People v. Rice

• Decision Date: 30 December 1996
• Docket Number: No. 1-92-1308,1-92-1308
• Citation: 286 Ill.App.3d 394,675 N.E.2d 944
• Parties: , 221 Ill.Dec. 520 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Kevin RICE, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 944

675 N.E.2d 944

286 Ill.App.3d 394, 221 Ill.Dec. 520

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Kevin RICE, Defendant-Appellant.

No. 1-92-1308.

Appellate Court of Illinois First District, First Division.

Dec. 30, 1996.

Rehearing Denied Feb. 19, 1997.

[286 Ill.App.3d 396] [221 Ill.Dec. 522] Frederick F. Cohn, Chicago, for Defendant-Appellant.

[286 Ill.App.3d 397] State's Attorney of Cook County, Chicago (Renee Goldfarb, Susan Schierl, and Jon J. Walters, of counsel), for Plaintiff-Appellee.

Justice O'BRIEN delivered the opinion of the court:

Following a joint jury trial, defendant, Kevin Rice, was found guilty of possession of a controlled substance with intent to distribute and sentenced to 20 years' imprisonment; his co-defendant, Raymond Pugh, was found guilty of possession of a controlled substance. Defendant Rice appealed alleging six separate trial errors each of which he contended required reversal of his conviction and remand for a new trial. This court reversed his conviction based upon the first issue presented, namely that the trial court erred in refusing to admit into evidence co-defendant Pugh's exculpatory statement made at a pretrial suppression hearing. People v. Rice, 247 Ill.App.3d 415, 187 Ill.Dec. 152, 617 N.E.2d 360 (1993). Having determined that reversal was warranted on the first issue, we declined to address the remaining five issues presented for review. Rice, 247 Ill.App.3d at 419, 187 Ill.Dec. at 156, 617 N.E.2d at 364.

[221 Ill.Dec. 523] Thereafter, the Illinois Supreme Court, reversed this court's decision, reinstated the conviction, and remanded the case to this court for consideration of the remaining five issues. People v. Rice, 166 Ill.2d 35, 209 Ill.Dec. 635, 651 N.E.2d 1083 (1995). We affirm.

The facts of this case are fully set forth in both the prior opinion of this court, Rice, 247 Ill.App.3d at 416, 187 Ill.Dec. at 153-54, 617 N.E.2d at 361-62, and the opinion of the Illinois Supreme Court, Rice, 166 Ill.2d at 37-38, 209 Ill.Dec. at 636-37, 651 N.E.2d at 1084-85, and will not be repeated here.

OPINION

I.

The first issue we are asked to consider on remand is whether defendant was denied due process when the court, in its opening remarks, advised the jury:

"If you become convinced beyond a reasonable doubt from all the evidence in the case that either of the defendants is guilty as charged in the information, it will be your duty to find them guilty." (Emphasis added.)

Defendant contends this opening remark was so prejudicial as to require a new trial, no matter what subsequently took place. Defendant reasons that the remark improperly instructed the jury that if it found the evidence sufficient to convict either defendant it should convict both defendants and subsequent curative instructions did not cure the error, but rather were in direct conflict with the court's opening remark and thus served only to confuse the jury. We disagree.

Instructions in criminal cases should not be viewed in isolation, but rather should be considered as a whole. People v. Hester, 131 Ill.2d 91, 98, 136 Ill.Dec. 111, 115, 544 N.E.2d 797, 801 (1989); People v. Terry, 99 Ill.2d 508, 516, 77 Ill.Dec. 442, 446, 460 N.E.2d 746, 750 (1984). Moreover, if a trial court awkwardly phrases an instruction which does not otherwise contain a substantial defect, (People v. Gallardo, 112 Ill.App.3d 764, 773, 68 Ill.Dec. 360, 367-68, 445 N.E.2d 1213, 1220-21 (1983)), or gives an instruction which, standing alone, may mislead the jury, (People v. Flowers, 138 Ill.2d 218, 233, 149 Ill.Dec. 304, 310, 561 N.E.2d 674, 680 (1990)), other instructions may explain the inaccuracy, remove the error, or render it harmless.

Here, although the trial judge utilized a plural object pronoun, i.e. "them", where a singular object pronoun, i.e. "him" (or even more definitively a pointing pronoun combined with an antecedent noun, e.g. "that defendant"), was appropriate, the comment does not rise to the level of a substantial defect. Such usage is sufficiently common in spoken English that we believe the meaning is generally understood.

Even assuming the remark, standing alone, may have misled the jury, it was prefaced by the trial court's explanation that his opening remarks were not the jury's "final and complete instructions," and followed by an admonition to the jury to "remember throughout the trial that each defendant is entitled to have his case decided on the evidence and the law which applies to him, that is you must give separate consideration to each defendant." The court further admonished the jury that "[a]ny evidence which is limited to one defendant should not be considered by you as to any other defendant." These additional remarks were reiterated at the close of evidence when the trial court formally instructed the jury on the law and the presumption of innocence. The jury returned different verdicts for the two defendants.

In light of the foregoing, we find defendant's argument that the jury in this case understood "them" in this context to mean "both" to be disingenuous. When viewed in context, and taking into consideration the fact that the jury returned different verdicts for the two defendants, we find the complained of remark was neither confusing nor amounted to a substantial defect requiring a new trial.

II.

The second issue we are asked to address on remand is whether the heroin contained in a brown paper bag located on the person of Rice's co-defendant, Pugh, was seized in violation of Rice's right to be free from unreasonable searches and seizures and should have been suppressed. Defendant contends that based upon the officers' version of events, i.e. that Rice handed the bag to Pugh, defendant had not abandoned the bag and therefore retained standing to file a motion to suppress. In support of his argument, defendant cites two out-of-jurisdiction cases: In re B.K.C., 413 A.2d 894 (D.C.Ct.App.1980), and State v. Cooke, 54 N.C.App. 33, 282 S.E.2d 800 (1981). Defendant's reliance is misplaced.

Standing under the fourth amendment accrues only to individuals with a reasonable expectation of privacy in the area searched or property seized. People v. Johnson, 114 Ill.2d 170, 191, 102 Ill.Dec. 342, 351, 499 N.E.2d 1355, 1364 (1986). Moreover, the burden is on defendant to establish standing and show that the complained of search was unreasonable. People v. Neal, 109 Ill.2d 216, 218, 93 Ill.Dec. 365, 366-67, 486 N.E.2d 898, 899-900 (1985).

In In re B.K.C., the defendant never ceased to claim ownership of the seized briefcase and no dispute existed at the motion to suppress evidence that the briefcase belonged to the defendant. 413 A.2d at 900. In State v. Cooke, the defendant's name was on the suitcase and the co-defendant informed the police that the suitcase belonged to the defendant. 282 S.E.2d at 808. Thus, in both In re B.K.C. and State v. Cooke, the evidence clearly demonstrated the defendants' respective possessory interests in the suitcase searched. Here, in contrast, the defendant claimed no possessory interest in the paper bag, but rather attempted to rely upon the statements of police to establish standing. Moreover Pugh claimed to have placed the brown paper bag containing heroin inside his pants approximately two hours before the police stopped Rice for speeding. Because defendant failed to claim a possessory interest in the bag, (People v. Dowery, 174 Ill.App.3d 239, 245, 123 Ill.Dec. 669, 673, 528 N.E.2d 214, 218 (1988)), or establish a reasonable expectation of privacy in Pugh's pants (People v. Casas, 234 Ill.App.3d 847, 176 Ill.Dec. 100, 601 N.E.2d 798 (1992)), we find that defendant lacks standing to challenge the constitutionality of the search.

Even assuming, arguendo, that defendant has standing to challenge the search of Pugh, a reviewing court will not disturb a trial court's ruling on a motion to suppress evidence unless it is manifestly erroneous. People v. Neal, 109 Ill.2d at 218, 93 Ill.Dec. at 366, 486 N.E.2d at 899. A ruling is manifestly erroneous if it is arbitrary, unreasonable, and not based on the evidence. People v. Harris, 220 Ill.App.3d 848, 860, 163 Ill.Dec. 1, 9, 580 N.E.2d 1342, 1350 (1991).

Defendant contends that neither an arrest for a minor traffic violation, nor the mere fact that a person desires to hide something from the authorities, creates a reasonable suspicion, based on articulable facts, that Pugh was armed so as to permit the arresting officers to frisk him. While this may be true, defendant's reliance on People v. Dotson, 37 Ill.App.3d 176, 345 N.E.2d 721 (1976), and People v. McCarty, 11 Ill.App.3d 421, 296 N.E.2d 862 (1973), in support of his argument is nevertheless misplaced as both are distinguishable on their facts.

In Dotson, the court found that defendant's behavior of shifting his feet and placing his hands in his pocket, without more, did not justify a frisk because his behavior was entirely consistent with that of an individual attempting to stay warm on a cold winter's day. 37 Ill.App.3d at 177, 345 N.E.2d at 721-22. In McCarty, the court found that even assuming a frisk was proper, once the officer had determined that defendant's coat pocket contained only soft objects and not a weapon, he had no right to remove anything therefrom. Here, in contrast, it was not merely Pugh's apparent nervousness, but rather the fact that the arresting officer observed Pugh stick a bulky, handgun-sized paper bag in his waistband, which would warrant a reasonably prudent person in believing his safety or the safety of others was in danger such that a pat down search was not improper. See generally People v. Sailor, 43 Ill.2d 256, 253 N.E.2d 397 (1969) (weapon may have been passed and concealed in purse such that search was necessary to protect officer from attack). Furthermore, the pat down search revealed that the bag was hard rather than soft to the touch. In light of the foregoing, we find that the...