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Docket No. 93089-Agenda 21-September 2002.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. THOMAS POMYKALA, Appellee.

Opinion filed January 24, 2003.

JUSTICE GARMAN delivered the opinion of the court:

Following a jury trial in the circuit court of Will County,defendant Thomas Pomykala was convicted of reckless homicide.The appellate court reversed and remanded for a new trial, holdingthat section 9-3(b) of the Criminal Code of 1961 (Code) (720ILCS 5/9-3(b) (West 2000)) created an unconstitutionalmandatory presumption of recklessness. 326 Ill. App. 3d 390. Wegranted the State's petition for leave to appeal. 177 Ill. 2d R. 315.We now affirm the appellate court.

BACKGROUND

Defendant was charged with two counts of reckless homicidein the death of Taylor Nicole Pirc. Defendant's car allegedlycrossed the median of a divided two-way street and struck anoncoming car containing Taylor and her grandmother, BernadinePirc. Eyewitnesses testified that defendant was driving too fast andthat his car had crossed the median more than once prior tostriking the Pirc car. No skidmarks were found at the scene.Defendant told a police officer that he had been having troublewith his brakes and that they worked only 90% of the time. Theofficer saw a line of black liquid on the street running to a spotunder the engine of defendant's car. The officer noticed a strongodor of alcohol on defendant's breath and he found approximately18 empty beer cans in defendant's car. Defendant admitted todrinking several beers that day. He failed field sobriety tests andan intoxilizer test showed that he had a breath-alcoholconcentration level of 0.21%. At defendant's trial, an automechanic testified that the brake fluid chamber on defendant's carwas only 80% full. The main battery feed for the brake system wasdisconnected and the hydraulic pressure for the system wasmarkedly reduced. Nonetheless, the mechanic testified,defendant's car should have had 30% braking power prior to thecollision and should have stopped when the brake was applied,despite the reduced braking power. Defendant presented noevidence.

Over defendant's objection, the trial court gave the followingnon-Illinois Pattern Jury Instructions (IPI) instruction to the jury,which was taken from the language of section 9-3(b) of the Code:

"If you find from your consideration of all the evidencethat the defendant was under the influence of alcohol atthe time of the alleged violation, such evidence shall bepresumed to be evidence of a reckless act unlessdisproved by evidence to the contrary."

The jury returned guilty verdicts and the trial court sentenceddefendant to 14 years' imprisonment.

The appellate court agreed with defendant that section 9-3(b)of the Code creates a mandatory presumption that violatesdefendant's right to due process. The court found that thepresumption unconstitutionally shifts the burden of proof todefendant to establish that he was not acting recklessly. Inreaching its conclusion, the appellate court relied on a decision ofthis court, People v. Watts, 181 Ill. 2d 133 (1998), and noted thatthe trial court had relied on People v. Atteberry, 213 Ill. App. 3d851 (1991), which, the appellate court stated, had effectively beenoverruled by Watts. 326 Ill. App. 3d at 394.

ANALYSIS

The constitutionality of a statute is subject to de novo review.People v. Malchow, 193 Ill. 2d 413, 418 (2000). Statutes carry astrong presumption of constitutionality and the challenging partyhas the burden of rebutting that presumption. People v. Maness,191 Ill. 2d 478, 483 (2000). This court has a duty to interpret astatute in a manner that upholds its validity and constitutionalityif it can reasonably be done. People v. Fisher, 184 Ill. 2d 441, 448(1998).

Section 9-3(b) of the Code provides that:

"In cases involving reckless homicide, being under theinfluence of alcohol or any other drug or drugs at the timeof the alleged violation shall be presumed to be evidenceof a reckless act unless disproved by evidence to thecontrary." 720 ILCS 5/9-3(b) (West 2000).

A presumption is a legal device that permits or requires thefact finder to assume the existence of an ultimate fact, after certainpredicate or basic facts have been established. Watts, 181 Ill. 2d at141. While due process requires that the State prove every elementof an offense beyond a reasonable doubt (In re Winship, 397 U.S.358, 364, 25 L. Ed. 2d 368, 375, 90 S. Ct. 1068, 1073 (1970)), theState may be entitled to rely on certain presumptions or inferences.These devices "play a vital role in the expeditious resolution offactual questions, with the value of the presumption or inferenceresting on the strength of the connection between the elemental orultimate fact presumed or inferred and the basic or evidentiaryfact." People v. Hester, 131 Ill. 2d 91, 98 (1989).

Presumptions may be either permissive or mandatory. Apermissive presumption allows, but does not require, the factfinder to infer the existence of the ultimate or presumed fact uponproof of the predicate fact. A mandatory presumption requires thefact finder to accept the presumption. Watts, 181 Ill. 2d at 142.Mandatory presumptions may be further classified as conclusiveor rebuttable. The United States Supreme Court has held thatmandatory conclusive presumptions are unconstitutional, as theyconflict with the presumption of innocence. Sandstrom v.Montana, 442 U.S. 510, 523, 61 L. Ed. 2d 39, 50, 99 S. Ct. 2450,2459 (1979). The Supreme Court has further held that mandatoryrebuttable presumptions that shift the burden of persuasion to thedefendant are per se unconstitutional, because they relieve theState of its burden to prove each element of the offense beyond areasonable doubt. Sandstrom, 442 U.S. at 524, 61 L. Ed. 2d at 51,99 S. Ct. at 2459. In Watts, this court held that mandatoryrebuttable presumptions that shift the burden of production to thedefendant are also unconstitutional. Watts, 181 Ill. 2d at 147. Thus,under Illinois law, all mandatory presumptions are now consideredto be per se unconstitutional.

The decisions of our appellate court are in conflict on thequestion of the constitutionality of section 9-3(b). In addition tothe Third District in this case, the Second District has found thesection to be unconstitutional, although severable from theremainder of the statute (People v. Singmouangthong, 334 Ill.App. 3d 542, 546 (2002)). In contrast, the First District has foundthat section 9-3(b) does not constitute a mandatory presumption(People v. Peshak, 333 Ill. App. 3d 1052 (2002)).

Prior to 1992, section 9-3(b) read as follows:

"In cases involving reckless homicide, being under theinfluence of alcohol or any other drug or drugs at the timeof the alleged violation shall be prima facie evidence of areckless act." Ill. Rev. Stat. 1991, ch. 38, par. 9-3(b).

The General Assembly changed this language to its presentform in 1991 (Pub. Act 87-1198, eff. September 25, 1992),apparently in response to the Third District's decision in People v.Atteberry, 213 Ill. App. 3d 851 (1991). See 87th Ill. Gen. Assem.,Senate Proceedings, July 1, 1992, at 21-22 (statements of SenatorDart). In Atteberry, the defendant was convicted of recklesshomicide. The trial court gave the jury a non-IPI instruction thatrepeated verbatim the statutory language of the prior version ofsection 9-3(b), without providing a definition of the term "primafacie." On appeal, the defendant challenged the instruction ascreating an irrebuttable presumption of recklessness in languagethat was either not understood or misunderstood by the jury. Theappellate court stated that a presumption cannot constitutionallyshift the burden of persuasion to the defendant and that the jurycould have understood the term "prima facie" to mean that if thedefendant was under the influence of alcohol, he was conclusivelypresumed to be acting recklessly. The court noted the definition of"prima facie" given in Black's Law Dictionary as "a factpresumed to be true unless disproved by some evidence to thecontrary" (Black's Law Dictionary 1189 (6th ed. 1990)) andsuggested that this definition should be provided to the jury in itsinstructions. Atteberry, 213 Ill. App. 3d at 854.

Subsequent to Atteberry, this court, in Watts, foundunconstitutional a presumption contained in the Home RepairFraud Act. The statute contained a rebuttable presumption ofintent or knowledge of nonperformance if certain specified factswere established. One of the elements of the offense was a lack ofintent to perform at the time of making a contract for home repair.Thus, proof of the predicate facts removed the element of intentfrom the case unless the presumption was rebutted by otherevidence. This court held that this presumption shifted the burdenof production to the defendant and that if he did not satisfy thisburden, the trial court would, in effect, be required to direct averdict against the defendant on the intent element. We noted thatsuch a result conflicts with the well-established rule that a verdictmay not be constitutionally directed against a defendant in acriminal case. Watts, 181 Ill. 2d at 147.

The State argues here that the alleged presumption in this caseis unlike the presumption in Watts, because it does not require thefact finder to presume the existence of any element of the offenseof reckless homicide. It merely tells the fact finder that it mustconsider the fact of intoxication as evidence of a reckless act inconjunction with other evidence that may be produced on the issueof recklessness. However, even though the 1991 amendment tosection 9-3(b) was intended to simply incorporate the definitionof "prima facie evidence," the section is now framed in thelanguage of a mandatory presumption. This court has interpretedthe word "shall" to connote a mandatory obligation unless thestatute indicates otherwise. People v. Thomas, 171 Ill. 2d 207, 222(1996). In addition, the word "presume" in this context means "tosuppose to be true without proof." Merriam-Webster's CollegiateDictionary 921 (10th ed. 2000).

The State argues that cases decided prior to the 1991amendment to section 9-3(b) did not find the language of thatsection to constitute a mandatory presumption. Thus, since thepreamended version of section 9-3(b) did not create a mandatorypresumption, the legislature's use of the definition of prima faciedoes not change this fact. However, in reality, the cases are inconflict on whether the preamended version of section 9-3(b)created a mandatory presumption. For example, the Atteberrycourt, in reversing the defendant's conviction, noted that the juryinstruction telling the jury that evidence of intoxication was"prima facie evidence of a reckless act" may have led the jury tobelieve that evidence of intoxication established a conclusivepresumption of recklessness that shifted the burden of persuasionto the defendant. Atteberry, 213 Ill. App. 3d at 853.

In People v. Garofalo, 181 Ill. App. 3d 972, 978 (1989), thedefendant contended that section 9-3(b) created a mandatorypresumption, either conclusive or rebuttable, of recklessness. TheSecond District held that no such presumption was created, relyingon this court's decision in People v. Jackson, 118 Ill. 2d 179(1987), overruled on other grounds, People v. Stefan, 146 Ill. 2d324, 338 (1992). In Jackson, a double jeopardy case, we brieflydiscussed the preamended version of section 9-3(b) in the contextof determining whether driving under the influence of alcohol isan included offense of reckless homicide. We concluded that itwas not, noting that a conviction for driving under the influence ofalcohol does not conclusively establish an essential element ofreckless homicide. However, we stated, the prima facie evidenceof intoxication may be "rebutted" by showing that, although thedefendant was under the influence of alcohol when the actoccurred, the acts were not in fact performed recklessly. Jackson,118 Ill. 2d at 190-91. Further illustrating the confusion over theeffect of the "prima facie" language of the preamended version ofsection 9-3(b), the Second District appeared to contradict itsearlier decision in Garofalo, when, in People v. Edmundson, 247Ill. App. 3d 738, 742 (1993), it noted that the reckless homicidestatute "provides a rebuttable presumption that intoxication isequivalent to recklessness."

The primary rule of statutory construction is to give effect tothe intent of the legislature. Paris v. Feder, 179 Ill. 2d 173, 177(1997). The best evidence of legislative intent is the language usedin the statute itself and that language must be given its plain andordinary meaning. Paris, 179 Ill. 2d at 177. The State argues thatthe plain language of section 9-3(b) demonstrates that it does notcreate an impermissible mandatory presumption because it onlyrequires the fact finder to consider intoxication as evidence of areckless act. According to the State, even if the defendant does notpresent any evidence, the fact finder may determine from otherevidence presented by the State that the defendant did not actrecklessly. The State also argues that section 9-3(b) acts more asa permissive presumption, permitting, but not requiring, the factfinder to conclude that a reckless act occurred. Thus, the Stateconcludes, the appellate court here erroneously construed thephrase "evidence of a reckless act" to be equivalent to a mandatedfinding of recklessness and focused exclusively on that phrase,instead of reading it in concert with the concluding phrase, "unlessdisproved by evidence to the contrary."

We reject this argument. To do otherwise would require anoverly technical reading of the statute. Section 9-3(b) containslanguage of a mandatory presumption that a reasonable juror couldconclude requires a finding of recklessness without any factualconnection between the intoxication and the reckless act, unlessthis presumed connection is disproved. In fact, the language"unless disproved by evidence to the contrary" may be reasonablyinterpreted as requiring the defendant to rebut the presumption.Technically, of course, the rebutting evidence could come in theState's case. But, the presumption contained in section 9-3(b)must be applied by the fact finder. Thus, the statute and juryinstruction must be read from the perspective of a reasonable juror,not with the legal expertise of judges and lawyers. A reasonablejuror would assume from a reading of the instruction that, once theState established that the defendant was intoxicated, it had provedrecklessness, unless the defendant produced sufficient evidence todisprove it.

The State's argument that section 9-3(b) may be read as apermissive presumption is also unavailing. A permissivepresumption is illustrated by the following IPI jury instructiongiven in this case:

"If you find beyond a reasonable doubt that at the time thedefendant drove a vehicle that the amount of alcoholconcentration in the defendant's blood or breath was 0.08or more, you may presume that the defendant was underthe influence of alcohol. You never are required to makethis presumption. It is for the jury to determine whetherthe presumption should be drawn. You should consider allthe evidence in determining whether the defendant wasunder the influence of alcohol." Illinois Pattern JuryInstructions, Criminal, No. 23.30 (4th ed. 2000).

The permissive language of the quoted instruction cannotreasonably be compared to the mandatory language of the non-IPIinstruction involved here. There is simply no permissive languagein the latter instruction. Whether a defendant has been denied dueprocess by a jury instruction depends upon the way in which areasonable juror could have interpreted the instruction. Sandstrom,442 U.S. at 514, 61 L. Ed. 2d at 45, 99 S. Ct. at 2454. Areasonable juror could have interpreted the instruction here asmandating a finding of recklessness unless the defendant rebuttedthat presumption.

While we recognize our duty to uphold the constitutionalityof statutes if it can be reasonably accomplished (Fisher, 184 Ill. 2dat 448), we are also mindful of the well-established principle thatpenal statutes are to be construed strictly in favor of the defendant(People v. Whitney, 188 Ill. 2d 91, 98 (1999)). We agree withJustice McDade, who stated in her special concurrence in this casethat, although section 9-3(b) may be interpreted in the mannersuggested by the State, to do so would require a "technicalexercise of linguistic parsing that ill serves those-here trial courtjudges and jurors-who should be able to rely on the statute todetermine their decisional obligations." 326 Ill. App. 3d at 396(McDade, J., concurring). Accordingly, we hold that section9-3(b) of the reckless homicide statute creates an unconstitutionalmandatory presumption of recklessness. Concomitantly, we alsohold that the instruction to the jury on this issue violateddefendant's due process rights.

We next consider whether section 9-3(b) of the Code may besevered from the remainder of the reckless homicide statute. Wemay do so if what remains is complete in itself and is capable ofbeing executed wholly independently of the severed portion.People v. Sanders, 182 Ill. 2d 524, 534 (1998); see 5 ILCS 70/1.31(West 2000). Section 9-3(b) states an evidentiary rule regardingthe effect on the issue of recklessness of the accused being underthe influence of alcohol or other drugs. Subsection (c) of thestatute (720 ILCS 5/9-3(c) (West 2000)) sets forth the factors tobe considered in determining whether the accused person wasunder the influence of alcohol or other drugs at the time of theincident. Subsections (e) and (e-5) of the statute (720 ILCS5/9-3(e), (e-5) (West 2000)) provide for enhanced sentencingwhere a defendant has been determined to be under the influenceof alcohol or other drugs. The excision of the unconstitutionalpresumption in section 9-3(b) does not impair the meaning oroperation of the balance of the statute. The State may still pleadand prove that the defendant was under the influence of alcohol orother drugs at the time of the alleged violation, as defined insubsection (c), and if the jury finds that the State has proved thedefendant's intoxication beyond a reasonable doubt, thesentencing provisions in subsections (e) and (e-5) are available tothe trial court. Thus, we conclude that section 9-3(b) may besevered from the remainder of the statute.

For the first time on appeal, the State raises a harmless errorargument, maintaining that the evidence was sufficient to convictregardless of the presumption contained in section 9-3(b) of thereckless homicide statute and the erroneous jury instruction.Specifically, the State argues that defendant's conduct in drivinghis vehicle when he knew that his brakes did not work 10% of thetime is "absolutely the height of recklessness."

An error in a jury instruction is harmless if it is demonstratedthat the result of the trial would not have been different had thejury been properly instructed. People v. Johnson, 146 Ill. 2d 109,136 (1991). Here, it is clear that the jury was erroneouslyinstructed as to the presumption contained in the statute. We mustdetermine, therefore, whether the evidence of defendant's guiltwas so clear and convincing as to render the error harmless beyonda reasonable doubt. People v. Dennis, 181 Ill. 2d 87, 95 (1998).

The State charged defendant with two counts of recklesshomicide. Count I alleged that defendant drove his vehicle in areckless manner at a time when his blood-alcohol concentrationwas greater than 0.08. Count II alleged that defendant drove hisvehicle in a reckless manner while under the influence of alcohol.At trial, the jury heard evidence of defendant's intoxication and ofhis actions in driving his vehicle. The jury also heard evidence thatdefendant's brakes may have malfunctioned at the time of theaccident. The record also contains evidence of defendant'sknowledge that his brakes did not work properly all the time. Thejury was instructed, however, that it must presume recklessness ifthe State proved that defendant was under the influence of alcoholat the time of his actions. This evidence was thus emphasized tothe jury over other evidence heard by it during the trial. The juryconvicted defendant on both counts of reckless homicide. Bothcounts alleged that defendant was under the influence of alcohol.Under these circumstances, we are unable to find that the error ininstructing the jury on the statutory presumption was harmlesserror.

CONCLUSION

We affirm the judgment of the appellate court, which reverseddefendant's conviction and remanded the cause to the circuit courtfor a new trial.

Appellate court judgment affirmed.