People v. Gathings

• Decision Date: 01 September 1981
• Docket Number: No. 79-282,79-282
• Citation: 425 N.E.2d 1313,55 Ill.Dec. 140,99 Ill.App.3d 1135
• Parties: , 55 Ill.Dec. 140 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Anthony GATHINGS and David Bracey, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 1313

425 N.E.2d 1313

99 Ill.App.3d 1135, 55 Ill.Dec. 140

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Anthony GATHINGS and David Bracey, Defendants-Appellants.

No. 79-282.

Appellate Court of Illinois, First District, Second Division.

Sept. 1, 1981.

Ralph Ruebner, Deputy State Appellate Defender and Richard E. Steck, Asst. State Appellate Defender, Chicago, for defendants-appellants.

Richard M. Daley, State's Atty., Chicago (Marcia B. Orr, Adrienne Noble Nacev, Gloria C. Coco, Asst. State's Attys., Chicago, of counsel), for plaintiff-appellee.

HARTMAN, Presiding Justice:

Anthony Gathings and David Bracey were charged by indictment with attempted murder, attempted armed robbery and aggravated battery. A jury found them guilty of all three charges. The trial court entered judgment against them only on the charges of attempted murder and attempted armed robbery. Defendants appeal from that judgment, raising as issues whether: the trial court in effect directed the jury to find defendants guilty of some offense; and the trial court erred in refusing to clarify instructions upon the jury's request. For the following reasons, we reverse and remand for a new trial.

The charges against defendants arose from a shooting which occurred on August 17, 1975. The defense proceeded on a theory of accident or, at most, reckless conduct. Five occurrence witnesses testified that defendants accosted the victim, Michael McCollough, on a stairwell in the Robert Taylor Homes in Chicago and tried, unsuccessfully, to take his money. Gathings then pulled a gun and shot him in the face. Defendants testified that Gathings shot McCollough accidentally while playing with a gun in the stairwell. All the witnesses lived in the same building and knew each other.

At the close of all the evidence, after the court instructed the jury as to the proof required to sustain the charges, the court further instructed the jury, in part:

"If you feel the evidence showed reckless conduct, select only those forms and sign a guilty or not guilty form as to each defendant.

"However, if you feel the evidence showed attempt murder, attempt armed robbery and aggravated battery, select only those forms and sign a guilty or not guilty form as to each defendant on each charge."

This charge, styled People's Instruction No. 28, purported to amend Illinois Pattern Jury Instructions, Criminal (1968), No. 26.01 ("IPI Criminal No. 26.01"). Defendants had first objected to the instruction, but withdrew the objection before it was given to the jury. After five hours of deliberation, the jury sent the judge the following written question: "Can we find the defendants guilty of two counts and not guilty on the third count?" Defense counsel suggested that the court answer the question affirmatively; however, the court instead directed the jury's attention to People's Instruction No. 28. Defense counsel objected, noting the probability of confusion already caused by the instruction.

The jury found both defendants guilty of attempted murder, attempted armed robbery and aggravated battery. As earlier noted, judgment was entered on the verdicts of attempted murder and attempted armed robbery only, for which sentences of 30 to 50 and 4 to 12 years, respectively, were imposed. The court considered aggravated battery to be a lesser included offense of attempted murder.

Defendants argue that People's Instruction No. 28 was improperly given, as it was tantamount to directing the jury to return a verdict of guilty of some offense. They contend that a judge may not direct a verdict of guilty in a criminal case (United Brotherhood of Carpenters v. United States (1947), 330 U.S. 395, 67 S.Ct. 775, 91 L.Ed. 973), nor give an instruction which has that effect. (United States v. Hayward (D.C. Cir. 1969), 420 F.2d 142; United States v. Sheldon (5th Cir. 1976), 544 F.2d 213.) Defendants rely on United States v. Spock (1st Cir. 1969), 416 F.2d 165, in which the court of appeals held that providing the jury with special interrogatories in a criminal case has the effect of directing a verdict of guilt, since the jury is forced to "answer a progression of questions each of which seems to require an answer unfavorable to defendant" which thus exerts a subtle pressure on the jury to convict. (416 F.2d at 182.) In arriving at this conclusion the court declared that "(i)n the exercise of its functions not only must the jury be free from direct control in its verdict, but it must be free from judicial pressure, both contemporaneous and subsequent," and that "(t)here is no easier way to * * * force * * * a verdict of guilty than to approach it step by step." (416 F.2d at 181, 182.) Defendants urge that, just as answering special interrogatories requires a "step by step" process which induces a jury to return a guilty verdict, so did the instruction at bar require the jury to undergo a step by step process which exerted pressure on them to convict because the jury in the instant case was required to determine guilt or innocence upon the assumption that there was evidence which showed that one set of offenses or another actually existed. We agree.

We think the instruction given is fatally defective. It unduly emphasized two choices in the assessment of the evidence, neither of which was acquittal: either the evidence "showed" reckless conduct, or it "showed" attempted murder, attempted armed robbery and aggravated battery, upon which the jury may find defendants guilty or not guilty. Directing a jury's attention to a possible verdict based upon an assumption that there was indeed evidence which showed the proscribed conduct invades the jury's function of ascertaining in the first instance whether there was in fact any such evidence adduced in the record which could be said to have been "shown." The instruction, having assumed the existence of some such evidence, left to the jury only the question of the weight to be given the putatively existing evidence. It is error to submit an instruction in which the court has assumed a particular fact in issue. (See People v. O'Connor (1920), 295 Ill. 198, 202, 129 N.E. 157; People v. Wicks (1969), 115 Ill.App.2d 19, 22-23, 252 N.E.2d 698; People v. Gaither (1968), 103 Ill.App.2d 47, 56, 243 N.E.2d 388.) Moreover, jury instructions should not be misleading or confusing, but should fully and fairly inform the jury of the applicable law. (People v. Dordies (1978), 60 Ill.App.3d 621, 18 Ill.Dec. 92, 377 N.E.2d 245; People v. Godbout (1976), 42 Ill.App.3d 1001, 1009, 1 Ill.Dec. 583, 356 N.E.2d 865.) Here, in addition to the assumption of facts, the instruction may have confused the jury by the presence of the word "and" in the second paragraph, which suggests that the jury had to find defendants guilty of all three charges (attempted murder, attempted armed robbery and aggravated battery) if it found them guilty of any one of those charges. That this was especially prejudicial to defendants is supported by the fact that they were ultimately convicted on all three charges. The jury, therefore, could have found defendants guilty of attempted murder, attempted armed robbery and aggravated battery because the instruction did not allow for the option of finding them guilty of only one or two of those charges.

The State argues that, by submitting an amended version of IPI Criminal No. 26.01 to the jury, the court properly excluded the possibility that...