People v. Green ( 2007 )

Docket No.102751.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
EWATHA J. GREEN, Appellee.
Opinion filed May 24, 2007.
CHIEF JUSTICE THOMAS delivered the judgment of the court,
with opinion.
Justices Freeman, Fitzgerald, Kilbride, Garman, Karmeier, and
Burke concurred in the judgment and opinion.
OPINION
Defendant, Ewatha Green, was charged in the circuit court of
Winnebago County with one count of robbery. 720 ILCS 5/18–1(a),
(b) (West 2004). The single-count indictment stated:
“EWATHA GREEN committed the offense of
ROBBERY, in that the defendant knowingly took property,
being a purse, from the person of Carol Mortonson, a person
60 years of age or over, by the use of force, in violation of 720
ILCS 5/18–1(a) (Class 1 Felony).”
At the trial’s conclusion, the State submitted both the jury instructions
and the verdict forms. Defendant did not object to any of the State’s
submissions, which were read aloud and tendered to the jury.
Following its deliberation, the jury returned the verdict form stating,
“We the jury, find the defendant, Ewatha Green, guilty of Robbery.”
Prior to sentencing, defendant filed a motion for a new trial. The
motion raised six issues, none of which addressed either the jury
instructions or the verdict forms. The trial court denied the motion
and sentenced defendant to 25 years in prison.
Defendant appealed, raising only one argument: that the elements
instruction used in this case, Illinois Pattern Jury Instructions,
Criminal, No. 14.04 (4th ed. 2000) (hereinafter IPI Criminal 4th),
contained a serious defect that deprived him of his constitutional right
to a fair trial. As given in this case, IPI Criminal 4th No. 14.04 stated:
“To sustain the charge of robbery of a victim 60 years of
age or over, the State must prove the following propositions:
First Proposition: That the defendant knowingly took
property from the person or presence of Carol Mortonson;
and
Second Proposition: That the defendant did so by the use
of force; and
Third Proposition: That the person from whom the
defendant took property was 60 years of age or over.”
Defendant argued that this instruction was deficient because it failed
to include the following two paragraphs, which are standard in all
criminal elements instructions and which were mistakenly omitted
from the most recently published edition of IPI Criminal 4th No.
14.04:
“If you find from your consideration of all the evidence
that each of these propositions has been proved beyond a
reasonable doubt, you should find the defendant guilty.
If you find from your consideration of all the evidence that
any one of these propositions has not been proved beyond a
reasonable doubt, you should find the defendant not guilty.”
According to defendant, the absence of these two paragraphs, which
explain how the reasonable doubt standard is applied to the elements
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of the charged offense, denied him his constitutional right to a fair
trial. 1
In response, the State argued that defendant waived any alleged
deficiencies in IPI Criminal 4th No. 14.04 by failing to object to the
instruction as given, failing to tender any alternative instructions, and
failing to raise the issue in his motion for a new trial. Moreover, the
State insisted that invocation of the plain error exception to the waiver
rule (see 134 Ill. 2d R. 615(a)) was unwarranted because (1) as given,
IPI Criminal 4th No. 14.04 accurately sets forth the elements of Class
1 robbery; (2) the jury received IPI Criminal 4th No. 2.03, which
expressly sets forth both the burden of proof and the presumption of
innocence; (3) the trial court read the omitted portion of IPI Criminal
4th No. 14.04 to the jury on at least two occasions.
Defendant filed a reply brief, and shortly thereafter the appellate
entered the following order, on its own motion:
“The record contains the jury’s signed verdict which reads,
‘We the jury, find the defendant, Ewatha Green, guilty of
Robbery.’ The charge contained in the verdict form is in
conflict with several of the instructions given the jury, the trial
judge’s remarks to the jury, and the indictment which was read
to the jury, all of which present a different charge, that of
robbery of a person 60 years of age or over.[2] Accordingly,
on the court’s own motion, this court orders appellant to file
*** a brief addressing the significance and effects of the
inconsistencies between the charge as contained in the jury
verdict and the charge as contained in the other trial
proceedings as recited, and explaining how and why the
inconsistencies occurred.” (Emphases added.)
In response to the appellate court’s order, defendant filed a
supplemental brief citing this court’s decision in People v. Mack, 167
1
This omission has been corrected. See Illinois Pattern Jury Instructions,
Criminal, No. 14.04 (4th ed. Supp. 2003).
2
In fact, “robbery of a person 60 years of age or over” appears nowhere
in the indictment, even as read to the jury, and in only 2 of the 17
instructions.
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Ill. 2d 525 (1995). In Mack, this court reversed and remanded for a
new death sentencing hearing because, while the eligibility instruction
form contained all of the necessary elements, the eligibility verdict
form that the jury signed omitted one of those elements. In reversing
and remanding, this court explained:
“It is well established that a general verdict of ‘guilty in
manner and form as charged in the indictment’ or simply
‘guilty’ is sufficient to sustain a conviction [citation], as is a
verdict identifying the offense by name [citation]. However,
where the verdict purports to set out the elements of the
offense as specific findings, it must do so completely or be
held insufficient. [Citation.]” Mack, 167 Ill. 2d at 538.
According to defendant’s supplemental brief, the verdict form in this
case is like that in Mack because “it failed to set forth an essential
component of the charged offense of robbery of a person 60 or
over–the enhancing element of the victim’s age.” Defendant
continued, “[t]he signed verdict form did not refer to the indictment
or simply find the defendant guilty without reference to a specific
crime; rather, it identified an offense by name. But that offense was
robbery, not the enhanced offense of robbery of a person 60 years of
age or over.” The State then filed a supplemental response, arguing
that there was no conflict between the elements instruction and the
verdict form and that, even if there were, defendant waived any
objection to that conflict by failing to raise it below.
Supplemental briefing complete, the appellate court filed its
decision. The appellate court began by addressing defendant’s original
argument–namely, that the omission of the two standard paragraphs
from IPI Criminal 4th No. 14.04 compromised defendant’s
constitutional right to a fair trial. The appellate court disagreed with
defendant on this point, explaining that the jury in this case was
repeatedly instructed on both the presumption of innocence and the
burden of proof, and that these instructions were sufficient to ensure
that the jury understood its obligations. 364 Ill. App. 3d 923, 927-28.
The appellate court then addressed the “conflict” between the
elements instructions and the verdict form. In doing so, however, the
appellate court nowhere addressed or even acknowledged any of the
arguments raised in the supplemental briefs, which were custom
ordered by the appellate court and which extended the briefing phase
of this case by almost four months. Instead, the appellate court simply
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declared sua sponte that the “conflict” between the instructions and
the verdict form violated the principles announced by the United
States Supreme Court in Apprendi v. New Jersey, 530 U.S. 466, 147
L. Ed. 2d 435, 120 S. Ct. 2348 (2000). According to the appellate
court, Apprendi “dealt directly with the requirement of a verdict form
that demonstrates a jury’s determination of guilt, beyond a reasonable
doubt, of each element of an offense.” 364 Ill. App. 3d at 929. With
this as its premise, the appellate court then reasoned as follows:
“[T]he jury in this case made a determination of guilt beyond
a reasonable doubt, as indicated by its signed verdict, that
defendant was guilty of robbery only. The jury did not make
a determination of any enhancement element. Defendant can
be deemed to have been convicted of robbery only and cannot
be sentenced for any crime other than robbery.” 364 Ill. App.
3d at 929.
As a result of this analysis, the appellate court reduced defendant’s
conviction from Class 1 “robbery of a person 60 years of age or over”
to Class 2 “robbery.” 364 Ill. App. 3d at 929.
The State filed a petition for leave to appeal, which we allowed.
210 Ill. 2d R. 315(a). Before this court, the State argues that the
appellate court’s Apprendi analysis is fundamentally flawed and that,
in any event, there is no conflict between the elements instruction and
the signed verdict form. By way of response, defendant essentially
concedes that this case has little, if anything, to do with Apprendi.
Instead, defendant argues, “it is really Illinois case law regarding
verdict forms that controls the resolution of the instant case.” In other
words, rather than defend the appellate court’s Apprendi analysis,
defendant reasserts the Mack argument advanced in his supplemental
appellate court brief. At the same time, defendant seeks cross relief on
the basis of his original appellate court argument–that the omission of
the two standard paragraphs from IPI Criminal 4th No. 14.04
compromised his constitutional right to a fair trial.
DISCUSSION
The Conflict
Both the appellate court’s Apprendi analysis and defendant’s
Mack argument are premised upon the perceived conflict between the
elements instruction and the signed verdict form. We will therefore
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begin by examining whether such a conflict even exists. Again,
according to the appellate court:
“The record contains the jury’s signed verdict which reads,
‘We the jury, find the defendant, Ewatha Green, guilty of
Robbery.’ The charge contained in the verdict form is in
conflict with several of the instructions given the jury, the trial
judge’s remarks to the jury, and the indictment which was read
to the jury, all of which present a different charge, that of
robbery of a person 60 years of age or over.” (Emphases
added.)
The problem with this pronouncement is that “robbery” and “robbery
of a person 60 years of age or over” are not distinct crimes, a fact that
even a cursory examination of the robbery statute reveals.3 Rather,
Illinois has a single offense called “robbery” that is either a Class 1 or
a Class 2 felony, depending upon the nature of the victim:
“(a) A person commits robbery when he or she takes
property *** from the person or presence of another by the
use of force or by threatening the imminent use of force.
(b) Sentence.
Robbery is a Class 2 felony. However, if the victim is 60
years of age or over *** robbery is a Class 1 felony.”
(Emphases added.) 720 ILCS 5/18–1 (West 2004).
Thus, under the statute’s plain language, even when charged as a
Class 1 felony because of the victim’s age, the name of the offense
committed remains “robbery.”
In this case, the jury was given a single elements instruction, which
clearly set forth three propositions that the State was required to
prove:
“First Proposition: That the defendant knowingly took
property from the person or presence of Carol Mortonson;
and
3
Although the focal point of the appellate court’s analysis, the robbery
statute itself is never even cited, let alone described or discussed, anywhere
in the appellate court’s opinion.
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Second Proposition: That the defendant did so by the use
of force; and
Third Proposition: That the person from whom the
defendant took property was 60 years of age or over.”
Under section 18–1 of the Criminal Code of 1961, these three
propositions combine to form a Class 1 offense called “robbery,”
which is the precise offense identified in the verdict form. The
elements instruction and the verdict form are therefore perfectly
consistent. Moreover, that IPI Criminal 4th No. 14.04 begins with the
phrase “[t]o sustain the charge of robbery of a victim 60 years of age
or over, the State must prove the following propositions” is of no
consequence in this case. Again, Illinois has a single offense called
“robbery” that is either a Class 1 or Class 2 felony, depending upon
the nature of the victim. By using the phrase “robbery of a victim 60
years of age or over,” IPI Criminal 4th No. 14.04 simply describes
which form of “robbery” the State is seeking to prove.
Mack/Apprendi
The elements instruction and the signed verdict form do not
conflict. Consequently, we need not address defendant’s Mack
argument, which is premised upon the existence of that conflict. And
ordinarily, that would be the case with the appellate court’s Apprendi
analysis, as well. In this case, however, that analysis contains an error
so fundamental that we are compelled to correct it rather than risk its
repetition.
According to the appellate court, Apprendi “dealt directly with the
requirement of a verdict form that demonstrates a jury’s determination
of guilt, beyond a reasonable doubt, of each element of an offense.”
364 Ill. App. 3d at 929. Not surprisingly, the appellate court does not
provide any citation for this unprecedented description of Apprendi.
This is most likely because Apprendi does not speak in any way to the
structure of a verdict form, let alone mandate “a verdict form that
demonstrates a jury’s determination of guilt, beyond a reasonable
doubt, of each element of an offense.” On the contrary, Apprendi
“merely requires the State to prove to the jury beyond a reasonable
doubt all facts underlying the sentence imposed on the defendant.”
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Hill v. Cowan, 202 Ill. 2d 151, 158 (2002). The core holding of
Apprendi is this:
“Other than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt.” Apprendi, 530 U.S. at 490, 147
L. Ed. 2d at 455, 120 S. Ct. at 2362-63.
Both of these things occurred in this case. All of the facts that permit
robbery to be charged as a Class 1 felony, including the age of the
victim, were submitted to the jury. And defendant concedes that the
State proved all of those elements to the jury beyond a reasonable
doubt. Apprendi requires nothing more.
IPI Criminal 4th No. 14.04
We now turn to the original basis for this appeal. As tendered to
the jury in this case, IPI Criminal 4th No. 14.04 lacked the two
standard paragraphs explaining how the reasonable doubt standard is
applied to the elements of the charged offense. Defendant insists that
this omission denied him his right to a fair trial, as guaranteed by the
due process clause of the fourteenth amendment. Although he
concedes that he neither objected to the instruction as given nor raised
the alleged deficiency in his posttrial motion, he argues that the
omission of the two paragraphs from IPI Criminal 4th No. 14.04
amounts to plain error. See 134 Ill. 2d R. 615(a).
It is well established that “there can be no plain error if there is no
error.” People v. Johnson, 218 Ill. 2d 125, 139 (2005). Here, there is
no error.
The due process clause of the fourteenth amendment protects a
defendant from conviction “except upon proof beyond a reasonable
doubt of every fact necessary to constitute the crime with which he is
charged.” In re Winship, 397 U.S. 358, 364, 25 L. Ed. 2d 368, 375,
90 S. Ct. 1068, 1073 (1970). Consequently, to ensure a fair trial, the
trial court must instruct the jury on such basic matters as the elements
of the offense, the presumption of innocence, and the burden of proof.
People v. Parks, 65 Ill. 2d 132, 137 (1976). That said, as long as the
court instructs the jury on the necessity that the defendant’s guilt be
proved beyond a reasonable doubt, the Constitution does not require
that any particular form of words be used in advising the jury of the
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government’s burden of proof. Victor v. Nebraska, 511 U.S. 1, 5, 127
L. Ed. 2d 583, 590, 114 S. Ct. 1239, 1243 (1994). Rather, taken as
whole, the instructions must correctly convey the concept of
reasonable doubt to the jury. Victor, 511 U.S. at 5, 127 L. Ed. 2d at
590, 114 S. Ct. at 1243.
Defendant concedes that he was unable to find even one case in
which the absence of a jury instruction explaining how to apply the
reasonable doubt standard was deemed reversible error, let alone a
due process violation. Our search fared no better. What we did find,
however, is People v. Layhew, 139 Ill. 2d 476 (1990). In Layhew, the
defendant argued that he was denied his rights to due process and a
fair trial when the trial court failed to give Illinois Pattern Jury
Instructions, Criminal, No. 2.03 (2d ed. 1981) (IPI Criminal 2d). That
instruction, which sets forth the presumption of innocence and the
burden of proof, reads as follows
“The 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).
Before discussing the consequences of the trial court’s failure to give
this instruction, this court explained the unique importance of IPI
Criminal 2d No 2.03. Citing Parks, the court confirmed that, to ensure
a fair trial, “ ‘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.’ ” Layhew, 139
Ill. 2d at 486, quoting Parks, 65 Ill. 2d at 137. The court then
explained that, in relation to the presumption of innocence and the
burden of proof, IPI Criminal 2d. No 2.03 fulfills this obligation:
“A written instruction that informs the jury of the
presumption of defendant’s innocence and the State’s burden
of proving defendant guilty beyond a reasonable doubt is a
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time-honored and effective method of protecting a
defendant’s right to a fair trial, which is guaranteed by the
due process clause of the fourteenth amendment.” (Emphasis
added.) Layhew, 139 Ill. 2d at 486, citing Taylor v. Kentucky,
436 U.S. 478, 490, 56 L. Ed. 2d 468, 478, 98 S. Ct. 1930,
1937 (1978).
Thus, under Layhew, when it comes to instructing the jury on the
burden of proof and the presumption of innocence, IPI Criminal 2d
No. 2.03 is sufficient to ensure that a defendant’s right to a fair trial
is protected. Layhew, 139 Ill. 2d at 486; see also People v. Casillas,
195 Ill. 2d 461, 473 (2000) (holding same).
In this case, the jury received IPI Criminal 4th No. 2.03, which,
like its second-edition predecessor, clearly explains that the defendant
is presumed to be innocent and that the State bears the burden of
proving the defendant’s guilt beyond a reasonable doubt:
“The defendant is presumed to be innocent of the charge
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 this
case you are convinced beyond a reasonable doubt that he 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 (4th ed. 2000).
Moreover, the jury received IPI Criminal 4th No. 14.04, which sets
forth every element that the State must prove to secure a conviction
for Class 1 robbery involving a victim 60 years of age of older. And
though it did not receive a written instruction to that effect, the jury
was twice told by the trial court that the State must prove “each and
every element” of the offense beyond a reasonable doubt. Under both
Layhew and Parks, these instructions were sufficient to ensure that
defendant’s rights to due process and a fair trial were protected. In
fact, once IPI Criminal 4th No. 2.03 was given, the constitutional
threshold was met. Layhew, 139 Ill. 2d at 486; Casillas, 195 Ill. 2d at
473.
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On this last point, we note that the trial court in this case complied
fully with the mandate established by this court in Supreme Court
Rule 451(a). That rule states:
“Whenever Illinois Pattern Jury Instructions, Criminal (4th
ed. 2000) (IPI Criminal 4th), contains an instruction applicable
in a criminal case, giving due consideration to the facts and the
governing law, and the court determines that the jury should
be instructed on the subject, the IPI Criminal 4th instruction
shall be used, unless the court determines that it does not
accurately state the law.” (Emphasis added.) 210 Ill. 2d R.
451(a).
Here, the jury received IPI Criminal 4th No. 14.04, the elements
instruction for Class 1 robbery involving a victim 60 years of age of
older. The version tendered was taken from the bound edition of the
IPI Criminal 4th and therefore did not contain the standard paragraphs
explaining that the reasonable doubt standard must be applied to each
element of the charged offense. Nevertheless, to the extent that the
tendered instruction defined the elements of Class 1 robbery, it
accurately stated the law. Accordingly, under Rule 451(a), the trial
court had no clear cause to dispense with the pattern instruction. That
said, IPI Criminal 4th No. 14.04 now contains the two omitted
paragraphs, and we would expect future trial courts to give this most
recent version of that instruction. In other words, no one should
construe our decision in this case as a license to dispense with the two
reasonable doubt paragraphs ordinarily found at the conclusion of
criminal elements instructions. Rule 451(a) remains the standard, and
therefore “the IPI Criminal 4th instruction shall be used.”
CONCLUSION
For the reasons set forth above, we reverse the appellate court’s
reduction of defendant’s conviction from Class 1 robbery to Class 2
robbery. Otherwise, the judgment of the appellate court is affirmed,
and the judgment of the circuit court is affirmed.
Appellate court affirmed in part
and reversed in part;
circuit court affirmed.
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