Appeal from the Circuit Court of Du Page County; the Hon. Carl
Henninger, Judge, presiding.
JUSTICE NASH DELIVERED THE OPINION OF THE COURT:
After trial by jury defendant, John Krush, was convicted of burglary (Ill. Rev. Stat. 1981, ch. 38, par. 19-1(a)), and sentenced to four years' imprisonment. The sole issue presented by his appeal is whether error requiring reversal occurred when the trial court gave Illinois Pattern Jury Instruction (IPI), Criminal, No. 3.17 (2d ed. 1981), a cautionary instruction relating to the testimony of a witness who is an accomplice to the offense. We affirm.
Evidence at trial disclosed that on the night of April 3, 1982, a patroling police officer of the city of Warrenville noticed a pickup truck parked between two construction site trailers in a street cul-de-sac of a housing development. When he approached to investigate, the officer saw defendant closing the tailgate of the truck. The officer asked defendant what he was doing, and defendant responded that he and his companion had stopped to relieve themselves. The officer noticed two boxes in the back of the truck and asked defendant where he had gotten them. Defendant responded, "We picked them up off the ground." The officer then noticed another man, later identified as William Dunkin, exit one of the construction trailers. The officer testified he did not see defendant in the trailer.
Another officer arrived and, on looking into the trailer using a light, saw other boxes of the same size, shape and with the same markings as those in the pickup truck. Defendant and Dunkin were arrested and searched disclosing that each carried a flashlight in his coat.
A representative of the owner of the construction trailers testified neither defendant nor Dunkin had authority to enter them and that the trailer which had been entered held boxes containing marble vanity tops.
William Dunkin was called as a witness by defendant and testified he had entered a guilty plea to this burglary and was serving a sentence of imprisonment. Dunkin also testified that on the night in question he and defendant had been out drinking and, after driving to Batavia in defendant's truck, they traveled down Route 59 to find another place to drink. En route defendant said he wished to relieve himself and drove off the highway into a construction site, parking the truck at the end of a road. Defendant then went around to the side of a trailer to relieve himself and, while he was gone, Dunkin got out with a flashlight to look around. Upon discovering the trailer was unlocked Dunkin stated he entered and pushed two boxes out of it; defendant was then still on the other side of the trailer. Dunkin testified he came out of the trailer shortly thereafter when he saw a light; the police car was then present and he saw defendant closing the tailgate of the truck.
Dunkin also testified he had not discussed the burglary with defendant and it was his own idea. He acknowledged that defendant had placed the boxes removed from the trailer into his truck.
At the request of the State and over defendant's objection, the trial court gave the "accomplice" instruction of which defendant complains, as follows:
"When a witness says he was involved in the commission of a crime with the defendant, the testimony of that 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." IPI Criminal No. 3.17 (2d ed. 1981).
Defendant notes that William Dunkin was the only witness called on his behalf and that the State, in argument, pointed out to the jury his testimony could, under the law, be viewed with suspicion as he was involved in the crime with defendant. Defendant argues the "accomplice" instruction should never be given when it may apply to a witness called by a defendant and, in this case, to allow the jury to disregard the testimony of the only defense witness was error requiring that he be given a new trial.
• 1 It is apparent William Dunkin was an accomplice to the burglary offense for which defendant was tried (People v. Cobb (1983), 97 Ill.2d 465, 455 N.E.2d 31) and, if he had been called as a witness by the State, that the disputed instruction would have been properly given. However, the question whether an "accomplice" instruction may ever be given when directed to the testimony of a witness called by a defendant, as in this case, has not been clearly settled in Illinois, and the appellate court has taken conflicting positions on the issue.
Our supreme court addressed the question in People v. Touhy (1935), 361 Ill. 332, 197 N.E. 849. In that case three accomplice witnesses testified, one of whom was called by the defendant. The jury was instructed "[t]he testimony of an accomplice is competent evidence but such testimony is liable to grave suspicion and should be acted upon with great caution." 361 Ill. 332, 352.) Defendant there contended it was error to give the instruction as it related, in part, to one of defendant's witnesses. In finding there was no error, the court noted: "[n]o reason is advanced, and none is apparent, why one who is in fact an accomplice should not have his testimony scrutinized carefully before it is relied on, no matter on which side of the case he testified." 361 Ill. 332, 353, 197 N.E. 849, 859.
In the first edition of Illinois Pattern Jury Instructions, Criminal, published in 1968, an accomplice instruction was offered which was similar to that given in this case and the Committee Notes disclose it was divided whether any accomplice instruction ought to be given at all. In 1981, the second edition of IPI criminal instructions deleted the word "accomplice" so that the form refers generally to a witness who says he was involved in a crime with defendant. In this edition, the Committee Note states, without citation of authority, that the instruction applies only to a witness who testified for the State. IPI Criminal No. 3.17, Committee Note (2d ed. 1981).
The appellate court has considered IPI Criminal No. 3.17 in numerous cases since 1968, with varying conclusions. In People v. Legear (1975), 29 Ill. App.3d 884, 891-92, 331 N.E.2d 659, this court considered the instruction where it related to ...