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People v. Garcia

November 18, 1999

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT, V. ROLANDO GARCIA, APPELLEE.


Agenda 5-May 1999.

CHIEF JUSTICE FREEMAN delivered the opinion of the court:

Defendant, Rolando Garcia, was charged with a single count of possession of a controlled substance with intent to deliver. 720 ILCS 570/401(a)(2)(A) (West 1994). Following a jury trial in the circuit court of Cook County, defendant was convicted of the lesser-included offense of possession of a controlled substance (720 ILCS 570/402(a)(2)(A) (West 1994)) and sentenced to seven years' imprisonment. The appellate court reversed. 292 Ill. App. 3d 685. We allowed the State's petition for leave to appeal (177 Ill. 2d R. 315(a)) and now reverse the decision of the appellate court.

BACKGROUND

The appellate court provided a full accounting of the facts in the present case. We will repeat only those facts that are relevant to the issues before us. The evidence in this case established that, on the morning of September 16, 1994, Chicago police officers executed an arrest warrant for a person named "Hygie," as well as a search warrant for a residence located at 5520 South Francisco in Chicago. When the police arrived at the house, they were met by Alfredo Aguilar. While searching the unfinished basement, the police found dirty adult clothing, a laundry area, a bed in a sleeping area, and a pool table.

One officer opened a utility closet along a wall of the basement and found a gas meter, and a small box of plastic sandwich bags on a ledge several inches over the inner door of the closet. The box contained 24 small plastic bags of a white, rock-like substance, a small scale, some mail, traffic citations and court summonses issued to defendant. The traffic citations indicated that, on July 23, 1994, defendant lived at that address. The court summonses were dated September 12, 1994, and issued to defendant at that address.

Officer Ethel Scherr testified that, on September 29, 1994, she and her partner responded to a call regarding a suspicious van containing two occupants in the 5400 block of South Rockwell. When Officer Scherr approached the van and asked defendant for some identification, he could produce none, and was taken to the police station. At the police station, defendant told the police his name and address, 5520 South Francisco. Officer Scherr testified that defendant did not seem surprised when told of an outstanding narcotics warrant for his arrest. Defendant admitted the police had been to his home recently. During this inquiry, defendant showed the officers a tattoo on his arm which read, "Hygie."

The defense called two of defendant's friends as witnesses. Michael Bagain testified that on the day of the police raid defendant resided on Archer Avenue in Summit, Illinois. Also on the day of the raid, Bagain purchased cocaine from Aguilar at 5520 South Francisco. Timothy Goheen testified that defendant moved into Goheen's apartment on Archer Avenue in Summit sometime in September 1994.

After the parties rested, the attorneys met with the trial Judge to discuss what instructions should be given to the jury. When the court asked defense counsel whether he was offering an instruction on the lesser-included offense of possession of a controlled substance, defense counsel answered in the negative.

The trial court then referred to the case of People v. Brocksmith, 162 Ill. 2d 224 (1994), and admonished defendant of his right to determine whether he wanted to request a jury instruction on the lesser-included but uncharged offense. The court reviewed the charged offense and potential sentence and identified the lesser-included offense and potential sentence. Defendant stated that he agreed with his lawyer's decision and did not want to request a lesser-included offense instruction. The court then asked defendant his age and educational background, establishing that defendant was 21 years old and had completed twelfth grade. The court told defendant and the parties that it had a responsibility to give the jury a lesser-included offense instruction sua sponte if the evidence warranted it. The court summarized the evidence, noting the small amount of narcotics recovered, and found that the evidence warranted a lesser-included offense instruction. The court held that such an instruction was "fair under the circumstances of this case." The court stated it had the authority and discretion to order such instruction and was going to do so, despite defendant's objection. The jury subsequently found defendant guilty of possession of a controlled substance.

Defendant filed a motion for a new trial, in which he argued that the court erred in submitting a jury instruction sua sponte on the lesser-included offense of possession of a controlled substance. After providing the justification for its earlier reasoning, the trial court denied defendant's motion for a new trial. The appellate court reversed the judgment of the trial court, and we granted the State leave to appeal.

ANALYSIS

On appeal, the State maintains that the trial court could give the jury an instruction, sua sponte, on the lesser-included offense of possession of a controlled substance. Defendant argues that the trial court could not give an instruction on a lesser-included offense where the State did not request the instruction and defendant strenuously objected. As we will explain, however, this court's long-standing precedent supports the trial Judge's Conclusion that he possessed the discretion to instruct the jury, sua sponte, on the lesser-included offense.

In People v. White, 311 Ill. 356 (1924), defendant was indicted for the murder of William Motley. Defendant was involved in an altercation with Motley, during which Motley was shot in the forehead. Defendant denied that he had a gun, or shot Motley during the altercation. On the other hand, witnesses for the State testified that defendant was armed with a gun. The trial court instructed the jury on murder, and the lesser-included offense of manslaughter. The jury returned a verdict of guilty of manslaughter.

On appeal, defendant maintained that it was error for the trial court to instruct the jury on the offense of manslaughter. Defendant argued that if he was guilty of any crime it was murder. This court affirmed defendant's conviction, finding that the trial court did not err in giving the instruction on manslaughter. The court explained:

"In the case of People v. Moore the court said an instruction may properly be given that the accused may be found guilty of a lesser offense embraced in the crime charged if there is evidence on which to base the instruction even though there was also evidence that the crime charged was committed. The crime of manslaughter is embraced in a charge of murder, and the accused may be found not guilty of murder and convicted of manslaughter. It is undoubtedly true that when the charge is murder and the evidence conclusively shows the crime committed was murder it would not be proper to instruct that the accused might be found guilty of a lesser offense, but where the homicide was committed during a fight or quarrel suddenly arising it is not always conclusive that the crime was murder or nothing. Under the circumstances the proof shows attended the killing of Motley, we think it was not improper for the court to instruct as it did on the subject of manslaughter." White, 311 Ill. at 363-64.

In People v. Brown, 415 Ill. 23 (1953), defendant was indicted and tried for the murder of his wife. Defendant's sole defense at trial was that he was insane at the time of the killing. The jury received an instruction on involuntary manslaughter, and found defendant guilty of that crime. Defendant filed a motion for a new trial, urging that the trial court erred in giving the jury an instruction on involuntary manslaughter. The trial court denied the motion. On appeal, this court affirmed defendant's conviction. Noting that defendant consumed drugs far in excess of those prescribed for the condition from which he suffered, the court observed there was evidence to support the jury's finding that defendant had lost the power of reason and was incapable of any crime involving intent or malice. The court concluded that the trial court did not err in giving the instruction on involuntary manslaughter, and defendant would not be heard to complain that the jury convicted him of the lesser offense of involuntary manslaughter. See also People v. Beil, 322 Ill. 434, 440 (1926); People v. Treger, 320 Ill. 329, 331 (1926); People v. Tokoly, 313 Ill. 177, 185-86 (1924).

In People v. Taylor, 36 Ill. 2d 483 (1967), this court revisited the subject of jury instructions on lesser-included offenses. Defendant was indicted for murder, voluntary manslaughter and involuntary manslaughter. Witnesses for the State testified that defendant initiated a fight with the victim; the victim tripped and fell as he tried to escape; defendant got over the victim and struck him two or three times with a shiny object he had in his hand. Defendant testified that the victim was trying to pull defendant's girlfriend out of defendant's car. A fight ensued during which the victim threatened "to blow" defendant's "brains out" and reached for his pocket. Defendant then drew a knife out, and while they were wrestling, inflicted the wounds that led to the victim's death. At the Conclusion of the testimony, the trial Judge inquired whether the defense wanted an instruction on manslaughter. Defense counsel responded that he was not requesting manslaughter instructions. Nothing in the record suggested that defense counsel's decision was reached without consultation with defendant. The jury found defendant guilty of murder.

On appeal, defendant maintained that the judgment must be reversed because the trial Judge did not instruct the jury or submit a form of verdict on manslaughter. In rejecting defendant's contention, this court observed:

"Many decisions of this court have stated that `*** if there is any evidence in the record which, if believed by the jury, would reduce a charge of murder to manslaughter, an instruction defining that crime should be given. (People v. Brown, 415 Ill. 23; People v. Newman, 360 Ill. 226; People v. Beil, 322 Ill. 434; People v. Tokoly, 313 Ill. 177.)' (People v. Harris, 8 Ill. 2d 431, 434). Under these authorities it is immaterial that the defendant did not request a manslaughter instruction, or objected to it.

On the other hand it has been held that the failure to give a manslaughter instruction cannot be asserted as a ground for reversal in a reviewing court unless such an instruction has been requested. (People v. Weisberg, 396 Ill. 412; People v. Harrison, 395 Ill. 463, 477.) The reason for this rule was thus stated in People v. Lucas, 244 Ill. 603, 614: `No such instructions having been asked by plaintiff in error, the court had a right to assume that plaintiff in error preferred to submit the case to the jury in such way that the jury would be compelled to find the defendants guilty of murder or not guilty. It was the right of plaintiff in error to submit that question to the jury and require the jury to pass on the question of his guilt or innocence of the crime of murder, and it was not the duty of the court to submit issues and questions to the jury which the parties, by their action, said they did not desire passed upon.' " Taylor, 36 Ill. 2d at 488.

The court explained, however, that a defendant does not have a "right" to compel a jury to consider only the greater offense where there is proof to support a lesser-included offense:

"To speak of the `right' of a defendant to require the jury to pass only upon his guilt or innocence of murder is misleading. If a jury trial is waived, the Judge determines from the evidence whether the defendant is guilty of murder or of some lesser included offense, and the defendant has no `right' to restrict the Judge's determination to the question of his guilt or innocence of murder. [Citation.] And if the evidence would support a verdict of manslaughter, a defendant will not be heard to complain that a manslaughter instruction was given, even though he did not request it. `Where the record contains evidence upon which a verdict of manslaughter may be returned, the fact that the evidence would have justified the jury in finding the defendant guilty of murder is not a matter of which he can complain.' [Citations.] It is only where the evidence establishes that the defendant is guilty of murder or is not guilty, as for example in cases in which the defense is alibi, or mistaken identity, that a defendant may be said to have a right not to have the jury charged as to lesser included offenses.

*** `The general statement contained in the cases, that a manslaughter instruction should be given where there is evidence justifying it, must be understood in the sense the duty exists when such instruction is offered by either side, when the circumstances justify it, but does not apply to cases where no instructions for manslaughter are offered in the case. The failure to give an instruction for manslaughter where none was tendered is not error.' [Citation.]" Taylor, 36 Ill. 2d at 488-89.

The court concluded that "when the evidence in a murder case would support a verdict of manslaughter, and the defendant does not request a manslaughter instruction, the giving of such an instruction is committed to the discretion of the trial Judge." Taylor, 36 Ill. 2d at 489.

The court then set forth certain guidelines to be used by the trial court in determining whether or not to give an instruction on the lesser-included offense:

"In exercising his discretion it is appropriate for the Judge to consider that from the point of view of the public interest in the punishment of wrongdoers, one whose conduct is unlawful should not escape punishment altogether because a jury does not believe that he is guilty of the greater offense. It is also appropriate for him to consider that from the defendant's point of view, the likelihood of a compromise conviction may be enhanced if the jury is permitted to consider successive offenses involving lesser degrees of criminality. In reaching his Conclusion it is not impermissible for the Judge to give weight to the views of the prosecution and defense as indicated by their requests for instructions." Taylor, 36 Ill. 2d at 491.

The court thus recognized that a determination by the trial court to give an instruction on a lesser-included offense affects the interest of society in achieving Justice, and the interest of the defendant in averting a compromise verdict.

The court in Taylor also declined defendant's invitation to adopt a rule requiring a trial Judge to instruct as to both the greater and the lesser offenses whenever the evidence would sustain either verdict. Recognizing that other jurisdictions had imposed such a requirement by statute or by court decision, the court observed:

"[W]e are not sufficiently persuaded that we are willing to eliminate by judicial decision an established procedure that has long been considered to operate for the benefit of those accused of crime." Taylor, 36 Ill. 2d at 491.

The court chose to abide by the discretionary practice, noting that "[w]hen the evidence will support either charge and the prosecution does not tender an instruction on the lesser offense, the defendant has a choice, subject to the Judge's authority to instruct [sua] sponte, of submitting one or both instructions." Taylor, 36 Ill. 2d at 490.

On this issue of judicial discretion, we observe that our appellate court correctly followed Taylor in People v. Sinnott, 226 Ill. App. 3d 923, 925 (1992). The facts in Sinnott are strikingly similar to those in the present case. The defendant was charged with possession of a controlled substance with intent to deliver. At the instructions conference, defense counsel informed the trial court that he had discussed the matter with defendant, and defendant did not wish to submit instructions on the uncharged included offense of possession of a controlled substance. Sinnott, 226 Ill. App. 3d at 927. Nevertheless, the trial court determined that it was necessary to instruct the jury on the lesser-included offense. Over defendant's objection, ...


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