Illinois Appellate Court Reports
PEOPLE v. MARTINEZ, 1-04-2023 (Ill.App. 1-12-2006) THE
PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
GERARDO MARTINEZ, Defendant-Appellant. No. 1-04-2023.
Appellate Court of Illinois, First District, Fifth
Division. January 12, 2007.
Appeal from the Circuit Court of Cook County, No. 02 CR
21122, Honorable Colleen McSweeney-Moore, Judge Presiding.
JUSTICE TULLY delivered the opinion of the court:
Following a jury trial, defendant, Gerardo Martinez, was
convicted of one count of reckless homicide (720 ILCS 5/9-3
(West 2000)). On June 11, 2004, the circuit court sentenced
defendant to 14 years’ imprisonment as a Class 2 felon. On
appeal, defendant asserts that (1) his sentence for
reckless homicide was nine years longer than the maximum
sentence permitted under the law that existed on the date
on which he was sentenced; (2) his conviction for reckless
homicide should be reversed because the jury instruction
and the verdict form inadvertently referred to the crime
with which defendant was charged as “aggravated reckless
homicide,” which is not a crime in the Criminal Code of 1961
(Criminal Code) (see 720 ILCS 5/1-1 et seq. (West 2000));
(3) he was denied a fair trial because the State failed to
produce the photographs and measurements of the accident
scene upon which the State’s traffic crash reconstruction
expert relied when he prepared a written report in which he
concluded how the accident occurred; (4) he was denied a
fair trial because the circuit court permitted the State to
show the jury pictures of “Wrong Way” signs that were
allegedly on the Damen Avenue exit ramp onto which
defendant drove his car in the wrong direction and because
the circuit court permitted the State to show the jury five
pictures depicting the victim’s injuries; and (5) his
14-year sentence was excessive because, during the hearing
on defendant’s motion to reconsider sentence, the circuit
court incorrectly stated that defendant had a “pending”
case involving driving under the influence of alcohol. We
affirm.
FACTS
Defendant was charged with three counts of reckless
homicide, four counts of driving while under the influence
of alcohol, and two counts of felony aggravated driving
under the influence of alcohol. The State, however,
proceeded to trial on only one charge of reckless homicide
(720 ILCS 5/9-3(a)(c)(1) (West 2000)).
Evidence produced at trial established the following facts:
On July 20, 2002, defendant went to a bar near the
intersection of 40th Street and Western Avenue in Chicago,
Illinois. Another bar patron, Jose Cahue, stated that when
he arrived at the bar, defendant was already sitting alone
and drinking beer. Defendant conversed with Cahue and they
each had approximately five beers. After approximately two
hours, defendant and Cahue exited the bar and traveled in
defendant’s car to another bar, which was located somewhere
on 18th Street in Chicago, Illinois. The two men stayed at
the bar on 18th Street for approximately two hours and each
had five additional beers.
After drinking the additional five beers, defendant and
Cahue exited the bar on 18th Street. Cahue testified that
he felt intoxicated when he left the bar on 18th Street and
he asked defendant if he would drive him to his home.
Defendant, who apparently felt he owed Cahue a favor since
Cahue had paid for many of his drinks throughout the
evening, agreed to drive Cahue to his home.
By the time defendant and Cahue left the bar on 18th
Street, it was approximately 1 a.m. Defendant intended to
drive his car onto the Damen Avenue entrance ramp toward
Interstate 55; in fact, defendant drove the wrong way onto
the Damen Avenue exit ramp. Evidence at trial confirmed
that there was a “Wrong Way” sign on the Damen Avenue exit
ramp, which defendant passed as he drove up the exit ramp.
When defendant reached the end of the Damen Avenue exit
ramp, his car was facing southbound toward the northbound
lanes of traffic. Defendant drove his car onto Interstate
55 and drove his car across four lanes of traffic and
pulled over to the left shoulder of the northbound lanes.
At some point, defendant’s car collided with a motorcycle
driven by Alexis Melendez. Melendez died as a result of the
collision with defendant’s car.
A number of witnesses testified at trial regarding the
circumstances surround the collision. The witnesses’
testimony confirmed that immediately before the collision,
Melendez was driving his motorcycle in the far left
northbound lane, traveling approximately 80 to 100 miles
per hour. Evidence at trial suggested that the collision
between defendant’s car and Melendez’s motorcycle occurred
in the far left northbound lane of traffic, near the
shoulder of Interstate 55. According to the witnesses and
other evidence produced at trial, Melendez’s motorcycle
“disintegrated” when it collided with defendant’s car and
debris was scattered across the highway.
Illinois State Trooper Brian Walker arrived at the scene of
the accident shortly before 2 a.m. on July 21, 2002.
Trooper Walker confirmed that it was a warm, clear, and dry
evening and he confirmed that the area where the accident
occurred was well lighted. Trooper Walker approached the
driver’s-side door of defendant’s car and observed two
males inside the car. The driver, identified as defendant,
was slouched forward and the passenger, identified as
Cahue, was pinned under the dashboard and passenger’s seat.
Trooper Walker took their pulses, observed their chest
compressions, and confirmed that both men were alive.
Trooper Walker attempted to awaken defendant by shaking
defendant’s seat and shouting at defendant, but his efforts
to awaken defendant were unsuccessful. Trooper Walker then
used his radio to notify the dispatch operator that the two
men were alive but that the two men were unresponsive to
his efforts to awaken them.
After speaking with the dispatch operator, Trooper Walker
walked about 60 feet north of defendant’s car to where
Melendez’s body was lying on the shoulder of the highway.
Melendez was not moving and he had sustained extensive
injuries as a result of the collision with defendant’s car.
Trooper Walker examined the body and confirmed that
Melendez was not breathing and did not have a pulse. An
autopsy of Melendez’s body later revealed that he had
sustained extensive fractures to his skull, his scapula,
both his arms, and both his legs. The autopsy further
revealed that Melendez’s lower spine was broken in such a
way that his thigh no longer was attached to his groin.
After confirming that Melendez was not breathing and did
not have a pulse, Trooper Walker returned to defendant’s
car and again attempted to awaken him. After four or five
minutes, defendant finally awoke and, according to Trooper
Walker, defendant’s eyes were bloodshot and glassy,
defendant was mumbling incoherently, and defendant’s breath
reeked of alcohol.
An ambulance arrived and removed Cahue from the passenger’s
seat of defendant’s car. Throughout the time he had been in
defendant’s car, Cahue had been either sleeping or
unconscious. In fact, Cahue testified that he had no
recollection of the events between the time that he and
defendant left the bar on 18th Street to the time that he
awoke in the hospital with sutures in his head.
Defendant was taken to Mount Sinai Hospital, where he was
treated by Dr. William Gossman. Dr. Gossman treated
defendant at 3 a.m. and, noting the odor of alcohol on
defendant’s breath, concluded that defendant’s primary
diagnosis was “acute alcohol intoxication.” At 3:17 a.m.,
in the presence of Trooper Walker, defendant’s blood was
drawn for purposes of assessing his blood-alcohol content.
A forensic toxicologist analyzed defendant’s blood sample
and concluded that defendant’s blood-alcohol concentration
was 0.247 grams per deciliter of ethanol, more than three
times the legal limit in Illinois, which is 0.08 grams per
deciliter of ethanol. In addition, at 3:37 a.m., defendant
provided a urine specimen, the results of which confirmed
that his urine contained .282 grams of alcohol.
Illinois State Trooper Peter Dimopoulos, an expert in
traffic crash reconstruction, arrived at the scene of the
collision at approximately 3:30 a.m. on July 21, 2002, to
begin his investigation of the circumstances surrounding
the collision. Trooper Dimopoulos’s investigation involved
examining both defendant’s car and what remained of
Melendez’s motorcycle, as well as taking photographs and
various measurements of the scene. After completing his
investigation, Trooper Dimopoulos prepared a written report
in which he concluded how the accident occurred. Trooper
Dimopoulos concluded that defendant’s car was traveling
southbound at a slow speed in the far left northbound lane
of Interstate 55. Melendez’s motorcycle was traveling
northbound in the same left lane of northbound traffic as
defendant’s car, but Melendez’s motorcycle was traveling at
a higher rate of speed than defendant’s car. The two
vehicles collided at the top of the hill crest. Prior to
the collision, defendant attempted to swerve his car to the
right to avoid the oncoming motorcycle, but was unable to
do so. At the point of impact, Melendez was thrown forward
from his motorcycle, causing him to strike his chest on the
handlebars of the motorcycle. After his chest struck the
handlebars, Melendez was thrown over the front of the
motorcycle, striking the windshield and then the roof of
defendant’s car.
Trooper Dimopoulos’s conclusion that defendant’s car was
not parked on the shoulder of Interstate 55 at the point of
impact was based on his analysis of the gouge marks he
found in the far left northbound lane of Interstate 55. He
concluded that the gouge marks were made by defendant’s car
and his analysis of the gouge marks confirmed that, rather
than being parked, defendant’s car was moving forward at the
time of the collision with Melendez’s motorcycle.
At trial, Trooper Dimopoulos testified on the State’s
behalf. Trooper Dimopoulos confirmed that he took
measurements and photographs of the scene, which he
attached to the written report he submitted to an “approval
committee.” At the time of trial, however, the measurements
and photographs were no longer attached to the written
report Trooper Dimopoulos had submitted to a State Police
“approval committee.” Trooper Dimopoulos testified at trial
that he did not know why the measurements and photographs
were no longer attached to the written report. Because the
location of the measurements and photographs was unknown
prior to trial, the State never tendered those measurements
and photographs to defendant. The State tendered other
photographs of defendant’s car and Melendez’s motorcycle
and the State provided defendant with a copy of both
Trooper Dimopoulos’s report and Trooper Walker’s report
regarding the circumstances surrounding the collision.
Dr. Gerald E. Cohn, also an expert in traffic crash
reconstruction, was called by defendant to testify
regarding the circumstances surrounding the collision. Dr.
Cohn was unable to review the measurements and photographs
taken by Trooper Dimopoulos because, as stated, the
location of Trooper Dimopoulos’s measurements and
photographs was unknown at the time of trial. In preparing
his report, Dr. Cohn reviewed Trooper Dimopoulos’s traffic
reconstruction report; he reviewed Trooper Walker’s report;
and he reviewed a set of photographs of defendant’s car and
Melendez’s motorcycle, which had been photographed at the
State police’s secured bay following the collision.
After reviewing these materials, Dr. Cohn discounted the
gouge marks upon which Trooper Dimopoulos had relied
because, according to Dr. Cohn, the deep gouge marks could
have been caused by debris. Dr. Cohn concluded that
defendant’s car was stopped near the shoulder of Interstate
55 and was facing the northbound traffic. Dr. Cohn opined
that Melendez’s motorcycle, which was traveling at a high
rate of speed, swerved from the far left northbound lane
into the shoulder of Interstate 55, striking defendant’s
stationary car.
Arturo Quintana, a truck driver who often drove his truck
on Interstate 55, testified at trial on defendant’s behalf.
Quintana testified that during the summer of 2002, he drove
his truck the wrong way up the Damen Street exit ramp.
Quintana stated that he drove his truck approximately four
feet up the exit ramp before realizing he was traveling in
the wrong direction, at which point he drove his truck in
reverse off of the ramp. Quintana stated that there were no
“Wrong Way” signs on the Damen Avenue exit ramp on the date
that he accidentally drove his truck up the exit ramp.
Finally, defendant testified on his own behalf and stated
that on the night of the collision, he consumed three
alcoholic beverages at the bar near the intersection of
40th Street and Western Avenue and he consumed three
additional alcoholic beverages at the bar on 18th Street.
Defendant stated that by the time he realized he was driving
his car in the wrong direction on the Damen Avenue exit
ramp, he was already halfway up the ramp and he believed it
would be impossible to turn around. Defendant stated that
he decided to continue driving up the exit ramp and he
decided that once he reached Interstate 55, he would cross
the four lanes and make a “U-turn” so that he would be
facing north. Defendant testified that he drove his car
across the four lanes of traffic and testified that while
he was stopped on the far left northbound lane facing
south, he felt something hit his car, at which point he
lost consciousness and awoke in the ambulance. Defendant
confirmed that he saw “Wrong Way” signs on the Damen Avenue
exit ramp, but he stated that he was already halfway up the
ramp when he saw them.
Following the trial, the jury found defendant guilty of
reckless homicide. At the sentencing hearing, the State
presented evidence confirming that defendant had two prior
cases involving driving under the influence of alcohol and
that defendant was driving with a suspended license at the
time of the collision. Following the sentencing hearing,
defendant was sentenced to the maximum penalty for reckless
homicide, which was 14 years’ imprisonment. Defendant’s
motion to reconsider sentence was denied and he filed a
timely notice of appeal.
DISCUSSION
Defendant’s first argument on appeal is that he received a
sentence for reckless homicide that was nine years longer
than the maximum sentence permitted under the law at the
time of his sentencing. Specifically, defendant argues that
the circuit court violated his due process rights by
failing to advise him of the option of receiving a sentence
under the more favorable reckless homicide statute that was
in effect on the date he was sentenced. The State responds
by arguing that the amendments to the reckless homicide
statute were substantive and, therefore, defendant was not
entitled to choose under which reckless homicide statute he
should be sentenced. We agree with the State.
A defendant is entitled to be sentenced under either the
law in effect at the time of the offense or the law in
effect at the time of the sentencing. People v. Hollins, 51
Ill. 2d 68, 71 (1972). A defendant’s due process rights are
violated if (1) he is not advised of his right to elect the
statute under which he should be sentenced and (2) he does
not expressly waive that right. Hollins, 51 Ill. 2d at 71.
If, however, the newly enacted statute changes the nature
or substantive elements of an existing offense, the
defendant may be convicted and sentenced under the law in
effect at the time the offense was perpetrated. People v.
Land, 178 Ill. App. 3d 251, 260 (1988); People v. Fisher,
135 Ill. App. 3d 502, 508 (1985).
In this case, on July 21, 2002, which was the date of the
offense, section 9-3 of the Criminal Code classified
reckless homicide as a Class 3 felony, punishable by two to
five years’ imprisonment. 720 ILCS 5/9-3(d)(2) (West 2000).
In addition to the general classification of reckless
homicide as a Class 3 felony, section 9-3(e) of the
Criminal Code stated that “in cases involving reckless
homicide in which the defendant was determined to have been
under the influence of alcohol or any other drug or drugs
as an element of the offense, or in cases in which the
defendant is proven beyond a reasonable doubt to have been
under the influence of alcohol or any other drug or drugs,
the penalty shall be a Class 2 felony, for which a person,
if sentenced to a term of imprisonment, shall be sentenced
to a term of not less than 3 years and not more than 14
years.” 720 ILCS 5/9-3(e) (West 2000). Based on the
evidence at trial, which included evidence confirming that
defendant’s blood-alcohol concentration was more than three
times the legal limit at the time his car collided with
Melendez’s motorcycle, the circuit court sentenced
defendant to 14 years’ imprisonment as a Class 2 felon
pursuant to this version of section 9-3. 720 ILCS 5/9-3(e)
(West 2000).
On July 18, 2003, which was approximately one year after
the date of the offense and approximately one year before
the date of sentencing, the Illinois General Assembly
amended section 9-3 of the Criminal Code. The Illinois
General Assembly’s amendment was made pursuant to People v.
Pomykala, 203 Ill. 2d 198 (2003), a case in which our
supreme court held that section 9-3 (b) of the Criminal Code
created an improper mandatory presumption, because once the
jury concluded that the defendant was intoxicated, the jury
was to presume that the defendant was reckless unless the
defendant proved that he was not reckless. Pub. Act 93-213,
eff. July 18, 2003. This burden shifting, our supreme court
held, was an unconstitutional violation of a defendant’s
due process rights.[fn1] Pomykala, 203 Ill. 2d at 209.
In the new version of section 9-3 of the Criminal Code
enacted by the Illinois General Assembly in the wake of
People v. Pomykala, reckless homicide generally remained a
Class 3 felony punishable by two to five years’
imprisonment. 720 ILCS 5/9-3(d)(2) (West 2004). Other
aspects of section 9-3 of the Criminal Code, however,
underwent significant changes. Most significant to
defendant’s appeal, Public Act 93-213 removed section
9-3(e), which previously had raised reckless homicide
involving driving under the influence of alcohol or drugs
from a Class 3 felony to a Class 2 felony, punishable by 3
to 14 years’ imprisonment.
In addition, at the time Public Act 93-213 was enacted, the
Illinois General Assembly amended section 11-501 of the
Illinois Vehicle Code (625 ILCS 5/11-501 (West 2004)).
Specifically, the Illinois General Assembly offset the
removal of section 9-3(e) from the reckless homicide
statute by adding similar language to section 11-501(d) of
the Illinois Vehicle Code, which is the section of the
Illinois Vehicle Code that defines aggravated driving under
the influence (aggravated DUI). 625 ILCS 5/11-501(d) (West
2004).
Defendant and the State agree that during the time between
the date of the offense and the date of sentencing,
amendments to the reckless homicide statute, inter alia,
reduced the sentencing range for certain conduct. In
addition, defendant and the State agree that if the changes
to the reckless homicide statute merely reduced the
applicable punishment, then defendant was entitled to be
sentenced under the amended reckless homicide statute,
which contained a sentencing range of two to five years
rather than a sentencing range of 3-14 years. See Hollins,
51 Ill. 2d at 71. However, defendant and the State disagree
regarding whether, in addition to the change in the
sentencing range, the amendments to the reckless homicide
statute constituted a substantive change such that
defendant was not entitled to choose under which reckless
homicide statute he should be sentenced. In sum, the first
issue on appeal is whether Public Act 93-213’s amendments
resulted in substantive changes to the reckless homicide
statute. We believe they did.
In support of its argument that the changes to the reckless
homicide statute that were made by Public Act 93-213 were
substantive and, therefore, defendant was not permitted to
take advantage of the revised reckless homicide statute,
the State relies on our decision in People v. Land, 178
Ill. App. 3d 251 (1998). In People v. Land, a 16-year-old
defendant had been sentenced as an adult for attempted rape
under a statutory provision that gave the circuit court
discretion whether to sentence the defendant as an adult or
as a juvenile where he was convicted of an offense other
than several enumerated offenses, including rape. Land, 178
Ill. App. 3d at 259-60. Between the time of the defendant’s
arrest and the defendant’s sentencing, the Illinois General
Assembly amended the statutory provisions at issue. The
amendatory changes replaced the term “rape” with the term
“aggravated criminal sexual assault.” Land, 178 Ill. App.
3d at 260. In addition, the amendatory changes eliminated
judicial discretion and, instead of judicial discretion,
the new statute provided that a minor must be sentenced as
a juvenile if he or she was tried as an adult but convicted
of offenses other than those listed in the statute. Land,
178 Ill. App. 3d at 260.
The defendant in People v. Land argued on appeal that the
amendatory changes should apply to his case and that the
circuit court had erred in sentencing him as an adult.
Land, 178 Ill. App. 3d at 260. This court first noted that
although a defendant could take advantage of the mitigation
of punishment in a new law where the new law became
effective prior to a defendant’s sentencing, a defendant
could not do so where the new law changed the nature or
substantive elements of the offense rather than only the
punishment. Land, 178 Ill. App. 3d at 261. Noting some of
the amendatory changes that had been made by Public Act
83-1067, this court compared the elements of the former
offense of rape and the new offenses of criminal sexual
assault and aggravated criminal sexual assault and
concluded that Public Act 83-1067 changed the nature and
substantive elements of the offense rather than only the
punishment for the former offense of rape. Land, 178 Ill.
App. 3d at 260-61. The defendant in People v. Land,
therefore, was not entitled to be sentenced under the more
favorable provisions of the new law. Land, 178 Ill. App. 3d
at 261.
Applying our decision in People v. Land to the facts of
this case, we believe that Public Act 93-213, (Pub. Act
93-213, eff. July 18, 2003), which repealed parts of
section 9-3 of the Criminal Code (720 ILCS 5/9-3(d)(2)
(West 2000)), affected the nature and substance of the
reckless homicide statute rather than only changing the
sentencing. Most importantly, Public Act 93-213 eliminated
the enhancing elements in the reckless homicide statute
with regard to reckless homicide while intoxicated. In
addition, Public Act 93-213 amended section 9-3 of the
Criminal Code by adding several subsections, all of which
permitted defendants convicted of reckless homicide to be
punished as a Class 2 felon under circumstances not
permitted prior to the amendments. See 720 ILCS 5/9-3(e-7),
(e-8), (e-9) (West 2004). Finally, we note that the
Illinois General Assembly created a new category of offense
under the DUI statute in order to replace the provisions
that Public Act 93-213 eliminated from the reckless
homicide statute. See 625 ILCS 5/11-501(d) (West 2004). The
new offense under the DUI statute provided for the exact
same penalties as the former offense of reckless homicide.
Thus, it is clear that in enacting Public Act 93-213, the
Illinois General Assembly never intended for the punishment
to be any less stringent for those who, like defendant,
drive under the influence of alcohol or drugs and cause
death. In light of these substantive changes, we do not
believe that defendant should have been entitled to take
advantage of the more favorable sentencing provisions
created by Public Act 93-213.
Before we address the other issues raised by defendant’s
appeal, we note that in People v. Malin, 359 Ill. App. 3d
257 (2005) and in People v. Gancarz, No. 2-04-0190 (June
30, 2006), the Second District Appellate Court was faced
with appeals that, like defendant’s appeal in this case,
asserted the circuit court erred when it failed to give the
defendants the opportunity to be sentenced under the version
of the reckless homicide statute created by Public Act
93-213. In People v. Malin, the Second District denied
defendant’s request for a new sentencing hearing because
the defendant had been sentenced as a Class 2 felon
pursuant to a plea bargain rather than after a trial.
Malin, 359 Ill. App. 3d at 262. In dicta, however, the
Second District cited to our supreme court’s decision in
People v. Hollins, 51 Ill. 2d at 71, and suggested that if
defendant had been convicted after a trial, he would have
been entitled to be sentenced as a Class 3 felon under the
revised reckless homicide statute. Malin, 359 Ill. App. 3d
at 262.
More recently in People v. Gancarz, the Second District
concluded that the defendant should have been given the
opportunity to be sentenced under the reckless homicide
statute created by Public Act 93-213 and remanded the
defendant’s case to the circuit court for a new sentencing
hearing. Gancarz, 2006 Ill. App. LEXIS at 64. In People v.
Gancarz, the State argued that even though Public Act
93-213 eliminated the enhanced sentence for driving under
the influence, the State could amend the defendant’s
indictment, even after the conclusion of trial, to allege a
violation of the new aggravated DUI statute. The Second
District disagreed and reasoned that the State could not
amend the indictment against the defendant after trial to
allege a violation of the new aggravated DUI statute since
that statute was not in effect on the date that the
defendant committed the crime for which he was convicted.
Gancarz, 2006 Ill. App. LEXIS at 53. The Second District
held that allowing the State to amend the indictment to
allege a violation of the new aggravated DUI statute would
have invalidated the charging instrument. Gancarz, 2006
Ill. App. LEXIS at 66.
After reviewing the Second District’s decisions in both
People v. Malin and in People v. Gancarz, we believe that
our case is distinguishable since we reach our conclusion
based on the fact that Public Act 93-213 made substantive
changes to the reckless homicide statute such that
defendant was not entitled to choose under which statute he
wished to be sentenced. We note, however, that to the
extent our decision in this case conflicts with either
People v. Malin or People v. Gancarz, we respectfully
decline to follow the Second District’s decisions in those
cases.
Defendant’s next argument on appeal is that his conviction
for reckless homicide should be reversed because the jury
instructions and verdict form inadvertently referred to the
crime as “aggravated reckless homicide” rather than simply
“reckless homicide.” Specifically, defendant asserts that
since “aggravated reckless homicide” is not a crime listed
in the Criminal Code, his conviction for reckless homicide
was improper. We disagree.
Defendant concedes that there were no objections at trial
when the State inadvertently referred to the crime with
which defendant was charged as “aggravated reckless
homicide” rather than simply “reckless homicide,” which was
the actual crime with which defendant was charged.
Therefore, we address defendant’s argument on this issue by
applying the plain error standard set forth in Illinois
Supreme Court Rule 615(a) (134 Ill. 2d R. 615(a)). In a
criminal case, the plain error doctrine may be invoked in
two instances: first, where the evidence in the case is
closely balanced and, second, where to leave the error
uncorrected raises a substantial risk that an accused was
denied a fair trial and remedying the error is necessary to
preserve the integrity of the judicial process. People v.
Shaw, 186 Ill. 2d 301, 326-27 (1998). The error must be so
fundamental to the integrity of the judicial process that
the trial court could not cure the error by sustaining an
objection or instructing the jury to disregard the error.
Shaw, 186 Ill. 2d at 327.
In this case, we cannot say that the evidence was closely
balanced. Evidence at trial confirmed that defendant’s
blood-alcohol level was 0.247 grams per deciliter of
ethanol, which was more than three times the legal limit.
Moreover, Cahue confirmed that defendant had consumed more
than 10 beers before driving his car from the bar on 18th
Street and defendant confirmed that he drove the wrong way
onto the Damen Avenue exit ramp. Finally, evidence
confirmed that defendant was driving southbound in the
northbound lanes on Interstate 55 at the time that his car
collided with Melendez’s motorcycle. This record confirms
that the evidence against defendant was overwhelming rather
than closely balanced.
In addition, we cannot say that the fact that the jury
instructions and verdict form called the crime “aggravated
reckless homicide” amounted to plain error. At defendant’s
trial, all of the evidence presented and all of the
arguments that were made to the jury pertained to the crime
with which defendant was charged: reckless homicide. Most
importantly, although the word “aggravated” was
inadvertently mentioned by the State during its closing
arguments and it was mistakenly included in the jury
instructions and on the verdict form, the crime for which
defendant was indicted was reckless homicide and each
element of reckless homicide was proven to the jury beyond
a reasonable doubt. Faced with this record, we cannot agree
with defendant’s assertion that the inadvertent references
to the crime with which defendant was charged as
“aggravated reckless homicide” amounted to a “fundamental
violation of due process”; on the contrary, we believe that
the circuit court could have corrected the error by
sustaining an objection or properly instructing the jury
that the crime with which defendant was charged was
“reckless homicide” rather than “aggravated reckless
homicide.”
Defendant’s next argument on appeal is that he was denied a
fair trial because the State engaged in various acts of
misconduct. First, defendant asserts that he was denied a
fair trial because, in violation of Supreme Court Rule 412
(134 Ill. 2d R. 412), the State failed to produce the
photographs and measurements of the accident scene upon
which Trooper Dimopoulos based his conclusions regarding
the circumstances surrounding the collision between
defendant’s car and Melendez’s motorcycle. Second,
defendant contends that when the State failed to tender
Trooper Dimopoulos’s photographs and measurements, defense
counsel should have moved for sanctions pursuant to Supreme
Court Rule 415 (134 Ill. 2d R. 415) and defense counsel’s
failure to do so amounted to ineffective assistance of
counsel. Finally, defendant asserts that he was denied a
fair trial because, while cross-examining defendant’s
traffic crash reconstruction expert, the State called into
question the information upon which the expert had based
his opinion and, therefore, the State benefitted from not
providing defendant with Trooper Dimopoulos’s photographs
and measurements. We disagree.
At trial, defendant failed to object to any of the State’s
alleged misconduct and, therefore, we address defendant’s
allegations of misconduct by applying Illinois Supreme
Court Rule 615(a)’s plain error standard. 134 Ill. 2d R.
615(a). As stated, in criminal cases, the plain error
doctrine may be invoked if either (1) the evidence in the
case is closely balanced or (2) the uncorrected error
raises a substantial risk of undermining the integrity of
the judicial process. Shaw, 186 Ill. 2d at 326-27. When
assessing whether there is a substantial risk that the
integrity of the judicial process would be undermined if the
error was left uncorrected, we consider whether the trial
court could have cured the error by sustaining an objection
or instructing the jury to disregard the error. Shaw, 186
Ill. 2d at 327.
As discussed supra, the evidence in this case was not
closely balanced; indeed, the evidence overwhelmingly
confirmed that defendant was extremely intoxicated at the
time he drove his car in the wrong direction on Interstate
55 and collided with Melendez’s motorcycle, which resulted
in Melendez’s death. Therefore, defendant’s conviction will
not be overturned unless the alleged misconduct was of such
a magnitude that the defendant was denied a fair trial. We
address each of the alleged errors in turn.
First, defendant argues that he was denied a fair trial
because, in violation of Supreme Court Rule 412 (134 Ill.
2d R. 412), the State failed to produce the photographs and
measurements of the accident scene upon which Trooper
Dimopoulos based his conclusions regarding the
circumstances surrounding the collision between defendant’s
car and Melendez’s motorcycle. Supreme Court Rule
412(a)(iv) requires disclosure of “any reports or
statements of experts, made in connection with the
particular case, including results of physical or mental
examinations and of scientific tests, experiments, or
comparisons, and a statement of qualifications of the
expert.” 134 Ill. 2d R. 412(a)(iv). Supreme Court Rule
412(c) also requires the State to “disclose information
within its possession and control.” 134 Ill. 2d R. 412(c).
In this case, Trooper Dimopoulos prepared his report and
attached to the report the measurements and photographs upon
which his conclusions were based. Trooper Dimopoulos then
submitted the report, the photographs, and the measurements
to a State Police “approval committee.” When the State was
preparing for trial, the State spoke with trooper
Dimopoulos and requested that he submit a copy of his report
and the accompanying measurements and photographs. In
response to the State’s request, Trooper Dimopoulos looked
in the file in which his report was stored and found the
report. The measurements and photographs, however, were no
longer attached to the report.
While it is certainly troubling that Trooper Dimopoulos’s
photographs and measurements were lost before trial, this
record confirms that the loss of Trooper Dimopoulos’s
measurements and photographs did not result in prejudice to
defendant. First, defendant received a copy of Trooper
Dimopoulos’ report and the report referred to the
measurements that he obtained from the scene of the
collision. Second, while the specific photographs that
Trooper Dimopoulos had attached to his report were lost,
the State provided defendant with other relevant
photographs, including photographs depicting the condition
of defendant’s car and Melendez’s motorcycle after the
collision. In fact, defendant’s expert, Dr. Cohn, reviewed
and relied on both trooper Dimopoulos’ report and the
photographs of defendant’s car and Melendez’s motorcycle
when he developed his expert opinion, which conflicted with
the conclusions reached by Trooper Dimopoulos. Third,
Trooper Dimopoulos was questioned at length, both by the
State on direct examination and by defendant on
cross-examination, regarding the basis for the conclusions
he reached in his report, regarding the lost measurements
and photographs, and regarding how this evidence could have
been misplaced after he submitted his report. The jury,
therefore, was fully aware why this evidence was available
neither to defendant nor to Dr. Cohn. Finally, this record
provides no indication that the lost photographs and
measurements were in any way favorable to defendant and
there is nothing to suggest that the lost measurements and
photographs prejudiced defendant. Therefore, we must
conclude that defendant was not denied a fair trial because
the State failed to provide defendant with the photographs
and measurements originally attached to Trooper
Dimopoulos’s report.
Furthermore, defendant’s ineffective assistance of counsel
claim must also fail. Defendant asserts that trial counsel
was ineffective because he failed to move for sanctions
after the State failed to provide defendant with the
photographs and measurement that were originally attached
to Trooper Dimopoulos’s report. Defendant asserts that
trial counsel should have moved for sanctions against the
State pursuant to Supreme Court Rule 415 (134 Ill. 2d R.
415), which provides courts with the power to impose
sanctions upon parties that fail to comply with the rules
of discovery.
To prevail on a claim of ineffective assistance of counsel,
a defendant must show that: (1) trial counsel’s
representation fell below an objective standard of
reasonableness, and (2) a reasonable probability exists
that, but for counsel’s errors, the result of the trial
would have been different. Strickland v. Washington, 466
U.S. 668, 687, 80 L. Ed. 2d 668, 693, 104 S. Ct. 2052, 2064
(1984); People v. Albanese, 104 Ill. 2d 504, 525, 473
N.E.2d 1246, 1254 (1984). As stated supra, there is no
indication that defendant experienced any prejudice as a
result of the lost photographs and measurements. Therefore,
because there is no reasonable probability that the outcome
of the trial would have been different, we cannot agree that
trial counsel was ineffective when he failed to move for
sanctions pursuant to Supreme Court Rule 415. See People v.
Grant 339 Ill. App. 3d 792, 799 (2003) (holding that
“[w]here the defendant fails to prove prejudice, the
reviewing court need not determine whether [trial]
counsel’s performance constituted less-than-reasonable
assistance”).
Next, defendant argues that he was denied a fair trial
because, according to defendant, the State exploited its
own failure to turn over Trooper Dimopoulos’s photographs
and measurements. Specifically, defendant asserts that when
it cross examined defendant’s expert in traffic crash
reconstruction, the State called into question the
information upon which the expert’s opinion was based.
Contrary to defendant’s assertion, however, this record
confirms that defendant’s right to a fair trial was in no
way undermined by the State’s cross examination of
defendant’s expert witness.
First, this record confirms that the jury knew that the
State, rather than defendant or defendant’s traffic crash
reconstruction expert, Dr. Cohn, was culpable for losing
Trooper Dimopoulos’s photographs and measurements. For
example, both the State and defendant made it clear to the
jury that Trooper Dimopoulos’ photographs and measurements
were lost before trial and that Dr. Cohn, therefore, was
unable to review that material when he prepared his opinion
regarding the circumstances surrounding the collision.
Second, this record also confirms that Dr. Cohn testified
that the absence of Trooper Dimopoulos’s photographs and
measurements did not undermine his ability to reach a
conclusion regarding the circumstances surrounding the
collision between defendant’s car and Melendez’s
motorcycle. For example, during cross-examination, the
State asked Dr. Cohn whether the fact that he was unable to
review Trooper Dimopoulos’s photographs and measurements
“intefere[d] in any way with [his] ability to come up with
a conclusion or opinion in this case.” Dr. Cohn did not
state that the lost photographs and measurements undermined
his ability to reach a conclusion as to the circumstances
surrounding the collision; on the contrary, Dr. Cohn stated
that he was able to reach a “conclusion based upon what
[he] had.” Faced with this record, we cannot agree with
defendant’s contention that the State’s alleged misconduct
undermined the fairness of defendant’s trial.
Defendant’s next argument on appeal is that he was denied a
fair trial because the circuit court overruled his
objections and permitted the State to offer into evidence
various photographs. Specifically, defendant asserts that
the circuit court erred in allowing into evidence (1)
photographs of “Wrong Way” signs that were purportedly on
the Damen Avenue exit ramp onto which defendant drove his
car in the wrong direction and (2) photographs that
depicted Melendez’s injuries. We disagree.
In general, photographs are admissible into evidence if
they are identified by a witness who has personal knowledge
of the subject matter depicted by the photographs and the
witness testifies that the photographs are a fair and
accurate representation of the subject matter at the
relevant time. People v. Fountain, 179 Ill. App. 3d 986,
994 (1989). The trial court’s admission of photographs will
not be reversed absent a showing of an abuse of discretion.
People v. Smith, 20 Ill. App. 3d 756, 760 (1974).
First, defendant asserts that the State failed to establish
that the photographs of the “Wrong Way” signs depicted the
“Wrong Way” signs on the Damen Avenue exit ramp on July 21,
2002, which was the date of the collision. Defendant also
argues that the photographs of the “Wrong Way” signs were
irrelevant and highly prejudicial. Contrary to defendant’s
assertions, however, this record confirms that defendant
testified that he saw a “Wrong Way” sign halfway up the
Damen Avenue exit ramp. In addition, Trooper Walker, who
patrolled the area surrounding the Damen Avenue exit ramp
during the 18 months preceding the date of the collision,
confirmed that there were “Wrong Way” signs posted on all
of the exit ramps off of Interstate 55. Hence, both
defendant’s testimony and Trooper Walker’s testimony served
to establish a proper foundation. In addition, it is clear
that the “Wrong Way” photographs were relevant to the issue
of whether defendant’s decision to drive his car in the
wrong direction onto the Damen Avenue exit ramp constituted
reckless conduct and we simply cannot agree that the
photographs were prejudicial. Faced with this record, we
cannot say that the circuit court abused its discretion
when it permitted the State to offer photographs of the
“Wrong Way” signs.
Second, defendant asserts that he was denied a fair trial
because the circuit court permitted the State to offer into
evidence five photographs depicting defendant’s injuries.
This court has confirmed that if photographic evidence is
relevant to prove facts at issue and if the probative value
outweighs the potential prejudice, the photographs are
admissible, even if such photographs are disgusting or
gruesome. People v. Mercado, 333 Ill. App. 3d 994, 1001
(2002).
In this case, when the circuit court overruled defendant’s
objection and admitted into evidence five photographs
depicting Melendez’s injuries, the circuit court stated:
“The State has chosen five distinct photographs of
different parts of the body of the victim. [The State] has
the burden of proving cause and manner of death. So I find
that the probative value outweighs the prejudicial value,
and they will be admitted.”
While it is possible that the use of five photographs may
have been more than necessary to establish the cause of
Melendez’s death, we cannot agree with defendant’s
contention that the circuit court’s decision to overrule
defendant’s objection and to allow all five photographs
into evidence amounted to an abuse of discretion or in any
way undermined the fairness of defendant’s trial.
Defendant’s final argument on appeal is that defendant’s
14-year sentence was excessive in that (1) the circuit
court failed to consider the mitigating circumstances and
(2) the circuit court erred when, during the hearing on the
motion to reconsider defendant’s sentence, the circuit
court inaccurately stated that defendant had a “pending”
driving under the influence case. We disagree.
Absent a showing by a defendant to the contrary, the
circuit court is presumed to have considered the mitigating
factors presented by a defendant. People v. Labosette, 236
Ill. App. 3d 846, 862 (1992). Here, during the sentencing
hearing, the circuit court expressly stated that all of the
evidence was considered. Defendant, therefore, has failed
to overcome the presumption that the circuit court
considered the mitigating factors presented by defendant.
The circuit court’s determination regarding the
appropriateness of a sentence will not be overturned absent
an abuse of discretion. People v. Wilson, 143 Ill. 2d 236,
250 (1991). In addition, reviewing courts are especially
hesitant to find that the circuit court’s determination
regarding the appropriateness of a sentence constituted an
abuse of discretion when the sentence imposed falls within
the statutory limitation. People v. Wright, 246 Ill. App.
3d 761, 775 (1992).
Here, the State offered evidence suggesting that defendant
had two prior cases involving driving under the influence
of alcohol and offered evidence confirming that defendant
was driving with a suspended license at the time of the
collision. Based on this evidence, the circuit court
sentenced defendant to the maximum sentence, which was 14
years’ imprisonment. Defendant filed a motion to reconsider
sentence and during the hearing on the motion to reconsider
sentence, the circuit court mistakenly stated that
defendant had a “driving under the influence case pending.”
The circuit court denied the motion to reconsider and
upheld the original sentence of 14 years’ imprisonment.
Defendant suggests that the circuit court’s misstatement
during the hearing on the motion to reconsider warrants a
new sentencing hearing. This record confirms, however, that
the misstatement was made during the hearing on the motion
to reconsider and there is no reason to believe that the
misstatement affected defendant’s sentence. This is
especially true in light of the fact that, following the
hearing on the motion to reconsider sentence, the circuit
court simply affirmed the 14-year sentence it had imposed
at the sentencing hearing. In addition, this record
confirms that the circuit court’s misstatement regarding
the “pending” driving under the influence of alcohol case
was an isolated misstatement and did not change the fact
that, as the circuit court determined during the sentencing
hearing and reiterated during the hearing on the motion to
reconsider sentence, defendant had a history of driving
under the influence of alcohol. Faced with this record, we
cannot agree with defendant’s contention that the circuit
court’s isolated misstatement during the hearing on the
motion to reconsider sentence had an adverse affect on
defendant’s sentence. Thus, we find that defendant’s
14-year sentence was neither excessive nor an abuse of
discretion.
CONCLUSION
For the foregoing reasons, the judgment of the circuit
court of Cook County is affirmed.
Affirmed.
O’MARA FROSSARD, and GALLAGHER, JJ., concur.
[fn1] Section 9-3(b) of the Criminal Code, which our
supreme court held created an unconstitutional mandatory
presumption of recklessness, provided:
“In cases involving reckless homicide, being under the
influence of alcohol or any other 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).