Appeal from the Circuit Court of Cook County; the Hon. Roger
J. Kiley, Jr., Judge, presiding.
JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:
Following a jury trial, defendant was convicted of murder and armed robbery, and was sentenced to concurrent terms of 50 and 30 years' imprisonment. We reversed and remanded the judgments, finding plain error in the admission of certain statements (People v. Sanders (1982), 111 Ill. App.3d 1, 443 N.E.2d 687), but the supreme court reversed our decision, holding that the plain error doctrine did not apply. (People v. Sanders (1983), 99 Ill.2d 262, 273-74, 457 N.E.2d 1241.) Because our disposition did not reach all of the issues presented by defendant, the supreme court remanded with directions to consider those issues. Accordingly, we now address defendant's contentions that: (1) the trial court failed to clarify questions from the jury and failed to supply a transcript requested by the jury; (2) the trial court failed to instruct the jury concerning lesser included offenses and circumstantial evidence; (3) defendant was not proved guilty beyond a reasonable doubt; (4) the prosecutor's closing argument denied him a fair trial; and (5) the State violated his right to effective assistance of counsel by investigating the public defenders assigned to his case, and causing them to withdraw. Because the facts are set forth at length in our previous opinion, we forego repetition and discuss the facts only in the context of the remaining issues.
Initially, we consider defendant's contention that the trial court erred in its response to a question submitted to the court by the jury during its deliberations at the close of trial. The jury posed the following question in writing to the trial court:
"Ruling — if found guilty on one charge, is he, automatically, found guilty on the other charge? In other words, guilty on one and not guilty on the other?"
In response to this question, the court wrote:
"In answer to your question, you have two forms of verdict, `Guilty' and `Not Guilty' for each of the two charges. You must select one of the two forms of verdict for each of the two charges." (Emphasis added.)
Defendant contends that the trial court's answer was unresponsive because it "incorporated the general language of `you have two forms of verdict'" which, defendant argues, is tantamount to no response at all. We disagree.
Where the jury raises an explicit question on a point of law arising from facts over which there is doubt or confusion, the court should attempt to clarify the issue in the minds of the jury members. (People v. Morris (1980), 81 Ill. App.3d 288, 290, 401 N.E.2d 284.) "This is true even though the jury was initially given proper instructions." People v. Morris (1980), 81 Ill. App.3d 288, 290-91, 401 N.E.2d 284; People v. Jedlicka (1980), 84 Ill. App.3d 483, 491, 405 N.E.2d 844.
• 1 In the pending case, instructions were given to the jury in the exact form of Illinois Pattern Jury Instructions (IPI), Criminal, Nos. 7.01, 14.01 and 14.02 (2d ed. 1981), which represent the definition of murder, the definition of armed robbery, and the elements of armed robbery, respectively. The trial court also submitted four verdict forms to the jury: (1) guilty of armed robbery; (2) not guilty of armed robbery; (3) guilty of murder; and (4) not guilty of murder. Having so instructed the jury, the court's subsequent admonition that the jurors "must select one of the two forms of verdict for each of the two charges" was, in our view, a direct and unambiguous response to the question presented, indicating that the jury should choose the appropriate form for the charge independently of the form chosen for the other charge. This information, taken as a whole, would sufficiently dispel any confusion the jury had about whether defendant could be "guilty on one [charge] and not guilty on the other."
Moreover, we note that defendant did not object to the trial court's written response to the jury's question but in fact agreed that the response was proper. The pertinent colloquy before the trial court was as follows:
"The Court: Back on the record. I have discussed with the lawyers, in front of Mr. Sanders, the alternative responses that might be given to this particular question. I have decided, with no objections from either side, to give the following answer * * *. Is that agreeable to both sides?
[The State]: Yes, your Honor.
Defense Counsel: Yes, Sir." (Emphasis added.)
We finally note that defendant failed to preserve his argument on this issue in his motion for a new trial, which omission serves as a waiver on appeal. (People v. Thomas (1983), 116 Ill. App.3d 216, 220-21, 452 N.E.2d 77.) For these reasons, defendant's contention will be rejected.
• 2 Defendant further assigns error to the trial court's decision to deny the jury's written request to view, during deliberations, the transcript of the "first [trial] testimony" of defendant's wife, Beverly Sanders. Again, we cannot agree.
The allowance or refusal of a request by the jury for a transcript of testimony in connection with its deliberations is within the sound discretion of the trial court. (People v. Pierce (1974), 56 Ill.2d 361, 363-64, 308 N.E.2d 577.) A request of this type may not be summarily rejected, however. In the exercise of its discretion, the trial court is charged with determining whether a review of testimony would be helpful or harmful to the jury's deliberations. (People v. Bibbs (1981), 101 Ill. App.3d 892, 898, 428 N.E.2d 965; People v. Singletary (1979), 73 Ill. App.3d 239, 254, 391 N.E.2d 40.) A plausible starting point for this inquiry is whether the jury thinks that the testimony would be helpful and whether there is a possible basis for the jury's belief. People v. Bibbs (1981), 101 Ill. App.3d 892, 898, 428 N.E.2d 965.
In the pending case, we believe that the trial court properly exercised its discretion in denying the jury's request. We particularly note the court's discussion of this issue wherein the court fully explained the reason for its decision:
"The parties have discussed this, and I have reviewed it. The relevant consideration, among other things, the nature and complexity of the trial itself, the issues involved, the testimony of the particular witness in question, the time that the jury has been deliberating so far, and other factors that I think relate to this, and although I think I have discretion to grant the request, in my judgment, the jury has only been deliberating * * * a little more than three and a half hours * * *. The witness, Beverly Sanders, testified just yesterday. There wasn't anything particularly complex about the trial, itself, nor about the testimony given by Beverly Sanders; and the danger that I see, of course, in providing a jury with a transcript of one witness' testimony, particularly one portion of the witness' testimony, is that they would attach undue influence to that as distinguished from other evidence."
We agree with the trial court's rationale. The jury had deliberated for only a short while, the trial was not complex, and, as the trial court acknowledged, it was quite possible that the jury would take Mrs. Sanders' testimony completely out of context to resolve an unknown question.
Moreover, the record shows that defendant not only failed to object to the trial court's refusal to grant the jury's request, he recommended that the court exercise its discretion in the very manner it did, believing, reasonably, we conclude, that the denial of such request was protective of and favorable to defendant's interests. Based on these facts, we find that defendant's argument on this issue is without merit.
• 3 Defendant next argues that the trial court erroneously failed to instruct the jury as to lesser offenses (receiving stolen property, robbery, burglary, voluntary manslaughter, involuntary manslaughter, reckless homicide and battery) and as to circumstantial evidence. Defendant concedes that he did not request an instruction for any of these offenses but contends that "fundamental fairness" demands that his failure to do so does not waive his right to raise this issue on appeal. The trial judge is under no duty to give unrequested instructions, and defendant's failure to request an instruction normally constitutes a waiver. (See People v. Nutall (1980), 91 Ill. App.3d 758, 765-66.) We interpret defendant's argument on this point to be, in essence, a request under the plain error doctrine. We decline to honor this request.
The plain error doctrine provides an exception to the waiver rule where plain errors or defects affect substantial rights. It is a limited exception and should only be invoked where the evidence is so closely balanced that the verdict of the jury may have resulted from the error, or where the error itself was so egregious as to deny the defendant a fair trial. (People v. Thomas (1984), 121 Ill. App.3d 883, 891.) In the case at bar, the evidence was not closely balanced on the question of guilt (People v. Sanders (1983), 99 Ill.2d 262, 273, 457 N.E.2d 1241 (law of the case)), and as we will explain, the trial court's failure to give the instructions at issue was not error, egregious or otherwise. Our supreme court recognized in People v. Taylor (1967), 36 Ill.2d 483, 224 N.E.2d 266, that although the failure of the trial court to instruct the jury as to lesser included offenses where defendant requests no such instruction is frequently treated under the waiver rule, such failure does not constitute error at all. The court there noted that the absence of instructions concerning lesser included offenses may well work to the benefit of the accused, and so a defendant cannot complain of error where no such instruction was requested. (36 Ill.2d 483, 490-91, 224 N.E.2d 266.) Further, we believe that the instructions now suggested by defendant would have been inappropriate.
A burglary instruction need not have been given in this case because that offense is not a lesser included offense of armed robbery. As far as the offense of receiving stolen property is concerned, that offense involves property that is first stolen by a third party (see Ill. Rev. Stat. 1981, ch. 38, par. 16-1(d)), but no evidence here indicated a third-party theft; rather, the evidence indicated defendant's direct involvement in the theft.
The trial evidence also would not support a simple robbery instruction because a dangerous weapon (a brick) was forcefully used to strike the victim and render him unconscious. Such an act satisfies the requirements of armed robbery according to the law of this State. (See Ill. Rev. Stat. 1981, ch. 38, par. 18-2(a), which provides that "A person commits armed robbery when he or she * * * [takes property from the person or presence of another by the use of force or by threatening the imminent use of force] while he or she carries ...