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09/15/94 PEOPLE STATE ILLINOIS v. MARK MARTIN

September 15, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
MARK MARTIN, DEFENDANT-APPELLANT.



Appeal from Circuit Court of Sangamon County. No. 93CF27. Honorable Stuart H. Shiffman, Judge Presiding.

As Corrected November 29, 1994. Petition for Leave to Appeal Denied February 1, 1995.

Honorable Robert J. Steigmann, J., Honorable John T. McCULLOUGH, P.j., Honorable Carl A. Lund, J.

The opinion of the court was delivered by: Steigmann

JUSTICE STEIGMANN delivered the opinion of the court:

In April 1991, defendant, Mark Martin, struck and killed three pedestrians while driving his pickup truck. In January 1993, a jury found defendant guilty of three counts of reckless homicide (Ill. Rev. Stat. 1991, ch. 38, par. 9-3(a)), two counts of driving while under the influence of alcohol (DUI) (Ill. Rev. Stat. 1991, ch. 95 1/2, pars. 11-501(a)(1), (a)(2)), and one count of leaving the scene of an accident (Ill. Rev. Stat. 1991, ch. 95 1/2, par. 11-401(a)). In March 1993, the trial court entered judgment on reckless homicide and leaving the scene of the accident, and sentenced defendant to 14 years in prison oneach of the reckless homicide counts and 364 days on the leaving the scene of an accident count, all to be served concurrently.

Defendant appeals, arguing that the trial court erred by (1) failing to hold the reckless homicide statute unconstitutional; (2) permitting the State to file additional charges after the statute of limitations expired; (3) granting the State's motion to nol-pros; (4) admitting his statements; (5) permitting the State's late disclosure of an expert witness; (6) admitting certain testimony from an expert witness; (7) admitting testimony regarding accident reconstruction testimony, photographs, and breathalyzer evidence; and (8) instructing the jury as to proximate causation.

We affirm.

I. BACKGROUND

The material in this section is not to be published pursuant to Supreme Court Rule 23. Official Reports Advance Sheet No. 15 (July 20, 1994), R. 23, eff. July 1, 1994.

[The following material is not to be published pursuant to Supreme Court Rule 23]

[The preceding material is not to be published pursuant to Supreme Court Rule 23]

II. ANALYSIS

A. Constitutionality of the Reckless Homicide Provision

The material in this section is not to be published pursuant to Supreme Court Rule 23.

[The following material is not to be published pursuant to Supreme Court Rule 23]

[The preceding material is not to be published pursuant to Supreme Court Rule 23]

B. Statute of Limitations

Defendant next argues that he was improperly charged with DUI and leaving the scene of an accident. He contends that the State impermissibly charged him with these offenses after the applicable statute of limitations expired. We disagree.

When the State originally charged defendant with reckless homicide in April 1991, it dismissed traffic citations for DUI and leaving the scene of an accident in favor of the new felony charges. In January 1993, the State dismissed those reckless homicide charges, and then refiled the case, including counts of DUI and leaving the scene of an accident in addition to the identical three counts of reckless homicide. On the day of trial, the court sua sponte raised the issue of whether the statute of limitations barred the three additional counts. The State moved to amend them to include an allegation setting forth one of the statutory exceptions to the misdemeanor statute of limitations. (See Ill. Rev. Stat. 1991, ch. 38, par. 3-7(c).) The trial court, over defendant's objection, allowed the amendment alleging that the 18-month statute of limitations had been tolled. Defendant now contends that the trial court committed reversible error in doing so.

A prosecution for misdemeanor DUI or leaving the scene of an accident normally must be commenced within 18 months of the commission of the offense. (Ill. Rev. Stat. 1991, ch. 38, par. 3-5(b).) However, section 3-7(c) of the Criminal Code of 1961 (Criminal Code) provides as follows:

"The period within which a prosecution must be commenced does not include any period in which:

(c) A prosecution is pending against the defendant for the same conduct, even if the indictment or information which commences the prosecution is quashed or the proceedings thereon are set aside, or are reversed on appeal." Ill. Rev. Stat. 1991, ch. 38, par. 3-7(c).

At trial and on appeal, the State contends that the misdemeanor statute of limitations was tolled during the pendency of the original case charging reckless homicide. Defendant responds that during that entire 20-month period no charges for DUI or leaving the scene of an accident were pending; indeed, defendant notes that the initial complaints charging those offenses were dismissed in April 1991 in favor of the reckless homicide counts. At trial, the State argued that "the key element is whether or not there was a prior proceeding that involved the same conduct for which the subsequent charges are based." Defendant, while not waiving his objection to amending the DUI counts, specifically noted that the State had not previously charged the offense of leaving the scene of an accident. The trial court then found as follows:

"It is not a matter of alleging it. They [the State] can allege new offenses at this point and time and bring them within the statute of limitations because as I read section 3-7(c) [of the Criminal Code], it says a prosecution is pending against the defendant for the same conduct."

For the reasons that follow, we agree with the trial court's analysis of the law.

In People v. Morris (1990), 135 Ill. 2d 540, 545-46, 554 N.E.2d 150, 152-53, 143 Ill. Dec. 215, the supreme court held that the term "conduct" as used in section 3-7(c) of the Criminal Code is broader than the term "acts." It noted that conduct is defined by the Criminal Code as "'an act or a series of acts.'" (Emphasis Omitted.) ( Morris, 135 Ill. 2d at 545-46, 554 N.E.2d at 152-53; quoting Ill. Rev. Stat. 1987, ch. 38, par. 2-4; see Ill. Rev. Stat. 1991, ch. 38, par. 2-4.) Accordingly, section 3-7(c) applies to the entire course of conduct surrounding the acts constituting the offense for which a defendant is charged. As a result, section 3-7(c) tolls the statute of limitations for criminal conductthat may have been previously uncharged but is encompassed within other charged offenses arising out of the same conduct. Morris, 135 Ill. 2d at 545-46, 554 N.E.2d at 152-53.

In this case, defendant was charged with three counts of reckless homicide arising out of the April 1991 accident. When the State dismissed that case in January 1993, and subsequently refiled three counts of reckless homicide as well as the three additional counts, section 3-7(c) of the Criminal Code tolled the statute of limitations for all potential offenses arising out of that accident. Thus, we hold that because the acts underlying these three charges arose out of the same conduct alleged in the reckless homicide counts, the State could properly charge defendant with those offenses as well, regardless of the fact that it declined to charge him with them previously. As a result, the trial court did not err in allowing the State to charge defendant with the three additional offenses.

Defendant also makes a vague argument that the trial court erred in permitting the State to amend the charges "at the last hour" to include the language setting forth the allegation tolling the statute of limitations. Section 111-5 of the Code of Criminal Procedure of 1963 (Procedural Code) (Ill. Rev. Stat 1991, ch. 38, par. 111-5) provides that a charging instrument may be amended at any time to correct formal defects. ( People v. House (1990), 202 Ill. App. 3d 893, 904-05, 560 N.E.2d 1224, 1232, 148 Ill. Dec. 627.) If the amendment does not involve a material change in the allegations contained in the original charging instrument, the amendment is merely technical in nature and constitutes a formal defect within the meaning of section 111-5. Furthermore, a defendant's lack of surprise by the amendment strengthens the finding that the amendment is merely technical. ( House, 202 Ill. App. 3d at 904-05, 560 N.E.2d at 1232.) Where the defendant is neither surprised nor prejudiced, the trial court commits no error in allowing the State to amend the charging instrument. People v. Bae (1988), 176 Ill. App. 3d 1065, 1077, 531 N.E.2d 931, 939, 126 Ill. Dec. 304.

In House, the State amended the charging instrument from alleging a misdemeanor offense to conduct constituting a felony offense. On appeal, the court held that the amendment was merely technical because it did not change the underlying allegations of the defendant's conduct, but rather made them more specific by including allegations of acts that constituted a felony offense. Also, the defendant admitted that he was not surprised by the amendment. In holding that the trial court properly allowed the amendment to the information, the ...


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