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12/18/97 PEOPLE STATE ILLINOIS v. ANTONIO HAMILTON

December 18, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,
v.
ANTONIO HAMILTON, APPELLANT.



The Honorable Justice Nickels delivered the opinion of the court. Justice Harrison, dissenting.

The opinion of the court was delivered by: Nickels

The Honorable Justice NICKELS delivered the opinion of the court:

Following a jury trial in the circuit court of McLean County, defendant, Antonio Hamilton, was convicted of residential burglary (720 ILCS 5/19-3(a) (West 1994)) and sentenced to a prison term of 18 years. A divided appellate court affirmed (283 Ill. App. 3d 854, 670 N.E.2d 1189, 219 Ill. Dec. 301), and this court granted defendant's petition for leave to appeal (166 Ill. 2d R. 315(a)).

The evidence at trial revealed that at approximately 8:30 a.m. on January 29, 1994, Bob Williams was in the kitchen of his home drinking coffee and reading the newspaper. At the time, Bob's wife, Rita, was still asleep in the couple's bedroom adjacent to the dining room of the home. Bob's six-year-old son entered the kitchen and told his father that there was someone at the front door to see him. As Bob walked through the dining room towards the front door, he observed defendant coming out of the bedroom where Rita was sleeping.

Bob testified that defendant immediately said "something to the effect of, she owes me money or something like that." Bob yelled at defendant, grabbed him, and then pushed him towards the front door. As the two reached the front door, Bob noticed that defendant was concealing Rita's purse beneath his jacket. Bob attempted to take the purse and defendant tried to pull away from Bob's grasp. During the scuffle, defendant somehow slipped out of the jacket and escaped out the front door, still carrying Rita's purse.

Rita testified that she was awakened by the sounds of a scuffle and her husband yelling, "What are you doing here? You just don't walk into people's houses." Bob then yelled for Rita to call the police. As Rita was on the telephone talking to the police, she could see that defendant was standing in their backyard. Defendant then returned to the front door, placed the purse on the porch, and requested his jacket. Bob warned defendant that the police were on the way and then stepped out, picked up the purse, and threw defendant the jacket. Defendant walked to a car parked across the street and departed. Shortly thereafter, Rita discovered that her wallet was missing from the purse.

During the investigation into the incident, Bob identified defendant from a photo lineup as the assailant. Detective Richard Barkes testified that during an interview, defendant admitted that he went to the Williamses' residence and took a purse out of a bedroom. In a typewritten statement allowed into evidence, defendant claimed that he went to the home in search of a woman named Chrissy, who owed him money for drugs. Defendant asserted that he was let into the home and directed to the bedroom to find the woman. In the bedroom defendant found a purse, but before he could retrieve the money he was owed he was grabbed by Bob. Defendant claimed that when he noticed Rita was not the woman he was looking for, he returned the purse. However, defendant admitted taking a wallet from the purse and later dropping it into a mailbox.

Defendant did not present any evidence. At the jury instruction conference, defense counsel tendered instructions in the form of Illinois Pattern Jury Instructions, Criminal, No. 26.01Q (3d ed. 1992) (theft as a lesser included offense of residential burglary) (hereinafter IPI Criminal 3d), IPI Criminal 3d No. 13.01 (definition of theft by unauthorized control), and IPI Criminal 3d No. 13.02 (issues in theft by unauthorized control). The circuit court initially accepted defendant's tendered instructions over the State's objection. However, after the State cited authority for the proposition that theft is not a lesser included offense of residential burglary, the circuit court reversed itself and denied all defendant's instructions. Subsequently, defendant was convicted of residential burglary, and, with one justice dissenting, the appellate court affirmed (283 Ill. App. 3d 854, 670 N.E.2d 1189, 219 Ill. Dec. 301).

Before this court, defendant contends that he is entitled to a new trial because the circuit court erroneously refused his tendered instructions on the lesser included offense of theft (720 ILCS 5/16-1 (West Supp. 1995)). Defendant observes that the circuit court relied on People v. Schmidt, 126 Ill. 2d 179, 127 Ill. Dec. 816, 533 N.E.2d 898 (1988), for its finding that theft is not a lesser included offense of residential burglary. Defendant argues that this was error because Schmidt did not utilize the charging instrument approach, adopted in People v. Novak, 163 Ill. 2d 93, 205 Ill. Dec. 471, 643 N.E.2d 762 (1994), as the appropriate method to determine whether a lesser offense is included in the charged offense. Defendant further argues that, although the majority of the appellate court discussed Novak, it nevertheless applied the analysis incorrectly in affirming the circuit court. Defendant believes that a proper analysis leads to the conclusion that, as charged in this case, theft is a lesser included offense of residential burglary.

We note at the outset that the appellate court, after thoroughly addressing the jury instruction issue, determined that it was waived. Nevertheless, the waiver rule is a limitation on the parties, not a limitation on the jurisdiction of the courts. Herzog v. Lexington Township, 167 Ill. 2d 288, 300, 212 Ill. Dec. 581, 657 N.E.2d 926 (1995). In the interest of preserving a sound and uniform body of precedent, we address the issue. Jackson Jordan, Inc. v. Leydig, Voit & Mayer, 158 Ill. 2d 240, 251, 198 Ill. Dec. 786, 633 N.E.2d 627 (1994).

Generally, a defendant may not be convicted of an offense for which he has not been charged. Novak, 163 Ill. 2d at 105. However, in an appropriate case, a defendant is entitled to have the jury instructed on a less serious offense if that offense is included in the charged offense. People v. Landwer, 166 Ill. 2d 475, 485-86, 211 Ill. Dec. 465, 655 N.E.2d 848 (1995). The purpose of an instruction on a lesser offense is to provide "an important third option to a jury which, believing that the defendant is guilty of something but uncertain whether the charged offense has been proved, might otherwise convict rather than acquit the defendant of the greater offense." People v. Bryant, 113 Ill. 2d 497, 502, 101 Ill. Dec. 825, 499 N.E.2d 413 (1986), citing Keeble v. United States, 412 U.S. 205, 212-13, 36 L. Ed. 2d 844, 850, 93 S. Ct. 1993, 1997-98 (1973).

An included offense is an offense which "is established by proof of the same or less than all of the facts or a less culpable mental state (or both), than that which is required to establish the commission of the offense charged." 720 ILCS 5/2-9(a) (West 1994). In determining whether a particular offense is included in a charged offense, this court has held that the proper approach is to examine both the charging instrument and the evidence adduced at trial. Landwer, 166 Ill. 2d at 486. Under this charging instrument approach, an offense is identified as a lesser included offense if it is described by the charging instrument. People v. Jones, 175 Ill. 2d 126, 135, 221 Ill. Dec. 843, 676 N.E.2d 646 (1997), citing Novak, 163 Ill. 2d at 107.

Once a lesser included offense is identified, however, it does not automatically follow that the jury must be instructed on the lesser offense. Novak, 163 Ill. 2d at 108. A defendant is entitled to a lesser included offense instruction only if an examination of the evidence reveals that it would permit a jury to rationally find the defendant guilty of the lesser offense yet acquit the defendant of the greater offense. Jones, 175 Ill. 2d at 135; Landwer, 166 Ill. 2d at 486.

Applying these principles to the instant case, we must first determine whether the charging instrument describes the included offense such that the included offense may be proved by the same facts or a less culpable mental state. Landwer, 166 Ill. 2d at 486-87. The bill of indictment in this case alleged that defendant "committed the offense of Residential Burglary in that he knowingly without authority entered the dwelling place of Bob and Rita ...


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