APPEAL from the Circuit Court of Montgomery County; the Hon.
DANIEL H. DAILEY, Judge, presiding.
MR. JUSTICE GEORGE J. MORAN DELIVERED THE OPINION OF THE COURT:
Following a jury trial in the circuit court of Montgomery County, defendant Richard Brown was convicted of burglary, sentenced to a term of one to five years imprisonment, and fined $500. He contends only in this appeal that the trial court erred in giving IPI Criminal 3.17 (accomplice testimony instruction) at the request of the State.
On January 22, 1976, the home of James Muir of Nokomis, Illinois, was burglarized and various items, including a number of coins, were taken from the premises. Herschel Michael, who was called as a State's witness, testified that on January 22, 1976, he, Dale Stolte and the defendant were walking near James Muir's home in Nokomis at approximately 6:30 p.m. As they approached the home, Stolte suddenly ran into the front door, breaking the lock and door facing. Michael then joined Stolte inside the house, and while the two of them ransacked the premises, defendant stood in the doorway trying to fix the broken lock and door. During the 10 to 15 minutes that Stolte and Michael were in the house, Stolte indicated his desire to steal a stereo. An argument ensued, and defendant persuaded Stolte to leave the stereo in the house. Michael testified that during the entire time the two were ransacking the house, defendant never touched anything except the door, nor did he actually see the house being ransacked or items being taken. Defendant never ventured past the broken front door except on exiting, when he and Michael went out through a side door. Michael further testified that defendant wore socks on his hands as he attempted to fix the door.
On cross-examination by defense counsel, Michael expressly denied a pre-existing plan to enter and burglarize the premises. He emphasized that the activity took place after Stolte suddenly "ran through the front door." Defense counsel also elicited from Michael that on the day of the trial he had entered a plea of guilty to the burglary of the Muir residence.
At the request of the State and over defense counsel's objections, the court instructed the jury in the language of IPI Criminal No. 3.17, which states:
"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."
1 Defendant argues that when the testimony of an alleged accomplice exonerates an accused, it is reversible error for the court to give an accomplice instruction because it derogates the accused's ability to use favorable testimony. Defendant concedes that this instruction is properly given when the accomplice testifies on behalf of the State and implicates a defendant. (People v. Howard, 130 Ill. App.2d 496, 263 N.E.2d 633.) In that situation, the purpose of a cautionary instruction is obvious. As stated in People v. Howard, and reiterated in People v. Riggs, 48 Ill. App.3d 702, 363 N.E.2d 137, the general basis for the rule is the unique relationship between the prosecution and an accomplice. From the relationship, there may exist a strong potential motivation to testify falsely for the accomplice who seeks, hopes or expects lenient treatment by the State in return for favorable testimony.
"Thus a witness, knowing that his own guilt is detected, may seek to shield himself from punishment by purchasing immunity or leniency by falsely accusing others and procuring their conviction. Even if a promise or expectation of leniency is denied, its existence is always suspected." (48 Ill. App.3d 702, 705.)
To the contrary, a witness who may be a self-confessed accomplice who exonerates rather than implicates the defendant is risking disfavor by the prosecution, and the same reasons for discrediting his testimony do not exist. (People v. Howard, 130 Ill. App.2d 496, 263 N.E.2d 633.) Thus, in those situations in which an accomplice testifies for the prosecution and implicates the defendant, a judicial instruction cautioning the jury that his testimony is subject to suspicion has been felt warranted. People v. Johnson, 317 Ill. 430, 148 N.E. 255.
The Committee Note to IPI Criminal No. 3.17 states:
"The Committee was sharply divided on the final approval of this instruction. The evidentiary elements affecting the credibility of accomplice testimony are customarily elicited (indeed, often times exploited) on cross-examination. People v. Maggio, 324 Ill. 516, 155 N.E. 373 (1927); People v. Mason, 28 Ill.2d 396, 192 N.E.2d 835 (1963). The minority of the Committee was of the view that cross-examination afforded sufficient protection to the defendant. However, the majority view that the testimony of the accomplice warrants judicial comment prevailed. People v. Johnson, 317 Ill. 430, 148 N.E. 255 (1925)."
2 The language of the instruction and the cases cited in the Committee Note, indicate that the drafters of IPI Criminal No. 3.17 had in mind the usual situation when an accomplice testifies on behalf of the State and implicates the defendant. The instruction was thus designed as a means for the defense to impeach the credibility of an accomplice seeking lenient treatment by the State in return for favorable testimony. It was not written to encompass a situation in which an accomplice testifies for the State and then seeks to discredit its own witness.
The State argues that this case is controlled by People v. Touhy, 361 Ill. 332, 197 N.E. 849, which implies that an accomplice's testimony should be viewed in the same manner whether offered on behalf of the State or the defendant. The Howard court considered the applicability of the Touhy case to a similar question and concluded that it was not dispositive. The court stated:
"We do not believe that the Touhy case is of general application where the testimony of an accomplice exonerates a defendant. The policy underlying the accomplice instruction is not discussed in Touhy and there was accomplice testimony introduced both by the State and the defendant. The accomplice testifying on behalf of defendant had not confessed his guilt and consequently, the reasons for discrediting his testimony were not so apparent. However, the principal limitation of the opinion in Touhy is the Court's initial premise that it would consider only the very narrow objections to the instruction made by the defendant ...