswalk held herhand up as if to motion for the driver to stop his vehicle. Thetestimony presented clearly indicated it was defendant's van thatstruck Schwab. Smith stated the impact threw Schwab "about fivefeet," and defendant's van was not in the intersection when itcame to a stop. Based on the testimony and evidence presented, areasonable jury could find Schwab was in the crosswalk when shewas struck by defendant's van.

2. Illegal Transportation of Alcohol

Section 11-502(a) of the Illinois Vehicle Codeprovides, in part, as follows:

"[N]o driver may transport, carry, possess[,]or have any alcoholic liquor within thepassenger area of any motor vehicle upon ahighway in this State except in the originalcontainer and with the seal unbroken." 625ILCS 5/11-502(a) (West 2002).

At trial, Deputy Gorman testified he found a cooler indefendant's van containing full and empty beer cans. Tandy alsotestified to the cooler containing unopened and empty beer cans,along with one can partially full of a substance that smelledlike beer. He stated one can of Busch beer was standing uprightin the cooler and was partially full. He had occasion in thepast to smell beer, and he stated the remaining liquid in the can"smelled like beer." The State's failure to introduce testimonyconcerning a chemical analysis of the liquid in the beer cansdoes not preclude a finding of guilt. People v. Angell, 184 Ill.App. 3d 712, 717, 540 N.E.2d 1106, 1109 (1989). Defendant doesnot argue Tandy was not competent to testify to his observationsand opinion that the partially full can in the cooler containedbeer at the time of the accident. Defendant admitted having fulland empty beer cans in the cooler, but denied one can waspartially full. The jury had the responsibility to resolve theseconflicts in the evidence, and sufficient evidence was presentedto establish defendant's guilt beyond a reasonable doubt.

III. CONCLUSION

For the reasons stated, we affirm in part, reverse inpart, and remand for a new trial. As we are remanding this causefor a new trial, we find the record contains sufficient evidencefor the jury to have found defendant guilty of reckless homicideand aggravated driving under the influence of alcohol beyond areasonable doubt. Thus, no double jeopardy violation will occurupon retrial. In re R.A.B., 197 Ill. 2d 358, 369, 757 N.E.2d887, 894 (2001). This conclusion does not imply a determinationof defendant's guilt or innocence that would be binding onretrial. R.A.B., 197 Ill. 2d at 369, 757 N.E.2d at 894.

Affirmed in part, reversed in part, and remanded for anew trial.

KNECHT, J., concurs.

COOK, J., dissents.

JUSTICE COOK, dissenting:

I respectfully dissent and would affirm the decision ofthe trial court. I disagree with the trial court's exclusion ofDr. Hindman's testimony regarding blood-alcohol levels during theState's case in chief, but I agree with the court that thetestimony should at least have been admitted during rebuttal.

The evidence indicated defendant was drinking between1:30 and 2 p.m. on the day of the accident. The accidentoccurred shortly before 3 p.m. Defendant's blood-alcohol levelwas 0.077 at 5:40 p.m. Dr. Hindman testified that defendant'sblood-alcohol level at the time of the accident was probably0.114. It is common knowledge that immediately after theconsumption of alcohol, the body goes through a period ofabsorption, or rising blood-alcohol level, and then through aprocess of elimination, or falling blood-alcohol level. Peoplev. Beck, 295 Ill. App. 3d 1050, 1062, 693 N.E.2d 897, 905 (1998)(only natural for blood-alcohol level to diminish after severalhours). Experts in other cases have testified that alcohol iseliminated from the body at an average rate of 0.015 to 0.02 perhour in 85% of males. See People v. Latto, 304 Ill. App. 3d 791,797, 710 N.E.2d 72, 77 (1999). Defendant's blood-alcohol levelat 5:40 p.m. was only 0.003 less than 0.08.

The basic rule of discovery in criminal cases is thatthe State, upon written motion, is required to disclose the namesand addresses of witnesses. 188 Ill. 2d R. 412(a)(i). The Stateis not required to set out what the witnesses will testify to,although the State is required to disclose any written orrecorded statements, or "substantially verbatim reports" of oralstatements, which of course may be used for impeachment. 188Ill. 2d R. 412(a)(i); cf. 188 Ill. 2d R. 412(a)(ii) (where thestatement is made by the accused, the prosecution must disclose"the substance of any oral statement"). Absent a showing of anintentional tactic to prevent disclosure, there is no requirementthat oral statements in the State's possession or control bereduced to writing. People v. Lasley, 158 Ill. App. 3d 614, 634,511 N.E.2d 661, 676 (1987); People v. Williams, 262 Ill. App. 3d808, 823-24, 635 N.E.2d 653, 664 (1994). The question before thecourt is whether the existing notes in the State's fileconstitute "substantially verbatim reports," not whether defensecounsel would be surprised, or whether it would be a good ideafor the State to prepare a more thorough report. 188 Ill. 2d R.412(a)(i). Defense counsel may avoid surprise by interviewingthe witnesses who have been disclosed. Lasley, 158 Ill. App. 3dat 634-35, 511 N.E.2d at 675-76.

Rule 412 requires little more in the case of experts,only the disclosure of their "reports or statements," includingresults of examinations or tests, and disclosure of the expert'squalifications. 188 Ill. 2d R. 412(a)(iv). "Statements"apparently means formal statements similar to reports, orexamination and test results, and not everything that is said byan expert prior to his testifying. "Rule 412 does not requirethat every conversation with witnesses during the course ofinvestigation be reduced to writing." People v. Davis, 105 Ill.App. 3d 129, 132, 434 N.E.2d 13, 15 (1982) (doctor and nurseallowed to testify in reckless homicide case despite argumentthat listing of names was insufficient to put defendant on noticethey would be asked their opinion on issue of intoxication).

The majority argues that the prosecution confused thedefense when it attached Dr. Hindman's autopsy report indicatingthe cause of death and did not alert defense counsel to Dr.Hindman's expertise in reverse extrapolation. "Had defensecounsel been aware of such testimony, he could have attempted tocall his own experts to refute Dr. Hindman's conclusions." Slipop. at 11. Really? Defense counsel could not anticipate theargument that a blood-alcohol level of 0.077 at 5:40 p.m. mightindicate a blood-alcohol level of more than 0.08 three hoursearlier? In the unlikely event any expert would ever disputethat defendant earlier had a blood-alcohol level greater than0.077, defense counsel surely would have called him, whether Dr.Hindman testified or not.

As the majority points out, civil discovery rulesrequire the parties to identify the subject on which the expertwitness will testify and the opinions the expert will offer. 177Ill. 2d R. 213(g). It is a mistake to introduce the complexitiesof civil discovery rules into criminal cases. See Weber, 264Ill. App. 3d at 316, 636 N.E.2d at 906 ("defendant's reliance onSupreme Court Rule 220 is misplaced"). The majority's argumentthat the doctor's testimony, the doctor's calculations, shouldhave been disclosed "under the spirit of the rule" (slip op. at12) is not persuasive. The best indicator of what was intendedby Rule 412 is its language, and that language does not requiredisclosure of the substance of an expert's testimony.

The fact that the State was aware of what Hindman wouldtestify to before questions were posed to him is irrelevant. Even with respect to exculpatory or mitigating information (wherethe State has a special obligation), the duty to disclose "mustbe viewed in light of the information available to the State whenthe material is disclosed." (Emphasis added.) 188 Ill. 2d R.412, Committee Comments, at lxviii. The duty to disclose is not"subject to continuous updating." 188 Ill. 2d R. 412, CommitteeComments, at lxviii.

As the majority points out, because the State may notknow if a witness will be called in rebuttal until the defensetestimony is heard, the State need not inform the defense of itsintention to call a rebuttal witness until that intention isformed. Slip op. at 14. That is true even if the State knowswho the potential rebuttal witness is and even if the witness hasgiven a written statement. The State need only disclose "personswhom the State intends to call as witnesses." 188 Ill. 2d R.412(a)(i). The State may have been satisfied with its case inchief, including Officer Tandy's testimony that defendant at thescene had said he had only two beers, until defendant took thestand and repeated that testimony under oath. At that point theState could properly have concluded that defendant was lying, andit needed something more to refute that lie. The State was notrequired to anticipate that defendant would perjure himself. Ialso reject the majority's argument that Dr. Hindman's testimonydid not rebut defendant's testimony that he had consumed lessthan three beers. Finally, I suggest that IPI Criminal 4th No.23.30 could have been given even without Dr. Hindman's testimony. A reasonable jury could conclude that a defendant who has ablood-alcohol level of 0.077 at 5:40 p.m. had a blood-alcohollevel greater than 0.08 before 3 p.m. A jury may rely on itscommon experiences in life, including the fact that the effectsof alcohol consumption diminish over a period of hours.