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People v. Capporelli

OPINION FILED OCTOBER 14, 1986.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

JOHN CAPPORELLI, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. Ronald J. Crane, Judge, presiding.

JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:

Rehearing denied November 12, 1986.

Defendant was found guilty in a jury trial of driving a motor vehicle while the alcohol concentration in his blood was more than .10 as measured by breath units and driving while his license was suspended. He was found not guilty of driving while under the influence of alcohol. He was sentenced to a one-year term of conditional discharge plus a $500 fine in respect to the blood-alcohol concentration count and to a one-year term of conditional discharge, $200 fine and two weekends in the Cook County department of corrections in respect to the driving-while-license-suspended count.

Defendant now appeals alleging that: (1) the trial court abused its discretion in denying defendant's motion for severance; (2) the trial court committed reversible error in failing to grant defendant's motion in arrest of judgment; (3) the trial court abused its discretion when it allowed the State to amend its complaint; (4) the trial court abused its discretion by refusing to admit evidence of improvements made in later Intoxilyzer models; and (5) the trial court abused its discretion when it failed to give defense instruction No. 14.

On July 29, 1984, at approximately 7:15 p.m., defendant was involved in an auto accident with Ted Crasinski near Burnham Avenue and Rush Street in Calumet City. Also involved in the accident was Nicole Jarworski, who was struck by defendant's car while riding her bike. Officer Edwin Crowley arrived at the accident scene shortly after 7:15 p.m. Defendant told Officer Crowley he did not have a driver's license. Crowley observed that defendant's speech was slurred and mush mouthed and that he staggered as he walked. At this point Crowley informed defendant that he was being arrested for driving under the influence of alcohol. Defendant was later transported to the police station.

At the station, Crowley checked the status of defendant's driver's license via computer. He learned that defendant's license was suspended. Crowley, who is also a licensed breathalyzer operator, tested defendant on the Intoxilyzer Model 4011 breathalyzer machine. This was an authorized device for testing breath samples in Illinois and was in proper working order. The machine's print-out registered a .11 alcohol content. Defendant was charged with driving while under the influence of alcohol, driving while his license was suspended and driving a motor vehicle while the alcohol concentration in his blood was more than .10. Thereafter, defendant moved to sever the driving-while-license-suspended count from the remaining counts for trial. His motion was denied.

During the trial, the prosecution moved to amend the blood-alcohol per se count by adding the words "as measured by breath units." Over defendant's objection, the State was granted leave to amend the complaint. The complaint as amended read: "driving a motor vehicle while alcohol concentration in blood is more than .10 as measured by breath units." (Emphasis added.) Subsequently, defendant filed a motion in arrest of judgment alleging that the complaint, as amended, failed to state an offense, or in the alternative, if it did state an offense, the statute was being given an unconstitutional interpretation. The motion was denied.

Dr. Jorge Pirl, assistant chief toxicologist for the Illinois Department of Public Health, testified that the Intoxilyzer Model 4011 had an accuracy range of plus or minus 10%. While on the other hand, Gil Sapir, author of several published works on the breathalyzer, testified that the Intoxilyzer Model 4011 is subject to a 14% error.

Defendant attempted to introduce testimony as to improvements made to later models of the Intoxilyzer. The court refused to allow such testimony to be admitted into evidence because it determined that improvements of later models were not relevant. During the instruction conference, defense counsel tendered instruction No. 14, eliciting the elements of the per se offense. The trial court refused to give such instruction.

• 1, 2 The trial court did not abuse its discretion in denying defendant's motion for severance. The trial court may order two or more separately charged offenses to be tried together if the offenses are: (a) based on the same act, or (b) based on two or more acts which are part of the same comprehensive transaction. (Ill. Rev. Stat. 1983, ch. 38, par. 111-4(a); People v. Henderson (1976), 36 Ill. App.3d 355, 385, 344 N.E.2d 239.) However, joinder of related charges is not allowed where it would result in prejudice to defendant. Ill. Rev. Stat. 1981, ch. 38, par. 114-8; People v. Edwards (1976), 63 Ill.2d 134, 140, 345 N.E.2d 496.

Such prejudice exists when joinder results in the improper admission of evidence of other crimes. (People v. Edwards (1976), 63 Ill.2d 134, 140, 345 N.E.2d 496.) The admission into evidence of the conviction of other crimes may involve a significant risk that a jury will rely on such convictions in determining defendant's guilt or innocence on an unrelated matter. People v. Edwards (1976), 63 Ill.2d 134, 139, 345 N.E.2d 496.

In Edwards, defendant was charged in a three-count indictment with one count of armed robbery and two counts of unlawful use of weapons. The third and last count of the indictment, alleging felonious unlawful use of weapons, required the prosecution to prove that defendant previously had been convicted of burglary. After the court indicated that the entire indictment, including the previous burglary conviction, would be read to the jury, defendant moved for severance of the third count from the other two counts. The trial court refused to grant the severance. The Illinois Supreme Court held that the trial court abused its discretion in failing to grant defendant's motion. The court concluded that joinder of the counts of armed robbery and felonious unlawful use of weapons created a strong possibility that defendant would be prejudiced in his defense of the armed-robbery charge based on the admission into evidence of the previous burglary conviction. People v. Edwards (1976), 63 Ill.2d 134, 345 N.E.2d 496.

In the instant case, defendant was charged with driving under the influence of alcohol, driving a motor vehicle while his alcohol concentration was more than .10, and driving with a suspended license. Defendant moved to sever the count of driving while license suspended from the remaining counts. The trial court denied his motion. Defendant now appeals that ruling alleging that introduction into evidence of defendant's license suspension carries an implication that defendant had committed and was convicted of past crimes. Therefore, defendant claims that he was prejudiced in defense of the charge of driving a motor vehicle while alcohol concentration in blood is more than .10.

Defendant has failed to establish sufficient grounds for severance. Here, unlike Edwards, the prosecution never intended and in fact did not state to the jury that defendant had any previous convictions. The jury was left merely to speculate as to the basis of the license suspension. Yet, the mere apprehension that joinder may result in prejudice, without a showing that such apprehensions are well founded, is an insufficient ground for severance. (People v. Olbrot (1982), 106 Ill. App.3d 367, 372, 435 N.E.2d 1242.) Thus, mere speculation by a jury of possible past convictions of defendant is not sufficient to establish prejudice. (See People v. Moore (1978), ...


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