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People v. Hood12/2/2004
likely elicit from Dr. Hindman on rebuttal. After Dr. Hindman testified regarding the cause of death, the State questioned the doctor regarding his training in toxicology and his knowledge of how the body metabolizes alcohol. The State then queried the doctor about the rate at which the average person metabolizes alcohol. Finally, the State asked the following question, to which the trial court sustained defendant's objection: "So if a person had .077 percent alcohol, what would be their percent alcohol two hours prior to that if they didn't ingest anything for a two-hour period?" Thus, the record demonstrates that defendant was informed of the substance of Dr. Hindman's extrapolation testimony, if not the exact arithmetic.
Assuming, for the sake of argument, that the State should have disclosed Dr. Hindman's calculations under the "spirit" of Rule 412, we conclude that defendant waived any objection to the State's introduction of the doctor's calculations on rebuttal. The record reveals that the trial court allowed defendant the opportunity to speak with the State's rebuttal witnesses in advance of their testimony. The trial court expressly advised defendant: "Go talk to them if you want to. We'll give you time." Nothing in the record indicates that defendant acted on the trial court's advice. In addition, defendant never requested a continuance to secure his own expert or to consider more fully Dr. Hindman's expected testimony. Instead, the only relief defendant sought was complete exclusion of Dr. Hindman's rebuttal testimony. "A defendant cannot request only the most drastic measures, such as either an immediate mistrial or the total exclusion of testimony by a witness, and then on appeal argue that he is entitled to a new trial when these requests are not granted." People v. Robinson, 157 Ill.2d 68, 78-79, 191 Ill.Dec. 107, 623 N.E.2d 352 (1993). When defendant elected to forgo more moderate measures available during trial to deal with the State's purported discovery violation, and instead proceeded with trial, the claimed error, if any, was waived. See People v. Bounds, 171 Ill.2d 1, 53-54, 215 Ill.Dec. 28, 662 N.E.2d 1168 (1995); Robinson, 157 Ill.2d at 79, 191 Ill.Dec. 107, 623 N.E.2d 352; People v. Cisewski, 118 Ill.2d 163, 174-75, 113 Ill.Dec. 58, 514 N.E.2d 970 (1987).
*10 Based on the foregoing, we find no reversible error based on the State's Rule 412 disclosures. The appellate court erred in ordering a new trial on that basis. Before determining the appropriate disposition of this case, however, we must consider defendant's argument that the evidence was insufficient to support his reckless homicide conviction. Defendant argues that "[t]here is no evidence that [he] was impaired at the time of the accident as the testimony was that [he] had two and one-half beers." Defendant contends that in the absence of evidence of intoxication or any other evidence of recklessness, his conviction cannot stand.
When reviewing the sufficiency of the evidence in a criminal conviction, the critical inquiry is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trial of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Smith, 149 Ill.2d 558, 565, 174 Ill.Dec. 804, 599 N.E.2d 888 (1992). Applying this standard, we find the evidence was sufficient to support defendant's conviction for reckless homicide. Contrary to defendant's view of the record, the evidence was that defendant claimed he only had 2 1/2 beers. The jury was free to disregard defendant's testimony as not credible, in light of the other evidence of intoxication. Apart from Dr. Hindman's testimony regarding defendant's blood-alcohol level, both Tandy and Gorman testified that th
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