People v. Arnold

• Decision Date: 14 August 1991
• Docket Number: Nos. 1-87-3121,1-87-3328,s. 1-87-3121
• Citation: People v. Arnold, 577 N.E.2d 1355, 218 Ill.App.3d 647 (Ill. App. 1991)
• Parties: , 160 Ill.Dec. 784 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Simon ARNOLD and Christiana Grier, Defendants-Appellants.
• Writing for the Court: GREIMAN
• Court: Appellate Court of Illinois

Page 1355

577 N.E.2d 1355

218 Ill.App.3d 647, 160 Ill.Dec. 784

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Simon ARNOLD and Christiana Grier, Defendants-Appellants.

Nos. 1-87-3121, 1-87-3328.

Appellate Court of Illinois First District, Third Division.

Aug. 14, 1991.

Jack O'Malley, State's Atty. of Cook County, Chicago (Renee Goldfarb, Walter P. Hehner, Candace A. Williams, of counsel), for plaintiff-appellee.

Randolph N. Stone, Public Defender of Cook County, Chicago (Ira Churgin, of counsel), for defendant-appellant Grier.

Office of State Appellate Defender, Chicago (Michael J. Pelletier, Karen Daniel, of counsel), for defendant-appellant Arnold.

Justice GREIMAN delivered the opinion of the court:

Defendant Simon Arnold was convicted of armed robbery, armed violence, two counts of unlawful restraint, and was sentenced to 10 years' imprisonment. Defendant Christiana Grier was convicted of armed robbery, armed violence, unlawful restraint and was sentenced to six years' imprisonment. These convictions arose from defendants' execution of a scheme to force a currency exchange employee to give them entry to the exchange.

We affirm those convictions.

On appeal, both defendants ("Arnold" and "Grier") urge error involving the trial judge's answer to the jury's question as to whether the charges would be different if the gun used was a toy gun. Arnold also contends his right to effective counsel was impaired because of a lawsuit he had pending at the time of trial against the public defender representing him, and Grier argues that the victims' identification of her was so indefinite that she could not have been proven guilty beyond a reasonable doubt. She further alleges she was denied a fair trial by reason of her counsel's incompetence.

On November 11, 1985, the two defendants presented bogus credentials to Julia and Landon Ward identifying themselves as police officers and told Mrs. Ward that she was wanted by the police for murder. When Mr. Ward attempted to call the police to verify the identity of the officers, Arnold threatened him with a gun and hung up the phone. After Mr. Ward was taken to the basement, handcuffed, tape placed over his eyes and his feet bound, Arnold told the couple that the reason for the defendants' intrusion was to force Mrs. Ward to gain entry to the currency exchange where she was employed.

Arnold further told Mrs. Ward that if she did not do what she was told, her husband would be blown up with dynamite. She was shown a bundle of sticks resembling dynamite with a remote control device. Mrs. Ward acquiesced and accompanied defendants in her car.

After driving past the currency exchange to find it closed, Arnold drove back to the Ward home and found the Wards' daughter Natasha had returned home. Arnold tied her up and placed her in the basement with Mr. Ward while Grier and Mrs. Ward waited in the car.

The defendants then drove Mrs. Ward back to the currency exchange where she admitted them and they took $3,690 and 22 motor vehicle city stickers. Returning Mrs. Ward to her home, defendants left in the Wards' car. Mrs. Ward found her husband and daughter still tied up and called the police.

Both defendants question the trial court's response to a question submitted by the jury during its deliberation. The trial record regarding the question is as follows:

"The Court: Okay, From the--Another note from the jury. 'If the gun used was a toy gun, not a real gun, is it armed violence?' I'm in a quandary how to answer this. I would think--Well, It's a hypothetical question. I think I'll just put--

Prosecutor: There is no evidence it was a toy gun.

Defense counsel (1): Oh, no, no.

Defense counsel (2): I think that answers the question.

The Court: Yeah. Yeah, that's--I'm not going to put that down.

Defense Counsel (2): I would just put, 'You must decide based on the instructions.'

The Court: This is a hypothetical question and the jury must decide the case on the evidence.

Defense Counsel (2): I would also ask Your Honor include, 'Evidence and instructions that have been tendered to them.'

The Court: Okay. This is the answer. 'This is a hypothetical question. The jury must decide the case on the evidence and the instructions tendered.' " R. at 755-56.

Defendants contend that the character of the gun was a factual question for the jury, and the judge's answer that it was "a hypothetical question" forecloses the jury from considering whether the weapon was a toy gun. Defendants argue that the jury's inquiry showed that at least some of the jurors believed there was evidence it was a toy gun, and the trial judge could not usurp determination of this factual question from the jury. It is further contended that the judge's answer relieved the State of one element of its burden of proof for armed robbery and armed violence--whether there was a dangerous weapon used.

The record does not disclose a scintilla of evidence that would question the testimony identifying the weapon as a real gun. Three witnesses directly described it as such.

However, we need not rule directly on whether the trial judge's characterization of the question as hypothetical decided a question of fact since we find both defendants failed to properly interpose an objection at trial and failed to adequately raise the issue in post-trial motions. Moreover, there is no plain error.

When the trial judge received the inquiry from the jury, he properly conferred with counsel for both parties, discussed an appropriate answer and accepted defense counsel's suggestions for alteration of the answer. Our courts have consistently held that a party waives an issue for appellate review if he fails to object at trial and fails to raise the issue in a post-trial motion. (People v. Reid (1990), 136 Ill.2d 27, 38, 143 Ill.Dec. 239, 554 N.E.2d 174; People v. Enoch (1988), 122 Ill.2d 176, 186, 119 Ill.Dec. 265, 522 N.E.2d 1124; People v. Harris (1990), 204 Ill.App.3d 491, 496, 149 Ill.Dec. 665, 561 N.E.2d 1361.) Where a defendant acquiesces to the trial court's answer to the jury's question, the defendant cannot later charge that the court abused its discretion. (Reid, 136 Ill.2d at 38, 143 Ill.Dec. 239, 554 N.E.2d 174; People v. Dunigan (1981), 96 Ill.App.3d 799, 828, 52 Ill.Dec. 247, 421 N.E.2d 1319.) The purpose of the waiver rule is to encourage timely objections so the trial court may promptly correct any error and to restrain a party from trying the case anew before the reviewing court. Reid, 136 Ill.2d at 38, 143 Ill.Dec. 239, 554 N.E.2d 174.

We may consider issues on appeal where there has been no timely objection or appropriate motion in instances of plain error when the evidence is closely balanced or if the error is so grave that the accused is denied a fair and impartial trial. (People v. Turner (1989), 128 Ill.2d 540, 555, 132 Ill.Dec. 390, 539 N.E.2d 1196; People v. Reddick (1988), 123 Ill.2d 184, 122 Ill.Dec. 1, 526 N.E.2d 141.) We find that neither defendant can succeed under the plain error exception.

To justify a reversal for plain error, we must be convinced that the defendant was prejudiced by the error and that the outcome might have been different. A review of the cases convince us otherwise.

Our courts have been reluctant to invoke the plain error doctrine: People v. Reid (1990), 136 Ill.2d 27, 143 Ill.Dec. 239, 554 N.E.2d 174 (jury's question whether it could find defendant guilty of one crime and not the other was answered by direction to jury to reach a verdict based on instructions they had previously received. On following day, court declined defendant's request to answer the question differently since it believed a new answer would surprise or confuse the jury); People v. Turner (1989), 128 Ill.2d 540, 132 Ill.Dec. 390, 539 N.E.2d 1196 (prosecutor's statement that hair possesses similar characteristics is not the same as suggesting identical identification); People v. Womack (1991), 216 Ill.App.3d 540, 159 Ill.Dec. 716, 576 N.E.2d 385 (defendant's Fifth Amendment right to remain silent waived where evidence was not close); People v. Duffie (1990), 193 Ill.App.3d 737, 140 Ill.Dec. 806, 550 N.E.2d 691 (deviation from IPI jury instructions not substantially affecting defendant's rights); People v. Bridges (1989), 188 Ill.App.3d 155, 135 Ill.Dec. 683, 544 N.E.2d 40 (improper instruction on specific intent for attempt murder erroneous, but not grave error); People v. Lowery (1988), 177 Ill.App.3d 639, 126 Ill.Dec. 729, 532 N.E.2d 414 (court's denial to jury request for grand jury proceedings and indictment not plain error where court advised the jury the indictment did not create any inference of guilt); People v. Smith (1988), 165 Ill.App.3d 603, 116 Ill.Dec. 402, 518 N.E.2d 1382 (failure to define term "reasonably believes" in self-defense instruction, not error where evidence was substantial against defendant).

On the other hand, the failure to instruct the jury on the State's burden of proof or on an essential element of the crime charged has been held of such grave consequence to the jury's deliberation that there need be no showing of specific prejudice or that the evidence was closely balanced. People v. Reddick (1988), 123 Ill.2d 184, 122 Ill.Dec. 1, 526 N.E.2d 141; People v. Allen (1983), 116 Ill.App.3d 996, 72 Ill.Dec. 383, 452 N.E.2d 636, aff'd in part, rev'd in part on other grounds (1985), 109 Ill.2d 177, 93 Ill.Dec. 340, 486 N.E.2d 873.

In cases with closely balanced evidence, plain error has been determined: People v. Payne (1990), 194 Ill.App.3d 238, 141 Ill.Dec. 168, 550 N.E.2d 1214 (error to amend charge at trial changing the nature of "mental state" required by the offense); People v. Tansil (1985), 137 Ill.App.3d 498, 92 Ill.Dec. 314, 484 N.E.2d 1169 (court refused to exercise discretion in providing transcript for jury in erroneous belief that it had no discretion in that regard).

Defendant Grier argues that the evidence is closely balanced as...