People v. Thomas

• Citation: 15 N.E.3d 943
• Decision Date: 05 August 2014
• Docket Number: No. 2–12–1203.,2–12–1203.
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Bernard THOMAS, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

15 N.E.3d 943

The PEOPLE of the State of Illinois, Plaintiff–Appellee
v.
Bernard THOMAS, Defendant–Appellant.

No. 2–12–1203.

Appellate Court of Illinois, Second District.

Aug. 5, 2014.

15 N.E.3d 944

Thomas A. Lilien and Steven E. Wiltgen, both of State Appellate Defender's Office, of Elgin, for appellant.

Robert B. Berlin, State's Attorney, of Wheaton (Lisa Anne Hoffman and James P. French, Assistant State's Attorneys, of counsel), for the People.

OPINION

Justice SCHOSTOK delivered the judgment of the court, with opinion.

¶ 1 On September 12, 2013, a jury found the defendant, Bernard Thomas, guilty of one count of retail theft (720 ILCS 5/16–25(a)(1) (West 2012)). The sole issue raised in this appeal is the constitutional validity of the trial court's statement to the jury—in response to a written question asking for the legal definition of the term “reasonable doubt”—that “[i]t is for you to determine.” In arguing that this response violated his due process right to have the State held to the burden of proving his guilt beyond a reasonable doubt, the defendant relies on two recent appellate court cases, People v. Turman, 2011 IL App (1st) 091019, 352 Ill.Dec. 762, 954 N.E.2d 845, and People v. Franklin, 2012 IL App (3d) 100618, 361 Ill.Dec. 301, 970 N.E.2d 1247, which held that it is reversible error per se for a trial court to tell a jury that it must define “reasonable doubt” for itself. We view this holding as questionable under applicable precedent of the United States Supreme Court and the Illinois Supreme Court. We instead hold that a court must consider the totality of the circumstances and determine whether there is a reasonable likelihood that the jury applied a lesser standard than beyond a reasonable doubt. We conclude that this standard is not met here and therefore affirm the defendant's conviction.

¶ 2 BACKGROUND

¶ 3 The defendant was indicted on two counts of felony retail theft. Count I alleged that, on March 27, 2012, he took several bottles of liquor from a Jewel–Osco store in Elmhurst with the intent to permanently deprive Jewel–Osco of the possession and benefit of the merchandise, having been previously convicted of theft (720 ILCS 5/16–25(a)(1) (West 2010)). Count II alleged the same retail theft, with the added element that the value of the liquor taken was over $300 (thereby increasing the sentence (720 ILCS 5/16–25(f)(3) (West 2010))).

¶ 4 The jury trial commenced on September 11, 2012. During jury selection, the trial court made comments giving the prospective jurors an overview of the case, including the charges and the schedule of the trial. With respect to the State's burden of proof, the trial court stated that: the State bore the burden of proving the charges beyond a reasonable doubt; the burden of proof never shifted to the defendant; the defendant was presumed innocent of the charges throughout the trial; at the end of the trial, if the State did not prove its case beyond a reasonable doubt, the jurors would be required to find the defendant not guilty; and if the jurors found that the State had sustained its burden of proof beyond a reasonable doubt, they would be required to find the defendant guilty. The trial court did not make any comments about the meaning of the term “reasonable doubt.”

¶ 5 Nathan Bown, an assistant director for the Osco portion of the Jewel–Osco store, testified that on February 11, 2012,

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he noticed that an unusual amount of liquor was missing from one of the shelves in aisle 7. He checked the surveillance video for the day before and saw an African–American man placing bottles of liquor inside his jacket, which was puffy and black with a furry lining at the neck. The man later walked out the northwest entrance of the store. Bown did not call the police, because he did not know who the man was, but he monitored aisle 7 closely after that. Bown later observed, via video, the same man stealing liquor from aisle 7 on February 20 and 29 and March 12, 14, and 27, 2012. As of March 27, he still had not contacted the police because he still did not know who the man was. However, he backed up the surveillance video to preserve it.

¶ 6 Rafael Lopez, a Jewel–Osco employee, testified that he was working at the store on March 31, 2012. About 3 p.m. that day, Lopez saw a man leave the store through the entrance doors. The man, who walked right past him, was African–American and had a tattoo on his neck, and he was wearing a heavy winter coat with a furry lining, although it was a warm afternoon. Lopez noticed that he had a big bulge in his midsection. Lopez identified the defendant in court as the man he saw leaving the store on that day and as the man shown in photographs of aisle 7 taken on that day. Lopez continued to watch as the defendant approached the passenger side of a gold four-door vehicle with an older African–American man in the driver's seat. The defendant got into the car. As the car drove away, Lopez was behind it and made a note of the number of the license plate, which had a “handicapped” emblem. At trial, he testified that the number was either 117346 or 117396 (he could not tell whether he had written down a “4” or a “9”). Lopez notified his manager.

¶ 7 On April 1, Bown learned that another potential theft of liquor had occurred on March 31. When he checked the surveillance video for that day, he saw the same man he had seen earlier taking bottles of liquor and then walking out the northwest entrance. As on earlier occasions, the red lights on the anti-theft towers activated. Bown called the Elmhurst police and gave them the surveillance video and the license plate number observed by Lopez. Lopez was interviewed by the Elmhurst police, who showed him an array of six photographs. He identified a photograph of the defendant as the man he had seen leaving the store.

¶ 8 On April 5, Bown saw a man in the store who looked like the suspect in the surveillance videos. The man was pushing a cart containing some liquor bottles. Bown called the police. He then began following the man, whom he identified in court as the defendant. After he followed the defendant up and down a few aisles, the defendant abandoned his cart and left the store. The defendant did not steal anything on April 5. Bown testified that he later determined, by looking at the video, that on March 27 the defendant had stolen six bottles of Ciroc vodka and three bottles of Hennessey cognac. Bown also generated a receipt showing the total value of the liquor taken on that date, which exceeded $300 ($38.99 per bottle of Ciroc vodka and $32.99 per bottle of Hennessey cognac).

¶ 9 Police officer Alexander Kefaloukas of the Elmhurst police department testified that he went to the Jewel–Osco store at about 5:30 p.m. on April 5, 2012, after a report was received about a potential theft in progress. He met with a store employee who gave him a description of a suspect, which he relayed to other police officers.

¶ 10 Elmhurst police officer Michael Campise testified that he responded to the Jewel–Osco store at about 5:30 p.m. on

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April 5. While there, he saw an African–American man loitering outside the store. The man walked to a tan Chevy Lumina, which had a license plate with a “handicapped” emblem and the number 117346, and got in. Campise told other officers to detain the car if it drove away. He later learned that this man was Horace Smith.

¶ 11 Campise received a report that the suspect was leaving the store, and he arrested the defendant. Kefaloukas joined him and they searched the defendant, who was wearing a black “poofy” jacket with fur on the hood. The defendant had a small amount of change in his pocket but no other money, and no credit or debit cards.

¶ 12 Elmhurst police officer Edward Coughlin interviewed the defendant at the police station at about 6:30 p.m. He gave the defendant Miranda warnings. The defendant, who had a tattoo on the side of his neck, appeared agitated and said that he had not stolen anything. Coughlin told him that they were interested in prior incidents, not events at the Jewel–Osco that day. The defendant said that he had been at the store to pick up some things for his wife. Coughlin expressed skepticism, noting that the defendant had only six cents on him when he was brought to the police station. The defendant contended that a police officer on the street had taken his credit card. However, after Coughlin showed the defendant a surveillance DVD and mentioned the dates that the defendant had been seen in the store, the defendant admitted that he had stolen liquor from the store. The defendant stated that Smith would drive him to the store, where he would take bottles of liquor from the shelf and put them in his jacket. He would then sell the liquor on the street to get money for his heroin habit. His habit cost him about $60 per day. Coughlin had seen people under the influence of narcotics before and the defendant did not seem to be under the influence at the time of the interview.

¶ 13 After closing arguments, the trial court instructed the jury. As part of the instructions, the trial court gave Illinois Pattern Jury Instructions, Criminal, No. 2.03 (4th ed. Supp. 2009) (hereinafter, IPI Criminal 4th No. 2.03 (Supp.2009)):

“The

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