dissenting:
I respectfully disagree with the reasoning set forth by my colleagues supporting their conclusion that no reversible trial error occurred below. With respect to the circumstantial evidence instruction, IPI Criminal 2d No. 3.02, it is my opinion the full instruction should have been given. In view of the difficulties in determining what evidence is direct and what evidence is circumstantial, there continues to be no criteria for determining whether the instruction should or should not be given in full. My views on this recurring problem have been amply set forth in my special opinions in People v. Minish (1974), 19 Ill. App. 3d 603, 312 N.E.2d 49, People v. Fletcher (1976), 40 Ill. App. 3d 537, 352 N.E.2d 10, and People v. Godsey (1978), 57 Ill. App. 3d 364, 373 N.E.2d 95, and need not be entirely restated once again here. Furthermore, in light of the decision in People v. Crow (1985), 108 Ill. 2d 520, 485 N.E.2d 381, I believe this case should be remanded to the trial court for a new trial.
In Crow, the court made two findings. First, the court ruled that the evidence presented by the State, including testimony by an expert witness that the decedent died from a gunshot wound, which was not self-inflicted, was not direct evidence of murder, and the defendant was therefore entitled to the full circumstantial evidence instruction. Second, the court ruled that the trial court’s failure to so give the instruction was not harmless beyond a reasonable doubt. The matter was reversed and remanded to the trial court for further proceedings. The court’s reversal was based solely on the trial court’s failure to give the full instruction. Such a decision discloses the continued viability of giving the instruction.
In the present case, my colleagues have suggested the telephone calls purported to have been made by the defendant constitute direct evidence. My concern is direct evidence of what? Certainly, these calls do not constitute direct evidence the crime of forgery was committed. Similarly, I do not believe the calls constitute direct evidence of the crime under an accountability theory. The defendant could have used any name and made the telephone calls, and yet this was not direct evidence of any element of an offense. The trier of fact should have been given the full instruction. The jury then could have either inferred from the calls, assuming their belief defendant made the calls, that he was accountable, or that every theory of innocence was not excluded. The court’s failure to so instruct the jury was not harmless. Considering the evidence in its entirety, had the instruction been given in full the verdict may have been different.
While I would reverse on this basis alone, several other instances of trial error lend additional support for such a conclusion. My colleagues have suggested that because IPI Criminal 2d No. 5.03 is a correct statement of the law of accountability, it was not error to so instruct the jury even though the instruction was not a correct restatement of the charging information. I disagree. In the present case, the statute on accountability is much broader than the offense charged, and I do not believe the trial court was free to rule that the words contained in the statute are synonymous. They are not! As long as the charging information contained only one accountability theory, the jury instruction should have been given for only that theory. The confusion and prejudice engendered by giving the instruction was heightened because the prosecution in its final argument repeated the statutory definition in an effort to “instruct” the jury on the law. The prosecution did so in the context of intimating that a crime was committed by mere presence or negative acquiescence.
I also believe the defendant was prejudiced by the prosecutor’s misstatement of the law of accountability in the jury’s presence. I disagree with the majority that such misstatement was cured by the trial judge giving the jury the accountability instruction. Since I believe the instruction as given was improper, it could in no way cure the error. Furthermore, the trial judge should have admonished the jury to disregard the argument which followed defendant’s objection. (See People v. Heflin (1978), 71 Ill. 2d 525, 376 N.E.2d 1367.) In light of the misstatement, the incorrect jury instruction, and the court’s failure to admonish the jury to disregard the improper argument, the error is not inconsequential and calls for reversal.
The question of the guilt of the defendant on the evidence was exceedingly close, and it was of the utmost importance that no error in regard to any material feature of the case should intervene. I believe the combined effect of the errors herein, viewed individually and collectively, was sufficiently prejudicial so as to deprive the defendant of a fair trial. Reversal and remandment for a new trial are justified and required.