People v. Parks, 65 Ill. 2d 132 (Ill. 1976)

MR. JUSTICE RYAN

delivered the opinion of the court:

Defendant, Spencer Parks, was tried before a jury in the circuit court of Cook County for the offenses of armed robbery and murder. He was found guilty of armed robbery and sentenced to a term of 7 to 21 years. The jury was unable to reach a verdict on the murder charge. The appellate court reversed defendant’s conviction and remanded because the trial court did not, sua sponte, instruct the jury as to accomplice testimony. (34 Ill. App. 3d 180.) The sole question before this court is whether the court erred in failing to give such an instruction when a proper instruction on that subject had not been tendered by the defendant. We find that the court did not commit reversible error.

Defendant and a co-indictee, Virgil Hooper, were charged with the armed robbery and murder of Willie Lee Parham. Defendant was granted a severance and Hooper was brought to trial first. The jury was unable to reach a

verdict, and the charges against Hooper were still pending at the time of defendant’s trial. Following his trial, Hooper was persuaded to become a witness against defendant and to plead guilty to armed robbery. In exchange, the State agreed to recommend a sentence of 5 years on the armed robbery charge.

At defendant’s trial Hooper admitted taking part in the robbery of a man named Parham, but he testified that it was defendant who drew a pistol during the robbery and who shot Parham when the latter attempted to flee. Hooper also testified that he had lied at his own trial when he disavowed any knowledge of the robbery. Defendant testified in his own behalf and denied participation in the robbery and denied shooting Parham. Hooper’s testimony was the only evidence linking defendant to the incident. When the case was submitted to the jury no instruction concerning the testimony of an accomplice was given.

It appears that the conference on instructions had been held out of the presence of the court reporter. After the instructions had been discussed and settled, the court reporter was called in and the court again went over the instructions with the attorneys. The court first considered the People’s instructions stating for the record the ones to which the defendant had not made objections. When People’s Instruction No. 9 was discussed the following occurred:

MR. COOPER: We did not.

Following the People’s instructions the court considered those that had been tendered by the defense. Defendant’s Instruction No. 1 stated:

This is substantially the same as IPI Criminal No. 3.17 (Illinois Pattern Jury Instructions, Criminal (1968)), except that in this instruction the witness is not referred to as “an accomplice” and the last sentence was added. IPI Criminal No. 3.17 is as follows:

The prosecutor in voicing his objection to defendant’s Instruction No. 1 stated:

modified different version to it in Defendant’s No. 1, and would have no objection to the accomplice of I.P.I.”

Defense counsel did not reply to this statement.

It is apparent from this recorded colloquy between court and counsel that the defense counsel did not want the jury instructed that Hooper was an “accomplice.” As we will note later, the defense counsel had apparently objected to People’s Instruction No. 9 (accomplice instruction) during the off-the-record discussion of the instructions. Also, he had carefully tailored his own Instruction No. 1 after the IPI accomplice instruction substituting, however, other language where the word “accomplice” was used in that instruction. Further, as appears above, when the prosecutor and the court referred to the defendant’s instructions as an accomplice instruction defense counsel objected and insisted that he had not tendered an accomplice instruction even though his Instruction No. 1 contained the substance of IPI Criminal No. 3.17.

It is also apparent from the above-quoted colloquy that the defendant had voiced an objection to the giving of IPI Criminal No. 3.17 concerning the testimony of an accomplice. The People withdrew its Instruction No. 9. However, it cannot be determined from the record if it was withdrawn because the defendant was tendering an instruction covering the same subject or because the defendant had objected to giving it. In any event, during the on-record discussion of defendant’s Instruction No. 1 the prosecutor made it quite clear that the defendant had previously objected to the giving of the IPI instruction. Defense counsel’s failure to object or reply to the prosecutor’s statement that defendant’s Instruction No. 1 “is the substance of the accomplice instruction, the IPI instruction, which the defense does not want” (emphasis added) carries the clear implication that a previous objection had been made to the IPI accomplice instruction.

It is further noted that in the discussions quoted

above the prosecutor had twice stated that he would have no objection to the giving of the IPI accomplice instruction if the defendant wanted to tender it. Defense counsel, however, did not reply to the invitation. He also did not tender the instruction.

Generally, a party who desires a specific instruction must offer it and request the court to give it and the trial court has no obligation to instruct on its own motion. (People v. Nuccio (1973), 54 Ill. 2d 39; People v, Springs (1972), 51 Ill. 2d 418.) In criminal cases, however, this rule is modified in certain situations by the requirements of a fair trial. It has been held that a court bears the burden of seeing that the jury is instructed on the elements of the crime charged, on the presumption of innocence and on the question of burden of proof. People v. French (1972), 5 Ill. App. 3d 908; People v. Kuykendall (1970), 120 Ill. App. 2d 225; People v. Davis (1966), 74 Ill. App. 2d 450; Note, Criminal Juries and Defenses, Instruction of Jurors, 7 Loy. U. Chi. L.J. 1036, 1042, 1046 (1976).

Although the instruction in question does not fall within the area of required instructions discussed in these cases, the defendant, relying on our decision in People v. Joyner (1972), 50 Ill. 2d 302, insists that it was error for the court not to sua sponte instruct the jury concerning the testimony of an accomplice. In Joyner the defendants were prosecuted for murder. They tendered an instruction on voluntary manslaughter which was properly refused because it did not conform with the appropriate IPI instruction. No voluntary manslaughter iñstruction was given. We found that the case was a close one factually and believed that the evidence could have supported a verdict of manslaughter. We remanded the cause for a new trial on the basis of the court’s failure to give the jury a manslaughter instruction. The failure of the judge to so instruct deprived the jury of the option of finding the defendant guilty of a lesser included offense for which there was evidentiary support. Nothing that was contained

in the instructions given could have restored this important alternative to the jury.

In the case at bar, however, viewing the defendant’s trial as a whole, it is clear that the jury was not deprived, by the failure to give the accomplice instruction, of essential guidance in its evaluation of the evidence. During the course of his testimony, Hooper admitted prior inconsistent statements under oath. He was sharply cross-examined both on this point and on the possibility of bias as a result of the charges still pending against him and his plea bárgain with the State. Although the jury was not instructed specifically that the credibility of an accomplice was subject to suspicion, it was instructed on its duty to judge the credibility of witnesses generally and on the proper consideration of prior inconsistent statements of a witness. Although these general' instructions were not as absolute an admonition as the more particularized accomplice instruction would have been, nonetheless, they provided the jury with sufficient direction. See United States v. Johnson (7th Cir. 1968), 398 F.2d 29; Annot., Necessity of, and Prejudicial Effect of Omitting, Cautionary Instructions to Jury as to Accomplice’s Testimony Against Defendant in Federal Criminal Trial, 17 A.L.R. Fed. 249, 315 (1973).

We conclude that under the facts of this case it was not error for the trial court to fail to sua sponte instruct the jury concerning the testimony of an accomplice. This conclusion is strengthened by the apparent objection by the defendant to the giving of IPI Criminal No. 3.17 and the failure of the defendant to tender a proper accomplice instruction or IPI Criminal No. 3.17 after defense counsel and the court had been informed by the prosecutor on two different occasions during the course of a conference on instructions that the People would not object to the giving of this instruction.

The judgment of the appellate court is reversed and the cause is remanded to the Appellate Court for the First

District for the consideration of other issues which the defendant’s brief states were raised in the appellate court and were not there considered due to its decision to reverse because of the inadequacy of the instructions.

MR. JUSTICE SCHAEFER,

dissenting:

Our Rule 451 states that whenever an IPI instruction is applicable in a criminal case and the trial court decides that the jury should be instructed on that subject, “the IPI-Criminal instruction shall be used, unless the court determines that it does not accurately state the law.”

I think that IPI Criminal No. 3.17 does not accurately state the law. But even if it does accurately state the law in a technical sense, it is quite unfair as a statement to a lay jury. It uses the term “accomplice witness” and by doing so it tends to tell the jurors that the defendant participated in the crime, if it does not actually tell them that he did so. “Accomplice” is a word that is familiar to laymen. The primary meaning given in Webster’s Third New International Dictionary (1961) is:

The American College Dictionary, Random House (1952), defines it this way:

Webster’s Dictionary of Synonyms (1951) says this:

Any instruction that describes a witness as an “accomplice witness” is inherently prejudicial, it seems to me. The instruction tendered by the attorney for the defendant did not use the word “accomplice,” and this is what he meant when he protested twice that he had not tendered an “accomplice” instruction. The instruction that he did tender accurately stated the law in that respect without

using the word “accomplice,” and in my opinion it should have been given as tendered, or as corrected by striking the last sentence.

Under the opinion of the court, a defendant who does not want the judge to suggest to the jury that he was a participant in the crime is required to forgo any instruction on the subject. I think this is wrong. The error was not cured by instructing the jury as to “its duty to judge the credibility of witnesses generally.” Such an instruction only compounds the difficulty, for it suggests that the testimóny of the “accomplice” is to be treated like that of any other witness. See People v. O’Connell (1960), 20 Ill. 2d 442.