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People v. Hood11/3/2003
As the majority points out, because the State may not know if a witness will be called in rebuttal until the defense testimony is heard, the State need not inform the defense of its intention to call a rebuttal witness until that intention is formed. Slip op. at 14. That is true even if the State knows who the potential rebuttal witness is and even if the witness has given a written statement. The State need only disclose "persons whom the State intends to call as witnesses." 188 Ill. 2d R. 412(a)(i). The State may have been satisfied with its case in chief, including Officer Tandy's testimony that defendant at the scene had said he had only two beers, until defendant took the stand and repeated that testimony under oath. At that point the State could properly have concluded that defendant was lying, and it needed something more to refute that lie. The State was not required to anticipate that defendant would perjure himself. I also reject the majority's argument that Dr. Hindman's testimony did not rebut defendant's testimony that he had consumed less than three beers. Finally, I suggest that IPI Criminal 4th No. 23.30 could have been given even without Dr. Hindman's testimony. A reasonable jury could conclude that a defendant who has a blood-alcohol level of 0.077 at 5:40 p.m. had a blood-alcohol level greater than 0.08 before 3 p.m. A jury may rely on its common experiences in life, including the fact that the effects of alcohol consumption diminish over a period of hours.
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