The opinion of the court was delivered by: Justice O'mara Frossard
Appeal from the Circuit Court of Cook County Honorable Joseph M. Macellaio, Judge Presiding.
Following a jury trial, defendant Leslie Henderson was convicted of two counts of reckless homicide and one count of driving on a revoked licence. He was sentenced to 12 years in prison on the Class 2 reckless homicide convictions. On appeal, defendant contends that section 9-3(c) of the reckless homicide statute (720 ILCS 5/9-3(c) (West 1998)) violates due process and is unconstitutional because it contains a mandatory irrebuttable presumption that relieves the State of its burden to prove intoxication beyond a reasonable doubt; his sentence violates Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000); the trial court erred in admitting a photograph of the victim's body that lacked probative value; and one of the convictions for reckless homicide must be vacated under the one-act, one-crime rule.
At trial, Allie Wiersema testified that around 1 a.m. on March 9, 1997, she was riding northbound in the center lane on I-94 in a car driven by a friend. Just after they passed the 159th Street exit, a white car passed them in the left lane. Wiersema estimated that the white car was traveling at 90 or 100 miles per hour. Wiersema continued to watch the white car as it moved from the left lane to the center lane, back to the left lane, to the center, and then back to the right, passing other cars as it went. A few seconds later, she saw another car ignite in flames near the right lane, off to the shoulder. Wiersema stated that she also saw the white car roll over and land on its roof. On cross-examination, Wiersema testified that she never saw the white car go onto the shoulder or off the shoulder into a dirt area.
Transito Villalvazos testified that he was driving northbound in the middle lane on I-94 when he noticed a white car in the left lane coming up behind him at a speed he estimated to be more than 100 miles per hour. As the white car passed Villalvazos, it switched lanes toward the right and almost hit the front driver's side of Villalvazos' car, causing Villalvazos to swerve. Villalvazos testified that the white car continued to pass cars "like that" until the driver lost control of the car, "went out of the expressway to the right," came back onto the expressway, and hit the back of another car, which then blew up. The white car rolled over onto its roof and slid. Villalvazos stopped and ran to the burning car. He saw a man lying on the steering wheel, but before he could help the man, the fire moved from the back to the front of the car and the car blew up a second time. Villalvazos saw three men get out of the white car, but did not see their faces. Finally, Villalvazos stated that he saw the car that was on fire hit a tree. On cross-examination, Villalvazos testified that the white car went from the left lane all the way over to the right lane, and then back to the left lane. When asked whether the white car started going back to the right again, Villalvazos answered, "That's when he lost control. He lost control right there." Villalvazos then agreed that when the white car was moving toward the right, it hit the other car in the center lane, and that the second car "flew up," hit a tree on the side of the expressway, and came back onto the expressway.
Illinois State Police Trooper Gayle Murnane testified that she was on routine patrol on I-94 when she saw two cars that had been involved in an accident. One car was engulfed in flames and occupied by a driver. The other car, which was white, was overturned and unoccupied. Trooper Murnane spoke with defendant, who was at the scene, and noticed a strong odor of alcohol about him. She also noticed that his speech was slurred and his eyes were red and glassy. Trooper Murnane testified that based on her personal experience and experience as a police officer, she believed defendant was under the influence of alcohol. She then identified several photographs of the scene of the accident which included depictions of a case of beer in the white car, broken beer bottles on the road outside the car, and bottles and cans of beer throughout the interior of the car. On cross-examination, Trooper Murnane acknowledged that she did not prepare an alcohol influence report for defendant, and that although she made a notation on the accident report indicating that defendant was impaired by alcohol, she did not note in that report that defendant's breath smelled of alcohol, his speech was slurred, or his eyes appeared red and glassy.
Daniel Mallard, an emergency department technician at St. Margaret's Hospital in Hammond, Indiana, testified that around 2 a.m. on March 9, 1997, defendant was brought to the emergency room by ambulance. Mallard drew defendant's blood, labeled and sealed the sample, and delivered it to James Jackson, a laboratory technician at the hospital.
James Jackson testified that he tested the blood sample taken from defendant and determined that the blood serum alcohol concentration of the sample was "282." Jackson called the emergency room upon reading the results of defendant's blood test because any result over 100 is considered "panic level." He stated that a blood serum alcohol concentration over 100 is considered "panic level" due to the effect of alcohol on the body, and explained that such a level could depress respiration or cause other medical problems.
Forensic toxicologist Dr. Daniel Brown testified that hospital records indicated that at the time defendant was tested, his blood serum alcohol concentration was 282 milligrams of alcohol per deciliter of blood serum, or .282 grams per deciliter of blood serum. Dr. Brown explained that because whole blood is thicker than blood serum, defendant's whole blood-alcohol level was actually about .245 grams of alcohol per deciliter of whole blood. Based on the rate the body metabolizes alcohol, Dr. Brown calculated that defendant's blood-alcohol level at the time of the accident was .269 grams per deciliter of blood, and estimated that a person defendant's size would have to have had the equivalent of about 11 drinks in his body in order to obtain that blood- alcohol level. Dr. Brown further testified that humans are "measurably impaired" when their blood alcohol is .05 grams per deciliter, and that .26 grams per deciliter "is going to be grossly impairing to greatly impairing the motor skills, the muscular functions, as well as their mental activities." Finally, Dr. Brown stated that to a reasonable degree of toxicological certainty, he was of the opinion that anyone "with a .26 blood alcohol concentration is greatly impaired and highly intoxicated."
Illinois State Police Sergeant Joseph Micci testified that during the afternoon of March 9, 1997, he interviewed defendant about the accident. In his statement to Sergeant Micci, defendant stated that on March 8, 1997, he drank one beer at Michael Johnson's house in Chicago Heights between 4 and 5:15 p.m. Defendant and Johnson then drove to Chicago, where they picked up a man named Andre around 7 p.m. Defendant drank one or two beers at Andre's house. The group then went to a liquor store, where Andre bought a 12-pack of beer and some brandy. Around 9 p.m., defendant drove the group to "Jimmie's Lounge" for a bachelor party. There, defendant drank "a couple of beers." Defendant and Andre left the party briefly, but returned around 11 p.m. Defendant told Sergeant Micci that he did not remember how much he had to drink at the bachelor party, but stated that he left around 12 or 1 a.m. because he was tired and "bubbly." Defendant first drove to Johnson's house, where he dropped off some items. With regard to what happened next, defendant told Sergeant Micci:
"I remember clicking my car alarm off and on. I know I did not ask anyone to drive. I was not even thinking about who was driving after leaving Michael Johnson's house.
I remember driving in either the left or the center lane. I remember Andre was in the back seat, and Michael was in the front passenger's seat. I remember seeing brake lights in front of me. And I remember applying my brakes and swerving. I don't remember the impact or the crash."
Sergeant Micci testified that when he took defendant's statement, about 13 hours after the accident, defendant did not appear to be under the influence or intoxicated, although he was quite tired and complained of a headache.
Dr. Thamrong Chira, an assistant Cook County medical examiner, conducted an autopsy on Antonio McCray, the driver of the burned car. Dr. Chira testified that 100% of McCray's body was covered with third- or fourth-degree burns and characterized the body as "charred." Dr. Chira noted several injuries, including laceration to the liver, kidneys, and abdominal/intestinal area; hemorrhage of the retroperitoneum behind the abdominal cavity; hemorrhage of the mesenteric tissue that supports the small intestine; subarachnoid hemorrhage into the pial area that supports and covers the brain; and a skull fracture, which may not have been due to the accident. Most of the abdominal injuries were due to impact with the lower part of the steering wheel. Dr. Chira stated that the cause of McCray's death was multiple injuries due to the automobile accident, that the lacerations to the abdomen area alone could have caused McCray's death, and that the burns occurred after McCray's death. Dr. Chira also testified that McCray was identified by X rays of his teeth and right foot. Finally, Dr. Chira identified several photographs of McCray, including one photograph depicting McCray's burned torso. On cross-examination, Dr. Chira reiterated that McCray was deceased prior to the time he received any burns on his body.
The parties stipulated that defendant's driver's licence had been revoked since November 27, 1991, and that defendant owned the white 1996 Cutlass Oldsmobile.
Gilberto Perez, a Calumet City firefighter paramedic who responded to the accident, testified as the only defense witness. He indicated that he prepared an emergency medical services report describing defendant's condition at the scene. Defendant was conscious, alert, and ambulatory at the time of treatment. Perez noted in his report that defendant's pupils were equal and reactive to light, his skin color was normal and not flushed, his temperature was normal, his eyes responded spontaneously to testing, his motor reflexes were normal, his responses to questions were normal, his respiration was normal, his skin moisture was normal, and his blood pressure and pulse were normal. Perez also noted in his report that there was alcohol on defendant's breath. Although he did not note the strength of that odor in the report, Perez stated that if it had been strong or abnormal, he would have made such a notation. Finally, Perez wrote in his report that defendant told him that he "was on the passenger side restraint, seat belt." On cross- examination, Perez acknowledged that he did not ask defendant to walk a straight line or recite the alphabet backwards and forwards. He also stated that pupils' reactions to light are tested to determine whether a person suffers from a head injury, not whether the person is under the influence of alcohol.
I. CONSTITUTIONALITY OF SECTION 9-3(c) OF RECKLESS HOMICIDE STATUTE
The constitutionality of a statute is subject to de novo review. People v. Malchow, 193 Ill. 2d 413, 418 (2000). Statutes carry a strong presumption of constitutionality and the challenging party has the burden of rebutting that presumption. People v. Maness, 191 Ill. 2d 478, 483 (2000). This court has a duty to interpret a statute in a manner that upholds its validity and constitutionality if it can be reasonably done. People v. Fisher, 184 Ill. 2d 441, 448 (1998). Defendant contends that section 9-3(c) of the reckless homicide statute violates due process under the Illinois and United States Constitutions because it contains a mandatory irrebuttable presumption that relieves the State of the burden of proving intoxication beyond a reasonable doubt. 720 ILCS 5/9-3(c) (West 1996).
Defendant offers two related arguments in support of the contention that section 9-3(c) of the reckless homicide statute is unconstitutional. First, defendant contends that section 9-3(c), by way of a mandatory irrebuttable presumption, directs the trier of fact to presume the element of being under the influence of alcohol if it finds that defendant drove with a blood-alcohol concentration of 0.10 or more or under the influence to a degree rendering him incapable of safely driving. 720 ILCS 5/9-3(c)(1), (c)(2) (West 1996). We note the amended reckless homicide statute provides that a person shall be considered to be under the influence of alcohol where the person's blood-alcohol concentration is 0.08 or more; however, the pre-amended section applies to this case. See 720 ILCS 5/9-3(c)(1) (West 1998). The pre-amended section 9-3(c) of the reckless homicide statute states as follows:
"(c) For the purposes of this Section, a person shall be considered to be under the influence of alcohol or other drugs while:
1. The alcohol concentration in the person's blood or breath is 0.10 or more based on the definition of blood and breath units in Section 11-501.2 of the Illinois Vehicle Code;
2. Under the influence of alcohol to a degree that renders the person incapable of safely driving;
3. Under the influence of any other drug or combination of drugs to a degree that renders the person ...