People v. Green

FIFTH DIVISION
December 31, 1997

No. 1-95-2142

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 92 CR 16860
)
DARWIN GREEN, ) Honorable
) James A. Zafiratos,
Defendant-Appellant. ) Judge Presiding.

JUSTICE HOURIHANE delivered the opinion of the court:

On June 4, 1992, defendant Darwin Green was involved in an
automobile accident which killed Florence McCaffray and seriously
injured two other members of her family. Defendant was indicted
on two counts of reckless homicide and three counts of aggravated
driving under the influence of alcohol. A jury trial followed,
and defendant was found guilty as charged. Defendant was
thereafter sentenced to a single seven-year prison term for
reckless homicide as well as to a concurrent three-year prison
term for each count of aggravated driving under the influence of
alcohol.
On appeal, defendant contends that (1) the jury was misled
into believing it could presume his legal intoxication pursuant
to certain blood serum-alcohol concentration test results, (2)
the State was improperly allowed to elicit testimony interpreting
the discrepancies between his various alcohol concentration test
results, and (3) one of his convictions for aggravated driving
under the influence of alcohol violates the "one act-one crime"
rule. For the reasons that follow, we reverse defendant's
convictions and remand this matter for a new trial.
BACKGROUND
Paul McCaffray was driving south on River Road through River
Grove, Illinois, late in the evening on June 4, 1992. With him
was his wife, Margaret, his six-year-old daughter, Julianne, and
his mother, Florence. McCaffray testified at trial that as he
changed lanes in anticipation of making a left-hand turn onto
Grand Avenue, "[he] saw two headlights coming directly at [him]
at what appeared to be a relatively high rate of speed." A
collision followed. Florence McCaffray was killed instantly;
McCaffray and his wife were seriously injured.
John Mancini was traveling north on River Road that evening.
Mancini testified that he first noticed defendant upon pulling
alongside him at the intersection of Fifth Avenue and Hemingway
Drive; defendant was stopped "on an angle" approximately 40 feet
behind that intersection.
Mancini further testified that as he drove north on Fifth
Avenue and then later on River Road, defendant twice came "right
up on [his] bumper and then backed off" before veering into, and
out of, the southbound traffic lanes. Defendant crossed over
into the southbound traffic lanes on four separate occasions; he
collided with a southbound car the fourth and final time.
River Grove police detective Keith Aller testified that he
was dispatched to the accident scene minutes after the collision,
which he described as two cars "head to head ***" in the left-
hand, southbound traffic lane of River Road. Detective Aller
found defendant was "semi-conscious" with several head injuries;
he also smelled of alcohol.
Emergency medical technician John Paczesny arrived shortly
thereafter. He, too, noticed that defendant smelled of alcohol.
Detective Aller secured the personal property within
defendant's car, which included a money clip, a portfolio, some
jewelry, a pager and a large, "picnic-type cooler;" no alcohol
was found. Detective Aller then drove to Gottlieb Memorial
Hospital, where nurse Patrick Coleman took a series of blood and
urine samples from defendant, certain of which were sealed and
inventoried by Detective Aller as evidence.
Dr. Joyce Rosenfeld, an emergency room physician at
Gottlieb, saw defendant upon his admission, and as a matter of
course, ordered a series of tests, including a blood serum-
alcohol concentration test. Dr. Rosenfeld testified that the
result of that test indicated an alcohol concentration level of
0.114 gram per 100 milliliters, which she explained, meant "that
the person is intoxicated above a level that would be a legal
blood[-alcohol] limit." Dr. Rosenfeld further testified that a
blood serum-alcohol concentration level between 0.50 and 0.10
gram per 100 milliliters "shows signs of intoxication," whereas a
level of 0.10 or greater means "under the influence ***."
Thereafter, the parties stipulated that one of the series of
blood samples taken from defendant upon his admission to Gottlieb
was forwarded to Metpath Laboratories, a private laboratory
retained by Gottlieb. Like Gottlieb, Metpath also subjected
defendant's blood serum to an alcohol concentration test.
However, the result of that test, 0.124 gram per 100 milliliters,
was somewhat higher than that reported by Gottlieb.
Laura LeDonne-Draka, a forensic scientist with the Illinois
State Police, testified that she also analyzed a sample of
defendant's blood. She, however, did not analyze defendant's
blood serum as had Gottlieb and Metpath; rather, she analyzed
defendant's whole blood, which according to the result of her
test, contained an alcohol concentration level of 0.079 gram per
100 milliliters. LeDonne-Draka stated that an alcohol
concentration test of blood serum "would give a higher [alcohol
concentration] reading" than would an identical test of whole
blood.[fn1] Indeed, according to LeDonne-Draka, an alcohol
concentration test which analyzes blood serum will produce
alcohol concentration levels approximately 16% higher than those
which analyze whole blood, thus necessitating the use of a
conversion factor to obtain equivalent whole blood-alcohol
concentration levels.
Tiffany Bailey then testified on behalf of defendant, who
she described as a "friend of the family." According to her,
defendant would often visit her at her job, and did so again on
evening of the collision following his softball game. Defendant
remained with her for about an hour, during which time she
noticed nothing unusual about him.
Defendant testified that some time after he finished work on
June 4, 1992, he drove to a friend's house, stopping first to
purchase beer. When defendant arrived at his friend's house, he
brought two bottles of beer inside. Defendant stated that he
drank half a bottle before leaving with his friend for a softball
game.
Defendant thereafter participated in the softball game with
no ill effects. Defendant also stated that he did not have
another drink until the game ended at 8:30 p.m., at which time he
had another beer. After finishing that beer, defendant drove his
friend home.
Defendant met Bailey later that evening. According to him,
they conversed for a half-an-hour before he left. Defendant
stated that as he drove home, north on Fifth Avenue and then
later on River Road, he was "feeling" for his cellular telephone
and "looking at the road" up until the moment he collided with a
southbound car.
Defendant further testified that he was not affected by the
alcohol he consumed that evening, and that he had not consumed
any other alcoholic beverages. He also stated that he did not
recall ever crossing into any southbound traffic lanes nor
driving close to the rear of another car.
Thereafter, defendant called Dr. Robert M. Moriarty, a
chemist at the University of Illinois at Chicago; Dr. Moriarty
had reviewed the alcohol concentration test results from
Gottlieb, Metpath and the Illinois State Police. Like LeDonne-
Draka, Dr. Moriarty testified that alcohol concentration tests
performed on blood serum produce different results than do the
same tests performed on whole blood; namely, alcohol
concentration levels approximately 16% higher. Using a
conversion factor of 1.16, Dr. Moriarty converted the Gottlieb
and Metpath blood serum-alcohol concentration test results into
respective whole blood equivalents of 0.0982 and 0.1068 gram per
100 milliliters.
Dr. Moriarty further testified that the wide range of
alcohol concentration test results precluded any reliance upon
them. Indeed, according to Dr. Moriarty, such a wide range of
results rendered each mutually exclusive of the others, and
therefore, unreliable and incompatible.
On rebuttal, LeDonne-Draka stated that the various alcohol
concentration test results were not incompatible, in light of the
differences between the tests that were performed and the
instruments that performed those tests. However, LeDonne-Draka
also admitted that she was unfamiliar with the instruments used
by Metpath and Gottlieb to determine blood serum-alcohol
concentration levels.
After hearing all the evidence and arguments of counsel, the
jury found defendant guilty as charged.
DISCUSSION
I.
Defendant now contends that a "series of errors conspired to
mislead the jury" into believing they could presume he was
legally intoxicated based upon the results of two blood serum-
alcohol concentration tests, each of which reported an alcohol
concentration level of greater than 0.10.
A trial error is of such magnitude as to require the
reversal of a defendant's conviction if there is a reasonable
probability the error may have contributed to that conviction.
People v. Fields, 170 Ill. App. 3d 1, 13, 523 N.E.2d 1196 (1988);
People v. Merideth, 152 Ill. App. 3d 304, 319, 503 N.E.2d 1132
(1987).
In a prosecution for aggravated driving under the influence,
a trier of fact may presume a defendant is under the influence of
alcohol if that defendant's alcohol concentration, at the time of
the incident, was 0.10 or greater. 625 ILCS 5/11-
501.2(b)(3)(West 1996). The same is true in a prosecution for
reckless homicide (625 ILCS 5/11-501.2(b)(3)(West 1996); 720 ILCS
5/9-3(c)(1)(West 1996)); an alcohol concentration of 0.10 or
greater also entitles a trier of fact to further presume that
defendant acted recklessly, "unless disproved by evidence to the
contrary." 730 ILCS 5/9-3(b)(West 1996).
Section 11-501.2(a)(5) of the Illinois Vehicle Code defines
"alcohol concentration" in terms of "grams of alcohol per 100
milliliters of blood or grams of alcohol per 210 liters of
breath." 625 ILCS 5/11-501.2(a)(5)(West 1996). The Vehicle
Code, however, does not define the term "blood;" neither does the
Criminal Code of 1961 (720 ILCS 5/1-1 et seq. (West 1996)). That
notwithstanding, whole blood has been held to be the "standard
unit required by the [Vehicle Code]" (People v. Niemiro, 256 Ill.
App. 3d 904, 914 n.2, 628 N.E.2d 212 (1993)), and we agree.
By the same token, we do not believe that the term "blood,"
as used within section 11-501.2(a)(5), can also mean blood serum.
First, section 11-501.2(a)(5) does not define "alcohol
concentration" in terms of blood serum. 625 ILCS 5/11-
501.2(a)(5)(West 1996). Second, whole blood and blood serum are
not fungible. Blood serum is, in fact, a constituent part of
whole blood; specifically, it is that which remains after the red
and white blood cells and other particulate matter have been
removed. Stedman's Medical Dictionary 1278 (24th ed. 1984).
Third, that lack of red and white blood cells and other
particulate matter serves to increase the relative percentage of
water within blood serum which, because alcohol has an affinity
for water, results in higher alcohol concentration levels in
blood serum than in whole blood. Kempe v. Dometic Corp., 866 F. Supp. 817, 820 (D.Del. 1994), citing James F. Mosher, 2 Liquor
Liability Law 22.04 (1994); Roehrenbeck, Carol A. and Raymond W.
Russell, Blood is Thicker Than Water, 8 Crim.Just. 14, 15 (1993).
As such, it would be illogical to conclude that section 11-
501.2(a)(5) may be understood to have defined "alcohol
concentration" in terms of both whole blood and blood serum.
Furthermore, to the extent section 11-501.2(a)(5) may be said to
be ambiguous, it must be strictly construed in favor of
defendant. People v. Woodard, 175 Ill. 2d 435, 444, 677 N.E.2d 935 (1997). In this instance, that would require a construction
of section 11-501.2(a)(5) which did not include blood serum.
Simply put, section 11-501.2(a)(5) of the Vehicle Code
defines "alcohol concentration" in terms of whole blood, and
whole blood only. See Niemiro, 256 Ill. App. 3d at 914 n.2; see
also 625 ILCS 5/11-501.2(a)(5)(West 1996); accord Florida Tile
Industries v. Dozier, 561 So. 2d 654, 655 (Fla.App. 1990),
overruled on other grounds, Domino's Pizza v. Gibson, 668 So. 2d 593 (Fla. 1996).
A.
The first in defendant's "series of errors" concerns the
testimony of Dr. Rosenfeld that defendant's blood serum-alcohol
concentration level of 0.114 meant he was legally intoxicated at
the time of the accident. Defendant argues that such testimony
was improper not only because it was a legal conclusion, but also
because that legal conclusion was "so utterly wrong."
Defendant did not object to Dr. Rosenfeld's testimony at
trial, nor did he do so within his post-trial motion. Both were
necessary to preserve that issue for appeal. People v. Enoch,
122 Ill. 2d 176, 186, 522 N.E.2d 1124 (1988). Indeed, failure to
do so generally waives an issue for purposes of appellate review.
People v. Vargas, 174 Ill. 2d 355, 362, 673 N.E.2d 1037 (1996).
Nevertheless, not all unpreserved issues are irredeemably waived,
for Supreme Court Rule 615(a) provides that plain errors
affecting substantial rights may be reviewed on appeal, although
not properly preserved. 134 Ill. 2d R. 615(a). However, in
appeals from criminal proceedings, review pursuant to plain error
is limited to two circumstances; one, where the evidence is
closely-balanced, and two, where the unpreserved error is of such
magnitude that a substantial risk exists that a defendant was
denied a fair trial. Vargas, 174 Ill. 2d at 363.
Here, the evidence of defendant's legal intoxication was
closely-balanced. It included the results of three alcohol
concentration tests; one whole blood test which reported an
alcohol concentration level of 0.079, and two blood serum tests,
one of which when converted into a whole blood equivalent,
indicated an alcohol concentration level of 0.0982. It also
included evidence of defendant's erratic driving as well as an
odor of alcohol around his person. We cannot say this evidence
overwhelmingly established defendant's legal intoxication.
Accordingly, we believe review of this contention under the plain
error doctrine is appropriate.
At trial, Dr. Rosenfeld testified that defendant's blood
serum-alcohol concentration level was 0.114 which, according to
her, meant he was legally intoxicated at the time of the
collision. Dr. Rosenfeld, however, was in error. That alcohol
concentration level did not establish defendant's legal
intoxication, nor did it otherwise allow for such a presumption
pursuant to section 11-501.2(b). Indeed, when converted to a
whole blood equivalent using a conversion factor of 1.16, that
alcohol concentration level falls to 0.0982, which is clearly
less 0.10, and therefore not a basis upon which to conclude nor
presume legal intoxication.[fn2] See 625 ILCS 5/11-
501.2(b)(2)(West 1996). Dr. Rosenfeld's testimony was therefore
in error.
B.
The second in defendant's "series of errors" concerns the
circuit court's refusal to instruct the jury as to the
distinction between whole blood and blood serum for purposes of
determining his "alcohol concentration." Defendant argues that
such an instruction was necessary to "straighten out the damage
done by Dr. Rosenfeld's mistaken testimony."
During the conference on jury instructions, defendant
requested an instruction specifically defining "alcohol
concentration" in terms of whole blood. Defendant's request was
denied. As a result, the jury was only instructed that "[t]he
term 'alcohol concentration' means either grams of alcohol per
100 milliliters of blood or grams of alcohol per 210 liters of
breath."
As we have previously determined, section 11-501.2(a)(5) of
the Vehicle Code defines "alcohol concentration" in terms of
whole blood, not blood serum. See Niemiro, 256 Ill. App. 3d at
914 n.2; see also 625 ILCS 5/11-501.2(a)(5)(West 1996); accord
Florida Tile Industries, 561 So. 2d at 655. As such, a trier of
fact may not employ any of the legal presumptions provided within
section 11-501.2(b) on the basis of a defendant's blood serum-
alcohol concentration level; a trier of fact may do so only on
the basis of a defendant's whole blood-alcohol concentration
level. Evidence of a defendant's whole blood-alcohol
concentration level may stem from actual whole blood-alcohol
concentration test results or from blood serum-alcohol
concentration test results converted into whole blood
equivalents. Domino's Pizza, 668 So. 2d at 596. In either event,
a trier of fact may only employ a presumption provided within
section 11-501.2(b) on the basis of a defendant's whole blood-
alcohol concentration level. Allowing a trier of fact to employ
such a presumption on the basis of a defendant's unconverted
blood serum-alcohol concentration level is error.
Here, the jury was not instructed it could not employ a
presumption provided within section 11-501.2(b) on the basis of
defendant's unconverted blood serum-alcohol concentration levels.
It was therefore allowed to employ a presumption of defendant's
legal intoxication on the basis of such evidence. That was
error.
In People v. Menssen, 263 Ill. App. 3d 946, 636 N.E.2d 1101
(1994), this court held that evidence of a defendant's blood
serum-alcohol concentration level was admissible under section
11-501.2(a) of the Vehicle Code. 263 Ill. App. 3d at 953. We
continue to adhere to that interpretation of section 11-501.2(a).
Accord Domino's Pizza, 668 So. 2d at 595; Michie v. State, 632 So. 2d 1106, 1108 (Fla.App. 1994). However, we specifically hold
that such unconverted evidence may not be considered by a trier
of fact in determining whether a presumption provided within
section 11-501.2(b) shall be employed; only evidence of a
defendant's whole blood-alcohol concentration level may be
considered for such a purpose.
C.
The third and last in defendant's "series of errors"
concerns the State's closing arguments to the jury. Defendant
argues the State misstated the law; specifically, that
defendant's legal intoxication could be presumed on the basis of
blood serum-alcohol concentration evidence.[fn3]
Neither defendant nor the State argued the jury should only
consider evidence of defendant's whole blood-alcohol
concentration. In fact, the State argued just the opposite; it
argued that defendant's blood serum-alcohol concentration levels
could be used to presume his legal intoxication at the time of
the collision.
Those arguments were clearly in error.
Moreover, the foregoing "series of errors" served to deny
defendant a fair trial; they were not harmless. See Connecticut
v. Johnson, 460 U.S. 73, 85-88, 74 L. Ed. 2d 823, 103 S. Ct. 969
(1983).
II.
Next, defendant contends that the circuit court erred in
allowing LeDonne-Draka to testify on rebuttal that the results of
defendant's three alcohol concentration tests were not
incompatible.
We decline to address this contention, for where, as here, a
judgment is reversed on one ground, other grounds for reversal
are not ordinarily considered, unless they can be expected to
arise anew on retrial. People v. Henderson, 215 Ill. App. 3d 24,
27, 574 N.E.2d 268 (1991); People v. Scott, 47 Ill. App. 3d 680,
682, 365 N.E.2d 108 (1977). Having had a jury impliedly reject
Moriarty's incompatibility testimony, we do not expect defendant
to advance such a defense again on retrial. Neither, in turn, do
we expect the State to proffer testimony as to the compatibility
of defendant's three alcohol concentration test results where
defendant does not first raise such a defense.
III.
Defendant finally contends that his conviction for
aggravated driving under the influence of alcohol as it relates
to the death of Florence McCaffray cannot stand, for it violates
the "one act-one crime" rule. We agree.
In People v. Rodriguez, 169 Ill. 2d 183, 661 N.E.2d 305
(1996), our supreme court reaffirmed the "one act-one crime" rule
previously announced in People v. King, 66 Ill. 2d 551, 363 N.E.2d 838 (1977). 169 Ill. 2d at 186-87. That rule provides
that multiple convictions are improper if based upon precisely
the same physical act. Rodriguez, 169 Ill. 2d at 186. That rule
further provides that multiple convictions are improper, even
where there are multiple acts, if any of those convictions
involve lesser-included offenses. Rodriguez, 169 Ill. 2d at 186.
A lesser-included offense "[i]s established by proof of the
same or less than all of the facts or a less culpable mental
state (or both), than that which is required to establish the
commission of the [greater] offense charged." 720 ILCS 5/2-
9(a)(West 1996). Stated otherwise, "[a] lesser[-]included
offense arises when the greater offense includes every element of
the lesser offense plus one or more elements." People v.
Yarbrough, 269 Ill. App. 3d 96, 103, 645 N.E.2d 423 (1994). The
existence of a lesser-included offense is to be determined by the
facts alleged in the charging instrument; that is to say, an
offense is a lesser-included offense if it is described within
the greater offense. People v. Novak, 163 Ill. 2d 93, 107, 643 N.E.2d 762 (1994); People v. Bryant, 113 Ill. 2d 497, 503, 499 N.E.2d 413 (1986); People v. Wyns, 103 Ill. App. 3d 273, 276, 431 N.E.2d 38 (1982).
Here, defendant's convictions for reckless homicide and
aggravated driving under the influence of alcohol were based upon
multiple acts. Within the reckless homicide counts, the State
alleged that, while under the influence of alcohol, defendant
drove his vehicle into the wrong lane of traffic and struck
another vehicle, killing Florence McCaffray. Within the count of
aggravated driving under the influence of alcohol relating to the
death of Florence McCaffray, the State alleged that defendant,
while under the influence of alcohol, was involved in an
automobile accident which killed Florence McCaffray. Clearly,
the latter charge of aggravated driving under the influence of
alcohol is a lesser-included offense within that of reckless
homicide, as alleged. Accordingly, defendant may not be
convicted of both on retrial.
CONCLUSION
For the aforementioned reasons, we reverse defendant's
convictions and remand this matter for a new trial.
Reversed and remanded.
[fn1]As explained by Jean Wojtanek, laboratory manager at
Gottlieb, whole blood is blood that has not been separated into
its constituent components; blood serum, on the other hand, is
one of those constituent components.
[fn2]Conversion factors vary. This is so because alcohol
concentration ratios between blood serum and whole blood vary
among individuals. Roehrenbeck and Russell, 8 Crim.Just. at 18.
Indeed, each individual has a particular conversion factor.
Kempe, 866 F. Supp. at 820, citing Mosher, 2 Liquor Liability Law
22.04; Roehrenbeck and Russell, 8 Crim.Just. at 18. Use of 1.16
as a conversion factor is arbitrary; it is simply the average of
a range of such factors used in connection with the many
different alcohol concentration ratios found within the public.
Kempe, 866 F. Supp. at 820, citing Mosher, 2 Liquor Liability Law
22.04; Roehrenbeck and Russell, 8 Crim.Just. at 18.
Here, the parties both employed 1.16 as the appropriate
conversion factor.
[fn3]Defendant did not object to the foregoing arguments at
trial, nor did he do so within his post-trial motion.
Nevertheless, we, for the reasons previously discussed, believe
that review of this contention under the plain error doctrine is
appropriate.