People v. Kizer ( 2006 )

NO. 4-04-0653 Filed 6/16/06
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Vermilion County
MICHAEL KIZER, ) No. 01CF193
Defendant-Appellant. )
) Honorable
) Michael D. Clary,
) Judge Presiding.
JUSTICE APPLETON delivered the opinion of the court:
Defendant, Michael Kizer, appeals from his convictions of driving under
the influence of alcohol (625 ILCS 5/11-501(a)(2) (West 1998)) and driving under the
influence of alcohol with a blood alcohol content of .08 grams per deciliter or more (625
ILCS 5/11-501(a)(1) (West 1998)). We vacate the latter conviction under the one-act,
one-crime rule but otherwise affirm the trial court's judgment.
I. BACKGROUND
On October 15, 1999, the police issued defendant a uniform citation and
complaint for driving under the influence of alcohol (DUI) (625 ILCS 5/11-501(a)(2)
(West 1998)). The case was docketed as People v. Kizer, No. 99-DT-411 (traffic case).
On October 13, 2000, pursuant to section 103-5(b) of the Code of Criminal Procedure
of 1963 (Code) (725 ILCS 5/103-5(b) (West 2000)), defendant filed a request for a
speedy trial in the traffic case. The State nol-prossed the traffic case on February 27,
2001.
On May 7, 2001, in the present case, No. 01-CF-193, the State filed an
indictment charging defendant with reckless homicide (720 ILCS 5/9-3(a) (West 1998)).
According to the indictment, he caused Kevin Andrews's death on October 15, 1999, by
driving "at an excessive speed at a time when he had ingested alcohol" or "when he had
ingested alcohol to a degree which rendered him incapable of safely driving." The
indictment alleged the same conduct of DUI as the traffic case.
On May 29, 2001, in a motion for pretrial discovery pursuant to Supreme
Court Rule 412 (188 Ill. 2d R. 412), defendant requested "[a]ny *** tangible objects
which the State intends to use in a *** trial which were obtained from *** the accused"
and "[a]ny material *** which tends to negate the guilt of the accused."
On March 4, 2002, defendant pleaded guilty to reckless homicide. On
May 9, 2002, the trial court sentenced him to 30 months' probation.
The statute defining the offense of reckless homicide provided that "[i]n
cases involving reckless homicide, being under the influence of alcohol *** 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 1998). On November
14, 2002, defendant filed a postconviction petition, arguing that the trial court should
vacate his conviction of reckless homicide because in People v. Pomykala, 203 Ill. 2d
198, 209, 784 N.E.2d 784, 791 (2003), the supreme court declared the mandatory
presumption in section 9-3(b) to be unconstitutional. On September 29, 2003, the State
confessed the petition, and the court vacated the guilty plea and the sentence.
On October 3, 2003, defendant filed a motion to suppress a blood alcohol
analysis. In this motion, defendant alleged that the Illinois State Police laboratory
-2-
analyzed a blood sample collected from him shortly after the accident. On June 13,
2001, in response to his discovery request, the State disclosed to him the blood alcohol
content: 0.92 grams per deciliter. On September 30, 2003, defense counsel sent the
State's Attorney a letter "requesting that said sample be tested by an independent
toxicological laboratory because of the narrow margin of error of the [e]thanol findings
over the legal limit of .08 [grams per deciliter], which presumes intoxication." The State
could not comply with that request because the crime laboratory "destroyed said
samples on or before September 30, 2001." Defendant claimed that the destruction of
this evidence violated his right to due process under the fourteenth amendment (U.S.
Const., amend. XIV), and, on the authority of People v. Newberry, 166 Ill. 2d 310, 652
N.E.2d 288 (1995), and Rule 415(g)(i) (134 Ill. 2d R. 415(g)(i)), he requested a
suppression of the blood alcohol analysis.
On October 24, 2003, the trial court held a hearing on the motion for
suppression. Cathy Anderson, a forensic scientist at the crime laboratory, testified that
the two blood samples collected from defendant "were destroyed or discarded" on
September 25, 2001. The State's Attorney never asked her to preserve them. She
testified: "[W]e have a statement on the report that *** we will destroy [the blood
samples] after a year unless we're otherwise notified, and *** we're behind[,] so it takes
a couple of years before we actually destroy them." Because the laboratory had mixed
a preservative with the samples and stored them in a refrigerator, it would have been
possible to reanalyze them, had they not been destroyed. On November 10, 2003, the
court denied defendant's motion for suppression because he never specifically asked
the State to preserve the blood samples.
-3-
On December 1, 2003, pursuant to section 103-5 of the Code (725 ILCS
5/103-5 (West 2002)) defendant filed a request for "an immediate trial" in the present
felony case.
On February 27, 2004, the State filed an amended information charging
defendant with two counts. Count I was driving under the influence of alcohol (625
ILCS 5/11-501(a)(2) (West 1998)), and count II was driving under the influence of
alcohol with a blood alcohol content of .08 grams per deciliter or more (625 ILCS 5/11-
501(a)(1) (West 1998)). The State nol-prossed the indictment for reckless homicide.
Both counts of the amended information alleged the same DUI as the traffic case and
the indictment.
On March 1, 2004, defendant filed a motion to dismiss the charges with
prejudice, pursuant to sections 103-5(d) and 114-1(a)(1) of the Code (725 ILCS 5/103-
5(d), 114-1(a)(1) (West 2002)), on the ground that the State had failed to give him a trial
within 160 days of his demand for a speedy trial in the traffic case. On April 14, 2004,
the trial court denied the motion.
Trial on the amended information began on April 19, 2004. The evidence
revealed that around 8 p.m. on October 15, 1999, defendant drove two of his friends,
Andrews and Paul Nickle, from his home in Westville to a cookout in Indiana. They
traveled in defendant's car and drank throughout the evening. When exiting a pizza
restaurant in Indiana, Andrews was so intoxicated he had to be helped to the car.
Defendant asked Nickle to drive because defendant believed that he himself had
consumed too much alcohol. Nickle declined because he was suffering from the same
disadvantage as defendant. At 11:30 p.m., on the return trip, the car veered off a
-4-
country road in Vermilion County, Illinois, rolled, and came to rest on its roof in a
drainage ditch. Defendant and Nickle were thrown from the car but survived. Andrews
was trapped in the backseat and died. In the emergency room, defendant told a nurse
and doctor that he was the driver. After his discharge from the hospital, defendant tried
to talk Nickle into telling the authorities that Andrews was the driver "[b]ecause he was
dead." Nickle declined. Nickle testified he did not remember who was driving the car at
the time of the accident, but he remembered that defendant was the driver earlier in the
evening, from Westville to the departure from the restaurant. Defendant, who sustained
a head injury, testified he remembered nothing of the accident and had no idea who
was driving.
The jury found defendant guilty of both counts of the amended
information. The trial court sentenced him to 18 months' probation and 75 hours'
community service. This appeal followed.
II. ANALYSIS
A. Speedy Trial
Under section 103-5(b) of the Code, "[e]very person on bail or
recognizance shall be tried by the court having jurisdiction within 160 days from the date
[the] defendant demands trial[,] unless delay is occasioned by the defendant." 725
ILCS 5/103-5(b) (West 2002). The remedy for failing to meet this requirement is
dismissal of the charges. 725 ILCS 5/114-1(a)(1) (West 2002).
Defendant seeks dismissal of the charges because the State failed to
bring him to trial within 160 days after he filed a demand for a speedy trial in the traffic
case. He reasons that by vacating his guilty plea and the sentence in compliance with
-5-
Pomykala, the trial court returned him to "the same position [that] he [occupied] on
March 3, 2002, the day prior to his guilty plea." According to defendant, the demand for
a speedy trial that he filed in the traffic case on October 13, 2000, remained "in full force
and effect" in this felony case. He argues that the supreme court's decision in People v.
Quigley, 183 Ill. 2d 1, 697 N.E.2d 735 (1998), "commands this result."
In Quigley, "the State filed an information against [the] defendant charging
him with a misdemeanor ***, driving while having a [blood alcohol content] of 0.10 or
more [(625 ILCS 5/11-501(a)(1) (West 1992))]". Quigley, 183 Ill. 2d at 4, 697 N.E.2d at
737. Later, the State filed an indictment charging the defendant with aggravated DUI
(625 ILCS 5/11-501(d)(3) (West 1992)). Quigley, 183 Ill. 2d at 5, 697 N.E.2d at 737.
The misdemeanor and felony DUI charges were based on the same act. Quigley, 183
Ill. 2d at 9, 697 N.E.2d at 739. The trial court dismissed the misdemeanor DUI case on
speedy-trial grounds, and the State never appealed the dismissal, making it res
judicata. Quigley, 183 Ill. 2d at 5, 697 N.E.2d at 737.
One of the issues before the supreme court was whether the felony
aggravated DUI charge was "subject to the same speedy-trial limitation" as the
misdemeanor DUI charge: in other words, if the misdemeanor charge was dismissed
on speedy-trial grounds, should the felony charge suffer the same fate? Quigley, 183
Ill. 2d at 13-14, 697 N.E.2d at 741. The answer was yes. The supreme court held that
because the compulsory-joinder statute, section 3-3(b) of the Code (720 ILCS 5/3-3(b)
(West 1992)), required the State to prosecute the felony charge in the same proceeding
as the misdemeanor charge, the felony charge "was subject to the same speedy-trial
limitation" as the misdemeanor charge. Quigley, 183 Ill. 2d at 16, 697 N.E.2d at 742.
-6-
"The State did not act in a timely manner to bring the two related charges in a single
proceeding. The aggravated DUI charge [was] therefore barred on speedy-trial
grounds." Quigley, 183 Ill. 2d at 16, 697 N.E.2d at 742.
Defendant compares his own traffic case to the misdemeanor case in
Quigley; but we see a crucial difference between the two cases. In Quigley, in the
misdemeanor case, the State's Attorney charged the defendant by filing an "information"
(Quigley, 183 Ill. 2d at 4, 697 N.E.2d at 737), "a formal presentation of a criminal charge
against [the defendant] by the State's [A]ttorney" (People v. Gahagan, 368 Ill. 475, 478,
14 N.E.2d 838, 839 (1938)). In defendant's traffic case, a police officer charged him via
a uniform citation and complaint, i.e., a traffic ticket. See 134 Ill. 2d R. 552. The
supreme court has held that "the compulsory-joinder provisions of section 3-3 do not
apply to offenses that have been charged by the use of a uniform citation and complaint
form provided for traffic offenses." (Emphasis added.) People v. Jackson, 118 Ill. 2d
179, 192, 514 N.E.2d 983, 988-89 (1987); see also People v. Mauricio, 249 Ill. App. 3d
904, 911, 619 N.E.2d 1348, 1353 (1993) (and cases cited therein).
As we held in People v. Crowe, 195 Ill. App. 3d 212, 218, 552 N.E.2d 5, 9-
10 (1990)--a decision that is directly on point but which defendant does not cite in his
initial brief--if section 3-3 does not require the State to prosecute a felony charge in the
same proceeding as a related traffic offense charged by uniform citation and complaint,
it must follow that a demand for a speedy trial in the traffic case has no effect in the
felony case.
In a case that defendant does cite, People v. Williams, 94 Ill. App. 3d 241,
248-49, 418 N.E.2d 840, 846 (1981), the First District held that if a new and additional
-7-
charge arose from the same facts as the original charge and the State had knowledge
of those facts at the commencement of the prosecution, trial had to begin by the same
deadline that applied to the original charge. In People v. Gooden, 189 Ill. 2d 209, 218,
725 N.E.2d 1248, 1253 (2000), however, the supreme court limited the Williams rule to
only those cases in which statutory law required the State to join the additional charge
with the original charge.
Statutory law did not require the State to join the felonies in the present
case with the misdemeanor charged by uniform citation and complaint in the traffic
case. Therefore, under our decision in Crowe, defendant's demand for a speedy trial in
the traffic case had no force in the present case. He seemed to implicitly recognize that
fact on December 1, 2003, when he filed a new demand for a speedy trial. Fewer than
160 days passed between that date and the trial on April 19, 2004.
We further note that nol-prossing "terminates the case" and, "[a]s a
general rule, *** toll[s] the running of the statutory speedy-trial period." Ferguson v. City
of Chicago, 213 Ill. 2d 94, 102, 820 N.E.2d 455, 460 (2004). We find no error in the
denial of defendant's motion to dismiss the charges on speedy-trial grounds.
B. Destruction of the Blood Samples
Defendant complains that in disposing of the blood samples, "the State
destroyed crucial evidence before [he] had the opportunity to have the substance
independently examined, thus depriving him of his constitutional right to due process ***
and negating the State's compliance with Supreme Court Rule 412." Defendant relies
on Newberry, among other authorities.
Understanding Newberry requires acquaintance with two federal decisions
-8-
that Newberry distinguished: California v. Trombetta, 467 U.S. 479, 81 L. Ed. 2d 413,
104 S. Ct. 2528 (1984), and Arizona v. Youngblood, 488 U.S. 51, 102 L. Ed. 2d 281,
109 S. Ct. 333 (1988). In Trombetta, the defendants were convicted of DUI (Trombetta,
467 U.S. at 482-83, 81 L. Ed. 2d at 418, 104 S. Ct. at 2530-31), but the California Court
of Appeals reversed their convictions and ordered new trials on the ground that the
police had failed to preserve the breath samples, which, under California law, raised a
presumption of intoxication. Trombetta, 467 U.S. at 483-84, 81 L. Ed. 2d at 419, 104 S.
Ct. at 2531-32. According to the appellate court, due process demanded that the state
preserve the breath samples for the defendants' use. Trombetta, 467 U.S. at 483-84,
81 L. Ed. 2d at 419, 104 S. Ct. at 2531.
The Supreme Court of the United States disagreed for three reasons.
First, in destroying the breath samples, the police officers had no apparent intent to
suppress exculpatory evidence but acted in good faith and merely followed the normal
practice in California. Trombetta, 467 U.S. at 488, 81 L. Ed. 2d at 421-22, 104 S. Ct. at
2533. Second, "the chances [were] extremely low that [the] preserved samples would
have been exculpatory." Trombetta, 467 U.S. at 489, 81 L. Ed. 2d at 422, 104 S. Ct. at
2534. Third, the defendants had "alternative means of demonstrating their innocence,"
such as by pointing out the ways in which the "Intoxilyzer" could have malfunctioned.
Trombetta, 467 U.S. at 490, 81 L. Ed. 2d at 423, 104 S. Ct. at 2534.
In Youngblood, the State of Arizona charged the defendant with kidnaping
and sexually assaulting a 10-year-old boy. Youngblood, 488 U.S. at 52, 102 L. Ed. 2d
at 285-86, 109 S. Ct. at 334. The boy's clothing was stained with semen, but the police
failed to refrigerate the clothing or promptly test the stains to determine the identity of
-9-
the assailant; as a consequence, the state had no scientific proof of identity.
Youngblood, 488 U.S. at 54, 102 L. Ed. 2d at 287, 109 S. Ct. at 335. Nevertheless, on
the strength of the boy's testimony, the jury found the defendant guilty. Youngblood,
488 U.S. at 52, 102 L. Ed. 2d at 285, 109 S. Ct. at 334. The Arizona Court of Appeals
reversed the conviction on due-process grounds (Youngblood, 488 U.S. at 54, 102 L.
Ed. 2d at 287, 109 S. Ct. at 335,) even though it found no evidence of bad faith on the
part of the state (Youngblood, 488 U.S. at 55, 102 L. Ed. 2d at 287, 109 S. Ct. at 335-
36). The court reasoned that "that timely performance of tests with properly preserved
semen samples could have produced results that might have completely exonerated
[the defendant]." Youngblood, 488 U.S. at 55, 102 L. Ed. 2d at 287, 109 S. Ct. at 335.
The Supreme Court of the United States agreed with the appellate court
"that there was no suggestion of bad faith on the part of the police": failing to refrigerate
the clothing and promptly perform tests on the semen stains was, at worst, negligence.
Youngblood, 488 U.S. at 58, 102 L. Ed. 2d at 290, 109 S. Ct. at 338. If the state had
failed to disclose material exculpatory evidence, its good or bad faith would have been
irrelevant. Youngblood, 488 U.S. at 57, 102 L. Ed. 2d at 289, 109 S. Ct. at 337. But
such was not the situation before the Supreme Court, all one could say of the evidence
was it might have been exculpatory. Therefore, contrary to the holding of the appellate
court, the defendant had to show bad faith. The Supreme Court held: "[U]nless a
criminal defendant can show bad faith on the part of the police, failure to preserve
potentially useful evidence does not constitute a denial of due process of law."
Youngblood, 488 U.S. at 58, 102 L. Ed. 2d at 289, 109 S. Ct. at 337.
In Newberry, the State charged the defendant with unlawful possession of
- 10 -
a controlled substance with intent to deliver. Newberry, 166 Ill. 2d at 312, 652 N.E.2d at
289. Defense counsel filed a discovery motion pursuant to Supreme Court Rule 412
(134 Ill. 2d R. 412), including "a request to examine all tangible objects that had been
seized from [the defendant]." Newberry, 166 Ill. 2d at 312, 652 N.E.2d at 290. A year
after this motion, an evidence technician--by sheer accident and without any bad faith--
destroyed the alleged cocaine that the police had seized from the defendant. Newberry,
166 Ill. 2d at 313, 652 N.E.2d at 290. The trial court dismissed the charges, the
appellate court affirmed the dismissal, and the issue before the Supreme Court of
Illinois was whether this was a justifiable remedy for the destruction of the evidence.
Newberry, 166 Ill. 2d at 313, 652 N.E.2d at 290. The supreme court held that due
process "mandated" the dismissal. Newberry, 166 Ill. 2d at 311, 652 N.E.2d at 289.
Further, the supreme court deemed the dismissal to be "an appropriate discovery
sanction under Supreme Court Rule 415(g)(i) (134 Ill. 2d R. 415(g)(i))." Newberry, 166
Ill. 2d at 311, 652 N.E.2d at 289.
In arriving at its conclusion as to due process, Newberry distinguished
Trombetta and Youngblood as follows: "Here, unlike Youngblood and Trombetta, the
police destroyed the disputed substance after defense counsel had requested access to
it in his discovery motion." Newberry, 166 Ill. 2d at 317, 652 N.E.2d at 292. Our
supreme court held as follows:
"Where evidence is requested by the defense in a discovery
motion, the State is on notice that the evidence must be
preserved, and the defense is not required to make an
independent showing that the evidence has exculpatory
- 11 -
value in order to establish a due[-]process violation.
[Citation.] If the State proceeds to destroy the evidence,
appropriate sanctions may be imposed[,] even if the
destruction is inadvertent. No showing of bad faith is
necessary. [Citation.]" Newberry, 166 Ill. 2d 317, 652
N.E.2d at 292.
The Supreme Court of Illinois distinguished Trombetta and Youngblood on
other grounds as well. Trombetta concluded that "[i]n all but a tiny fraction of cases,
preserved breath samples would simply confirm the Intoxilyzer's determination that the
defendant had a high level of blood-alcohol concentration at the time of the test."
Trombetta, 467 U.S. at 489, 81 L. Ed. 2d at 422, 104 S. Ct. at 2534. By contrast,
Newberry found "nothing in the record indicat[ing] that the laboratory procedures used
to test the substance were especially reliable or that further testing would not have
yielded different and more favorable results for [the defendant]." Newberry, 166 Ill. 2d
at 316, 652 N.E.2d at 291. Unlike the defendant in Trombetta, the defendant in
Newberry "lacked alternative means for showing that he was not guilty." Newberry, 166
Ill. 2d at 316, 652 N.E.2d at 291. Also, "[i]n Youngblood, the disputed material was not
essential for establishing the defendant's guilt or innocence," and "[its] value was
speculative," whereas, in Newberry, the disputed substance was "essential to and
determinative of the outcome of the case." Newberry, 166 Ill. 2d at 315, 652 N.E.2d at
291.
In Illinois v. Fisher, 540 U.S. 544, 545, 157 L. Ed. 2d 1060, 1064, 124 S.
Ct. 1200, 1201 (2004), another important case that defendant does not cite, the State
- 12 -
charged the defendant in October 1988 with possession of cocaine. Eight days later,
the defendant filed a discovery motion for all physical evidence the State intended to
use at trial. Fisher, 540 U.S. at 545, 157 L. Ed. 2d at 1064, 124 S. Ct. at 1201. He was
released on bond, failed to appear in court, and remained a fugitive for the next 10
years. Fisher, 540 U.S. at 545, 157 L. Ed. 2d at 1064, 124 S. Ct. at 1201. He was
apprehended in November 1999, whereupon the prosecution reinstated the charge of
possessing cocaine. Fisher, 540 U.S. at 545, 157 L. Ed. 2d at 1064-65, 124 S. Ct. at
1201. Before trial, the State informed the defendant that in September 1999, pursuant
to normal procedures, the police destroyed the substance they had seized from him
during his initial arrest some 10 years earlier. Fisher, 540 U.S. at 546, 157 L. Ed. 2d at
1065, 124 S. Ct. at 1201. The trial court denied the defendant's motion to dismiss the
charge, and a jury found him guilty. Fisher, 540 U.S. at 546, 157 L. Ed. 2d at 1065, 124
S. Ct. at 1201.
In reliance on Newberry, the First District reversed the conviction. Fisher,
540 U.S. at 546, 157 L. Ed. 2d at 1065, 124 S. Ct. at 1201. The appellate court
distinguished Youngblood the same way Newberry had distinguished that case: the
police in Youngblood did not destroy the evidence after a discovery motion by the
defendant. Fisher, 540 U.S. at 546, 157 L. Ed. 2d at 1065, 124 S. Ct. at 1201. The
appellate court found no evidence of bad faith on the part of the police, but it concluded
that Newberry nevertheless dictated dismissal because, unlike the unrefrigerated
clothing in Youngblood, the destroyed evidence was the defendant's only hope of
exoneration and was essential to the outcome of the case. Fisher, 540 U.S. at 546-47,
157 L. Ed. 2d at 1065, 124 S. Ct. at 1201. Thus, the appellate court held that the
- 13 -
defendant was denied due process when he was tried after the destruction of the allege
cocaine. Fisher, 540 U.S. at 547, 157 L. Ed. 2d at 1065, 124 S. Ct. at 1201.
The Supreme Court of the United States disagreed. The substance
seized from the defendant was not material exculpatory evidence but merely potentially
useful evidence. Fisher, 540 U.S. at 548, 157 L. Ed. 2d at 1066, 124 S. Ct. at 1202.
Thus, contrary to the holding of the First District, the defendant had to show bad faith on
the part of the police. Fisher, 540 U.S. at 547-48, 157 L. Ed. 2d at 1066, 124 S. Ct. at
1202. In a remark aimed directly at Newberry, the Supreme Court said:
"We have never held or suggested that the existence
of a pending discovery request eliminates the necessity of
showing bad faith on the part of police. Indeed, the result
reached in this case demonstrates why such a per se rule
would negate the very reason we adopted the bad-faith
requirement in the first place: to 'limi[t] the extent of the
police's obligation to preserve evidence to reasonable
grounds and confin[e] it to that class of cases where the
interests of justice most clearly require it.' [Citation.]
We also disagree that Youngblood does not apply
whenever the contested evidence provides a defendant's
'only hope for exoneration' and is '"essential to and
determinative of the outcome of the case."' App. to Pet. for
Cert. 15-16 (citing Newberry, [166 Ill. 2d], at 315, 652 N.E.
2d, at 291). *** [T]he applicability of the bad-faith
- 14 -
requirement in Youngblood depended not on the centrality of
the contested evidence to the prosecution's case or the
defendant's defense, but on the distinction between 'material
exculpatory' evidence and 'potentially useful' evidence.
[Citation.] As we have held [citation], the substance
destroyed here was, at best, 'potentially useful' evidence,
and therefore Youngblood's bad-faith requirement applies."
Fisher, 540 U.S. at 548-49, 157 L. Ed. 2d at 1066-67, 124 S.
Ct. at 1202-03.
With respect to the due-process clause of the fourteenth amendment (U.S.
Const., amend. XIV), Fisher supersedes Newberry because the Supreme Court of the
United States is "the final arbiter on issues involving questions of the [f]ederal
constitution" (2063 Lawrence Avenue Building Corp. v. Van Heck, 377 Ill. 37, 39, 35
N.E.2d 373, 374 (1941)). But the Illinois Constitution also has a due-process clause (Ill.
Const. 1970, art. I, '2). State courts are free to interpret their own constitutional
provisions more broadly than the Supreme Court of the United States interprets similar
federal constitutional provisions. People v. McCauley, 163 Ill. 2d 414, 426, 645 N.E.2d
923, 930 (1994). The Supreme Court of Illinois "has not consistently applied the so-
called lockstep doctrine as an assist in interpreting article I, section 2, the due[-]process
clause in our [s]tate constitution." McCauley, 163 Ill. 2d at 440, 645 N.E.2d at 937. This
appeal raises the following question: Would our own supreme court accept the analysis
in Fisher when interpreting the due-process clause of the Illinois Constitution?
For four reasons, we predict the answer would be yes. First, when
- 15 -
discussing the concept of due process in Newberry, the supreme court made no
distinction between the due-process clause of the Illinois Constitution and that of the
federal constitution. Second, in People v. Pecoraro, 175 Ill. 2d 294, 318, 677 N.E.2d
875, 887 (1997), the supreme court declined an invitation to interpret the Illinois due-
process clause more broadly than the Supreme Court of the United States had
interpreted the federal due-process clause, choosing "instead [to] adhere to the well-
reasoned principles set forth in Trombetta and Youngblood for purposes of our state
due[-]process clause." Third, Fisher purported merely to interpret or clarify
Youngblood, a decision that our own supreme court has repeatedly followed when
assessing due process (Pecararo, 175 Ill. 2d at 318, 677 N.E.2d at 887; People v.
Hobley, 159 Ill. 2d 272, 307, 637 N.E.2d 992, 1007-08 (1994); People v. Ward, 154 Ill.
2d 272, 298, 609 N.E.2d 252, 262 (1992)). Fourth, in People v. Caballes, No. 91547,
slip op. at 25 (May 18, 2006), ___ Ill. 2d ___, ___, ___ N.E.2d ___, ___ , the supreme
court recently reaffirmed its commitment to the "limited lockstep analysis." The
language of our due-process clause (Ill. Const. 1970, art. I, '2) is almost identical to that
of the federal due-process clause (U.S. Const., amend. XIV). Unless defendant points
out some contrary intention in the debates and committee reports of the Illinois
constitutional convention (see Caballes, slip op. at 22, ___ Ill. 2d at ___, ___ N.E.2d at
___) or identifies some countervailing "state tradition and values as reflected by long-
standing state case precedent" (see Caballes, slip op. at 25, ___ Ill. 2d at ___, ___
N.E.2d at ___), we will conclude that the Illinois due-process clause has the same
meaning as the federal due-process clause. Defendant has not done so. Therefore, we
conclude that the Supreme Court of Illinois would follow Fisher when interpreting the
- 16 -
due-process clause of the Illinois Constitution. See Newberry, 166 Ill. 2d at 329, 652
N.E.2d at 297 (Freeman, J., dissenting) ("Illinois adheres to the [f]ederal due[-]process
analysis applicable in access-to-evidence cases").
The trial court never found, and defendant does not contend, that the
State destroyed the blood sample in bad faith. Therefore defendant has failed to make
the showing that Youngblood and Fisher require, and the court was correct in denying
his motion to dismiss the charges on due-process grounds.
C. Admitting Evidence of Andrews's Death
Defendant requests that we reverse his conviction because the State
introduced evidenced that Andrews died in the accident, even though defendant was
not on trial for homicide. "A defendant's guilt must be established by legal and
competent evidence." People v. Hope, 116 Ill. 2d 265, 275, 508 N.E.2d 202, 206
(1986). According to defendant, Andrews's death in the accident had no tendency to
prove that defendant drove while intoxicated, but its only purpose was to inflame the
jury against him. See Hope, 116 Ill. 2d at 275, 508 N.E.2d at 206; People v. Lewis, 165
Ill. 2d 305, 331, 651 N.E.2d 72, 84 (1995).
We agree that Andrews's death, by itself, had no tendency to prove that
defendant drove while intoxicated. His death, however, was an indispensable part of a
narrative the jury had to hear to determine who was the driver. The jury heard
testimony that Andrews was a passenger. Because the identity of the driver was at
issue, the jury would have been left wondering why no one called Andrews to testify.
The lack of an explanation would have been unfair to the prosecution; the jury might
have inferred that the prosecution chose not to call Andrews because he would have
- 17 -
been an unfavorable witness. Further, Nickle testified that about two or three weeks
after defendant was discharged from the hospital, defendant told him to say that
Andrews was the driver because Andrews "was dead." This was an important
admission on defendant's part, which no conscientious prosecutor would have failed to
present at trial. The State could not have elicited evidence of this admission without
informing the jury of Andrews's death.
We disagree with defendant that the probative value of this admission was
substantially outweighed by its danger of unfair prejudice. See People v. Eyler, 133 Ill.
2d 173, 218, 549 N.E.2d 268, 288 (1989). The probative value was high. By soliciting a
cover-up, defendant showed a consciousness of guilt, i.e., an awareness that he himself
was driving while intoxicated. See People v. Doody, 343 Ill. 194, 207-08, 175 N.E. 436,
443 (1931).
D. One Act, One Crime
The State concedes that defendant improperly received multiple
convictions for one act of drunken driving. See People v. Barcik, 357 Ill. App. 3d 1043,
1046, 830 N.E.2d 717, 720 (2005), vacated in part on other grounds, 217 Ill. 2d 569,
838 N.E.2d 2 (2005). We find the concession to be warranted by the record and,
accordingly, vacate defendant's conviction on count II of the amended information
(driving a motor vehicle with a blood alcohol concentration of 0.08 grams per deciliter or
more).
E. Sufficiency of the Evidence
Defendant contends that the State failed to prove, beyond a reasonable
doubt, that he was the driver. We disagree. Defendant had been driving all evening.
- 18 -
Andrews was found in the backseat, where he had ridden all evening. When leaving
the restaurant, Andrews could not walk, let alone drive, and Nickle declined to drive.
Defendant admitted to two medical personnel that he was the driver. A jury could infer
that defendant was the driver because the car belonged to him. See People v. Rhoden,
253 Ill. App. 3d 805, 812, 625 N.E.2d 940, 945 (1993).
III. CONCLUSION
For the foregoing reasons, we affirm the conviction on count I of the
amended information but vacate the conviction on count II.
Affirmed in part and vacated in part.
TURNER, P.J., and STEIGMANN, J., concur.
- 19 -