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No. 2--01--0751

I. BACKGROUND

On October 9, 1999, at approximately 8:30 a.m., defendant wasdriving 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 afoggy morning and visibility was approximately 50 feet. Defendantwas returning home from a Denny's restaurant after having breakfastthere. Defendant testified that he had spent the prior night at abirthday party at a friend's house. He acknowledged havingconsumed 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 notbelieve defendant was intoxicated. Additionally, a paramedic whotreated defendant following the accident stated that he did notdetect any alcohol on defendant. A police officer testified thathe made no notation in his report that defendant appeared to beunder the influence of alcohol. A blood test, the accuracy ofwhich was vigorously disputed by defendant, showed defendant had aserum blood alcohol level of 198 milliliters per deciliter of wholeblood. A forensic pathologist testified that such a reading wouldindicate that defendant's blood-alcohol content was between .158and .174.

Defendant stated that he was traveling at approximately 40miles per hour at the time of the accident. Accidentreconstruction evidence indicated that defendant's speed could havebeen from as low as 46 miles per hour to as high as 84 miles perhour. Two eyewitnesses, who observed defendant shortly before thecrash, estimated his speed at 65 to 70 miles per hour. Additionalevidence will be discussed as it pertains to the issues defendantraises.

II. ANALYSIS

Defendant raises four issues on appeal. First, he contendsthat the reckless homicide statute (720 ILCS 5/9--3 (West 1998)) isunconstitutional. Second, he asserts that the trial court erred indenying his request to present character evidence to the jury. Third, he argues that he should have been allowed to use a chart asan exhibit during closing argument. Fourth, he complains that thetrial court refused to instruct the jury that excessive speed aloneis insufficient to prove recklessness.

A. Constitutionality of the Reckless Homicide Statute

Defendant first argues that the statute he was convicted undercontains an unconstitutional mandatory presumption. Defendantcontends that the presumption is not severable from the remainderof the statute and the statute is thus void. The constitutionalityof 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 ThirdDistrict case of People v. Pomykala, 326 Ill. App. 3d 390 (2001),appeal allowed, 198 Ill. 2d 628 (2002). At issue in Pomykala waswhether the following portion of the reckless homicide statutecreated a mandatory presumption that relieved the State of itsburden of proving that the defendant acted in a reckless manner:

"In cases involving reckless homicide, being under theinfluence of alcohol or any other drug or drugs at the time ofthe alleged violation shall be presumed to be evidence of areckless 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 juryto conclude that a defendant was acting recklessly and thus shiftedthe burden to the defendant to prove otherwise. Pomykala, 326 Ill.App. 3d at 394. The Third District then noted that our supremecourt has held that all mandatory presumptions are unconstitutionalin criminal cases. See People v. Watts, 181 Ill. 2d 133, 147(1998). Accordingly, the Third District vacated the defendant'sconviction and remanded the matter for a new trial. Pomykala, 326Ill. App. 3d at 394. We note that the First District has recentlyconsidered this issue and concluded that the presumption is notmandatory. 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, wemust ultimately deny defendant's request that we declare the entirestatute void. In the instant case, we are confronted with an issuethat the Pomykala court did not address. It did not expressly passon the issue of whether the presumption is severable from thebalance of the statute. In fact, the concurrence in Pomykala seemsto have taken the defendant's argument to be a facial challenge tothe statute; however, the majority opinion appears to have heldthat the statute, in conjunction with jury instructions given inthat 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 faciallyunconstitutional and void.

We will assume, arguendo, that the presumption is faciallyunconstitutional, thus leaving the question of whether thepresumption is severable from the remainder of the statute. Severability is generally a question of legislative intent. Peoplev. Warren, 173 Ill. 2d 348, 371 (1996). The relevant test fordetermining whether a portion of a statute is severable is

" ' "whether the valid and invalid provisions of the Act are'so mutually "connected with and dependent on each other, asconditions, considerations or compensations for each other, asto warrant the belief that the legislature intended them as awhole * * *." ' [Citation.] The provisions are not severableif 'they are essentially and inseparably connected insubstance.' [Citation.]" ' " People v. Watts, 181 Ill. 2d133, 151 (1998), quoting Warren, 173 Ill. 2d at 371-72,quoting Fiorito v. Jones, 39 Ill. 2d 531, 540.

A related consideration is "whether the legislature would havepassed the valid portions of the statute without the invalidportions." Watts, 181 Ill. 2d at 151.

Additionally, the presence or absence of a severability clauseis not dispositive of whether the legislature intended a provisionto be severable. People ex rel. Chicago Bar Ass'n v. State Boardof Elections, 136 Ill. 2d 513, 532 (1990). Despite the absence ofsuch a clause in a statute, a provision may still be severableunder the general severability statute (5 ILCS 70/1.31 (West 1998))or prior case law. Watts, 181 Ill. 2d at 150-51. With theseprinciples in mind, we will now turn to the question of whether thelegislature intended the presumption contained in subsection (b) ofthe reckless homicide statute to be severable from the rest of thestatute.

We conclude that it did. Most tellingly, we observe thatsubsection (a), which defines the substantive offense, was enactedin its present form by Public Act 79--679 (Pub. Act 70--679,approved September 3, 1975). Subsequently, the presumption atissue here was added to the statute by Public Act 84--272 (Pub. Act84--272, eff. January 1, 1986). In Watts, our supreme court founda presumption contained in a criminal statute to be severable wherethe presumption was added six years after the statute wasoriginally enacted. Watts, 181 Ill. 2d at 151. Similarly, becausethe presumption at issue in the present case was a later additionto the statute, it is clear that the legislature did not intend theexistence of the substantive offense to be dependent on thepresumption.

Furthermore, as in Watts, 181 Ill. 2d at 151, the balance ofthe reckless homicide statute "may operate without the presumptionprovision, because the presumption provision operates only to easethe State's burden of prosecution." Excising subsection (b) fromthe reckless homicide statute does nothing to render the statuteunintelligible. Subsection (a) continues to define the substantiveoffense. 720 ILCS 5/9--3(a) (West 1998). Subsection (c) defineswhat it means to be under the influence for the purpose of thestatute. 720 ILCS 5/9--3(c) (West 1998). Subsection (d) containsgeneral penalty provisions (720 ILCS 5/9--3(d) (West 1998)), andsubsection (e) specifies heightened penalties when a defendant isconvicted of reckless homicide while under the influence of alcoholor another drug (720 ILCS 5/9--3(e) (West 1998)). No portion ofthe statute is rendered surplusage. Subsection (c) retains itsrelevance, for it establishes when the penalties contained insubsection (e) apply. In short, removing subsection (b) doesnothing beyond eliminating the presumption that eased the State'sburden of proof. Because striking subsection (b) has so littleeffect on the entire statutory scheme, we cannot conclude that itis so intertwined with the rest of the statute that the legislatureintended the statute to stand or fall as a whole. Accordingly, wereject defendant's contention that the reckless homicide statute isvoid.

B. Reputation Evidence

Defendant next asserts that the trial court erred by barringhim from introducing evidence regarding his reputation fortemperance. Generally, a defendant may introduce evidence of hisor her good character insofar as it relates to a particularcharacter trait pertinent to the charged offense. People v. Hall,159 Ill. App. 3d 1021, 1027 (1987). Whether character evidenceshould be admitted is a matter lying within the sound discretion ofthe trial court, and we will not disturb the decision of the trialcourt absent an abuse of that discretion. People v. Reid, 272 Ill.App. 3d 301, 309 (1995). Further, where evidence is erroneouslyexcluded, a defendant must establish that its exclusion prejudicedhim or her in some way before the error warrants reversal. Peoplev. Boshears, 228 Ill. App. 3d 677, 691 (1992) ("It is defendant'sburden to demonstrate prejudice and to establish that there was areasonable possibility that the error, in light of all theevidence, was a material factor in his conviction, and a claim ofprejudice must be founded on more than mere conjecture"); see alsoPeople v. Miller, 211 Ill. App. 3d 572, 585 (1991).

While we are uncertain as to the reason for the trial court'sreluctance to permit defendant to introduce this testimony, we areconvinced that, although this decision may have been erroneous, itwas also harmless. We initially note that defendant's offer ofproof as to the nature of the testimony he wished to introduce wasquite vague. Our supreme court has held that, "[w]here anobjection is sustained to the offered testimony of a witness, anadequate offer of proof is made if counsel makes known to the trialcourt, with particularity, the substance of the witness'anticipated answer." People v. Andrews, 146 Ill. 2d 413, 421(1992). A conclusory summary of a witness's anticipated summary isinadequate. Andrews, 146 Ill. 2d at 421. In the present case,counsel merely stated "reputation evidence would be presented that,although [defendant has] been seen drinking, he has a reputation ofbeing somebody who does not go out and get drunk and drink toexcess." We conclude that this offer of proof is sufficient topreserve the issue; however, our review is somewhat hamperedbecause of the general nature of this offer of proof.

In its brief, the State asserts that, had defendant beenallowed to present this testimony, it would have been able tointroduce considerable evidence that would have controverted thenotion that defendant had a reputation for temperance. The Statepoints out that defendant's presentence investigation showsnumerous arrests for underage consumption and possession ofalcohol. Additionally, the report reveals that defendant wasordered to undergo substance abuse treatment at one point. Defendant does not respond to this argument. Furthermore, we notethat one witness stated that he had seen defendant when he had toomuch to drink. The witness related that when defendant isintoxicated he gets loud and likes to sing.

It appears to us that, had defendant been allowed to introduceevidence of his alleged reputation for temperance, the State wouldhave been able to counter it with ample contradictory evidence. Inlight of defendant's vague offer of proof, it is impossible for usto conclude that the exclusion of this evidence had a materialeffect on the trial. In other words, defendant has notdemonstrated that he was prejudiced by the trial court's decision.

C. Use of an Exhibit During Closing Argument

Defendant next complains of the trial court's denial of hisrequest to use two large posterboard grids during closing argument. An accident reconstruction specialist testified that the pre-impactskid of defendant's vehicle was 15.9 feet long. The witness alsotestified that the northernmost point of the skid was located 59.75feet north of a reference point and that the southernmost point ofthe skid was 30 feet north of the reference point. The witnesscould not answer when asked whether that meant that the skidnecessarily had to be at least 30 feet long. Defendant contendsthat he should have been able to use two charts during closingargument to illustrate the impossibility of this testimony to thejury.

Whether to allow counsel to use such an exhibit during closingargument is a matter within the trial court's discretion. SeePeople v. Burrows, 148 Ill. 2d 196, 252 (1992). Our supreme courthas held that "an exhibit which merely summarizes clearlyunderstandable testimony and thereby serves only to memorializeparticular evidence should be disallowed." People v. Williams, 161Ill. 2d 1, 68 (1994); see also People v. Kinion, 105 Ill. App. 3d1069, 1077 (1982) (holding that the trial court abused itsdiscretion in permitting the use of a chart that merely summarizedmatters that were understandable from oral testimony).

We find no abuse of discretion in the trial court's decisionto prohibit defendant from using these exhibits. The propositiondefendant sought to illustrate during closing argument wasexceedingly simple. It does not take a chart to demonstrate thatsubtracting 30 from 59.75 yields a sum of 29.75. An abuse ofdiscretion occurs only when no reasonable person could agree withthe position taken by the trial court. People v. Peterson, 311Ill. App. 3d 38, 45 (1999). A reasonable person could easilyconclude that defendant's charts were unnecessary to explain thissimple proposition and that the only purpose they served was tomemorialize this testimony. Accordingly, the trial court did notabuse its discretion in barring their use.

D. Jury Instruction on Excessive Speed

Defendant's final contention is that the trial court shouldhave instructed the jury that excessive speed, by itself, isinsufficient to prove recklessness. In support, defendant citesPeople v. Jakupcak, 275 Ill. App. 3d 830, 838 (1995), where theThird District stated, "Excessive speed, by itself, is notsufficient to sustain a conviction of reckless homicide." TheJakupcak court confronted the issue in the context of a challengeto the sufficiency of the evidence. This court confronted theissue in the context of a jury instruction in People v. Testin, 260Ill. App. 3d 224, 232-34 (1994).

In Testin, we held that the following instruction was overlybroad and an incorrect statement of the law: " 'Driving over thespeed limit does not, in and of itself, constitute "recklessness"to support conviction for reckless homicide.' " Testin, 260 Ill.App. 3d at 232. Simply stating that speeding did not constituterecklessness was misleading in that it did not convey a properanalysis of applicable law. Testin, 260 Ill. App. 3d at 234. Weconcluded that "[a] proper instruction would suggest that speed,combined with other factors surrounding the victim's death, wouldbe sufficient to support a finding of recklessness." Testin, 260Ill. App. 3d at 234. In fact, Jakupcak recognizes that excessivespeed in light of circumstances surrounding an accident mayconstitute recklessness. Jakupcak, 275 Ill. App. 3d 830. Ifstating that "driving over the speed limit does not constituterecklessness" is incorrect and overly broad, then, a fortiori,"driving at an excessive speed does not constitute recklessness" isalso an incorrect and overly broad statement of the law.

A trial court possesses discretion to determine whether aninstruction should be given to the jury. People v. Pinkney, 322Ill. App. 3d 707, 720 (2000). In light of the foregoing, the trialcourt did not abuse its discretion in refusing to give defendant'stendered instruction.

CONCLUSION

Accordingly, the judgment of the circuit court of WinnebagoCounty is affirmed.

CALLUM and KAPALA, JJ., concur.