dissenting:
I respectfully dissent from the majority holding, which reverses defendant’s conviction and finds that the trial court erred when it directed the jury to continue its deliberations using the instructions which it had already received. Those instructions were in fact proper and complete, and the giving of further instructions eight hours after the question had been posed could have been misconstrued by the jury. I also disagree with the majority finding that reversible error resulted from a statement made by the trial court outside the presence of the jury, which did not misstate the law regarding defendant’s burden as to the issue of the voluntary nature of his confession, and which did not affect the court’s finding regarding the knowing and intelligent factors of the waiver issue.
The majority maintains that the jury received no instruction explicitly stating that a finding of guilty on one count did not require a finding of guilty on the other count.
The original charge to the jury was complete and proper, particularly as to the separate offenses for which the jury was to return verdicts. The jury instructions separated the definitions of the offenses, separated the elements of each offense, and separated the verdicts.
The majority fails to accord proper weight to the fact that the jury received four verdict forms: guilty of murder; not guilty of murder; guilty of armed robbery; and not guilty of armed robbery. The majority merely offers the assertion that it believes “this is not an adequate substitution for an explicit response to the jury’s question.” 174 Ill. App. 3d at 1015.
The jury received separate, standard IPI instructions on the definition of legal accountability (Illinois Pattern Jury Instructions, Criminal, No. 5.06 (2d ed. 1981) (hereinafter IPI Criminal 2d)); the definition of murder (IPI Criminal 2d No. 7.01); and the definition of armed robbery (IPI Criminal 2d No. 14.01). It also received separate instructions on the elements of murder (IPI Criminal 2d No. 7.02) and the elements of armed robbery (IPI Criminal 2d No. 14.02), along with the direction that if the jury were to “find from your consideration of all the evidence that any one of these propositions has not been proved beyond a reasonable doubt, you should find the defendant not guilty.” At the conclusion of the court’s charge to the jury, it gave a concluding instruction (IPI Criminal 2d No. 26.01), which stated: “The defendant is charged with the offense of murder and armed robbery. You will receive four forms of verdict. As to each charge, you will be given both a ‘not guilty’ and ‘guilty’ form of verdict.” The court continued:
“The forms read, ‘We, the jury, find the defendant, Darryl Reid, guilty of the offense of murder.
We, the jury find the defendant, Darryl Reid, not guilty of the offense of murder.
We, the jury, find the defendant, Darryl Reid, guilty of the offense of armed robbery.
We, the jury, find the defendant, Darryl Reid, not guilty of the offense of armed robbery.’ ”
There is no question, therefore, that the jury received legally accurate and complete instructions on the offenses charged. This case differs considerably, for example, from People v. Gathings (1981), 99 Ill. App. 3d 1135, 425 N.E.2d 1313, where the initial instructions did not fully state the law regarding the question of whether the jury could find defendants guilty of certain offenses and not guilty of other offenses, and where the IPI instruction was modified such that it no longer accurately stated the law.
Generally, it is within the discretion of the trial court to determine when giving a supplemental instruction is appropriate. (People v. Preston (1979), 76 Ill. 2d 274, 391 N.E.2d 359; People v. Ross (1981), 100 Ill. App. 3d 1093, 427 N.E.2d 868; People v. Gathings (1981), 99 Ill. App. 3d 1135, 425 N.E.2d 1313.) The trial court in the present case understood the relevant law. In regard to an unrelated jury question, the court accurately set forth the case law:
“I think the case law in Illinois is clear; that when the jury reaches a question regarding the meaning of an instruction, which is succinctly stated, fairly stated, the Court has an obligation to eliminate the confusion through an accurate states ment [sic] of the law that clarifies or responds directly to the question asked.”
See, e.g., People v. Sanders (1984), 127 Ill. App. 3d 471, 469 N.E.2d 287.
During the first evening of deliberations, the jury asked whether it could find defendant guilty of one charge and not guilty of the other charge. After obtaining the agreement of the attorneys for both sides by telephone, the court instructed the jury to continue its deliberations using the instructions it had already received.
The following morning, the court conferred with counsel concerning a separate, unrelated question posed by the jury. In regard to the question asked the night before, the court cited strong support for its response made the night before. “Clearly the jury might have been asking whether or not they compromise by entering a guilty on one but not the other. That clarification could be detrimental to the position of either the State or the defense.”
After it was decided to clarify a different point of law for the jury, defense counsel stated that the court should provide a more substantive answer to the jury’s question of the previous night:
“I’m not saying that I did not agree to the procedure last night. But I think as we’re going to answer one question that in your Honor’s mind is clear and concise, we ought to answer the other question that was asked last night, which is very clear and succinct, and tell the jury they [can] find him guilty of one charge and not guilty of the other.”
The prosecutor correctly replied that eight hours of deliberation had passed since the prior night’s question and response, with no renewal of the question by the jury. The prosecutor also correctly noted that changing the answer could cause the jury to interpret it as urging them towards one conclusion or another.
The trial court may properly exercise its discretion by not giving additional jury instructions where any answer or explanation more specific than that given by the court might have constituted an improper expression of opinion and where the instructions given were clear and in common understandable language. (People v. Charles (1977), 46 Ill. App. 3d 485, 360 N.E.2d 1214.) A trial court may exercise its discretion to refrain from answering a jury’s inquiries. (People v. Queen (1974), 56 Ill. 2d 560, 310 N.E.2d 166.) It is not an abuse of discretion for the trial court to decline to elaborate on complete and understandable instructions. (People v. Ross (1981), 100 Ill. App. 3d 1093, 427 N.E.2d 868.) Once the trial court has ascertained the nature of the jury’s confusion, it is not required to issue additional instructions in all cases, especially if the trial judge determines that further instructions would serve no useful purpose. (People v. Jones (1976) , 40 Ill. App. 3d 771, 353 N.E.2d 79.) I believe the trial court properly refused defendant’s request to alter the original, agreed response given to the jury. I find no abuse of discretion. See, e.g., People v. Tostado (1981), 92 Ill. App. 3d 837, 416 N.E.2d 353; People v. Jedlicka (1980), 84 Ill. App. 3d 483, 405 N.E.2d 844; People v. Hooker (1977), 54 Ill. App. 3d 53, 369 N.E.2d 147; People v. Charles (1977), 46 Ill. App. 3d 485, 360 N.E.2d 1214.
The majority finds that the failure to answer the jury’s question was plain error, and that the error was prejudicial to defendant, “especially because the evidence in this case was closely balanced.” The rule which provides that substantial defects are not waived by failure to make a timely objection applies where the interests of justice require, and it constitutes an exception which is limited to correcting grave errors, or to be applied where the case is close factually and fundamental fairness required that the jury be properly instructed. People v. Roberts (1979), 75 Ill. 2d 1, 387 N.E.2d 331.
I do not believe that the facts presented here could be described as “closely balanced.” This was a heinous crime and the proof of defendant’s guilt was overwhelming. The majority itself points out that the triers of fact could consider defendant’s presence at the scene; defendant’s failure to oppose the crime; and defendant’s actions after the commission of the offense. The majority highlights certain evidence, including that defendant saw Brooks give Davis a gun; that defendant heard Brooks and Davis discuss robbing an old man; that defendant accompanied Brooks and Davis outside; that defendant stood in front of the victim, partially blocking his way; that defendant reached into the victim’s pocket when Davis told him to do so; that defendant fled the scene after Davis shot the victim; that defendant, Davis and Brooks all returned to defendant’s apartment; and that defendant agreed with the others to split the proceeds three ways.
Additionally, Glenda Davis watched out her apartment window as the victim entered the building and defendant, Brooks and Davis followed him. She saw them exit the building soon thereafter and watched the robbery and shooting from her window. Michelle Matthews identified Brooks and defendant, whom she had known for two years, as the boys who came to her apartment near that of the victim on that day, just before the shooting. Brooks wore a burgundy scarf around his head and defendant wore a gold T-shirt.
The police arrived at the scene and immediately began looking for three teenagers, one wearing a yellow T-shirt and one with a red scarf. A man told the police that three teenagers ran into a nearby apartment building. The officers found the victim’s wallet on the ground behind the building. An open third floor window was above the wallet. In the third floor apartment, the police found defendant, wearing a yellow T-shirt, sweating, breathing hard and acting excited. The officers found a red scarf stuck between the mattress and box spring. A purse contained a .22 caliber revolver with four live rounds, one expended shell and one empty chamber. Defendant thereafter confessed to the crime.
The circumstances here differ substantially from a “closely balanced case.”
I would find that no error occurred as a result of the trial court’s reliance on the instructions as originally given to the jury. (See People v. Jones (1976), 40 Ill. App. 3d 771, 353 N.E.2d 79.) If any error occurred, it was harmless.
I also disagree with the majority’s other basis for reversal. It finds that the trial court misstated the burden in regard to the motion to suppress defendant’s statements. In his lengthy brief, defendant addresses this point in three sentences and merely cites the general proposition that the burden rests on the prosecution to show a knowing and intelligent waiver. People v. Redmon (1984), 127 Ill. App. 3d 342, 468 N.E.2d 1310.
During cross-examination at the hearing on the motion to suppress, defendant alleged for the first time that the police officers slapped him and stepped on his foot before he made his two statements. Defense counsel amended the motion to suppress to include the allegations regarding the involuntary nature of the statements. The challenged language occurred at a point where the court began to address the knowing and intelligent waiver issue. The court then backed up to summarily dismiss the newly added argument regarding the alleged physical coercion. Having disposed of that issue, the court returned to the question which had been extensively argued. While the remarks made during this extended conference with counsel may lack perfect clarity, I find nothing even approaching reversible error.
The majority highlights only a few words, i.e., “the trial court stated that defendant bore ‘the burden of persuasion.’ ” (174 Ill. App. 3d at 1016.) The trial court’s statement in context reads:
“In a sense, [defense attorneys] have the burden of persuasion, even though there was an issue which suggested that perhaps they could argue the voluntariness issue that the State was assuming as part of the motion, I think, to quash the motion.
I can say, based on the record before me that there, really, is no merit to that portion of the motion, so what is left is what was originally set forth in the motion, and that is the question of whether the defendant sufficiently understood the rights he allegedly waived at the time he made a statement to the police.”
Furthermore, a reasonable interpretation of the trial court’s remarks, when read in the context of the lengthy discussion, is that the court merely referred to the burden of proof defendant carried following the evidence the State had produced regarding the entire waiver issue. In determining whether a confession was voluntarily made, the State bears the burden to establish the voluntariness of a confession by a preponderance of the evidence. People v. Clark (1986), 114 Ill. 2d 450, 501 N.E.2d 123; People v. King (1986), 109 Ill. 2d 514, 488 N.E.2d 949, cert, denied (1986), 479 U.S. 872, 93 L. Ed. 2d 173, 107 S. Ct. 249.
However, once the State makes out a prima facie case of voluntariness, the burden shifts to the defense to produce evidence that the confession was involuntary. (People v. Cozzi (1981), 93 Ill. App. 3d 94, 416 N.E.2d 1192; People v. Slaughter (1978), 59 Ill. App. 3d 159, 376 N.E.2d 33.) Moreover, it is within the discretion of the trial court to reverse the order of proof requiring the defendant to present evidence prior to the State so that the State may meet its burden of proof after the defense has presented evidence on the issue of voluntariness. People v. Allen (1986), 148 Ill. App. 3d 200, 498 N.E.2d 838.
I disagree with the majority that the court misstated the law to counsel, or that reversal of the conviction is required because “[i]n regard to this part of the motion, the court never rectified its misstatement of the burden of persuasion.”
Because I do not believe that any of the errors claimed by defendant were prejudicial or require reversal, I would affirm defendant’s conviction.