Appeal from the Circuit Court of Du Page County. No. 00-CF-2045 Honorable Kathryn E. Creswell, Judge, Presiding.
The opinion of the court was delivered by: Presiding Justice Hutchinson
Following a jury trial, defendant, Michael A. Henry, was found guilty of reckless homicide (720 ILCS 5/9--3 (West 2000)) and driving with a revoked license (625 ILCS 5/6--303 (West 2000)) and sentenced to 14 years' imprisonment. On appeal, defendant contends that the reckless homicide statute and the Illinois Pattern Jury Instructions on which they are based are unconstitutional because they contain mandatory irrebuttable presumptions that relieve the State of its burden to prove recklessness and intoxication beyond a reasonable doubt. We affirm.
Defendant was charged with four counts of reckless homicide and one count of driving with a revoked license. The indictment alleged that, on July 20, 2000, defendant, while operating his motor vehicle in a reckless manner, caused his vehicle to travel through a red light at the intersection of Gary Avenue and Lake Street in Roselle. Defendant's vehicle collided with a vehicle being driven by the victim, Joseph Schwarz. As a result of the collision, the victim suffered fatal injuries. Count I alleged that defendant drove his vehicle in a reckless manner while under the influence of alcohol to a degree that rendered him incapable of safely driving; count II alleged that defendant drove his vehicle in a reckless manner at a time when his blood-alcohol concentration was greater than 0.08; count III alleged that defendant drove a vehicle at a time when his driver's license had been revoked; count IV alleged that defendant drove his vehicle in a reckless manner while under the influence of cannabis; and count V alleged that defendant drove his vehicle in a reckless manner while under the combined influence of alcohol and cannabis.
Prior to trial, defendant filed a motion seeking a declaration that the mandatory presumptions contained in section 9--3(b) of the Criminal Code of 1961 (the Code) (720 ILCS 5/9--3(b) (West 2000)) and section 11--501.2(b)(3) of the Illinois Vehicle Code (the Vehicle Code) (625 ILCS 5/11--501.2(b)(3) (West 2000)) and any corresponding jury instructions were unconstitutional. Section 9--3(b) of the Code provides that, in cases of 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 2000). Section 11--501.2(b)(3) of the Vehicle Code provides that, during any criminal or civil trial arising out of acts alleged to have been committed by any person while driving under the influence of alcohol, evidence that the person had a blood- or breath-alcohol concentration of 0.08 or greater "shall be presumed that the person was under the influence of alcohol." 625 ILCS 5/11--501.2(b)(3) (West 2000). Defendant argued that these mandatory presumptions violated his due process rights because they eliminated the State's burden to prove these elements of the crime beyond a reasonable doubt.
Relying on People v. Pomykala, 326 Ill. App. 3d 390 (2001), the trial court granted defendant's motion with respect to the presumption contained in section 9--3(b) and ruled that the jury would not be instructed that defendant's recklessness could be presumed from evidence presented that he was under the influence of alcohol. The trial court, however, denied defendant's motion with respect to the presumption contained in section 11--501.2(b)(3) of the Vehicle Code. In so ruling, the trial court apparently was persuaded by the State's argument that the presumption contained in section 11--501.2(b)(3) was permissive, rather than mandatory, and therefore did not violate defendant's due process rights. See People v. Hester, 131 Ill. 2d 91 (1989). The State also noted that the pattern jury instructions predicated on section 11--501.2(b)(3) had been modified to reflect the decision in Hester and to highlight the permissive nature of the presumption. See Illinois Pattern Jury Instructions, Criminal, No. 23.30 (4th ed. 2000) (hereinafter IPI Criminal 4th). The trial court further ruled that the presumption provided in section 11--501.2(b)(3) could be applied only to count I of the indictment, where the State did not allege a specific blood-alcohol concentration.
At trial, Vanessa Perez testified that her vehicle was involved in the collision on July 20, 2000. Perez testified that, immediately before the collision, she had been driving on Lake Street and was in the process of slowing her vehicle in the right-turn lane because the traffic signal for Lake Street was red. Perez testified that she saw a beige Ford Taurus station wagon approach from the opposite direction on Lake Street at a "high rate of speed." The station wagon drove through the red signal into the intersection and collided with a Nissan Xterra sport-utility vehicle (SUV) traveling on Gary Avenue. Perez testified that, right after the collision, the SUV flipped over and struck the driver's side door of her Pontiac Grand Am.
Roselle police officer David Hourigan testified that he was one of the first officers to respond to the report of an accident at the intersection of Gary Avenue and Lake Street on July 20, 2000, at approximately 1:30 a.m. Hourigan observed three vehicles on the grass adjacent to the southwest corner of the intersection. Hourigan spoke with Perez and then checked on defendant, who was the driver of the station wagon. Defendant was unconscious, but appeared to be breathing. Hourigan then checked on the victim, who was the driver of the SUV. Hourigan testified that the victim appeared to have been fatally injured. At this time, paramedics and other officers arrived at the scene.
After defendant was removed from the station wagon, Hourigan examined the interior of the station wagon. Hourigan testified that the glove compartment had fallen down from the dashboard. Hourigan observed a plastic bag containing a green leafy plant substance in the glove compartment. Hourigan also observed a metal and wood pipe that he recognized as a device for smoking marijuana.
Paramedic Richard Schwegler testified that members of the Bloomingdale fire department cut through the front passenger door of the station wagon to gain access to defendant, who was trapped in the vehicle. Schwegler testified that he did not smell the odor of alcohol on defendant's breath or clothing. Defendant was unconscious and was placed in an ambulance for transport to the hospital.
Marshall Smith testified that he witnessed the July 20, 2000, collision. Smith testified that, shortly before the collision, he had been driving south on Gary Avenue and had pulled into the left-turn lane so that he could turn left onto Lake Street. Smith testified that, at this time, the traffic light for Gary Avenue was green, but that the left-turn arrow was red. Smith observed defendant's station wagon traveling at "an extreme rate of speed" heading west on Lake Street. Smith testified that the station wagon struck the side of an SUV that was traveling through the intersection on Gary Avenue. Smith testified that, after the collision, the SUV rolled over three or four times before resting on its side. Smith estimated that the station wagon had been traveling between 40 and 55 miles per hour.
Albert Daddono testified that he was traveling west on Lake Street at about 1:30 a.m. on July 20, 2000. Daddono testified that a four-door station wagon "flew" by him near the intersection of Lake Street and Bloomingdale Road. Daddono testified that he observed the station wagon swerve as it drove west on Lake Street. Daddono testified that the traffic signal for westbound traffic on Lake Street at the intersection of Bloomingdale Road was red. The station wagon applied its brakes briefly before it entered the intersection, but then the station wagon went through the red light.
Dr. Joseph Vitella testified that he was the attending trauma surgeon at Good Samaritan Hospital in Downers Grove and that he treated defendant on July 20, 2000. Vitella testified that defendant had "an obvious alcohol smell" on his breath. Toxicology testing performed on defendant indicated that the alcohol level in defendant's blood serum was .298. Defendant's urine tested negative for the presence of alcohol but it "suggested the presence of cannabis."
Albert Larsen, a toxicologist with the Illinois State Police crime laboratory, explained that serum testing is different from whole-blood testing because the serum test is from clotted blood, which concentrates alcohol in a smaller volume. Due to the difference in concentration between serum and whole blood, the Illinois State Police use a mathematical calculation to convert the serum-blood level to the whole-blood level. Larsen testified that he divided defendant's serum-blood level of .298 by 1.18 to convert the number to a whole-blood level. Based upon this calculation, Larsen determined that the alcohol concentration in defendant's whole blood was .253.
Roselle police officer David Cotton testified that he reconstructed and diagramed the accident. Cotton found deep gouging marks, chops, and scrapes in the pavement in the intersection of Gary Avenue and Lake Street. Cotton opined that defendant was driving his station wagon west on Lake Street in the right traffic lane and entered the Gary Avenue intersection. Cotton opined that defendant's vehicle then struck the driver's side of the victim's SUV. Cotton believed that, once the contact occurred, the SUV and the station wagon remained in contact, rotating together, and traveled as "one unit." Cotton believed that, after rotating several times, the vehicles separated. The SUV then rolled over onto its passenger side and continued to spin down Lake Street until it struck Perez's vehicle. After striking Perez's vehicle, Cotton opined, the SUV righted itself, continued to travel ...