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12/30/96 PEOPLE STATE ILLINOIS v. KEVIN RICE

December 30, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
KEVIN RICE, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. No. 89 CR 16842. Honorable Daniel J. Kelley, Judge Presiding.

As Corrected January 13, 1997. Rehearing Denied February 19, 1997. Released for Publication February 28, 1997.

The Honorable Justice O'brien delivered the opinion of the court: Hoffman, P.j., and Cahill, J., concur.

The opinion of the court was delivered by: O'brien

JUSTICE O'BRIEN delivered the opinion of the court:

Following a joint jury trial, defendant, Kevin Rice, was found guilty of possession of a controlled substance with intent to distribute and sentenced to 20 years' imprisonment; his co-defendant, Raymond Pugh, was found guilty of possession of a controlled substance. Defendant Rice appealed alleging six separate trial errors each of which he contended required reversal of his conviction and remand for a new trial. This court reversed his conviction based upon the first issue presented, namely that the trial court erred in refusing to admit into evidence co-defendant Pugh's exculpatory statement made at a pretrial suppression hearing. People v. Rice, 247 Ill. App. 3d 415, 617 N.E.2d 360, 187 Ill. Dec. 152 (1993). Having determined that reversal was warranted on the first issue, we declined to address the remaining five issues presented for review. Rice, 247 Ill. App. 3d at 419, 617 N.E.2d at 364. Thereafter, the Illinois Supreme Court, reversed this court's decision, reinstated the conviction, and remanded the case to this court for consideration of the remaining five issues. People v. Rice, 166 Ill. 2d 35, 651 N.E.2d 1083, 209 Ill. Dec. 635 (1995). We affirm.

The facts of this case are fully set forth in both the prior opinion of this court, Rice, 247 Ill. App. 3d at 416, 617 N.E.2d at 361-62, and the opinion of the Illinois Supreme Court, Rice, 166 Ill. 2d at 37-38, 651 N.E.2d at 1084-85, and will not be repeated here.

I.

The first issue we are asked to consider on remand is whether defendant was denied due process when the court, in its opening remarks, advised the jury:

"If you become convinced beyond a reasonable doubt from all the evidence in the case that either of the defendants is guilty as charged in the information, it will be your duty to find them guilty." (Emphasis added.)

Defendant contends this opening remark was so prejudicial as to require a new trial, no matter what subsequently took place. Defendant reasons that the remark improperly instructed the jury that if it found the evidence sufficient to convict either defendant it should convict both defendants and subsequent curative instructions did not cure the error, but rather were in direct conflict with the court's opening remark and thus served only to confuse the jury. We disagree.

Instructions in criminal cases should not be viewed in isolation, but rather should be considered as a whole. People v. Hester, 131 Ill. 2d 91, 98, 544 N.E.2d 797, 801, 136 Ill. Dec. 111 (1989); People v. Terry, 99 Ill. 2d 508, 516, 460 N.E.2d 746, 750, 77 Ill. Dec. 442 (1984). Moreover, if a trial court awkwardly phrases an instruction which does not otherwise contain a substantial defect, ( People v. Gallardo, 112 Ill. App. 3d 764, 773, 445 N.E.2d 1213, 1220-21, 68 Ill. Dec. 360 (1983)), or gives an instruction which, standing alone, may mislead the jury, ( People v. Flowers, 138 Ill. 2d 218, 233, 561 N.E.2d 674, 680, 149 Ill. Dec. 304 (1990)), other instructions may explain the inaccuracy, remove the error, or render it harmless.

Here, although the trial judge utilized a plural object pronoun, i.e. "them", where a singular object pronoun, i.e. "him" (or even more definitively a pointing pronoun combined with an antecedent noun, e.g. "that defendant"), was appropriate, the comment does not rise to the level of a substantial defect. Such usage is sufficiently common in spoken English that we believe the meaning is generally understood.

Even assuming the remark, standing alone, may have misled the jury, it was prefaced by the trial court's explanation that his opening remarks were not the jury's "final and complete instructions," and followed by an admonition to the jury to "remember throughout the trial that each defendant is entitled to have his case decided on the evidence and the law which applies to him, that is you must give separate consideration to each defendant." The court further admonished the jury that "any evidence which is limited to one defendant should not be considered by you as to any other defendant." These additional remarks were reiterated at the close of evidence when the trial court formally instructed the jury on the law and the presumption of innocence. The jury returned different verdicts for the two defendants.

In light of the foregoing, we find defendant's argument that the jury in this case understood "them" in this context to mean "both" to be disingenuous. When viewed in context, and taking into consideration the fact that the jury returned different verdicts for the two defendants, we find the complained of remark ...


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