Appeal from the Circuit Court of Winnebago County. No. 99-CF-2915 Honorable Rosemary Collins, Judge, Presiding.
The opinion of the court was delivered by: Justice Grometer
Defendant, Soukpraseuth Singmouangthong, was convicted of eight counts of reckless homicide (720 ILCS 5/9--3 (West 1998)) following a jury trial in the circuit court of Winnebago County. The trial court imposed four concurrent sentences of 12 years' imprisonment. Defendant now appeals. For the reasons that follow, we affirm.
On October 9, 1999, at approximately 8:30 a.m., defendant was driving his car on 11th Street in Rockford when he struck a van. The van's four occupants died as a result of the crash. It was a foggy morning and visibility was approximately 50 feet. Defendant was returning home from a Denny's restaurant after having breakfast there. Defendant testified that he had spent the prior night at a birthday party at a friend's house. He acknowledged having consumed four or five beers over the course of the night. Defendant did not feel that he was under the influence of alcohol. Two individuals who attended the party testified that they did not believe defendant was intoxicated. Additionally, a paramedic who treated defendant following the accident stated that he did not detect any alcohol on defendant. A police officer testified that he made no notation in his report that defendant appeared to be under the influence of alcohol. A blood test, the accuracy of which was vigorously disputed by defendant, showed defendant had a serum blood alcohol level of 198 milliliters per deciliter of whole blood. A forensic pathologist testified that such a reading would indicate that defendant's blood-alcohol content was between .158 and .174.
Defendant stated that he was traveling at approximately 40 miles per hour at the time of the accident. Accident reconstruction evidence indicated that defendant's speed could have been from as low as 46 miles per hour to as high as 84 miles per hour. Two eyewitnesses, who observed defendant shortly before the crash, estimated his speed at 65 to 70 miles per hour. Additional evidence will be discussed as it pertains to the issues defendant raises.
Defendant raises four issues on appeal. First, he contends that the reckless homicide statute (720 ILCS 5/9--3 (West 1998)) is unconstitutional. Second, he asserts that the trial court erred in denying his request to present character evidence to the jury. Third, he argues that he should have been allowed to use a chart as an exhibit during closing argument. Fourth, he complains that the trial court refused to instruct the jury that excessive speed alone is insufficient to prove recklessness.
A. Constitutionality of the Reckless Homicide Statute
Defendant first argues that the statute he was convicted under contains an unconstitutional mandatory presumption. Defendant contends that the presumption is not severable from the remainder of the statute and the statute is thus void. The constitutionality of a statute is an issue that we review de novo. People v. Carney, 196 Ill. 2d 518, 526 (2001).
Defendant finds support for his position in the recent Third District case of People v. Pomykala, 326 Ill. App. 3d 390 (2001), appeal allowed, 198 Ill. 2d 628 (2002). At issue in Pomykala was whether the following portion of the reckless homicide statute created a mandatory presumption that relieved the State of its burden of proving that the defendant acted in a reckless manner:
"In cases involving reckless homicide, being under the influence of alcohol or any other drug or drugs at the time of the alleged violation shall be presumed to be evidence of a reckless act unless disproved by evidence to the contrary." 720 ILCS 5/9--3(b) (West 1998).
The Third District concluded that this provision compelled the jury to conclude that a defendant was acting recklessly and thus shifted the burden to the defendant to prove otherwise. Pomykala, 326 Ill. App. 3d at 394. The Third District then noted that our supreme court has held that all mandatory presumptions are unconstitutional in criminal cases. See People v. Watts, 181 Ill. 2d 133, 147 (1998). Accordingly, the Third District vacated the defendant's conviction and remanded the matter for a new trial. Pomykala, 326 Ill. App. 3d at 394. We note that the First District has recently considered this issue and concluded that the presumption is not mandatory. People v. Peshak, No. 1--01--2445 (September 20, 2002). We agree with the analysis set forth by the Third District.
While we agree with the reasoning of the Pomykala court, we must ultimately deny defendant's request that we declare the entire statute void. In the instant case, we are confronted with an issue that the Pomykala court did not address. It did not expressly pass on the issue of whether the presumption is severable from the balance of the statute. In fact, the concurrence in Pomykala seems to have taken the defendant's argument to be a facial challenge to the statute; however, the majority opinion appears to have held that the statute, in conjunction with jury instructions given in that case, was unconstitutional as applied to the defendant. Pomykala, 326 Ill. App. 3d at 394-96. Defendant asks that we, conversely, consider whether the statute is facially unconstitutional and void.
We will assume, arguendo, that the presumption is facially unconstitutional, thus leaving the question of whether the presumption is severable from the remainder of the statute. Severability is generally a question of legislative intent. People v. Warren, 173 Ill. 2d 348, 371 (1996). The ...