People v. Grover

• Decision Date: 04 March 1981
• Docket Number: No. 16199,16199
• Parties: , 49 Ill.Dec. 266 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. David R. GROVER, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1093

417 N.E.2d 1093

93 Ill.App.3d 877, 49 Ill.Dec. 266

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. David R. GROVER, Defendant-Appellant.

No. 16199.

Appellate Court of Illinois, Fourth District.

March 4, 1981.

Rehearing Denied April 3, 1981.

Arthur J. Inman, Peoria, for defendant-appellant.

Stephen H. Peters, State's Atty., Clinton, Robert J. Biderman, Deputy Director, State's Attys. Appellate Service Commission, Larry Wechter, Staff Atty., Springfield, for plaintiff-appellee.

TRAPP, Presiding Justice:

As the result of a car wreck where one teen-age driver was killed and her three passengers were injured, the defendant was charged with reckless homicide (Ill.Rev.Stat.1977, ch. 38, par. 9-3(a)), and three counts of reckless conduct (Ill.Rev.Stat.1977, ch. 38, par. 12-5(a)). After a jury trial, the defendant was convicted as charged, and sentenced to 18 months' imprisonment for reckless homicide, and concurrent terms of 6 months' imprisonment for the three reckless conduct charges. On appeal, the defendant contends (1) the trial court erred in denying the defendant's motion for change of place of trial, (2) the State failed to comply with discovery orders, (3) evidence of the defendant drinking beer the day of the accident should not have been admitted, (4) the State's closing argument with respect to the prosecutor's comments about the defendant's drinking and other offenses was erroneous, (5) defendant was not proved guilty beyond a reasonable doubt, (6) defendant's sentences are excessive, and (7) defendant's three convictions for reckless conduct should be vacated.

A juror need not be unaware of the facts and issues involved in the trial. Here, the trial court determined that each juror could lay aside his impression or opinion and render a verdict based upon the legal evidence. (See People v. Williams (1968), 40 Ill.2d 522, 240 N.E.2d 645.) Moreover, the record shows that no jurors were selected after the defendant had exhausted his peremptory challenges and that the defendant stipulated to proceed without alternate jurors. Therefore, on this record, the trial court did not abuse its discretion under section 114-6 of the Code of Criminal Procedure of 1963 (Ill.Rev.Stat.1977, ch. 38, par. 114-6) when it denied the defendant's motions for change of place of trial.

The State failed to comply with discovery orders. However, given the defendant's late objection on discovery grounds, the only sanctions the trial court could have imposed would have been to grant the defendant a mistrial or to instruct the jury to disregard the objected-to testimony. Clearly, in the context of this case, the former sanction would have been inappropriate. While the trial court should have instructed the jury to disregard the objected-to testimony, this error was harmless given the cumulative nature of the objected-to testimony.

Defendant's contention that evidence of his drinking beer the day of the accident was inadmissible is untenable. Evidence of intoxication is probative of the issue of recklessness in a reckless homicide prosecution. People v. Miller (1979), 75 Ill.App.3d 775, 394 N.E.2d 783, 31 Ill.Dec. 581.

The State's closing argument with respect to the prosecutor's comments about the defendant's drinking and other offenses was improper. However, this error was harmless upon this record. (See People v. Terry (1976), 38 Ill.App.3d 517, 347 N.E.2d 869.) Also, viewing this record, we find the defendant's contention that he was not proved guilty beyond a reasonable doubt is untenable. Further, given the recent supreme court case of People v. Cox (1980), 82 Ill.2d 268, 412 N.E.2d 541, 45 Ill.Dec. 190, we cannot say that the defendant's sentences are excessive.

While it is agreed that the death (reckless homicide) and the several injuries (reckless conduct) resulted from defendant's single act of driving, we do not accept his contention that for such reason the separate convictions for reckless conduct must, or should be, vacated.

Section 12-5 of the Criminal Code of 1961 (Ill.Rev.Stat.1979, ch. 38, par. 12-5) states the offense of reckless conduct in terms of causing bodily harm to "an individual." The record shows no doubt that three persons were injured as a result of defendant's conduct as well as the individual named in the reckless homicide count.

Section 3-3 of the Criminal Code of 1961 (Ill.Rev.Stat.1979, ch. 38, par. 3-3) provides:

"(a) When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense.

(b) If the several offenses are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution, except as provided in Subsection (c), if they are based on the same act. " (Emphasis added.)

While known as the statute providing "compulsory joinder," the Committee Comments prepared in 1961 include the stated purposes of the legislation, saying:

"The rule is well established that an offender may be prosecuted for each of several offenses which are committed by the same conduct or which grow out of the same transaction." (Emphasis in the original Comment.) Ill.Ann.Stat., ch. 38, par. 3-3, Committee Comments at 197 (Smith-Hurd 1972).

The Comments continue:

"The present concern is only with the situations in which more than one offense is found to arise out of the same conduct, or the same act and the defense of double jeopardy is unavailable." (Emphasis in the original Comment.) Ill.Ann.Stat., ch 38, par. 3-3, Committee Comments at 198 (Smith-Hurd 1972).

It is further stated:

" 'The same act' is designed to describe the situation in which several persons are affected by only one act of the defendant, such as a negligent act of driving a vehicle, as in the Allen case * * * or a deliberate act of firing a gun, setting off an explosive, starting a fire as in People v. Fox * * * or placing poison in a water supply system; * * *." Ill.Ann.Stat., ch. 38, par. 3-3, Committee Comments at 201-2 (Smith-Hurd 1972).

In People v. Allen, (1938), 368 Ill. 368, 14 N.E.2d 397, defendant operated an automobile which struck and killed two pedestrians. He was convicted of involuntary manslaughter and sentenced as to each of two counts. Upon appeal, the defendant contended that his act of driving was but a single offense. The opinion is written in the context of double jeopardy arising from the fact of separate trials upon each count. The supreme court rejected the contention pointing out that "(a) distinction obtains between an offense and the unlawful act out of which it arises." (368 Ill. 368, 378, 14 N.E.2d 397, 403.) The Allen opinion also examined and rejected the views found in other jurisdictions which had held that there could be but one conviction and one sentence under such circumstances.

It is fair to conclude that the Comments report a legislative rejection of the view stated in certain jurisdictions, as New Jersey, which holds that but one offense exists in the circumstance where multiple victims are injured by a single act.

In People v. Ellington (1972), 7 Ill.App.3d 72, 73, 286 N.E.2d 367, 368, defendant was charged in separate counts with aggravated kidnapping and robbery of two women. Such offenses occurred at the same time. Defendant argued that the kidnapping constituted only one offense and that only one sentence should have been imposed, or, in the alternative, that there were only two offenses, one of kidnaping and one of robbery and that only two sentences should have been imposed. The court stated:

"We consider each of these propositions to be without merit. It has long been settled that it is the identity of the offense, and not the act, that prohibits two prosecutions. In People v. Allen, 368 Ill. 368, 14 N.E.2d 397, involving two involuntary manslaughter charges against one individual as a result of an automobile collision in which two people were killed, the court stated that where two or more persons are injured in their person, though it be by a single act, yet, since the consequences affect, separately, each person injured, there is a corresponding number of distinct offenses for which an accused may be indicted, tried and punished. In Gavieres v. United States, 220 U.S. 338, 31 S.Ct. 421, 55 L.Ed. 489, it is stated that offenses are not the same if, upon the trial of one, proof of an additional fact is required which is not necessary to be proved in the trial of the other, although the same acts may be necessary to be proved in the trial of each. (Citation.) In People v. Ciucci, 8 Ill.2d 619, 137 N.E.2d 40, involving a man who was charged with killing his wife and three children, the court held that where two or more persons are killed by a single criminal act there are as many separate and distinct offenses as there are persons injured by the unlawful act. Following this case the Illinois legislature recognized that the same conduct may establish the commission of more than one offense and that an accused may be prosecuted for each offense." 7 Ill.App.3d 72, 73-74, 286 N.E.2d 367, 368-69.

In People ex rel. Starks v. Frye (1968), 39 Ill.2d 119, 233 N.E.2d 413, defendant so operated his automobile as to cause the death of two people. He was convicted upon two counts of involuntary manslaughter and consecutive sentences were imposed. Upon habeas corpus, the supreme court only considered the issue of consecutive sentences as limited by section 1-7 of the Criminal Code of 1961 (Ill.Rev.Stat.1965, ch. 38, par. 1-7). That section provides that consecutive sentences may be imposed for two or more offenses which do not result from the same conduct, and the opinion held that consecutive sentences were improper. Implicit is the conclusion that the separate deaths constituted distinct offenses and the opinion did not, in any way, suggest that the defendant could only be...