Appeal from the Circuit Court of Lake County; the Hon. Jack
Hoogasian, Judge, presiding.
JUSTICE LINDBERG DELIVERED THE OPINION OF THE COURT:
Rehearing denied June 17, 1983.
After a jury trial in the circuit court of Lake County, defendant, Donald G. Wolfe, Jr., was found guilty of two counts of reckless homicide (Ill. Rev. Stat. 1979, ch. 38, par. 9-3) for his involvement in an automobile accident in which two persons were killed. He appeals from his conviction on both counts and from the sentence, which consisted of the following: (1) $20,000 in fines; (2) periodic imprisonment consisting of weekends in the county jail for almost six months; (3) 30-month probation; (4) suspension of driving privileges during probation; and (5) 300 hours of public service. Because the trial court failed to give a jury instruction on a lesser included offense which defendant requested, we reverse and remand for a new trial.
The incident giving rise to this case was an auto accident on Kelsey Road near Barrington on May 22, 1981. The evidence at trial established that the vehicle that defendant was driving, a Dodge pickup truck, approached the car driven by Rose Gainer from behind as they both were traveling south on Kelsey Road shortly before 11 p.m. Kelsey Road in the vicinity of the accident is a two-lane black asphalt roadway with a double yellow line separating southbound and northbound lanes and a posted speed limit of 50 miles per hour. The Gainer car had four passengers in addition to the driver. The passengers in the Gainer car noticed defendant's truck because it was following very closely behind and the truck's headlights illuminated the inside of the car. Two of those passengers estimated Gainer's speed at 40 to 50 miles per hour, and one estimated defendant's as about the same. Defendant stated that Gainer's car proceeded slowly "like a farm vehicle." Defendant pulled into the left lane in order to pass Gainer. His truck never passed Gainer's car, although one passenger said the truck pulled up as far as the rear quarter panel of the car, and defendant said that he came almost even with the other car.
At this point, the headlights of an approaching vehicle became visible around a sharp curve in the road. The State's witnesses stated that Gainer accelerated upon seeing the approaching car, Gainer indicating that her purpose was to allow defendant to pull back in behind her. Defendant stated that upon seeing the third vehicle as he approached the curve, he could not get around Gainer's car. He "locked up" his brakes leaving skid marks on the pavement later measured to be 142 feet long. An expert witness for the State estimated defendant's speed at the beginning of his skid to be 50 to 60 miles per hour. Defendant's truck collided head on with the northbound vehicle, a Fiat Strada driven by Robert Huntemann and in which Diane Martin was a passenger. Both colliding vehicles came to rest within the northbound lane.
It was stipulated that Huntemann and Martin both died as a result of injuries suffered due to collision. There were no skid marks behind the Fiat. A toxicology test showed that the alcohol in Huntemann's blood was 0.134, a level at which defendant's expert explained a person's ability to apply brakes in response to visual stimuli would be significantly impaired.
Defendant's father testified that, upon examining the truck the day after the accident, he noted that its manual transmission was in the second gear position. A private investigator employed by defendant testified that, by his measurements, a northbound driver could distinguish a vehicle in the southbound lane 303 feet 6 inches from the point of the collision and 440 feet 6 inches from the point defendant's skid marks began.
On appeal, defendant raises several issues regarding the indictment, the prosecution's evidence and conduct at trial, the sufficiency of the evidence, the jury instructions, and the sentence. Although, as shall be discussed, we find the trial court's denial of one of the jury instructions to warrant remandment, we shall address those of the other issues necessary to a proper disposition of this appeal.
Defendant first challenges the indictment. He was originally indicted by a grand jury for two counts of reckless homicide on November 16, 1981. On April 14, 1982, defendant was reindicted with only a small change in the wording of both counts to reflect that defendant's vehicle struck the vehicle of the victims, not the victims themselves. It was upon this second indictment that defendant was tried. Defendant seeks dismissal, contending that he was denied due process before the second grand jury. He characterizes that grand jury hearing as a "complete farce" and alleges instances of false evidence, absence of requested evidence, and prosecutorial misconduct.
Although the general rule is that a defendant may not challenge the validity of indictment returned by a legally constituted grand jury, courts> have carved out certain exceptions to this rule over the years. (People v. Rodgers (1982), 92 Ill.2d 283.) The exception which defendant seeks to invoke here is that a trial court has inherent authority to dismiss an indictment where there has been a clear denial of due process. (People v. Lawson (1977), 67 Ill.2d 449.) The supreme court in Lawson, however, emphasized that courts> must proceed with restraint and ascertain preindictment denial of due process only with certainty. 67 Ill.2d 449, 457.
The State's reliance upon People v. Rodgers (1982), 92 Ill.2d 283, for the proposition that a defendant can challenge an indictment only where there is absolutely no evidence presented to the grand jury to support the charge is misplaced. Rather, Rodgers stands for the proposition that an indictment may be challenged on that basis even though a court will not consider the adequacy or sufficiency of the evidence. (See People v. Creque (1978), 72 Ill.2d 515, cert. denied (1979), 441 U.S. 912, 60 L.Ed.2d 384, 99 S.Ct. 2010.) Rodgers itself lists some of the other bases for dismissal of an indictment. People v. Rodgers (1982), 92 Ill.2d 283, 287.
• 1 Defendant most strongly argues that false testimony before the grand jury concerning the State's expert's estimation of defendant's speed warranted dismissal. Joseph Rivera, an investigator for the State's Attorney's office and the only witness before the grand jury, testified that the State's expert, Thad Aycock, concluded that defendant's truck was going approximately 64 miles per hour. Aycock's actual conclusion, as evidenced in his report, was that the speed of defendant's truck was "no less than 51 mph and could have been as high as 64 mph." A court could properly dismiss an indictment based upon perjured testimony if the denial of due process was established with certainty. (People v. Rivera (1979), 72 Ill. App.3d 1027, 390 N.E.2d 1259.) However, we hold that Rivera's reporting only of the estimated maximum as the approximate speed did not constitute with sufficient certainty denial of defendant's right to due process.
• 2 Defendant hints that the fact that Rivera's testimony was double hearsay aggravates matters. However, evidence of this sort is proper at a grand jury hearing. An indictment based solely on hearsay testimony is constitutionally acceptable. (People v. Willie (1979), 69 Ill. App.3d 964, 388 N.E.2d 102.) Grand jurors may act on tips, rumors, evidence offered by the prosecutor, or their own personal knowledge; the validity of an indictment is not affected by the character of the evidence considered. People v. Creque (1978), 72 Ill.2d 515.
• 3 Defendant alleges denial of due process in that the State did not present to the grand jury additional evidence, such as the speed limit at the scene of the accident, defendant's version of the occurrence, and the fact that the driver of the other vehicle was legally intoxicated and apparently took no evasive action. Defendant notes that the grand jurors inquired about the first two of these. However, the prosecutor is under no duty to inform the grand jurors of the existence of additional or more direct evidence. (People v. Creque (1978), 72 Ill.2d 515, 525.) The witness here, Joseph Rivera, informed the grand jury that he had no personal recollection of the speed limit and had not interviewed defendant. Under these circumstances, again we see no due process violation.
• 4 Finally, defendant maintains that a grand jury was "set up" by the prosecutor to "rubber stamp" the requested indictment. Defendant points to remarks of the prosecutor that they were only there to make "a formal change" from a previously returned indictment, that they would not be hearing testimony "in any great length," and that he, the prosecutor, did not "even know if it's necessary * * *." Prosecutorial misconduct is a proper ground for dismissal of an indictment. (People v. Linzy (1979), 78 Ill.2d 106.) However, despite the tone of the prosecutor's comments, there is ...