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04/09/87 the People of the State of v. Michael Terry

April 9, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

MICHAEL TERRY, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

506 N.E.2d 786, 154 Ill. App. 3d 162, 107 Ill. Dec. 43 1987.IL.470

Appeal from the Circuit Court of Champaign County; the Hon. Frank W. Lincoln, Judge, presiding.

APPELLATE Judges:

JUSTICE LUND delivered the opinion of the court. SPITZ, P.J., and KNECHT, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LUND

The defendant, Michael Terry, was convicted of burglary in violation of section 19-1(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, par. 19-1(a)) in July 1986, following a jury trial in the circuit court of Champaign County. On July 15, 1986, defendant was sentenced under the extended-term provisions of the Unified Code of Corrections (Ill. Rev. Stat. 1983, ch. 38, par. 1005-8-2) to a term of 10 years in the Illinois Department of Corrections. Defendant appeals contending error was committed by the trial court in instructing the jury relating to his voluntary intoxication defense.

In the early morning hours of November 29, 1985, police officers were alerted by a silent alarm system of a possible burglary at Norman Jewelers, a business located in the city of Champaign. The defendant was observed jumping up through the store ceiling and exiting from a second-story window. He ignored warnings to stop, climbed onto an awning, leaped to an adjoining building, and fled across rooftops. Police searched the roofs, found a window which indicated evidence of tampering, and entered, finding the defendant hiding behind a curtain in the shower stall. The sleeping occupants in the apartment denied that defendant had a right to be in the apartment.

Evidence was found in the jewelry store in the nature of a pillowcase containing items of jewelry. Found outside was a bag containing burglary tools and mail containing the defendant's name.

The defendant presented a defense of voluntary intoxication, introducing evidence indicating his addiction to heroin and cocaine. He testified to having spent the day, prior to the alleged burglary, drinking alcohol and injecting heroin and cocaine. He testified he had no recollection of involvement in the jewelry store incident. Officers testified that they did not detect alcohol on defendant's breath, that he was able to follow their directions, and that he walked without trouble.

When the voluntary intoxication defense is raised, an instruction should be given containing Illinois Pattern Jury Instruction, Criminal, No. 24 -- 25.02 (2d ed. 1981) (hereinafter cited as IPI Criminal 2d) which states:

"[(An intoxicated) (A drugged)] person is criminally responsible for his conduct unless his [(intoxication) (drugged condition)] renders him incapable of acting [(knowingly) (intentionally)]."

Issue instructions concerning offenses requiring mental states of intent or knowledge should include IPI Criminal 2d No. 24 -- 25.02A, which states:

" Proposition: That at the time of the offense, the defendant was capable of acting [(knowingly) (intentionally)]."

The defendant submitted IPI Criminal 2d No. 24 -- 25.02 using "intentionally," and it was refused. Over the defendant's objection, the court gave this instruction using "knowingly," reasoning that knowledge is the dominant mental state of burglary. Also, the issue instruction included IPI Criminal 2d No. ...


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