Before setting forth or further discussing the instruction which the trial court gave the jury on the presumption that the defendant was under the influence of alcohol, we again note the various statutory prohibitions against driving while under the influence of alcohol and the presumption created by the statute. Sections 11-501(a)(1) and (a)(2) (Ill. Rev. Stat. 1987, ch. 95 1/2, pars. 11-501(a)(1), (a)(2)) provide:
APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION
532 N.E.2d 1344, 178 Ill. App. 3d 360, 127 Ill. Dec. 335 1988.IL.1870
Appeal from the Circuit Court of Cook County; the Hon. Howard Fink, Judge, presiding.
JUSTICE PINCHAM delivered the opinion of the court. MURRAY, J., concurs. PRESIDING JUSTICE LORENZ, Dissenting.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE PINCHAM
Defendant, Dorothy Hester, was charged in a one-count information with reckless homicide (Ill. Rev. Stat. 1987, ch. 38, par. 9-3(a)). Although the record before us on this appeal clearly establishes that she was also charged with driving a vehicle while under the influence of alcohol (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 11-501(a)(2)), that charge is not contained in this record. *fn1 A jury found the defendant guilty of both charges and she was sentenced to 28 months' imprisonment in the Illinois Department of Corrections on the reckless homicide offense and a concurrent sentence of 364 days' imprisonment on the offense of driving a vehicle while under the influence of alcohol. On appeal the defendant contends for reversal that the trial court erroneously instructed the jury that it could presume that the defendant was under the influence of alcohol and that her 28 months' imprisonment sentence for the reckless homicide offense is excessive and an abuse of the trial court's sentencing discretion.
"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." (Emphasis added.)
The one-count reckless homicide information against the defendant alleged:
"That on July 4th 1984 in Cook County, Illinois Dorothy R. Hester committed the offense of reckless homicide in that she, unintentionally and without lawful justification, while driving a motor vehicle, to wit: an automobile, recklessly performed acts in such a manner as was likely to cause death or great bodily harm to some individual and such acts caused the death of Diane Streetz, in violation of Chapter 38, Section 9 -- 3 -- A Illinois Revised Statutes . . .." (Emphasis added.)
The reckless homicide information did not specify or particularize the acts that the defendant allegedly recklessly performed while driving the motor vehicle. Nor did the information allege or otherwise designate the manner in which the acts were recklessly performed.
It is provided in article I, section 8, of the Illinois Constitution that, "In criminal prosecutions, the accused shall have the right . . . to demand the nature and cause of the accusation . . .." (Ill. Const. 1970, art. I, § 8.) Article I, section 2, of the Illinois Constitution provides that, "No person shall be deprived of life, liberty or property without due process of law . . .." (Ill. Const. 1970, art. I, § 2.) Section 114-1(a)(8) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 114-1(a)(8)) states that upon the written motion of the defendant made prior to trial, the court may dismiss an information on the ground that "[the] charges does not state an offense." No motion was made attacking the constitutional or statutory validity of the reckless homicide information on the grounds that it failed to allege the acts that the defendant recklessly performed or the manner in which such acts were recklessly performed.
Section 114-2(a) of the Code of Criminal Procedure (Ill. Rev. Stat. 1987, ch. 38, par. 114-2(a)), provides that "a written motion for a bill of particulars . . . shall specify the particulars of the offense necessary to enable the defendant to prepare his defense." Under this statutory provision defendant filed an exhaustive motion for a bill of particulars for (1) the exact time and date of the occurrence; (2) the exact street address and physical description of the location of the occurrence; (3) a list of occurrence witnesses and their statements; (4) a list of physical property; (5) reports or statements of experts; (6) a list of identification witnesses; (7) witnesses favorable to the defense; and (8) results of any electronic surveillances and for other similar information. No motion for a bill of particulars was filed, however, to specify or particularize the acts which the defendant allegedly recklessly performed, or the manner in which such acts were recklessly performed.
It is provided in section 9-3(b) (Ill. Rev. Stat. 1987, ch. 38, par. 9-3(b)) that "[in] cases involving reckless homicide, being under the influence of alcohol . . . at the time of the alleged violation shall be prima facie evidence of a reckless act." But as stated, the reckless homicide information did not allege that the reckless act that the defendant committed was that she drove a vehicle while she was under the influence of alcohol.
It is quite clear, however, from the prosecutor's numerous comments throughout the entire trial court proceedings that the prosecutor intended for the jury to rely on the State's evidence of the defendant driving a vehicle while she was under the influence of alcohol as the defendant's reckless act in the alleged reckless homicide offense. It is equally apparent that the jury did so. The defendant's reckless act allegation's deficiency and the ambiguity of the reckless homicide charge were clarified in the prosecutor's opening statement to the jury, during which the prosecutor repeatedly informed the jury that the concentration of alcohol in the defendant's breath when she was arrested was 0.20, from which, the prosecutor stated, the jury should presume that the defendant was under the influence of alcohol.
The trial court's instructions to the jury on reckless homicide, tendered by the prosecutor, do not refute that the prosecutor and the jury relied on the defendant's driving a vehicle while under the influence of alcohol as the defendant's reckless act in the alleged reckless homicide offense. After instructing the jury that "a person acts recklessly when she consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow and such disregard constituted a gross deviation from the standard of care which a reasonable person would exercise in the situation," the trial court then instructed the jury that "a person commits the offense of reckless homicide when she unintentionally causes the death of an individual by driving a motor vehicle recklessly and in a manner likely to cause death or great bodily harm." The trial court followed with a reckless homicide issue instruction, as follows:
"To sustain the charge of reckless homicide, the State must prove the following propositions:
First: That the defendant caused the death of Diane Streetz by driving a motor vehicle; and
Second: That the defendant drove the motor vehicle recklessly; and
Third: That the defendant drove the motor vehicle in a manner likely to cause death or great bodily harm.
If you find from your consideration of all the evidence that each one of these propositions has been proved beyond a reasonable doubt, you should find the defendant guilty.
If you find from your consideration of all the evidence that any one of these propositions has not been proved beyond a reasonable doubt, you should find the defendant not guilty."
Each of these foregoing reckless homicide jury instructions was tendered by the State, but neither identified the reckless act or acts of the defendant on which the State relied.
The prosecutor devoted practically all of his 32-page and 43-minute opening and closing arguments to the jury on the evidence of the defendant driving while under the influence of alcohol, during which the only remarks he made about the reckless homicide charge or the evidence in support thereof were as follows:
"I'd submit the evidence in this case is overwhelmingly sufficient and calls out and cries out for the conviction of Dorothy Hester for driving under the influence of alcohol and reckless homicide.
. . . [We] are alleging that she violated two statutes that are in effect in the State of Illinois. One's called driving under the influence; one's called reckless homicide. And Dorothy Hester, by her plea of not guilty, . . . has said, no, she's not guilty; and you have to decide whether she is or not.
I would urge you, ladies and gentlemen, to find her guilty, to vote for verdict of guilty of reckless homicide and of driving under the influence, because we've proved that.
Ladies and gentlemen, please, when you retire, remember your duty as jurors. Consider the facts, . . . and find Dorothy Hester guilty of reckless homicide and driving under the influence."
In the prosecutor's final closing argument, he again reiterated his reliance on the defendant's driving while under the influence of alcohol as the defendant's reckless conduct in support of the reckless homicide charge, for the prosecutor then argued:
"Dorothy Hester transformed that 1980 Bonneville into a deadly, unguided missile when she launched it by turning the ignition key and driving away; and here's where we, really, get to the essence of the reckless homicide charge. What is reckless homicide? . . . Is it recklessness? . . . Well, you won't have any trouble determining whether she was reckless because I will point out that the defendant did three -- not just one, not two, but three -- very important things, each and every one of them alone was reckless. I'll enumerate. The first reckless act of the defendant, . . . driving her car in this reckless manner and a drunken state, was the fact that she drove to the carnival and became drunk. . . . [She] was extremely intoxicated at the time of this accident and that means that before she got in her car she was extremely intoxicated.
Now, what reasonable and prudent person drives their car to another location, knowing that they've been drinking excessively, and drink some more?
So, the first reckless act of the defendant was to drive her car to another location and drink some more, because she knew she'd have to drive the car home, or should. First reckless act was getting drunk in the first place knowing that she would be driving a car.
We do know that she was highly intoxicated. Not only because of her obvious lack of ability to control this car for no other explainable reason.
But if Dorothy Hester had just gotten drunk, Diane Streetz wouldn't be dead right now. She required the second and very crucial reckless act, and that was in the defendant's decision to drive despite her impaired condition.
The defendant did not have to drive home. She already committed the reckless act of getting drunk at the carnival, knowing she should drive home, but she didn't have to drive home. . . . [Her] getting in the car and driving it was an unjustifiable risk and the defendant's decision to drive in her impaired condition . . . was particularly reckless because . . . the streets were relatively littered with people. . . .
Ah, but here's where the third and final element of recklessness, really, comes in and this is really what it boils down to. . . .
However, a reasonable and prudent and cautious person, knowing that they've had things to drink, is going to, hopefully, drive their car in a slow and cautious fashion."
Subsequently, in opposition to the defendant's motion for a new trial, the prosecutor again defined to the trial court the defendant's acts upon which he relied as reckless conduct, as follows:
"[The] Defendant was guilty of not just one reckless act, but was guilty of at least three separate and distinguishable reckless acts.
The first being, your Honor, after having driven to the carnival, the Defendant drank to the point of extreme intoxication knowing that she was going to have to drive that same vehicle home.
So the Defendant's first reckless act was driving to the carnival either in a state of intoxication or driving to the carnival, becoming intoxicated knowing that she was going to have to drive the same vehicle back home.
It was at that point she had a chance to decide not to have that drink, that the safety and lives of others weren't as important as her enjoyment in drinking. But she didn't do that, and that was reckless.
The second thing that the Defendant did which was reckless was that she drove her vehicle in the condition that she had placed herself in and that she didn't have to. . . . [The] Defendant was not alone. She had friends with her . . .. Friends that could have driven her home. There was no reason that the Defendant had to drive her vehicle home.
And the third factor, your Honor, . . . the recklessness which the Defendant exhibited, is that having decided to drive her vehicle, . . . in the condition that she had placed herself in, double the legal intoxication level, . . . and despite the fact that the Defendant was in that condition, she decided to drive any way."
It is undeniably apparent from the foregoing that the " recklessly performed act" of the defendant upon which the prosecutor relied to prove the alleged reckless homicide offense was the defendant driving her car while she was under the influence of alcohol.
As beforestated, the charge against the defendant of driving while under the influence of alcohol is not contained in the record on appeal. The prosecutor, however, obviously relied on the defendant driving her vehicle while under the influence of alcohol as the " recklessly performed act" on the trial of the reckless homicide offense, even though the State's simultaneous prosecution and trial of the defendant on the separate offense of driving while under the influence of alcohol may have presented a double jeopardy, constitutional question under article 1, section 10, of the Illinois Constitution, which provides, "No person shall be compelled in a criminal case to . . . be twice put in jeopardy for the same offense." Ill. Const. 1970, art. I, § 10.
There is no dispute that the defendant was charged with, tried on and found guilty by the jury of driving a vehicle while under the influence of alcohol, even though, as stated, that charge is not contained in the appeal record before us.
Driving a vehicle while under the influence of alcohol is prohibited by section 11-501(a)(2) of the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 11-501(a)(2)), and it is a Class A misdemeanor (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 11-501(c)). It is apparent from the appeal record before us that the defendant was also simultaneously tried before the jury on the reckless homicide information. The trial evidence established the following.
The defendant, Dorothy Hester, was 47 years of age and lived with her husband in a small house in Streamwood, Illinois. She had one daughter by a previous marriage, and she had reared her niece and nephew after their mother, the defendant's twin sister, died at an early age. The defendant was a five-year employee as a cashier and patient assistant to the pharmacist at Mark Drugs in Streamwood.
On July 4, 1984, the defendant and her husband had friends at their home for a cookout, during which, from about 5 p.m., they watched television, conversed and ate hamburgers, hot dogs and potato salad. Some, but not all, of the guests had beer with their food.
Around 7 p.m., the defendant went with her friends to a nearby carnival, at which Elisa Pack, the defendant's co-worker at Mark Drugs, was present. Pack and the defendant conversed, during which the defendant held Pack's newborn child. According to Mrs. Pack, the defendant did not appear to have had anything to drink and she did not at all appear to be intoxicated.
Harry Norred, a defense witness, testified that he was a neighbor of the defendant and that he saw the defendant with another neighbor's children at the carnival on July 4, about 7:30 p.m., bought her a beer and talked with her for about 20 minutes, when he left the beer garden with the children to take them on the carnival rides. Norred related that he later saw the defendant with the children a second time at the carnival, and again a third time about 9:30 or 10 o'clock, when she was leaving the carnival to go home, at which time they talked further. ...