People v. Lee
| Decision Date | 07 December 1976 |
| Docket Number | No. 75--408,75--408 |
| Citation | 2 Ill.Dec. 668,44 Ill.App.3d 43,357 N.E.2d 888 |
| Parties | , 2 Ill.Dec. 668 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. John LEE and Patrick Hunt, Defendants-Appellants. |
| Court | United States Appellate Court of Illinois |
Robert J. Agostinelli, Asst. State Appellate Defender, Ottawa, for defendants-appellants.
C. Brett Bode, State's Atty., Tazewell County, Pekin, for plaintiff-appellee.
Following a jury trial, defendants, John Lee and Patrick Hunt, were found guilty of two counts of armed violence and sentenced on one count to 3--9 years imprisonment. The sole issue is whether the trial court committed reversible error by giving I.P.I. Criminal 2.04 over defendants' objections.
Defendants and five others, Dan Lee, Terry Howell, Jack Barnum, David Lee and Randy Deskin were tried jointly for three counts of armed violence arising from a brawl at a private club. After the State presented its case, consisting chiefly of the testimony of several occurrence witnesses, four of those charged with the offenses testified in their own behalf, whereas defendants in this appeal and David Lee did not testify. The jury returned verdicts finding Patrick Hunt, John Lee, Dan Lee, and Terry Howell guilty on counts I and II and Jack Barnum guilty on count II. David Lee and Randy Deskin were acquitted on all counts, and all were acquitted on count III.
At the conference on jury instructions, the State tendered I.P.I. Criminal 2.04, which was objected to by counsel for defendants to this appeal. The trial court gave the instruction to the jury over defendants' objections, and defendants now contend that this was reversible error.
I.P.I. Criminal 2.04 reads as follows:
'The fact that a defendant did not testify should not be considered by you in any way in arriving at your verdict.'
The Committee Comments to this instruction state:
'This instruction should be given Only at defendant's request and then, it Must be given.' (Original emphasis.)
It has been held that reversible error occurs when the trial court refuses to give such an instruction if requested by the defendant. (People v. Greben (1933), 352 Ill. 582, 186 N.E.2d 162; People v. Borneman (2d Dist.1966), 66 Ill.App.2d 251, 213 N.E.2d 52.) In People v. King (1973), 54 Ill.2d 291, 296 N.E.2d 731, our supreme court held that giving this instruction when requested by the prosecutor was not error, but there defendant's attorney had stated that he would have submitted the instruction if the prosecution had not.
We note that other jurisdictions have split on the issue of whether giving such an instruction, either at the prosecutor's request or by the trial court Sua sponte, constitutes error when the defendant either objects to it or does not request it. See Annotation, 18 A.L.R.3d 1335.
An analogous situation occurred in People v. Gibson (3d Dist.1971), 133 Ill.App.2d 722, 272 N.E.2d 274, where I.P.I. Criminal 3.13, which instructs the jury concerning prior convictions, was given over defendant's objections. The Committee Comments recommend that this instruction should be given only at the defendant's request. Holding that giving the instruction over defendant's objections was prejudicial error, the court stated:
'It should be the prerogative of the defendant to determine whether such an instruction is beneficial to his defense or whether it would only serve to accentuate his past criminal record.'
Here the instruction may benefit defendant by informing the jury that his failure to testify may not be used as evidence of guilt. However, a defendant may regard this instruction as having the effect of calling the jury's attention to the fact that he did not testify and thus prejudicing his case. Consistent with the Committee Comments, we believe that the defendant should be the one who decides whether, as a matter of trial strategy, this instruction would benefit him or whether it would unduly emphasize to...
To continue reading
Request your trial
-
Hardaway v. State
...S.W.2d 213 (1966); Villines v. State, 492 P.2d 343 (Okla.1971); State v. Kimble, 176 N.W.2d 864 (Ia.1970); People v. Lee, 44 Ill.App.3d 43, 2 Ill.Dec. 668, 357 N.E.2d 888 (1976). 2 For cases reaching the opposite result, see e.g., State v. Wheeler, 43 Wash.App. 191, 716 P.2d 902 (1986); Luj......
-
Brown v. State
...440 S.W.2d 230 (1969); State v. White, 285 A.2d 832 (Me.1972); Dooley v. State, 393 N.E.2d 154 (Ind.1979); People v. Lee, 44 Ill.App.3d 43, 2 Ill.Dec. 668, 357 N.E.2d 888 (1976); People v. Yopp, 67 A.D.2d 774, 412 N.Y.S.2d 698 (1979). This Court has refused to take such a rigid stand and ho......
-
People v. Cunningham
...Ill.Dec. 512, 505 N.E.2d 1303; People v. Hicks (1981), 101 Ill.App.3d 238, 56 Ill.Dec. 782, 427 N.E.2d 1328; People v. Lee (1976), 44 Ill.App.3d 43, 2 Ill.Dec. 668, 357 N.E.2d 888.) These courts have stated that the "error" in giving the instruction requires reversal "[b]ecause of the const......
-
People v. Anderson, 85-1818
...over his objection is error. (People v. Hicks (1981), 101 Ill.App.3d 238, 56 Ill.Dec. 782, 427 N.E.2d 1328; People v. Lee (1976), 44 Ill.App.3d 43, 2 Ill.Dec. 668, 357 N.E.2d 888; cf. People v. Gibson (1971), 133 Ill.App.2d 722, 272 N.E.2d 274) (the determination as to whether IPI, Criminal......