People v. Macklin

• Decision Date: 06 April 2016
• Docket Number: No. 1-14-0697,1-14-0697
• Citation: 2016 IL App (1st) 140697 -U
• Parties: THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DERRICK MACKLIN, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

2016 IL App (1st) 140697-U

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DERRICK MACKLIN, Defendant-Appellant.

No. 1-14-0697

APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT THIRD DIVISION

April 6, 2016

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the Circuit Court of Cook County.

No. 11 CR 18764

Honorable Luciano Panici, Judge Presiding.

PRESIDING JUSTICE MASON delivered the judgment of the court.

Justices Fitzgerald Smith and Lavin concurred in the judgment.

ORDER

¶ 1 Held: Judgment of the circuit court affirmed where defendant forfeited review of the trial court's error in providing Illinois Pattern Jury Instructions, Criminal, No. 3.13X (4th ed. 2000) over his objection, and he could not establish plain error.

¶ 2 Following a jury trial, defendant Derrick Macklin was convicted of armed habitual criminal and sentenced to 12 years' imprisonment. On appeal, Macklin contends the trial court erred in providing Illinois Pattern Jury Instructions, Criminal, No. 3.13X (4th ed. 2000) (IPI Criminal 3.13X) as the instruction should only be given when the defendant testifies, and here Macklin did not testify. We agree with Macklin that giving the instruction was error, but because the error has been forfeited, we affirm.

¶ 3 Macklin was charged with two counts of armed habitual criminal (Counts 1 and 2) resulting from his alleged possession on October 10, 2011, of two firearms—a .38 caliber revolver and a .45 caliber semiautomatic handgun. An individual commits this offense by possessing a firearm after having been convicted of two prior qualifying felonies. 720 ILCS 5/24-1.7(a) (West 2010).

¶ 4 Prior to trial, the court held a jury instruction conference. During the conference, the State requested that the court give the jury IPI Criminal 3.13X, which reads:

"Ordinarily, evidence of a defendant's prior conviction of an offense may [be considered by you only as it may affect his believability as a witness and must] not be considered by you as evidence of his guilt of the offense with which he is charged.

However, in this case, because the State must prove beyond a reasonable doubt the proposition that the defendant has previously been convicted of ___, you may [also] consider evidence of defendant's prior conviction of the offense of ___, [only] for the purpose of determining whether the State has proved that proposition." IPI Criminal 3.13X.

Defense counsel objected to the instruction, stating "[b]asic objection, your Honor." The court stated that IPI Criminal 3.13X would be provided over the objection. Defense counsel made no representation as to whether Macklin would testify at trial.

¶ 5 At trial, Officer Daniel Walz testified that at about 5:30 p.m. on October 10, 2011, he was dispatched to the area of 159th Street and Carse Avenue in Harvey, for a shots fired callinvolving two black male suspects, one with braided hair and wearing a backpack. On route to that location, near 159th Street and Lathrop Avenue, Walz saw two black men fitting the description. He identified Macklin in court as the man with braided hair and a backpack.

¶ 6 Walz made a u-turn into a vacant lot, and then drove his squad car in the men's direction. He parked his car on 159th Street, exited, and said to the two men walking together, "Police. Come here." The unknown suspect fled on foot and Macklin followed him. Walz pursued them and lost sight of Macklin for a "split second" when Macklin turned into a nearby alley.

¶ 7 As he entered the alley, Walz saw Macklin crouched behind a bush inside the fenced-in backyard of the house at 15830 Fisk Street shoving something into the backpack he had been wearing. Walz also noticed Macklin was no longer wearing a dark shirt, but, instead, a white tee shirt. Macklin and Walz made eye contact and Walz again announced his office and told Macklin to "freeze." Macklin dropped the backpack and fled again, but eventually surrendered to Walz.

¶ 8 After Macklin was arrested, Walz returned to where Macklin left the backpack. Inside, among other items, was a black hooded sweatshirt and a .38 caliber revolver, loaded with four live rounds and two spent casings. Walz found a fully-loaded .45 caliber handgun next to the backpack.

¶ 9 Walz acknowledged that Macklin and the unknown suspect did not run away from him when he initially passed them in his squad car before making a u-turn, or after he parked near them. The two men were not doing anything illegal that Walz could see when he initially approached them. After Walz announced his presence, both men ran away. Walz acknowledged that it is common practice individuals to run when they see police officers, and that people flee for any number of reasons. Walz further testified that Harvey is a high-crime area and he did not know what happened to the backpack Macklin left near the bush while Walz continued to chasehim. Walz never searched the bushes located at 15830 Fisk Street prior to October 10, did not know if the .45 caliber handgun had been there prior to that date, and did not see Macklin with a gun. The recovered backpack did not contain anything, such as identification, that would indicate Macklin owned it, Macklin's fingerprints were not found on the handguns, and no gunshot residue was found on him or his clothing.

¶ 10 The parties stipulated that Macklin was previously convicted of two qualifying felony offenses in 2007 and 2009.

¶ 11 Macklin elected not to testify and rested without presenting any evidence. The matter proceeded to closing arguments, during which the prosecutor referred to Macklin as a convicted felon multiple times. Following closing arguments, the trial court instructed the jury as to the law, including IPI Criminal 3.13X.

¶ 12 The jury found Macklin guilty of both counts of being an armed habitual criminal. Macklin filed a motion for a new trial, arguing that the evidence was insufficient to convict him. The court denied the motion, merged Count 2 into Count 1, and sentenced Macklin to 12 years' imprisonment.

¶ 13 On appeal, Macklin contends the trial court erred in providing IPI Criminal 3.13X where the committee comments for the instruction provide that if the defendant does not testify, IPI Criminal 3.13X should be given only at the defendant's request. Here, Macklin did not testify or request IPI Criminal 3.13X. On this basis alone, Macklin requests reversal and remand for a new trial.

¶ 14 As an initial matter, the State contends that Macklin forfeited this error because he acquiesced in the giving of this instruction. See People v. Mescall, 379 Ill. App. 3d 670, 677 (2008) (quoting Peole v. Rachel, 123 Ill. App. 3d 600, 606 (1984)) (" '[i]t is axiomatic that adefendant cannot complain of error in instructions to which he has acquiesced, induced or invited or which were given at his request' "). As support, the State points to the jury instruction conference held prior to trial. At the time, Macklin had not decided whether to testify, and when IPI Criminal 3.13X was raised, defense counsel merely stated "[b]asic objection, your Honor." No explanation was provided for the basis of this objection.

¶ 15 According to the State, even more importantly, when it rested and Macklin chose not to testify, the trial court re-opened the jury instruction conference, and after defense counsel noted that certain corrections to the instruction were required, the court afforded the parties time to review them.Despite expressing a need to correct the jury instructions, no objection was raised to the inclusion of IPI Criminal 3.13X, nor was the instruction changed. The State thus maintains that given the fact that Macklin raised an unexplained "basic objection" to this instruction prior to trial before he had decided whether to testify, the objection could not have been directed to the issue now raised on appeal, namely, the alleged inappropriateness of the instruction in a case where defendant did not testify. Moreover, the State maintains that, given the fact that Macklin neither raised an objection to the instruction nor requested to change it after he decided he would not testify and the instruction conference was reopened, he acquiesced to the trial court giving IPI Criminal 3.13X to the jury. We disagree.

¶ 16 Nothing in the record indicates that Macklin acquiesced to IPI Criminal 3.13X, or affirmatively requested the instruction. The record clearly shows that Macklin objected to IPI Criminal 3.13X, albeit on unspecified grounds, and that the trial court noted that the instruction would be given over his objection. Furthermore, Macklin never affirmatively requested that the court give IPI Criminal 3.13X. This case is unlike those where, having requested the trial court to proceed in a specific manner, the defendant was deemed to have invited the error. See e.g.,People v. Villareal, 198 Ill. 2d 209, 227-28 (2011) (invited error precluded defendant from arguing on appeal that a verdict form was improper where it was submitted by defense counsel). Here, the record unequivocally shows that IPI Criminal 3.13X was proffered by the State and Macklin objected to the instruction.

¶ 17 Nevertheless, both parties agree that Macklin failed to preserve the issue by not including it in his motion for a new trial. See People v. Piatkowski, 225 Ill. 2d 551, 564 (2007). Macklin thus requests that we review the issue as plain error. A limited exception to the forfeiture rule is contained in Supreme Court Rule 451(c) (eff. July 1, 2006), which provides that "substantial defects" in criminal jury instructions are not forfeited by the failure to make timely objection if the interests of justice require. This rule is coextensive with the plain error doctrine (People v. Keene, 169 Ill. 2d 1, 32 (1995)), and is limited either to the correction of "grave errors," or may apply where the case is factually close and fundamental fairness requires...