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02/12/87 the People of the State of v. Terry Jefferson

February 12, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

TERRY JEFFERSON, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

504 N.E.2d 248, 152 Ill. App. 3d 351, 105 Ill. Dec. 379 1987.IL.164

Appeal from the Circuit Court of Lake County; the Hon. Charles F. Scott, Judge, presiding.

APPELLATE Judges:

JUSTICE WOODWARD delivered the opinion of the court. REINHARD and NASH, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WOODWARD

Following a jury trial, defendant, Terry Jefferson, was found guilty of burglary. (Ill. Rev. Stat. 1985, ch. 38, par. 19-1(a).) On appeal, defendant contends that he was denied due process of law and a fair trial due to an improper instruction tendered to the jury. We affirm.

Defendant has failed to specify the allegedly improper jury instruction as grounds for reversal in his motion for a new trial; however, "substantial defects are not waived by failure to make timely objections thereto if the interests of Justice require." (87 Ill. 2d R. 451(c).) In reviewing the record in the instant case, we conclude that the jury was properly instructed. The basis for our Conclusion is set forth below.

On September 21, 1985, defendant was arrested following a traffic stop and taken into the custody of the North Chicago police department. According to the testimony at trial, defendant was advised of his rights pursuant to Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, by Officer Price. Defendant then proceeded to implicate Marcus Thomas in the burglary of the M & B Food Store in Waukegan. Defendant was then questioned by Officer Milot of the Waukegan police department. After again receiving his Miranda warnings, defendant again indicated that "Thomas was the offender of the incident." Detective DePrez of the Waukegan police department also spoke with defendant about the incident on September 21, 1985. DePrez read defendant his rights, and defendant responded that he understood them. Defendant explained that Thomas had shown defendant a gun, cash, and food stamps he had stolen from M & B Food Store. Defendant further explained that he had an incident with Thomas, and since they were no longer friends, he wanted to divulge the incriminating information.

After Thomas was arrested for the burglary, he implicated defendant. Defendant was arrested on September 26, 1985, on burglary charges. Detective DePrez advised defendant of his rights. When defendant indicated that he wanted to discuss the incident, DePrez handed him a form that outlined his rights, and defendant signed the form waiving his rights. Defendant then gave a detailed account of the burglary of the store by Thomas and his own role as a lookout. DePrez took notes during defendant's confession and then typed up his notes. DePrez asked the defendant to read the statement aloud along with him. Any typographical errors were corrected and initialed by DePrez and the defendant; then, defendant signed the typed statement. DePrez discarded the handwritten notes, and the typed statement was admitted into evidence at trial.

On September 27, 1985, Officer Pratt read defendant his rights, which defendant waived. Officer Pratt asked defendant if he was willing to relate the events that led to his arrest. Pratt also told the defendant that his fingerprints were found on the screwdriver, when in fact he did not know if this was true. Defendant then related that he and Thomas pried away the bars from a bathroom window of the M & B Food Store to gain entry. Defendant's role was a lookout. Pratt took notes during the conversation and destroyed them after he typed the statement. The typed statement was admitted into evidence at trial.

At trial, defendant did not testify, but did present an alibi defense through his witnesses. The State then presented rebuttal testimony that contradicted some of the details testified to by defendant's witnesses., Defendant submitted a jury instruction which provided:

"You have before you evidence that the defendant made statements relating to the offense charged in the information. It is for you to determine [whether the defendant made the statement, and, if so,] what weight should be given to the statements. In determining the weight to be given to a statement, you should consider all of the circumstances under which it was made." (Illinois Pattern Jury Instruction, Criminal, No. 3.06 (2d ed. 1981) (hereinafter IPI Criminal 2d No. 3.06).)

The trial court refused defendant's instruction, and over defendant's objection, gave instead the State's version of No. 3.06, which omitted the bracketed phrase. The trial court indicated that there was "no contradiction that the statements were given." The jury found the defendant guilty, and he was sentenced to five years' imprisonment.

The committee notes following pattern instruction No. 3.06 indicate that the bracketed phrase should be deleted when the defendant admits making the material statements attributable to him. In this case, defendant chose not to testify and presented no other evidence suggesting he did not make the statements. We have held that under circumstances where a defendant presented no evidence denying an admission, it was not improper for the trial court to have made the deletion in the instruction. To allow otherwise would confuse the jury by making it decide an issue not properly before it. (People v. Fleming (1981), 103 Ill. App. 3d 194.) In Fleming, the defendant did not take the stand at trial to deny specifically making the ...


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