Appeal from the Circuit Court of Cook County; the Hon. Howard
M. Miller, Judge, presiding.
JUSTICE LINN DELIVERED THE OPINION OF THE COURT:
Following a jury trial in the circuit court of Cook County, defendant, Reginald Williams, was convicted of one count of armed robbery (Ill. Rev. Stat. 1981, ch. 38, par. 18-2) and sentenced to an eight-year term in the Illinois Department of Corrections.
On appeal, defendant raises four issues. We find it necessary, however, to consider only the first of these; namely, whether the trial court's failure to give Illinois Pattern Jury Instruction (IPI), Criminal, No. 2.03 (2d ed. 1981) concerning the presumption of innocence and the State's burden of proof, denied defendant a fair trial. Our affirmative finding on this issue obviates any consideration of the subsequent claims of error raised by defendant.
Accordingly, we reverse the decision of the trial court and remand for a new trial.
On August 25, 1981, at approximately 5:30 p.m., the Gas City Service Station in Evergreen Park was robbed. The robber held a part-time employee of the station at gunpoint and demanded he surrender the station's money. After the robber fled, the employee telephoned the police and reported the incident. Approximately one-half hour prior to the robbery, a woman who lived two doors away from the station witnessed a man duck down under the dashboard of an unfamiliar car parked in the alley between the service station and her home. The woman then saw a strange man walking toward the Gas City station. She wrote down the license number of the car and reported her observations to the police, who ran a vehicle registration check on the license plate. The check revealed that the car was registered to defendant, Reginald Williams.
Defendant was brought in for a line-up. At the line-up, the Gas City employee identified defendant as the man who robbed the station. Defendant was charged by information with one count of armed robbery (Ill. Rev. Stat. 1981, ch. 38, par. 18-2) and one count of armed violence (Ill. Rev. Stat. 1981, ch. 38, par. 33A-2). The State moved to nolle pros the armed-violence count, and the motion was granted. Defendant demanded a jury trial.
At trial, neither the defense nor the State tendered the presumption-of-innocence instruction (IPI Criminal No. 2.03), and the trial court failed to give the instruction sua sponte. The only mention of the continuing presumption of defendant's innocence by the trial court was made to prospective jurors at the onset of trial during voir dire examination. The State's burden of proof was mentioned once during voir dire, and the standard of proof was mentioned again as part of the issues instruction for armed robbery. The jurors were also instructed that the applicable law was stated in the instructions and that it was their duty to follow them. Defendant did not object at trial to the court's failure to give IPI Criminal 2.03, nor did he raise the issue in a post-trial motion.
The jury found defendant guilty of armed robbery. The trial court sentenced defendant to an eight-year term in the Illinois Department of Corrections. This appeal followed.
On appeal, defendant claims as error the trial court's (1) failure to give IPI Criminal No. 2.03 sua sponte, (2) admission into evidence of statements by defendant which were not tendered to the defense during discovery, (3) denial of defendant's motion to quash arrest and suppress identification testimony based on a lack of probable cause, and (4) imposition of a sentence greater than the minimum statutory term. Due to the dispositive nature of defendant's first claim of error, we need address ourselves solely to that issue.
Defendant asserts that the trial court's failure to give IPI Criminal No. 2.03, an instruction on the presumed innocence of the defendant and the State's burden of proof, denied him his due process right to a fair trial. The State argues that defendant, by failing to either object or tender the instruction at trial, waived this issue on appeal. Alternatively, the State maintains that where, as here, the jury is informed of the substance of IPI Criminal No. 2.03 by the "totality of circumstances" during trial, the trial court is relieved of its obligation to instruct on its own motion.
While we agree with the State that the determination of whether failure to give the presumption-of-innocence instruction constitutes reversible error is to be based on the "totality of circumstances" in each particular case, we find that under existing law and in light of the unique totality of circumstances presented in the record before us, we must conclude that in this case, the trial court's failure to give IPI Criminal No. 2.03 deprived defendant of a fair trial.
The presumption-of-innocence instruction, IPI Criminal No. 2.03, reads as follows:
"The defendant is presumed to be innocent of the charge 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 ...