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11/21/89 the People of the State of v. Wayne Layhew

November 21, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

WAYNE LAYHEW, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

548 N.E.2d 25, 191 Ill. App. 3d 592, 138 Ill. Dec. 795 1989.IL.1807

Appeal from the Circuit Court of Pope County; the Hon. Donald Lowery, Judge, presiding.

APPELLATE Judges:

JUSTICE HOWERTON delivered the opinion of the court. RARICK, J., concurs. JUSTICE CHAPMAN specially Concurring.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HOWERTON, Defendant was tried by jury in Pope County and convicted of aggravated criminal sexual assault.

The jury was not instructed in writing, at the close of the case, that defendant was presumed innocent and that the State had the burden of proving his guilt beyond a reasonable doubt. Defendant neither requested nor tendered the instruction. However, during voir dire the prospective jurors were questioned on both concepts, and the jurors were reminded of both concepts in closing arguments; nevertheless, we reverse and remand.

The instruction reads:

"Defendant is presumed to be innocent of the charges against him. This presumption remains with him throughout every stage of the trial and during your deliberations on the verdict, and is not overcome unless from all the evidence in the case you are convinced beyond a reasonable doubt that the defendant is guilty.

The State has the burden of proving the guilt of the defendant beyond a reasonable doubt, and this burden remains on the State throughout the case. The defendant is not required to prove his innocence." Illinois Pattern Jury Instructions, Criminal, No. 2.03 (2d ed. 1981)., Defendant argues the failure to instruct on presumption of innocence and burden of proof requires reversal of conviction.

The State replies that the jury was told throughout the proceedings that defendant was presumed innocent and the State had the burden of proving his guilt beyond a reasonable doubt; therefore, the jury was sufficiently informed of these legal principles and the need for a formal, written instruction averted.

In deciding between these arguments, we are not writing upon a clean slate. A like issue has been decided previously, but on constitutional grounds. People v. Cage (1986), 146 Ill. App. 3d 726, 497 N.E.2d 386, appeal denied (1986), 113 Ill. 2d 562; People v. Williams (1983), 120 Ill. App. 3d 900, 458 N.E.2d 1312; People v. Carpenter (1981), 101 Ill. App. 3d 792, 428 N.E.2d 983; People v. Donald (1974), 21 Ill. App. 3d 696, 315 N.E.2d 904; People v. French (1972), 5 Ill. App. 3d 908, 284 N.E.2d 481; People v. Ayala (1986), 142 Ill. App. 3d 93, 491 N.E.2d 154.

Each of these cases decided whether the failure to give the instruction deprived defendant of a fair trial guaranteed by the United States Constitution. Each decision necessarily involved an examination of the record and an evaluation of whether the failure to give the instruction in light of the totality of the circumstances had deprived defendant of a fair trial. This approach is permissible insofar as the United States Constitution is concerned, because the guarantees of the United States Constitution do not require giving the presumption of innocence instruction in every case. Rather, the totality of the circumstances is assessed on a case-by-case basis. Kentucky v. Whorton (1979), 441 U.S. 786, 60 L. Ed. 2d 640, 99 S. Ct. 2088.

We are struck, however, by what we feel is obvious. Under this approach, any decision by an appellate court not only will be fact specific, and therefore, of diminished precedential value, but will depend also on the value judgments of ...


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