{ "id": 2606858, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT G. ATTEBERRY, Defendant-Appellant", "name_abbreviation": "People v. Atteberry", "decision_date": "1991-05-17", "docket_number": "No. 3\u201489\u20140574", "first_page": "851", "last_page": "855", "citations": [ { "type": "official", "cite": "213 Ill. App. 3d 851" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "420 N.E.2d 151", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "84 Ill. 2d 415", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3045347 ], "opinion_index": 0, "case_paths": [ "/ill-2d/84/0415-01" ] }, { "cite": "203 Ill. App. 3d 779", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2583031 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/203/0779-01" ] }, { "cite": "426 N.E.2d 290", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "99 Ill. App. 3d 851", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3102773 ], "weight": 2, "pin_cites": [ { "page": "854" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/99/0851-01" ] }, { "cite": "442 U.S. 510", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1531962 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/442/0510-01" ] }, { "cite": "449 N.E.2d 1366", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "114 Ill. App. 3d 861", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3591973 ], "weight": 2, "pin_cites": [ { "page": "868" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/114/0861-01" ] }, { "cite": "415 U.S. 308", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6174956 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/415/0308-01" ] }, { "cite": "396 N.E.2d 53", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "77 Ill. App. 3d 22", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3290062 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/ill-app-3d/77/0022-01" ] } ], "analysis": { "cardinality": 460, "char_count": 7869, "ocr_confidence": 0.781, "pagerank": { "raw": 1.265176722342113e-07, "percentile": 0.613426690127494 }, "sha256": "fc27031021a0088c06bd3ec9965d359f58b940c80780b23e4c4226972b15957c", "simhash": "1:a81bbc960fc70b9d", "word_count": 1265 }, "last_updated": "2023-07-14T21:36:27.836966+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. ROBERT G. ATTEBERRY, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE McCUSKEY\ndelivered the opinion of the court:\nThe defendant, Robert G. Atteberry, was convicted of reckless homicide by a jury in Will County. The defendant was charged with driving an automobile in a manner which caused the unintentional death of a passenger, Jason Tudor. The State alleged the defendant drove in excess of the speed limit and with an illegal blood-alcohol content when the vehicle hit a tree. The defendant was sentenced to 30 months\u2019 probation with six months\u2019 incarceration in the county jail and involuntary admission to a residential alcohol treatment program.\nThe defendant appeals his conviction and sentence. The defendant raises several issues on appeal. First, the defendant claims the trial court denied the defendant his sixth amendment right of confrontation. The trial court barred defense counsel from cross-examining the State\u2019s only eyewitness about her refusal to discuss her testimony in any way with either defense counsel or his investigator.\nA defendant is constitutionally permitted to cross-examine a hostile or opposing witness regarding her bias or partiality. (People v. Hobson (1979), 77 Ill. App. 3d 22, 396 N.E.2d 53; Davis v. Alaska (1974), 415 U.S. 308, 39 L. Ed. 2d 347, 94 S. Ct. 1105.) Evidence of a witness\u2019 refusal to speak or cooperate prior to trial is proper grounds upon which to cross-examine that witness. (People v. Timmons (1983), 114 Ill. App. 3d 861, 449 N.E.2d 1366.) A witness has a right to refuse to be interviewed or cooperate with the other side. However, that refusal can be cross-examined in court by opposing counsel in order to demonstrate bias, hostility, prejudice, or interest. Timmons, 114 Ill. App. 3d at 868.\nThe trial court\u2019s ruling was highly prejudicial to the defendant since the witness to be cross-examined was the only eyewitness to the accident. The trial court, in this factual situation, committed reversible error by its ruling.\nAt the instruction conference, the trial court admitted over defendant\u2019s objection a non-Illinois Pattern Jury Instruction (IPI), which read as follows:\n\u201cIf you find from consideration of the evidence that the defendant was actually under the influence of alcohol at the time of the alleged violation, such evidence shall be prima facie evidence of a reckless act.\u201d\nThe trial court also admitted over defendant\u2019s objection the following IPI instruction, which provided:\n\u201cIf you find that the amount of alcohol in the defendant\u2019s blood as shown by a chemical analysis of his breath was .10 percent or more by weight of alcohol, you shall presume that the defendant was under the influence of [alcohol].\nHowever, this presumption is not binding on you and you may take into consideration any other evidence in determining whether or not the defendant was under the influence of [alcohol].\u201d Illinois Pattern Jury Instructions, Criminal, No. 23.06 (2d ed. 1981).\nThe defendant contends the trial court\u2019s non-IPI instruction containing a mandatory presumption of recklessness should not have been admitted for two reasons: it created an unrebuttable presumption not understood or misunderstood by the jury, and it conflicted with an admitted IPI instruction. We agree with the first ground upon which the defendant bases this contention.\nIn attempting to establish the accused\u2019s guilt, the State is entitled to present and rely on certain presumptions. However, a presumption, in order to be admissible and reliable, cannot shift the burden of persuasion from the State to the defendant. The shifting of the burden of persuasion to the defendant violates the defendant\u2019s due process rights. Sandstrom v. Montana (1979), 442 U.S. 510, 61 L. Ed. 2d 39, 99 S. Ct. 2450.\nThe instruction did not explain or define the term \u201cprima facie.\u201d A juror could have misconstrued the term to mean that if the defendant was under the influence of alcohol, he was conclusively presumed to be acting recklessly. A juror would not necessarily realize the defendant could have rebutted or contradicted that presumption. A juror could have reasoned the term \u201cprima facie\u201d was a conclusive presumption shifting the burden of persuasion to the defendant. A similar situation occurred in the case of People v. Gray (1981), 99 Ill. App. 3d 851, 426 N.E.2d 290, where the term \u201cprima facie\u201d was used within an instruction. The court determined that term shifted the burden of persuasion to the defendant to establish that he did not know he had insufficient funds upon which to issue personal checks. The court in Gray held the term \u201cprima facie\u201d was also inherently ambiguous so as to cloud a juror\u2019s understanding of that term to mean it was a conclusive presumption.\nEven though we are unaware of the jury\u2019s interpretation of the term, the potential prejudice created by the ambiguous and easily misunderstood term denied the defendant his due process rights, including his right to a fair and impartial trial. In addition, the term \u201cprima facie\u201d could have inferred a sufficiently strong presumption that could not have been overcome by any degree of excuse, denial, or defense presented by the defendant. The use of a non-IPI instruction such as this is not per se improper or misleading provided that a clear and comprehendible explanation accompanies such term. When using the term \u201cprima facie\u201d within an instruction, the instruction should contain an explanation of its meaning. Gray, 99 Ill. App. 3d at 854.\nThe term \u201cprima facie\u201d is defined in Black\u2019s Law Dictionary as \u201ca fact presumed to be true unless disproved by some evidence to the \u25a0contrary.\u201d (Black\u2019s Law Dictionary 1071 (5th ed. 1979).) That brief explanation or one equivalent, which is found throughout many IPI instructions, should be provided so that the jury is properly and sufficiently advised the term is rebuttable and/or can be disproved. Therefore, based upon the above-stated reasoning, this matter should be remanded for a new trial.\nThe defendant also contends that the use of the IPI Criminal 2d No. 23.06 denied the defendant a fair trial because it conflicted with the non-IPI instruction and it contained a mandatory presumption effectively shifting the burden of persuasion to the defendant. We disagree. In its entirety, the language of the IPI Criminal 2d instruction contained a sufficient explanation that the presumption was rebuttable.\nAccording to People v. Haas (1990), 203 Ill. App. 3d 779, IPI Criminal 2d No. 23.06 did not create a constitutionally impermissible presumption. The language of the first paragraph of the instruction would create an impermissible presumption. However, the language of the second paragraph should have sufficiently advised the jury that the presumption contained within the first paragraph was rebuttable. Jury instructions must be evaluated as a whole, not by sentence or paragraph, or otherwise in isolation. (People v. Housby (1981), 84 Ill. 2d 415, 420 N.E.2d 151.) In Haas, the court held the jury was not bound by any presumptions contained within the instruction and the burden of persuasion was not shifted to the defendant by the use of this instruction.\nThe defendant raised other issues; however, since we are remanding this case for a new trial based upon the foregoing analysis, it is not necessary to address those issues since they are moot.\nFor the reasons indicated, the circuit court of Will County is hereby reversed, and this cause is remanded for a new trial.\nReversed and remanded for a new trial.\nGORMAN and BARRY, JJ., concur.", "type": "majority", "author": "JUSTICE McCUSKEY" } ], "attorneys": [ "Peter A. Carusona, of State Appellate Defender\u2019s Office, of Ottawa, for appellant.", "Edward Burmila, Jr., State\u2019s Attorney, of Joliet (Gary E Gnidovec, of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT G. ATTEBERRY, Defendant-Appellant.\nThird District\nNo. 3\u201489\u20140574\nOpinion filed May 17, 1991.\nPeter A. Carusona, of State Appellate Defender\u2019s Office, of Ottawa, for appellant.\nEdward Burmila, Jr., State\u2019s Attorney, of Joliet (Gary E Gnidovec, of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0851-01", "first_page_order": 873, "last_page_order": 877 }