People v. Atteberry

• Decision Date: 17 May 1991
• Docket Number: No. 3-89-0574,3-89-0574
• Citation: People v. Atteberry, 213 Ill.App.3d 851, 572 N.E.2d 434, 157 Ill.Dec. 365 (Ill. App. 1991)
• Parties: , 157 Ill.Dec. 365 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Robert G. ATTEBERRY, Defendant-Appellant. Third District
• Court: Appellate Court of Illinois

Page 434

572 N.E.2d 434

213 Ill.App.3d 851, 157 Ill.Dec. 365

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Robert G. ATTEBERRY, Defendant-Appellant.

No. 3-89-0574.

Appellate Court of Illinois,

Third District.

May 17, 1991.

Peter A. Carusona (argued), Office of the State Appellate Defender, Ottawa, Kenneth Grnacek, Trial Counsel, Joliet, for Robert Atteberry.

Gary F. Gnidovec (argued), States' Attys. Appellate Prosecutor, Ottawa, Edward Burmila, Jr., Will County State's Atty., Joliet, for the People.

Justice McCUSKEY delivered the opinion of the court:

The 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 probation with six months incarceration in the county jail and involuntary admission to a residential alcohol treatment program.

The 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's only eyewitness about her refusal to discuss her testimony in any way with either defense counsel or his investigator.

A defendant is constitutionally permitted to cross-examine a hostile or opposing witness regarding her bias or partiality. (People v. Hobson (3d Dist.1979), 77 Ill.App.3d 22, 32 Ill.Dec. 940, 396 N.E.2d 53; Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974).) Evidence of a witness' refusal to speak or cooperate prior to trial is proper grounds upon which to cross-examine that witness. (People v. Timmons (3d Dist.1983), 114 Ill.App.3d 861, 70 Ill.Dec. 762, 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. (People v. Timmons, 114 Ill.App.3d at 868, 70 Ill.Dec. 762, 449 N.E.2d 1366.)

The trial court's ruling was highly prejudicial to the defendant since the witness to be cross-examined was the only eye witness to the accident. The trial court, in this factual situation, committed reversible error by its ruling.

At the instruction conference, the trial court admitted over defendant's objection a non-IPI instruction which read as follows:

"If 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."

The trial court also admitted over defendant's objection the following IPI instruction which provided:

"If you find that the amount of alcohol in the defendant's 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.

However, 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."

The defendant contends the trial court's 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.

In attempting to establish the accused's 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's due process rights. (Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979).)

The instruction did not explain or define the term "prima facie." 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 "prima facie" 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, 55 Ill.Dec. 315, 426 N.E.2d 290, where the term "prima facie" 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 ...