Appeal from the Appellate Court for the First District; heard
in that court on appeal from the Circuit Court of Cook County;
the Hon. Fred G. Suria, Jr., Judge, presiding.
MR. JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:
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.) 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 behalf 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.
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.
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 ...