Find Legal Information

FIFTH DIVISION
September 20, 2002

JUSTICE QUINN delivered the opinion of the court:

Following a bench trial, defendant Gary Peshak was convictedof three counts of reckless homicide and two counts of aggravateddriving under the influence of alcohol, resulting from the deathof Winceta Skrzypek, who was struck and killed by a truck drivenby defendant. He was sentenced to a four-year prison term on thereckless homicide convictions and a concurrent three-year term onthe aggravated driving under the influence of alcoholconvictions. On appeal, defendant contends: (1) that thereckless homicide statute under which he was convicted isunconstitutional; (2) that the State failed to prove him guiltybeyond a reasonable doubt; (3) that the trial court erred in notsua sponte providing an interpreter for a witness for theprosecution; (4) that the trial court erred when it allowed aState witness to testify in violation of Supreme Court Rule 412(188 Ill. 2d R. 412) regarding statements defendant allegedlymade; and (5) that his sentence is improper. For the reasons setforth below, we affirm the judgment of the trial court.

BACKGROUND 

Ambalal Patel testified that about 2:15 p.m. on July 17,2000, he was in Mount Prospect heading west on Golf Road in thecurbside lane at about 30 miles per hour. Prior to reachingElmhurst Road, Patel saw a woman on the north side of Golf Roadattempting to cross it heading southbound. In response, heslowed down his vehicle. While the woman was crossing the laneto the left of the one Patel was in, he saw a red truck strikeher. Patel did not see the truck brake prior to striking thewoman and did not see the driver of the vehicle that struck her.

On cross-examination, Patel testified that the woman who hadbeen struck was not looking where she was crossing and was about10 to 15 yards west of Country Lane Road, which was the nearestintersection. Patel stated that the woman was "running a littlefast" at the time she was struck. Patel also stated that thevehicle in question was traveling around 30 or 40 miles per hourwhen it hit her and that it had "moved to its left side" beforehitting the victim. Patel admitted telling Mount Prospect policeshortly after the accident that the driver of the truck had triedto avoid hitting the victim.

Terry Thomas testified that at the time in question, he wasin the front passenger seat of a minivan going westbound on GolfRoad just east of Elmhurst Road when he saw a woman crossing thestreet. When the woman was almost to the center median, a redtruck driven by defendant passed in the lane left of the laneThomas was in. The truck then hit the woman, who was carried onthe truck's hood, before falling off it when the truck came torest on the center median. Thomas stated that when the woman sawthe truck approaching, she attempted to get out of its path byrunning. He was unsure whether defendant attempted to brake thetruck before hitting the victim. Following the accident, JeffreyEaston, the driver of the vehicle Thomas was riding in, got outand tended to the victim.

On cross-examination, Thomas testified that defendant wasnervous following the accident, but that he did not noticeanything unusual about defendant's behavior. Thomas did notrecall whether defendant was walking around the scene after theaccident and stated that there was nothing unusual aboutdefendant's speech at the time. Thomas stated that the victimwas "nowhere near" the corner when she was struck and that he wasunsure whether defendant swerved before striking her. Accordingto Thomas, due to the speed defendant's truck was traveling, hewas unable to slow down prior to hitting the victim.

Officer Addante of the Mount Prospect police departmenttestified that about 2:20 p.m. on the day in issue, he arrived atthe accident scene where he saw Winceta Skrzypek lying in theroadway. Addante checked the victim's pulse and breathing, andshe was unresponsive to both. Addante then approached three menwho were standing on the side of the road to determine who wasdriving the vehicle that struck Skrzypek. Addante testified thatdefendant was driving the vehicle that struck the victim and thatwhen Addante arrived on the scene, it was resting on the medianwith flat tires.

On cross-examination, Addante stated that when he spoke withdefendant following the accident, he was within three or fourfeet of him. From that distance, Addante did not notice thesmell of alcohol on defendant's breath and did not noticeanything unusual about the way he spoke. Addante testified thatdefendant did not have any problems standing and admitted thatnothing regarding defendant's demeanor brought attention to thefact that the accident may have involved alcohol.

Officer Justin Beach testified that shortly after 3 p.m. hearrived at the accident scene. After speaking with Addante,Beach learned that defendant was the driver of the vehicle thathad struck Skrzypek. Beach stated that from 10 to 15 feet away,he noticed that defendant had bloodshot eyes. After defendantwas escorted to a squad car, Beach was informed by Sergeant JohnDahlberg that when Dahlberg had opened the door of the car, hesmelled a strong odor of alcohol inside the vehicle and, uponspeaking with defendant, Dahlberg smelled a strong odor ofalcohol on defendant's breath. Beach then asked, and defendantagreed, to complete a series of field sobriety tests.

Beach testified that when defendant recited the alphabetbeginning with the letter "A," he spoke "very rapidly" until hereached the letter "T," then paused for about three seconds andsuccessfully finished the alphabet. While defendant wasperforming this test, Beach could smell a "strong odor" ofalcohol on his breath. When defendant took the same test asecond time, he successfully completed it.

Defendant was also given the "one-legged stand" test and the"walk and turn" test. Beach stated that these tests wereadministered on a flat surface and that defendant failed both ofthem. Based upon defendant's performance on these tests, Beachconcluded that defendant was unfit to be operating a motorvehicle.

On cross-examination, Beach testified that when he arrivedat the scene and saw defendant, he was standing and did notappear to have a problem maintaining his balance. Beach statedthat he did not smell alcohol on defendant's breath at the timehe placed him in the squad car prior to administering thesobriety tests. Beach further stated that he did not noticeanything about defendant which would indicate that he had beendriving under the influence of alcohol until he was advised byDahlberg that defendant smelled of alcohol. Regarding the "one-legged stand" test, Beach testified that although defendantsuccessfully counted to 30 and did not put his foot down,defendant was swaying while the test was being administered. Onthe "walk and turn" test, defendant took each of the ninerequested steps, but swayed when he turned.

Ruthe Howes, an attorney with the Cook County State'sAttorney's office, testified that she met with defendant duringthe evening of July 17, 2000. Defendant told her that on the dayof the accident, he had been working at a construction site inLake Forest. On his way to work that morning, defendant hadpurchased a 1.75 liter of vodka. At the construction site,defendant had a "couple" of drinks consisting of vodka and 7-upbefore eating lunch. After lunch, defendant had "a couple ofdrinks in the afternoon" before leaving for home. Howes statedthat defendant told her that as he was about to get into the laneon Golf Road that turns left onto Elmhurst Road, his vehiclestruck the victim. Defendant told Howes that he did not see thevictim until he hit her and that as soon as he realized he hadhit something, he stopped the vehicle. Howes further stated thatshe was informed by defendant that, at the time of the accident,he was traveling near the posted speed limit of 40 miles per hourand he had swerved his truck in an attempt to avoid hitting thevictim. Howes also testified that about 6:25 p.m. the day of theaccident, she went to the accident scene. There, she saw abottle of vodka in the cab of defendant's truck, which had a"strong odor" of vodka inside it.

On cross-examination, Howes admitted to not includinganything about the smell of alcohol in defendant's truck in thenotes she had prepared in connection to the case. On redirect,Howes testified without objection that defendant told her that hewould take responsibility for driving under the influence ofalcohol, but he would not take responsibility for the recklesshomicide. On recross, Howes admitted that defendant's statementswith respect to taking responsibility on the charges were alsonot included in her notes.

Officer Richard Tracy, an evidence technician with the MountProspect police department, testified that a cup, which containedabout a teaspoon of liquid, was recovered from the console ofdefendant's truck. A bottle of "Skol" vodka, with about three-quarters of its contents gone, was also recovered fromdefendant's vehicle. Tracy testified that there were no skidmarks from defendant's truck present at the scene.

Sergeant John Dahlberg, who testified as an expert in thefield of accident reconstruction, stated that he arrived at thescene about 3 p.m. on the day at issue. Once there, Dahlbergwas informed by defendant that he had been traveling slightlybelow the 40-mile-per-hour speed limit westbound on Golf Roadwhen the victim came "out of nowhere" and entered into his path. Dahlberg, while sitting in the backseat of a squad car withdefendant, detected a "relatively strong odor of alcoholicbeverage emanating from his breath." Dahlberg testified thatdefendant's eyes were "bloodshot" and "glassy." When Dahlbergasked defendant whether he had consumed any alcohol prior to theaccident, defendant was "very hesitant" to answer and did notcommit to an answer.

Based upon the condition of the truck defendant was driving,Dahlberg concluded that the damage was consistent withdefendant's version of events that he had attempted to avoidhitting the victim prior to impact. Dahlberg further testifiedthat there were no tire marks in the area before the locationwhere the victim was struck and that tire marks past the area didnot come from defendant's truck.

On cross-examination, Dahlberg testified that prior tospeaking with defendant, he had not been told that the accidentwas alcohol related. Dahlberg stated that during hisconversation with defendant, he had no problem understanding him. He also stated that there appeared to be "a lack of pre-impactbraking and a lack of post-impact braking" on defendant's part.

The parties stipulated that the vodka bottle and cuprecovered from defendant's vehicle contained ethyl alcohol. Theparties further stipulated that based upon a blood sample takenfrom defendant at 5:40 p.m. the day of the accident, his blood-alcohol concentration (BAC) was .13.

The parties also stipulated that if called as a witness attrial, Officer Szmergalski of the Mount Prospect policedepartment would testify that he spoke with Jeffrey Easton, thedriver of the vehicle in which Terry Thomas was a passenger,after the accident. Easton told the officer that he saw thevictim step off the curb and look to her left. When she saw theapproaching traffic, the victim ran in front of the truck drivenby defendant and he "tried to swerve to avoid hitting her."

After the parties rested, the court heard closing arguments. It then found defendant guilty of three counts of recklesshomicide and two counts of aggravated driving under the influenceof alcohol. Defendant was subsequently sentenced and he nowappeals.

ANALYSIS

I. Constitutionality of the Reckless Homicide Statute

Defendant first contends that section 9-3(b) of the IllinoisCriminal Code of 1961 (720 ILCS 5/9-3(b) (West 2000)), thereckless homicide statute, is unconstitutional.

The statute provides:

"(b) In cases involving reckless homicide, beingunder the influence of alcohol or any other drug ordrugs at the time of the alleged violation shall bepresumed to be evidence of a reckless act unlessdisproved by evidence to the contrary." 720 ILCS 5/9-

3(b) (West 2000).

Defendant argues this statute is unconstitutional because itviolates his due process rights by creating a mandatorypresumption of recklessness. He asserts that the effect of thisis to improperly relieve the State of its burden of provingrecklessness beyond a reasonable doubt.

It is well settled that in establishing a defendant's guilt,the State may rely upon presumptions or inferences. People v.Hester, 131 Ill. 2d 91, 98 (1989). "A presumption is a legaldevice which permits or requires the fact finder to assume theexistence of a presumed or ultimate fact, after certain predicateor basic facts have been established." People v. Watts, 181 Ill.2d 133, 141 (1998). A presumption that is permissive allows, butdoes not require, the finder of fact "to infer the existence ofthe ultimate or presumed fact upon proof of the predicate fact,without placing any burden on the defendant." Watts, 181 Ill. 2dat 142. "With a permissive presumption, the fact finder 'is freeto accept or reject the suggested presumption.' " Watts, 181Ill. 3d at 142, quoting Hester, 131 Ill. 2d at 99.

"A mandatory presumption instructs the jury that it mustinfer the presumed fact if the State proves certain predicatefacts." Francis v. Franklin, 471 U.S. 307, 314, 85 L. Ed. 2d344, 353, 105 S. Ct. 1965, 1971 (1985). In Francis the SupremeCourt explained:

"A mandatory presumption may be eitherconclusive or rebuttable. A conclusivepresumption removes the presumed element fromthe case once the State has proved thepredicate facts giving rise to thepresumption. A rebuttable presumption doesnot remove the presumed element from the casebut nevertheless requires the jury to findthe presumed element unless the defendantpersuades the jury that such a finding isunwarranted." Francis, 471 U.S. at 314 n.2,85 L. Ed. 2d at 353 n.2, 105 S. Ct. at 1971n.2.

Mandatory presumptions are unconstitutional because they violatea defendant's due process rights under the Illinois and UnitedStates Constitutions. Watts, 181 Ill. 2d at 142-49.

In support of his claim that the reckless homicide statuteunder which he was convicted is unconstitutional, defendantrelies upon People v. Pomykala, 326 Ill. App. 3d 390 (2001),appeal allowed, 198 Ill. 2d 628 (2002), where the Third Districtheld that section 9-3(b) is unconstitutional. In so ruling, thePomykala court reviewed the language of the reckless homicidestatute and concluded that the phrase "shall be presumed evidenceof a reckless act" communicated "the mandatory nature of thepresumption and causes the burden of proof to shift to thedefendant." Pomykala, 326 Ill. App. 3d at 394.

The State argues that section 9-3(b) does not create amandatory presumption. Rather, the State asserts that thepresumption is permissive and that the trier of fact may acceptor reject it. It argues that a finding by the trier of fact thata defendant is under the influence of alcohol does not require afinding of recklessness. Instead, it only requires that thetrier of fact consider intoxication as "evidence of a recklessact." (Emphasis added.) 720 ILCS 5/9-3(b) (West 2000).

Although this argument was expressly rejected by thePomykala court, the State directs this court to the legislativehistory of section 9-3(b). The State notes that Public Act 87-1198 (Pub. Act 87-1198, eff. September 25, 1992) changed thelanguage of the reckless homicide statute from "being under theinfluence of alcohol *** at the time of the alleged violationshall be prima facie evidence of a reckless act" to "being underthe influence of alcohol *** at the time of the alleged violationshall be presumed to be evidence of a reckless act unlessdisproved by evidence to the contrary." The State directs thiscourt to a statement made by Senator Dart during debates on theamendment when he stated that the amendment "makes a technicalchange in the definition of 'prima facie' *** in response to arecent case law [sic], People versus Atteberry." 87th Ill. Gen.Assem., Senate Proceedings, July 1, 1992, at 21-22 (statements ofSenator Dart). The State also directs us to a statement made byRepresentative Homer where he explained that the change wasintended to "substitute the actual legal definition of 'primafacie' evidence." 87th Ill. Gen. Assem., House Proceedings, June30, 1992, at 67-68 (statements of Representative Homer).

We must begin our analysis with the premise that courts havea duty to affirm the constitutionality of a statute if possible. See People v. Falbe, 189 Ill. 2d 635, 639 (2000). Also, astatute is presumed constitutional and any doubts must beresolved in favor of validity. Falbe, 189 Ill. 2d at 639.

In People v. Atteberry, 213 Ill. App. 3d 851 (1991), thiscourt reversed a defendant's conviction for reckless homicidewhere the jury received a non-pattern instruction that used thephrase "prima facie evidence" in the absence of a definition ofthe phrase. The Atteberry court quoted Black's Law Dictionary'sdefinition of prima facie as being " 'a fact presumed to be trueunless disproved by some evidence to the contrary.' " Atteberry,213 Ill. App. 3d at 854, quoting Black's Law Dictionary 1071 (5thed. 1979). The court explained that "[w]hen using the term'prima facie' within an instruction, the instruction shouldcontain an explanation of its meaning." Atteberry, 213 Ill. App.3d at 854. As the legislative history makes clear, Public Act87-1198, which amended the language of section 9-3(b) into itscurrent form, was passed to address Atteberry. However, thecourt in Atteberry did not find section 9-3(b) to beunconstitutional; it merely required that when a jury was to beinstructed regarding "prima facie evidence," it must also beinstructed as to the definition of the term "prima facie."

Prior to Atteberry, our supreme court addressed thepreamended version of section 9-3(b) in People v. Jackson, 118Ill. 2d 179 (1987). There, the court stated, in the context of adouble jeopardy analysis, that a conviction for driving under theinfluence of alcohol is "only evidence of the reckless act" andthat

"such a conviction is prima facie evidence,but it is not conclusive. The convictiondoes not establish an essential element ofreckless homicide, that is, a reckless act. The prima facie evidence may be rebutted byshowing that although the accused was underthe influence of alcohol when he performedthe acts causing the death of another, theacts were not in fact performed recklessly." Jackson, 118 Ill. 2d at 191, overruled onother grounds by People v. Stefan, 146 Ill.2d 324, 338 (1992).

In reliance upon the supreme court's decision in Jackson,this court in People v. Garofalo, 181 Ill. App. 3d 972 (1989),upheld the preamended version of section 9-3(b) against aconstitutional challenge. This court held that the language"being under the influence of alcohol *** shall be prima facieevidence of a reckless act" did not create a mandatorypresumption because the statute spoke in terms of prima facie,rather than conclusive, evidence. Garofalo, 181 Ill. App. 3d at978.

In People v. Robinson, 167 Ill. 2d 53, 75 (1995), oursupreme court stated:

"In the criminal context, prima facieevidence is in the nature of a presumption,more accurately described as an instructedinference. (See M. Graham, Cleary & Graham'sHandbook of Illinois Evidence