APPEAL from the Circuit Court of De Witt County; the Hon.
WILLIAM C. CALVIN, Judge, presiding.
MR. PRESIDING JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:
Rehearing denied April 3, 1981.
As a result of a car wreck where one teen-age driver was killed and her three passengers were injured, the defendant was charged with reckless homicide (Ill. Rev. Stat. 1977, ch. 38, par. 9-3(a)), and three counts of reckless conduct (Ill. Rev. Stat. 1977, ch. 38, par. 12-5(a)). After a jury trial, the defendant was convicted as charged, and sentenced to 18 months' imprisonment for reckless homicide, and concurrent terms of 6 months' imprisonment for the three reckless conduct charges. On appeal, the defendant contends (1) the trial court erred in denying the defendant's motion for change of place of trial, (2) the State failed to comply with discovery orders, (3) evidence of the defendant drinking beer the day of the accident should not have been admitted, (4) the State's closing argument with respect to the prosecutor's comments about the defendant's drinking and other offenses was erroneous, (5) defendant was not proved guilty beyond a reasonable doubt, (6) defendant's sentences are excessive, and (7) defendant's three convictions for reckless conduct should be vacated.
• 1 A juror need not be unaware of the facts and issues involved in the trial. Here, the trial court determined that each juror could lay aside his impression or opinion and render a verdict based upon the legal evidence. (See People v. Williams (1968), 40 Ill.2d 522, 240 N.E.2d 645.) Moreover, the record shows that no jurors were selected after the defendant had exhausted his peremptory challenges and that the defendant stipulated to proceed without alternate jurors. Therefore, on this record, the trial court did not abuse its discretion under section 114-6 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1977, ch. 38, par. 114-6) when it denied the defendant's motions for change of place of trial.
• 2 The State failed to comply with discovery orders. However, given the defendant's late objection on discovery grounds, the only sanctions the trial court could have imposed would have been to grant the defendant a mistrial or to instruct the jury to disregard the objected-to testimony. Clearly, in the context of this case, the former sanction would have been inappropriate. While the trial court should have instructed the jury to disregard the objected-to testimony, this error was harmless given the cumulative nature of the objected-to testimony.
• 3 Defendant's contention that evidence of his drinking beer the day of the accident was inadmissible is untenable. Evidence of intoxication is probative of the issue of recklessness in a reckless homicide prosecution. People v. Miller (1979), 75 Ill. App.3d 775, 394 N.E.2d 783.
• 4 The State's closing argument with respect to the prosecutor's comments about the defendant's drinking and other offenses was improper. However, this error was harmless upon this record. (See People v. Terry (1976), 38 Ill. App.3d 517, 347 N.E.2d 869.) Also, viewing this record, we find the defendant's contention that he was not proved guilty beyond a reasonable doubt is untenable. Further, given the recent supreme court case of People v. Cox (1980), 82 Ill.2d 268, 412 N.E.2d 541, we cannot say that the defendant's sentences are excessive.
• 5 While it is agreed that the death (reckless homicide) and the several injuries (reckless conduct) resulted from defendant's single act of driving, we do not accept his contention that for such reason the separate convictions for reckless conduct must, or should be, vacated.
Section 12-5 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 12-5) states the offense of reckless conduct in terms of causing bodily harm to "an individual." The record shows no doubt that three persons were injured as a result of defendant's conduct as well as the individual named in the reckless homicide count.
Section 3-3 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 3-3) provides:
"(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, except as provided in Subsection (c), if they are based on the same act." (Emphasis added.)
While known as the statute providing "compulsory joinder," the Committee Comments prepared in 1961 include the stated purposes of the legislation, saying:
"The rule is well established that an offender may be prosecuted for each of several offenses which are committed by the same conduct or which grow out of the same transaction." (Emphasis in the original Comment.) (Ill. Ann. Stat., ch. ...