People v. Parks

• Decision Date: 15 November 1976
• Docket Number: No. 48182,48182
• Parties: , 2 Ill.Dec. 320 The PEOPLE of the State of Illinois, Appellant, v. Spencer PARKS, Appellee.
• Court: Illinois Supreme Court

Page 487

357 N.E.2d 487

65 Ill.2d 132, 2 Ill.Dec. 320

The PEOPLE of the State of Illinois, Appellant, v. Spencer PARKS, Appellee.

No. 48182.

Supreme Court of Illinois.

Nov. 15, 1976.

William J. Scott, Atty. Gen., Springfield, Bernard Carey, State's Atty., Chicago (James B. Zagel and Jayne A. Carr, Asst. Attys. Gen., Laurence J. Bolon and Eugene J. Rudnik, Jr., Asst. State's Attys., of counsel), for the People.

James Geis, Deputy State App. Defender, Paul Bradley and Martin S. Carlson, Asst. State App. Defenders, Chicago, for appellee.

RYAN, Justice:

Defendant, Spencer Parks, was tried before a jury in the circuit court of Cook County for the offenses of armed robbery and murder. He was found guilty of armed robbery and sentenced to a term of 7 to 21 years. The jury was unable to reach a verdict on the murder charge. The appellate court reversed defendant's conviction and remanded because the trial court did not, Sua sponte, instruct the jury as to accomplice testimony. (34 Ill.App.3d 180, 340 N.E.2d 121.) The sole question before this court is whether the court erred in failing to give such an instruction when a proper instruction on that subject had not been tendered by the defendant. We find that the court did not commit reversible error.

Defendant and a co-indictee, Virgil Hooper, were charged with the armed robbery and murder of Willie Lee Parham. Defendant was granted a severance and Hooper was brought to trial first. The jury was unable to reach a verdict, and the charges against Hooper were still pending at the time of defendant's trial. Following his trial, Hooper was persuaded to become a witness against defendant and to plead guilty to armed robbery. In exchange, the State agreed to recommend a sentence of 5 years on the armed robbery charge.

At defendant's trial Hooper admitted taking part in the robbery of a man named Parham, but he testified that it was defendant who drew a pistol during the robbery and who shot Parham when the latter attempted to flee. Hooper also testified that he had lied at his own trial when he disavowed any knowledge of the robbery. Defendant testified in his own vehalf and denied participation in the robbery and denied shooting Parham. Hooper's testimony was the only evidence linking defendant to the incident. When the case was submitted to the jury no instruction concerning the testimony of an accomplice was given.

It appears that the conference on instructions had been held out of the presence of the court reporter. After the instructions had been discussed and settled, the court reporter was called in and the court again went over the instructions with the attorneys. The court first considered the People's instructions stating for the record the ones to which the defendant had not made objections. When People's Instruction No. 9 was discussed the following occurred:

'THE COURT: People's No. 9 was withdrawn, the accomplice.

MR. GIERACH (prosecutor): Judge, I.P.I. 3.17.

THE COURT: Yes.

MR. GIERACH: Judge, I would note that the defense counsel tendered to the Court also an instruction concerning the testimony of an accomplice and His Honor.

MR. COOPER (defense counsel): We did not. We did not.

MR. GIERACH: Judge, I believe there was an instruction tendered by the defense counsel concerning the testimony of an accomplice.

MR. COOPER: We did not.

THE COURT: Well, I will let counsel make his statement.

MR. GIERACH: He indicated, Judge, inasmuch as that was in variation with the Illinois I.P.I. and the Criminal Code, that that would probably not be given.

I would note at this time that the People would not object to the Illinois I.P.I. 3.17 being given, if there is a request. I did not.

MR. COOPER: We did not submit any accomplice instruction. And we object to that.'

Following the People's instructions the court considered those that had been tendered by the defense. Defendant's Instruction No. 1 stated:

'Where a witness says he was involved in the commission of a crime with the Defendant, that testimony of that witness is subject to suspicion, and should be considered by you with caution. It should be carefully examined in light of other evidence in the case. It should also be carefully examined in light of lack of other evidence in the case.'

This is substantially the same as IPI Criminal No. 3.17 (Illinois Pattern Jury Instructions, Criminal (1968)), except that in this instruction the witness is not referred to as 'an accomplice' and the last sentence was added. IPI Criminal No. 3.17 is as follows:

'An accomplice witness is one who testifies that he was involved in the commission of a crime with the defendant. The testimony of an accomplice witness is subject to suspicion, and should be considered by you with caution. It should be carefully examined in light of the other evidence in the case.' The prosecutor in voicing his objection to defendant's Instruction No. 1 stated:

'MR. GIERACH (prosecutor): Judge, No. 1, Defendant's No. 1 I would note is the one which refers to the testimony of a witness subject to suspicion, where a witness is involved in the commission of the crime with the defendant. I would note, Judge, that is the substance of the accomplice instruction, the I.P.I. instruction, which the defense does not want. We would object to the modified different version to it in Defendant's No. 1, and would have no objection to the accomplice of I.P.I.'

Defense counsel did not reply to this statement.

It is apparent from this recorded colloquy between court and counsel that the defense counsel did not want the jury instructed that Hooper was an 'accomplice.' As we will note later, the defense counsel had apparently objected to People's Instruction No. 9 (accomplice instruction) during the off-the-record discussion of the instructions. Also, he had carefully tailored his own Instruction No. 1 after the IPI accomplice instruction substituting, however, other language where the word 'accomplice' was used in that instruction. Further, as appears above, when the prosecutor and the court referred to the defendant's instructions as an accomplice instruction defense counsel objected and insisted that he had not tendered an accomplice instruction even though his Instruction No. 1 contained the substance of IPI Criminal No. 3.17.

It is also apparent from the above-quoted colloquy that the defendant had voiced an objection to the giving of IPI Criminal No. 3.17 concerning the testimony of an accomplice. The People withdrew its Instruction No. 9. However, it cannot be determined from the record if it was withdrawn because the defendant was tendering an instruction covering the same subject or because the defendant had objected to giving it. In any event, during the on-record discussion of defendant's Instruction No. 1 the prosecutor made it quite clear that the defendant had previously objected to the giving of the IPI instruction. Defense counsel's failure to object or reply to the prosecutor's statement that defendant's Instruction No. 1 'is the substance of the accomplice instruction, the IPI instruction, Which the defense does not want' (emphasis added) carries the clear implication that a previous objection had been made to the IPI accomplice instruction.

It is further noted that in the discussions quoted above the prosecutor had twice stated that he would have no objection to the giving of the IPI accomplice instruction if the defendant wanted to tender it. Defense counsel, however, did not reply to the invitation. He also did not tender the instruction.

Generally, a party who desires a specific instruction must offer it and request the court to give it and the trial court has no obligation to instruct on its own motion. (People v. Nuccio (1973), 54 Ill.2d 39, 294 N.E.2d 276; People v. Springs (1972), 51 Ill.2d 418, 283 N.E.2d 225.) In criminal cases, however, this rule is modified in certain situations by the requirements of a fair trial. It has been held that a court bears the burden of seeing that the jury is instructed on the elements of the crime charged, on the presumption of innocence and on the question of burden of proof. People v. French (1972), 5 Ill.App.3d 908, 284 N.E.2d 481; People v. Kuykendall (1970), 120 Ill.App.2d 225, 256 N.E.2d 869; People v. Davis (1966), 74 Ill.App.2d 450, 221 N.E.2d 63; Note, Criminal Juries and Defenses, Instruction of Jurors, 7 Loy.U.Chi.L.J. 1036, 1042, 1046 (1976).

Although the instruction in question does not fall within the area of required instructions discussed in these cases, the defendant, relying on our decision in People v. Joyner (1972), 50 Ill.2d 302, 278 N.E.2d 756, insists that it was error for the court not to Sua sponte instruct the jury concerning the testimony of an accomplice. In Joyner the defendants were prosecuted for murder. They tendered an instruction on voluntary manslaughter which was properly refused because it did not conform with the appropriate IPI instruction. No voluntary manslaughter instruction was given. We...