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Docket No. 97486-Agenda 16-September 2004.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
FREDERICK E. HOOD, Appellee.

Opinion filed December 2, 2004.

JUSTICE FITZGERALD delivered the opinion of the court:

Following a jury trial in Macoupin County, defendant FrederickHood was convicted of illegal transportation of alcohol (625 ILCS5/11-502(a) (West 2000)), failure to yield to a pedestrian in thecrosswalk (625 ILCS 5/11-1002(a) (West 2000)), and recklesshomicide (720 ILCS 5/9-3(a) (West 2000)), and sentenced to threeyears in the Illinois Department of Corrections. Defendant appealed,arguing in relevant part that the trial court erred by allowing theState's expert to testify in rebuttal. A majority of the appellate courtagreed with defendant that the rebuttal testimony was improperbecause the State had violated the expert disclosure provisions ofSupreme Court Rule 412 (188 Ill. 2d R. 412). The appellate courtaffirmed defendant's convictions for illegal transportation of alcoholand failure to yield to a pedestrian in the crosswalk, but reverseddefendant's conviction for reckless homicide and remanded for a newtrial. 343 Ill. App. 3d 1245.

For the reasons discussed below, we reverse the judgment of theappellate court reversing defendant's reckless homicide conviction andremand to the appellate court for consideration of the balance ofdefendant's arguments on appeal.

BACKGROUND

On the afternoon of November 28, 2000, defendant was drivinghis van westbound on Main Street in Mt. Olive, Illinois. As defendantmade a left turn from Main Street onto southbound Poplar Street, hisvan struck 95-year-old Marie Schwab, causing serious injury. Schwabdied approximately three weeks later.

David Smith, a Mt. Olive resident who witnessed the accident,testified for the State. Smith stated that on November 28, 2000, atabout 3 p.m., he and his girlfriend, Tricia Marietta, picked up his sonfrom school. Smith drove eastbound on Main Street and stopped atthe stop sign at Poplar Street. The intersection of Main and Poplar isa four-way stop. The speed limit is 20 miles per hour. Smith observeda van coming from the east at a "pretty good rate of speed." Althoughit was Smith's turn to proceed through the intersection, he waitedbecause he believed the van was not going to stop. To his right, onPoplar Street, Smith could see a woman, later identified as MarieSchwab, about halfway through the crosswalk. The van failed to stopat the stop sign and rounded the corner "at a pretty good clip ***rock[ing] to the right." Schwab raised her left hand, but the van didnot stop. The van struck Schwab, lifting her off her feet and throwingher about five feet. Smith proceeded to the police station, which wasa block away, to report the accident. As he drove through theintersection, he saw defendant exit the van, "kind of stumble and leanagainst the door."

Tricia Marietta similarly testified that the van defendant wasdriving did not stop or slow down as it approached Poplar Street. Asthe van turned onto Poplar, Marietta saw that defendant was lookingnorth. Marietta saw Schwab raise her left hand, but the van did notstop until it struck her. Smith and Marietta, as well as an employee ofthe ambulance service that responded to the accident, testified that theweather was cloudy and overcast.

John Tandy, formerly a patrolman with the Mt. Olive policedepartment, arrived first on the scene. He testified that Marie Schwabwas lying motionless in the center of the road, south of the crosswalk.Defendant was leaning against one of the van doors, holding his 18-month-old son, Lucas. Tandy admitted meeting defendant on a coupleof occasions but denied having a "confrontation" with him. Defendanttold Tandy he was driving west on Main Street, came to a stop atPoplar Street, turned left and heard a thump or a thud, and thenstopped. Tandy noticed a strong odor of beer on defendant's breathand that his eyes were glassy and bloodshot. Defendant did not makeeye contact with Tandy. Defendant produced his license, but said hedid not have his insurance card. Defendant offered to go home to getit. When Tandy asked defendant for the telephone number of a relativewho could pick up Lucas, defendant had trouble relaying the numbercorrectly. Defendant's speech was "a little slurred, a little garbled,mumbly."

Tandy further testified that he noticed an open cooler betweenthe two front seats of the van. In the cooler were seven unopened, 12-ounce cans of Busch beer, five empty cans, one partially filled can,which was still cold, and some ice. Tandy smelled the open can toverify that it contained beer. Defendant told Tandy that he had twobeers earlier in the day at Tillie's, a local tavern. According to Tandy,defendant refused to take any field sobriety tests and volunteered thathe would not take a breath test. Tandy placed defendant under arrestfor driving under the influence of alcohol and hitting a pedestrian.

After checking on Schwab's condition and taking somemeasurements of the accident scene, Tandy transported defendant,who was handcuffed, to a hospital for the purpose of collecting bloodand urine samples. As they walked through the hospital parking lot,a distance of 50 to 100 feet, Tandy had to take defendant by the arma couple of times to keep him from falling. Defendant was "uneasy onhis feet," "stumbling a little bit, staggering a little bit, weaving fromside to side." A blood sample was collected at 5:40 p.m.,approximately 2