APPEAL from the Circuit Court of Cook County; the Hon.
SYLVESTER C. CLOSE, Judge, presiding.
MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
Defendant appeals from his convictions of attempt murder and armed robbery and his sentence of 50 to 100 years "to run concurrently with each other." A number of issues are raised on appeal, but we find it necessary to consider only whether Illinois Pattern Jury Instruction, Criminal, No. 2.03 (1968) (hereinafter IPI Criminal) concerning the presumption of innocence and burden of proof should have been given sua sponte by the trial court.
Defendant was indicted for the attempt murder, armed robbery, and aggravated battery of Ronald DeLott, who testified that during a robbery of the store in which he was employed he was shot by defendant. Three other store employees gave substantially the same testimony as DeLott. Defendant, who appeared pro se, did not testify and presented no defense other than to recall two of the State's witnesses who recounted their earlier testimony.
Defendant submitted no instructions, and the court gave none concerning the presumption of innocence. Issue instructions on aggravated battery (IPI Criminal No. 11.10) and on armed robbery (IPI Criminal No. 14.02) were given, and in each the jury was told that if they found certain propositions set forth therein had been proved beyond a reasonable doubt, they should find defendant guilty. No such issue instruction, however, was given for attempt murder. The jury found defendant guilty of all three charges, following which a motion of the State to nolle pros the indictment for aggravated battery *fn1 was granted and defendant then was sentenced as to attempt murder and armed robbery. A post-trial motion for a new trial was denied, and this appeal followed.
• 1 The presumption-of-innocence instruction (IPI Criminal No. 2.03) is as follows:
"The defendant is presumed to be innocent of the charges against him. This presumption remains with him throughout every stage of the trial and during your deliberations on the verdict, and is not overcome unless from all the evidence in the case you are convinced beyond a reasonable doubt that the defendant is guilty.
The State has the burden of proving the guilt of the defendant beyond a reasonable doubt, and this burden remains on the State throughout the case. The defendant is not required to prove his innocence."
Although this instruction was not given, the State argues that the jury was sufficiently informed of its content because (a) the trial court explained it in substance during the voir dire examination; (b) the instructions as to aggravated battery and armed robbery required that guilt be proved beyond a reasonable doubt; and (c) the prosecutor told the jury in closing argument that defendant was presumed innocent. The record discloses that the trial court made a preliminary statement to the array of jurors prior to their questioning in which they were informed that defendant was presumed to be innocent and that the State was required to prove his guilt beyond a reasonable doubt. Thereafter, the trial court mentioned the presumption of innocence during its questioning of 2 of the 17 jurors interrogated, and it appears that the prosecutor at one point in his closing argument informed the jury that there was a presumption of innocence. It is our view, however, that under existing law and in light of the circumstances presented here, the failure to give IPI Criminal No. 2.03, sua sponte, effectively denied defendant the full range of protections afforded thereby.
In Kentucky v. Whorton (1979), 441 U.S. 786, 60 L.Ed.2d 640, 99 S.Ct. 2088, it was held that in the determination of whether the trial court's failure to give a presumption of innocence instruction was reversible error, there must be a consideration of all the facts and circumstances at trial. The court stated:
"While this Court in Taylor [Taylor v. Kentucky (1978), 436 U.S. 478, 56 L.Ed.2d 468, 98 S.Ct. 1930] reversed a conviction resulting from a trial in which the judge had refused to give a requested instruction on the presumption of innocence, the Court did not there fashion a new rule of constitutional law requiring that such an instruction be given in every criminal case. Rather, the Court's opinion focused on the failure to give the instruction as it related to the overall fairness of the trial considered in its entirety.
[T]he failure to give a requested instruction on the presumption of innocence does not in and of itself violate the Constitution. Under Taylor, such a failure must be evaluated in light of the totality of the circumstances — including all the instructions to the jury, the arguments of counsel, whether the weight of the evidence was overwhelming, and other relevant factors — to determine whether the defendant received a constitutionally fair trial." (441 U.S. 786, 788-89, 60 L.Ed.2d 640, 643, 99 S.Ct. 2088, 2089-90.)
While the rule as formulated in Whorton apparently does not demand that absolute weight or priority be ascribed to any factor, neither does it contemplate sole reliance on any one factor to the exclusion of all others; rather, it appears to be a flexible test which invites comparison among the factors enumerated as well as unanticipated factors having significance in a given case.
Failure to instruct the jury on the presumption of innocence in its most pernicious aspect amounts to a manipulation of fundamental legal principles to achieve results apparently favorable to the State but at the expense of basic protections guaranteed the accused. (See Estelle v. Williams (1976), 425 U.S. 501, 48 L.Ed.2d 126, 96 S.Ct. 1691.) When that principle is not impressed upon the minds of the jurors, the trial could become a mere formality in which the jury presumes guilt, and its function would thus deteriorate into one simply ratifying the criminal investigation. Although it is established that the presumption of innocence is not evidence favoring the accused (Taylor v. Kentucky), it remains a vital principle of legal rhetoric which serves to inform the jury not to automatically agree with the prosecution. Its purpose also is to afford fair and even-handed treatment to all persons accused of criminal offenses, so that guilt or innocence is based exclusively on evidence adduced at trial. (Taylor v. Kentucky.) That objective ...