APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION
504 N.E.2d 958, 152 Ill. App. 3d 656, 105 Ill. Dec. 673 1987.IL.107
Appeal from the Circuit Court of Cook County; the Hon. Paul O'Malley, Judge, presiding.
JUSTICE HARTMAN delivered the opinion of the court. STAMOS and BILANDIC, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HARTMAN
Defendant appeals his conviction by a jury for armed robbery, his sentence of 12 years' imprisonment, and a fine imposed of $20. He presents as issues on appeal whether: (1) the circuit court erred in failing to instruct the jury on the affirmative defense of compulsion; (2) the prosecutor's questions on cross-examination and comments in closing argument concerning defendant's post-arrest silence were plain error; (3) the circuit court erred in not permitting defendant to testify regarding his state of mind at the time of the crime; (4) the circuit court abused its discretion in permitting defendant to be impeached by a prior felony conviction; (5) the prosecutor improperly shifted the burden of proof with respect to credibility of prosecution witnesses; (6) defendant was denied the effective assistance of counsel; and (7) the circuit court erred in imposing a $20 fine without considering defendant's financial resources. We reverse and remand for a new trial for reasons set forth below.
On January 9, 1982, at about 5:30 a.m., an armed robbery occurred in a tavern on West Montrose Avenue, Chicago. Owner John Mackin arrived at the tavern alone, shortly after 5 a.m. While counting that night's receipts of about $5,000 to $6,000, he heard a knock on the door and saw defendant, who he knew as "Cornell," a friend of his porter, Bob Tatum. Defendant sometimes assisted Tatum and had worked at the tavern at least 20 times prior to the robbery, but never without Tatum. Defendant considered himself a part-time custodian at the tavern and claimed to have worked for Mackin for about one year, usually three to four times per week.
According to Mackin, defendant explained that Tatum's car had broken down, Tatum would arrive later, and defendant came ahead to start cleaning up. Defendant testified he and Mackin just said good morning. Mackin let defendant in and defendant began work by taking the garbage out through the back door.
Defendant testified that after he unlocked the gate, two men appeared with pistols, wearing dark clothing and using scarves, stockings, and masks to hide their faces. They threatened to kill him if he did not cooperate. After learning that Mackin was in the building, the robbers put a pistol to defendant's head and forced him to take them to Mackin.
The three men entered the office while Mackin was counting his receipts. One of the masked men put a gun to Mackin's head and ordered him to hand over the cash in his pockets. According to Mackin, defendant then opened the freezer and all three men pushed him inside. Mackin denied hearing any conversation between the masked men and defendant and believed defendant could have escaped if he so desired. Defendant testified that the masked men first asked what the freezer was, then ordered him at gunpoint to open it. Mackin entered the freezer on the robbers' orders. Defendant asserted that no one pushed Mackin into the freezer.
Defendant shut the freezer and then lay on the floor following the robbers' orders while they ransacked the office. Next the robbers forced defendant into Mackin's car and drove off. The masked men let defendant out on an expressway, warning him they knew about him and would kill him. Mackin escaped from the freezer but found all three men, his car, and the money gone.
Defendant never returned to work at the tavern or telephoned Mackin. The police obtained an arrest warrant for defendant while unsuccessfully searching for him. Defendant did not call the police or Mackin, fearing the police would say he had something to do with the robbery because he was black, as were the two robbers, and he was previously convicted of a felony. Defendant stayed in the Chicago area, changing his address a number of times, until December 1983 when he went to visit his family in Ohio. Police testified that on April 10, 1984, defendant was stopped while crossing the border from Canada to New York and was brought back to Chicago. Defendant testified he was stopped when entering Canada.
Defendant contends that plain error occurred under Supreme Court Rule 451(c) (87 Ill. 2d R. 451(c)) when the circuit court failed to instruct the jury on the theory of compulsion. Two pattern instructions could have been given, Illinois Pattern Jury Instructions, Criminal, Nos. 24 -- 25.21, 24 -- 25.21A (2d ed. 1981) (hereinafter IPI Criminal 2d).
The circuit court instructed the jury only on the definition and elements of armed robbery and on the presumption of innocence and burden of proof, IPI Criminal 2d Nos. 14.01, 14.02, 2.03. Although argument of defense counsel made some reference to the theory, defendant maintains that he did not adequately inform the jury of the State's burden to disprove compulsion beyond a reasonable doubt, resulting in an unreliable jury verdict. Once the affirmative defense of compulsion is raised by some evidence, as in this case, the State must overcome the defense beyond a reasonable doubt. (Ill. Rev. Stat. 1981, ch. 38, pars. 3-2, 7-11, 7-14. See People v. Jackson (1981), 100 Ill. App. 3d 1064, 1067, 427 N.E.2d 994.) In the present ...