{ "id": 5471389, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ARLIN W. DAVIS, Defendant-Appellant", "name_abbreviation": "People v. Davis", "decision_date": "1982-03-24", "docket_number": "No. 81-139", "first_page": "129", "last_page": "135", "citations": [ { "type": "official", "cite": "105 Ill. App. 3d 129" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "98 S. Ct. 273", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "54 L. Ed. 2d 181", "category": "reporters:federal", "reporter": "L. 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App. 2d", "case_ids": [ 1590860 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/112/0042-01" ] }, { "cite": "211 N.E.2d 733", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "33 Ill. 2d 514", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2886371 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/ill-2d/33/0514-01" ] }, { "cite": "264 N.E.2d 12", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1965, "opinion_index": 0 }, { "cite": "46 Ill. 2d 465", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2900056 ], "year": 1965, "pin_cites": [ { "page": "470-71" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/46/0465-01" ] }, { "cite": "289 N.E.2d 476", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "8 Ill. App. 3d 430", "category": "reporters:state", "reporter": "Ill. 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App. 3d 21", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3409966 ], "pin_cites": [ { "page": "24" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/55/0021-01" ] } ], "analysis": { "cardinality": 774, "char_count": 13767, "ocr_confidence": 0.898, "pagerank": { "raw": 2.570641187004398e-07, "percentile": 0.8162188220239868 }, "sha256": "45da52d6130da3b3aeaacf2bd03bb0b9812017a90bb76aac561d2665ec14601d", "simhash": "1:3ecc83f627f4aba0", "word_count": 2282 }, "last_updated": "2023-07-14T17:10:29.392087+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ARLIN W. DAVIS, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE HARRISON\ndelivered the opinion of the court:\nOn November 25, 1980, defendant Arlin W. Davis was found guilty on three counts of reckless homicide, one count of driving while under the influence of intoxicating liquor, and one count of driving while license or permit is suspended. (Ill. Rev. Stat. 1979, ch. 38, par. 9 \u2014 3(a), and ch. 95/2, pars. 11 \u2014 501 and 6 \u2014 303.) The charges were brought as the result of an automobile collision on December 31, 1979, in which Larry Lehman and his two daughters, Stacey and Nicole, were killed. Defendant was sentenced on one count of reckless homicide to a term of three years in prison. It is from this judgment that he now appeals. We affirm the convictions,' but remand to the circuit court for resentencing.\nDefendant raises two issues on appeal. First, he charges that the trial court erred when it permitted Connie Pelat, a nurse, and Dr. Stephen Spurgeon, the emergency room physician, to testify for the prosecution. He claims that the tender of their names as witnesses violated Supreme Court Rule 412 (73 Ill. 2d R. 412) on \u201cDisclosure to Accused,\u201d and did not comply with a November 21 discovery deadline set by the court. He challenges the admission of their testimony because tender of its discovery was made so close to the time of trial that it effectively denied him the opportunity to prepare for cross examination. He maintains further that the November 12 listing of the names of witnesses as \u201cany and all treating physicians,\u201d in the absence of a memorandum of the prosecutor\u2019s conversations with them, was insufficient to put him on notice that the witnesses would be called upon to testify, or that they would be asked their opinion on the issue of intoxication.\nThe record does not support his position. Rule 412 does not require that every conversation with witnesses during the course of investigation be reduced to writing. (People v. Abbott (1977), 55 Ill. App. 3d 21, 24, 370 N.E.2d 286.) The memoranda submitted by the State amounted to substantial compliance and satisfied the intent and purpose of the rule.\nDefendant\u2019s argument that the State\u2019s Attorney\u2019s office acted in bad faith is also untenable. The prosecutor explained that he had been unable to contact certain witnesses earlier because the hospital refused to cooperate when served with a subpoena duces tecum. In attempting to meet the court\u2019s deadline, he carried his discovery material (including the names of Pelat and Spurgeon) to the courthouse at noon that day. When defense counsel did not arrive, the prosecutor then arranged to deliver the documents to his office that afternoon. In view of these facts, we agree with the trial court that the State made a reasonable and good faith effort to disclose the names of his witnesses and we see no reason to impose exclusionary sanctions.\nDefendant likewise cannot claim that he had no notice that the witnesses\u2019 testimony would relate to the issue of intoxication. Included in the original discovery submitted by the State were statements made by barmaids that Davis had been drinking. Defense counsel was aware of the physical evidence at the scene of the collision. When the hospital had complied with the subpoena, he had access to the witnesses\u2019 names in the medical records. In those records, Nurse Pelat had written \u201csmells of alcohol\u201d on defendant\u2019s chart. During the course of trial preparation, defense counsel successfully sought to exclude the results of his client\u2019s blood alcohol analysis tests. Thus, he cannot claim he was surprised that those who had an opportunity to observe him on the evening of December 31 would be asked their opinion on the intoxication issue. People v. Miller (1979), 75 Ill. App. 3d 775, 777-78, 394 N.E.2d 783.\nFinally, the argument that the court\u2019s reliance on the opinions of the medical personnel unfairly prejudiced defendant is without merit. The absence of the testimony of Pelat and Spurgeon would not have changed the outcome of the trial. A State trooper and a hospital security guard who had nine months prior experience on a de-tox unit also testified that, in their opinion, Arlin Davis was intoxicated on the evening of December 31. The trial court, in fact, noted its reliance on the guard\u2019s opinion at the same time that it mentioned Pelat and Spurgeon. The testimony of the two officers, taken together with evidence in the record that defendant stopped and purchased drinks at three different taverns during the hours preceding the accident, constituted ample evidence on which the court could have based its decision. Thus, the exclusion of the opinions of the emergency room physician and his nurse would not have altered the outcome of this case. Of course, we do not condone delay in the filing or the exchange of discovery materials; but we do recognize that, under certain circumstances, the parties may have no choice. It is within the trial court\u2019s province to determine whether or not the dilatory party exercised good faith in his efforts to submit discovery materials. (People v. Miller (1979), 75 Ill. App. 3d 775, 779, 394 N.E.2d 783.) Here, the challenged testimony did not unfairly prejudice the defendant nor was the tender of its discovery made in bad faith. Having further concluded that the requisites of Rule 412 were met, the trial court did not commit an abuse of discretion by ruling that the testimony was admissible.\nThe second contention, that the State failed to prove defendant\u2019s guilt beyond a reasonable doubt as to each and every charge, is likewise without merit. Defendant was found guilty on three counts of reckless homicide. Recklessness is defined as conscious disregard of \u201ca substantial and unjustifiable risk that circumstances exist or that a result will follow, \u00b0 e \u201d, and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation * \u00b0 (Ill. Rev. Stat. 1979, ch. 38, par. 4 \u2014 6.) The indicium of conscious disregard need not be shown solely by the maneuvering of the motor vehicle. It may include the physical condition of the driver. (People v. Boyle (1979), 78 Ill. App. 3d 791, 797, 396 N.E.2d 1347.) Evidence of a driver\u2019s intoxication has often been held probative on the issue of recklessness. (People v. Miller (1979), 75 Ill. App. 3d 775, 777, 394 N.E.2d 783.) If a driver is under the influence of intoxicating liquors, and evidence shows that his driving violation caused death or great bodily harm, courts will find that the violation was \u201creckless\u201d within the meaning of section 9 \u2014 3(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 9 \u2014 3(a)). In short, improperly driving a motor vehicle while intoxicated may constitute reckless conduct which will convert what would otherwise be ordinary negligence into criminal conduct. People v. Chambers (1972), 8 Ill. App. 3d 430, 434, 289 N.E.2d 476.\nThe record indicates several witnesses testified that, in their opinion, the defendant was intoxicated. In addition, the State presented evidence that the collision occurred in the victims\u2019 lane of traffic. A reconstruction expert stated that gouge marks in the pavement on the Lehman\u2019s side of the road were an indication to him that the impact had occurred there. Oil leaks from defendant\u2019s car dotted the victims\u2019 side of the highway. Much of the debris from the wreckage was also in the Lehman\u2019s lane. The expert stated firmly that, in his opinion, defendant had crossed the center line and driven into the path of the Lehman automobile. Thus, the element of recklessness was definitely proved by the State.\nFurther, after an examination of the evidence, one must conclude that defendant\u2019s reckless driving was the cause of the accident. The road that the parties traveled was straight. There were no hills, curves, bumps, or unfavorable weather conditions which could be said to have contributed to the cause of the accident. Decedent\u2019s wife testified that her husband had not been drinking prior to the accident. Thus, there is only one sound conclusion to draw: defendant drove his car recklessly, in a manner likely to cause death or great bodily harm, and, indeed, did cause the death of three persons.\nDefendant challenges this conclusion, arguing that the court relied entirely on circumstantial evidence. He maintains that the accident reconstruction expert\u2019s conclusions are insufficient to convict him beyond a reasonable doubt. However, in the absence of eyewitness testimony or any evidence to the contrary, a court may rely on testimony from reconstruction experts to determine such facts as the point of impact and the probable path of vehicles after impact. (Cf. Plank v. Holman (1970), 46 Ill. 2d 465, 470-71, 264 N.E.2d 12; Miller v. Pillsbury Co. (1965), 33 Ill. 2d 514, 211 N.E.2d 733; Abramson v. Levinson (1969), 112 Ill. App. 2d 42, 250 N.E.2d 812.) It is the province of the trier of fact to determine the guilt or innocence of an accused, and its verdict will not be set aside on review unless it is palpably contrary to the weight of the evidence or so unsatisfactory as to justify a reasonable doubt of guilt. (People v. Hairston (1970), 46 Ill. 2d 348, 365-66, 263 N.E.2d 840.) We cannot say the verdict in this case was palpably contrary to the weight of the evidence. This is so particularly when evidence of swerving or improper lane usage was coupled with evidence of intoxication. (People v. Jones (1972), 2 Ill. App. 3d 575, 579, 277 N.E.2d 144.) Consequently, we hold that the State proved Arlin Davis guilty beyond a reasonable doubt, and we affirm his conviction on the three reckless homicide counts.\nWe likewise find no merit to the related contention that defendant was not proven guilty beyond a reasonable doubt of driving under the influence of intoxicating liquor in violation of section 11 \u2014 501 of the Illinois Vehicle Code. The State merely had to prove that the defendant was under the influence of intoxicating liquor while driving or being in actual physical control of a vehicle. (Ill. Rev. Stat. 1979, ch. 95 1/2, par. 11 \u2014 501.) These elements have already been established by facts set forth in the opinion and further discussion is unnecessary. Davis challenges the final conviction by arguing that he did not violate the special permit under which he operated his automobile. On March 24, 1979, his driver\u2019s license was revoked by the Secretary of State. In April of that year he was issued a restricted driving permit for purposes of employment and for performing \u201cnecessary household duties.\u201d We cannot and do not interpret this language to include the visits to three local taverns or the purchase of substantial amounts of alcoholic beverages. Accordingly, his conviction on these two counts is affirmed.\nFinally, however, we note that the trial court erred as a matter of law when it declined to sentence defendant on the other four counts upon which he was convicted. The law on convictions and sentences where multiple victims exist, set forth in People v. Butler (1976), 64 Ill. 2d 485, 356 N.E.2d 330, was applied in People v. Grover (1981), 93 Ill. App. 3d 877, 879, 417 N.E.2d 1093, a reckless homicide case which also contained three counts for reckless conduct. There, the court affirmed the conviction and sentencing of the defendant on three separate reckless conduct convictions because three different victims were injured by the defendant\u2019s conduct. (People v. Grover (1981), 93 Ill. App. 3d 877, 883.) This rule has been applied in kidnapping situations as well. (People v. Schultz (1979), 73 Ill. App. 3d 379, 382, 392 N.E.2d 322.) In the case before us, the other two counts of reckless homicide arose because of separate deaths. Separate victims therefore required separate sentences, and the trial court erred in failing to impose them.\nThe remaining convictions may also draw independent sentences. Driving under the influence of intoxicating liquor in violation of the Illinois Vehicle Code is not by definition a lesser included offense of reckless homicide. This court has already held that, for an offense to be lesser included, all elements of the lesser must be included in the greater. (People v. Luigs (1981), 96 Ill. App. 3d 700, 708, 421 N.E.2d 961.) To be convicted of driving under the influence, the defendant must have been intoxicated while operating an automobile.\nIntoxication is probative of recklessness, but it is not an element of the crime of reckless homicide. It is possible to commit reckless homicide without ever being intoxicated or driving a motor vehicle. Applying the rule set forth in Luigs, the lesser charge in this case is by definition a separate offense warranting a separate penalty.\nLikewise, the conduct giving rise to the charge of driving while license or permit is suspended is a separate \u201cact,\u201d as \u201cact\u201d is defined in People v. King (1977), 66 Ill. 2d 561, 566, 363 N.E.2d 838, cert. denied (1977), 434 U.S. 894, 54 L. Ed. 2d 181, 98 S. Ct. 273. Defendant violated this statute on his first visit to the tavern, long before the conduct occurred which gave rise to the homicide convictions.\nConsequently, we affirm the defendant\u2019s conviction on all five counts, but remand to the circuit court of Madison County with instructions to enter sentences on the remaining convictions.\nAffirmed and remanded.\nKARNS, P. J., and KASSERMAN, J., concur.", "type": "majority", "author": "JUSTICE HARRISON" } ], "attorneys": [ "John Gitchoff, of Gitchoff and Wallis, of Granite City, for appellant.", "Donald W. Weber, State\u2019s Attorney, of Edwardsville (Martin N. Ashley and Raymond F. Buckley, Jr., both of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ARLIN W. DAVIS, Defendant-Appellant.\nFifth District\nNo. 81-139\nOpinion filed March 24, 1982.\nJohn Gitchoff, of Gitchoff and Wallis, of Granite City, for appellant.\nDonald W. Weber, State\u2019s Attorney, of Edwardsville (Martin N. Ashley and Raymond F. Buckley, Jr., both of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People." }, "file_name": "0129-01", "first_page_order": 151, "last_page_order": 157 }