People v. Peterson ( 2007 )

NO. 4-05-0698 Filed 4/18/07
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Sangamon County
PHILLIP J. PETERSON, ) No. 03CF1091
Defendant-Appellant. )
) Honorable
) Leslie J. Graves,
) Judge Presiding.
_________________________________________________________________
JUSTICE McCULLOUGH delivered the opinion of the court:
On April 19, 2005, a jury found defendant, Phillip J.
Peterson, guilty of first degree murder. The trial court later
sentenced him to 45 years in prison with credit for 649 days
served. Defendant appeals, arguing (1) he is entitled to a new
trial because the jury instructions incorrectly defined the
"knowing" element of murder and the court denied the jury's
request for clarification, (2) the court erred by denying his
motion to suppress statements he made to police, and (3) he is
entitled to two additional days of sentence credit. We affirm.
On January 26, 2004, a grand jury indicted defendant on
three counts of first degree murder (720 ILCS 5/9-1(a)(1), (a)(2)
(West 2002)) in connection with the shooting death of his girl-
friend, Jena Schuch. The indictment alleged defendant (1) shot
Schuch with a shotgun with the intent to kill or cause great
bodily harm, (2) shot Schuch with a shotgun knowing said act
would cause Schuch's death, and (3) discharged a firearm knowing
said act created a strong probability of death or great bodily
harm to Schuch.
On June 9, 2004, defendant filed an omnibus motion to
suppress. In connection with that motion, defendant contended,
inter alia, statements he made to police officer Joseph Childress
shortly after police arrived on the scene of the shooting should
have been suppressed. He argued his statements resulted from a
custodial interrogation but he was not advised of his Miranda
rights (see Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694,
86 S. Ct. 1602 (1966)). On February 28, 2005, the trial court
denied that portion of defendant's motion.
On April 11, 2005, defendant's jury trial began. On
April 19, 2005, following the presentation of evidence and
arguments of the parties, the trial court instructed the jury on
the offense of first degree murder and the included offense of
involuntary manslaughter. Without objection from either party,
the court also instructed the jury on the definitions of knowl-
edge and recklessness.
During deliberations, the jury sent a note to the trial
court requesting "clarification of a person acting recklessly
[versus a] person acting knowingly." The jury's note stated that
the jurors knew and were reading the definitions in the instruc-
tions but were having a difficult time determining the differ-
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ence. Defense counsel suggested that the court direct the jurors
to rely upon their own reading of the instructions to determine
the verdict. The court replied to the jury, stating it had been
fully instructed as to the law on those issues and asking the
jurors to continue their deliberations. Later, on April 19,
2005, the jury returned a verdict, finding defendant guilty of
first degree murder.
On May 10, 2005, defendant filed a posttrial motion.
He noted that his motion was being filed without the benefit of
trial transcripts and incorporated all objections made during the
trial and all pretrial and trial motions the trial court denied,
including his motion to suppress. Defendant further asserted
that the evidence was insufficient to convict him beyond a
reasonable doubt. On August 2, 2005, the court denied defen-
dant's posttrial motion and sentenced him as stated.
This appeal followed.
On appeal, defendant, citing People v. Griffin, 351
Ill. App. 3d 838, 815 N.E.2d 52 (2004), first argues that the
jury instructions incorrectly defined the "knowing" element of
murder, resulting in jury confusion. Specifically, he contends
the trial court erred by providing the jury with both paragraphs
1 and 2 of Illinois Pattern Jury Instructions, Criminal, No.
5.01B (4th ed. 2000) (hereinafter IPI Criminal 4th No. 5.01B),
defining knowledge, when only paragraph 2 applied. Further, he
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maintains this error was compounded when the court failed to
clarify the definition of knowledge for the jury. Defendant
admits that he failed to preserve this issue for review but
contends this court may consider it on appeal pursuant to the
plain-error rule or because his trial counsel provided ineffec-
tive assistance.
The State maintains Griffin is distinguishable because
it involved the omission of a necessary jury instruction, i.e.,
paragraph 2 of IPI Criminal 4th No. 5.01B, and in this case both
paragraphs 1 and 2 of IPI Criminal 4th No. 5.01B were given.
Further, it argues that a case more directly on point is People v
Palmer, 352 Ill. App. 3d 891, 894, 817 N.E.2d 137, 140 (2004),
where this court held that a jury was not misled by an extraneous
instruction, i.e., paragraph 1 of IPI Criminal 4th No. 5.01B.
The State also asserts that the plain-error rule does not apply
and that defendant failed to establish his trial counsel was
ineffective.
IPI Criminal 4th No. 5.01B contains three separate
paragraphs; however, only paragraphs 1 and 2 are relevant to this
appeal. The relevant portions of IPI Criminal 4th No. 5.01B
provide as follows:
"[1] A person [(knows) (acts knowingly
with regard to) (acts with knowledge of)] the
nature or attendant circumstances of his
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conduct when he is consciously aware that his
conduct is of such nature or that such cir-
cumstances exist. Knowledge of a material
fact includes awareness of the substantial
probability that such fact exists.
[2] A person [(knows) (acts knowingly
with regard to) (acts with knowledge of)] the
result of his conduct when he is consciously
aware that such result is practically certain
to be caused by his conduct."
The committee notes to IPI Criminal 4th No. 5.01B
further provide that paragraph 1 is to be used if the offense is
defined in terms of prohibited conduct and paragraph 2 is to be
used if the offense is defined in terms of prohibited result. If
both conduct and result are at issue, then both paragraphs should
be used. IPI Criminal 4th No. 5.01B, Committee Note, at 142.
In People v. Lovelace, 251 Ill. App. 3d 607, 617, 622
N.E.2d 859, 866 (1993), cited in the committee notes, the Second
District was asked to determine whether the trial court improp-
erly instructed the jury in connection with the defendant's
aggravated-battery charges when it instructed the jury pursuant
to only the first paragraph of IPI Criminal 4th No. 5.01B and not
the second. The court found both conduct and result were in
issue "because the indictment charged [the] defendant with both
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aggravated battery by knowingly causing great bodily harm and
aggravated battery of a peace officer with the underlying battery
based on knowingly causing bodily harm." Lovelace, 251 Ill. App.
3d at 619, 622 N.E.2d at 867. Therefore, it determined the trial
court erred by not giving the jury both paragraphs of IPI Crimi-
nal 4th No. 5.01B. Lovelace, 251 Ill. App. 3d at 618, 622 N.E.2d
at 867.
In Griffin, 351 Ill. App. 3d at 839-40, 815 N.E.2d at
53-54, the case relied upon by defendant, the defendant was
charged with first degree murder. The trial court instructed the
jury on both first degree murder and involuntary manslaughter, as
well as the definition of recklessness. Griffin, 351 Ill. App.
3d at 851-52, 815 N.E.2d at 63. During deliberations the jury
expressed confusion over the definitions of knowledge and intent.
Griffin, 351 Ill. App. 3d at 852, 815 N.E.2d at 63. In response,
the court provided the jury with IPI Criminal 4th No. 5.01A,
defining intent, and paragraph 1 of IPI Criminal 4th No. 5.01B,
defining knowledge. Griffin, 351 Ill. App. 3d at 852, 815 N.E.2d
at 63. Although the defendant argued the court should have
instructed the jury using paragraph 2, because the result of the
defendant's conduct was at issue, the court agreed with the
State's position that only paragraph 1 was necessary. Griffin,
351 Ill. App. 3d at 852, 815 N.E.2d at 63.
On appeal, the defendant argued the trial court improp-
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erly instructed the jury on the definition of knowledge because
it selected the wrong language from IPI Criminal 4th No. 5.01B.
Griffin, 351 Ill. App. 3d at 851, 815 N.E.2d at 62-63. This
court determined that instructing the jury pursuant to only the
first paragraph of IPI Criminal 4th No. 5.01B was error. Grif-
fin, 351 Ill. App. 3d at 852, 815 N.E.2d at 63. In so holding,
we noted that there was no dispute over whether the defendant
performed the acts that caused the victim's death and the only
disagreement centered on the defendant's mental state when she
performed those acts. Griffin, 351 Ill. App. 3d at 854, 815
N.E.2d at 64-65.
In Palmer, 352 Ill. App. 3d at 892, 817 N.E.2d at 138,
the case relied upon by the State, the trial court instructed the
jury as to the charged offense, aggravated battery. During
deliberations, the jury asked the court to define "knowingly."
Palmer, 352 Ill. App. 3d at 892, 817 N.E.2d at 138-39. Without
objection from the defendant, the court instructed the jury
pursuant to both paragraphs 1 and 2 of IPI Criminal 4th No.
5.01B. Palmer, 352 Ill. App. 3d at 892, 817 N.E.2d at 139.
On appeal, the defendant argued the trial court erred
by giving instructions pursuant to both paragraphs 1 and 2 of IPI
Criminal 4th No. 5.01B when only the second paragraph was neces-
sary. Palmer, 352 Ill. App. 3d at 893, 817 N.E.2d at 139. This
court began by noting that the second paragraph of IPI Criminal
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4th No. 5.01B, concerning the result of a defendant's conduct,
was the appropriate instruction because the issue in the case was
whether the defendant knowingly caused bodily harm when he hit
the victim. Palmer, 352 Ill. App. 3d at 893, 817 N.E.2d at
139-40. However, we distinguished Lovelace, pointing out that it
involved the trial court's omission of a necessary instruction,
whereas, the case at bar involved the court's inclusion of an
extraneous instruction. Palmer, 352 Ill. App. 3d at 893-94, 817
N.E.2d at 139-40.
This court noted that the given instructions were an
accurate statement of the law, not conflicting or legally incor-
rect. Palmer, 352 Ill. App. 3d at 894, 817 N.E.2d at 140.
Additionally, we stated "one part of the instruction was simply
irrelevant to the issues raised in the case" and "[i]f the jury
was confused, it was because it was trying to find a use for the
portion of IPI Criminal 4th No. 5.01B relating to knowledge of
circumstances." Palmer, 352 Ill. App. 3d at 894, 817 N.E.2d at
140. After considering all of the jury instructions together, we
determined that the jury was not misled by the extraneous in-
struction. Palmer, 352 Ill. App. 3d at 894, 817 N.E.2d at 140.
Further, we stated that "[t]he presence of the extraneous in-
struction was not a substantial defect that would render the
trial fundamentally unfair or excuse defendant's failure to
object to the instruction at trial." Palmer, 352 Ill. App. 3d at
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894, 817 N.E.2d at 140. Giving the instructions was not error.
Here, defendant also argues the trial court erred by
denying the jury's request for clarification of a person acting
knowingly versus a person acting recklessly. Regarding a jury's
request for clarification of instructions, this court has stated
as follows:
"When a jury raises an explicit question
manifesting juror confusion on a substantive
legal issue, the trial court is obligated to
respond. However, a trial court has discre-
tion to refuse to answer and should consider
factors including whether the instructions
are readily understandable and sufficiently
explain the relevant law, whether further
instructions would serve no useful purpose or
would potentially mislead the jury, whether
the jury's inquiry involves a question of
fact, or whether giving an answer would cause
the court to express an opinion that would
likely direct a verdict one way or another."
People v. Comage, 303 Ill. App. 3d 269, 273,
709 N.E.2d 244, 247 (1999), citing People v.
Childs, 159 Ill. 2d 217, 228-29, 636 N.E.2d
534, 539 (1994).
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As noted by the parties, defendant has forfeited these
issues on appeal because he failed to make objections at trial
and failed to include the issues in his posttrial motion. See
People v. Enoch, 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1130
(1988) (to preserve an issue for appeal, a defendant must object
to the alleged error at trial and include it in a written
posttrial motion). However, defendant contends we may review his
alleged errors under the plain-error doctrine or because his
trial counsel provided ineffective assistance.
Supreme Court Rule 451(c) (210 Ill. 2d. R. 451(c))
provides for review of substantial defects in jury instructions
if the interests of justice require. Rule 451(c) is coextensive
with the plain-error rule and the two are construed identically.
People v. Herron, 215 Ill. 2d 167, 175, 830 N.E.2d 467, 473
(2005). "An erroneous jury instruction may be considered plain
error only where evidence of guilt is closely balanced or when
the error denied the defendant a fair trial." Griffin, 351 Ill.
App. 3d at 855, 815 N.E.2d at 65.
Here, the jury was adequately instructed and neither
the trial court's inclusion of an extraneous jury instruction nor
its response to the jury's request for clarification constitutes
plain error. The parties agree that defendant committed the acts
that resulted in Schuch's death and that the central issue in the
case was defendant's mental state, i.e., whether he acted know-
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ingly or recklessly. Paragraph 2 of IPI Criminal 4th No. 5.01B,
regarding the prohibited result of a defendant's conduct, was the
appropriate instruction, and the record reflects it was given to
the jury.
Unlike Lovelace and Griffin, the trial court did not
omit a necessary instruction. Instead, it included paragraph 1
of IPI Criminal 4th No. 5.01B, an extraneous instruction. As in
Palmer, we find the given instructions constituted an accurate
statement of the law. Further, although the jury requested
clarification of a person acting recklessly versus a person
acting knowingly, it does not necessarily follow that its diffi-
culty stemmed from the inclusion of paragraph 1 of IPI Criminal
4th No. 5.01B in the jury's instructions. The jury was in-
structed that "[a] person acts knowingly with regard to the
result of his conduct when he is consciously aware that such
result is practically certain to be caused by his conduct." The
jury was not misled and the inclusion of paragraph 1 of IPI
Criminal 4th No. 5.01B was not a substantial defect rendering the
trial fundamentally unfair.
Regarding the trial court's response to the jury's
request for clarification, we note defendant not only failed to
object to the court's response, his counsel specifically re-
quested the given response. The jury's confusion centered on the
definition of recklessness versus the definition of knowledge.
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The jurors had before them appropriate instructions defining both
terms. Moreover, defendant has failed to suggest a response that
the court could have given that would not have been cumulative of
information already before the jury. The trial court's response
to the jury was not a substantial defect that rendered the trial
fundamentally unfair.
Also, the evidence in this case was not closely bal-
anced. Although defendant consistently maintained the shooting
was an accident, the record reflects he gave several different
versions of how the shooting occurred. None of defendant's
versions were consistent with the physical evidence.
The jury was adequately instructed and the given
instructions were an accurate statement of the law. The record
is clear. The trial court's rulings do not constitute plain
error.
Defendant further argues that this court may consider
his alleged errors because his trial counsel provided ineffective
assistance. To establish ineffective assistance of counsel a
defendant must show (1) his counsel's performance was deficient,
falling below an objective standard of reasonableness and (2) he
was prejudiced in that, absent counsel's deficient performance, a
reasonable probability exists that the results of the proceeding
would have been different. People v. Evans, 209 Ill. 2d 194,
219-20, 808 N.E.2d 939, 953-54 (2004), citing Strickland v.
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Washington, 466 U.S. 668, 687, 694, 80 L. Ed. 2d 674, 693, 698,
104 S. Ct. 2052, 2064, 2068 (1984). "[A] defendant must satisfy
both the performance and prejudice prongs of Strickland." Evans,
209 Ill. 2d at 220, 808 N.E.2d at 954. Defendant has failed to
satisfy either Strickland prong.
Defendant next argues the trial court erred by denying
his motion to suppress regarding statements he made to Officer
Childress. Specifically, he contends his statements were made
during a custodial interrogation and he was not advised of his
Miranda rights. The State responds that defendant's statements
were admissible because they resulted from general on-the-scene
questioning. Alternatively, it contends (1) defendant failed to
prove he was in custody when Childress questioned him or (2) any
error was harmless.
At defendant's suppression hearing, Childress testified
that on September 13, 2003, he was a police officer and was
dispatched to the scene of a shooting. He arrived on the scene
at approximately the same time as two other uniformed police
officers, Donald Gillette and Carl Crawford, and saw defendant
standing outside of a residence. Childress testified he made
contact with defendant and asked defendant who the victim was and
where he or she was located. Childress noted defendant had blood
on his clothes.
According to Childress, defendant directed the officers
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into a residence. Upon entering, Childress observed the shooting
victim, who was later identified as Schuch. Childress checked
the residence for additional occupants while Gillette and
Crawford attended to Schuch. Childress then went outside and had
further contact with defendant that was "more extensive than
[their] initial contact." Specifically, Childress asked defen-
dant "what happened" and, in response, defendant provided a
statement about how the shooting occurred. We note that the
statement provided by defendant was inconsistent with both
previous and subsequent statements he made to police and others.
Childress testified his conversation with defendant
lasted for only a couple of minutes and that he did not read
defendant his Miranda rights. He stated defendant was not a
suspect at that point in the investigation. Further, defendant
was not in custody; however, he would not have been permitted to
leave the scene.
Pursuant to Miranda, 384 U.S. at 444, 16 L. Ed. 2d at
706-07, 86 S. Ct. at 1612, a defendant's statements must be
suppressed if made in response to a custodial police interroga-
tion "unless preceded by a statement of basic constitutional
rights and a waiver of those rights." People v. Newsome, 117
Ill. App. 3d 1005, 1007, 454 N.E.2d 353, 355 (1983). A custodial
interrogation involves "questioning initiated by law enforcement
officers after a person has been taken into custody or otherwise
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deprived of his freedom of action in any significant way."
Miranda, 384 U.S. at 444, 16 L. Ed. 2d at 706, 86 S. Ct. at 1612.
"Miranda warnings are not *** necessary where the
police conduct a general on-the-scene questioning as to facts
surrounding a crime." People v. Parks, 48 Ill. 2d 232, 237, 269
N.E.2d 484, 487 (1971); Miranda, 384 U.S. at 477-78, 16 L. Ed. 2d
at 725-26, 86 S. Ct. at 1629-30. "In such situations the compel-
ling atmosphere inherent in the process of in-custody interroga-
tion is not necessarily present." Miranda, 384 U.S. at 478, 16
L. Ed. 2d at 726, 86 S. Ct. at 1630.
Review of a trial court's ruling on a motion to sup-
press presents mixed questions of law and fact. People v.
Pitman, 211 Ill. 2d 502, 512, 813 N.E.2d 93, 100 (2004). The
court's factual findings will be upheld unless they are against
the manifest weight of the evidence. Pitman, 211 Ill. 2d at 512,
813 N.E.2d at 100. Its ruling on the ultimate question of
whether to suppress the evidence is subject to de novo review.
Pitman, 211 Ill. 2d at 512, 813 N.E.2d at 101.
A review of the record reflects the trial court prop-
erly denied defendant's motion to suppress his statements to
Childress. Childress was one of the first police officers to
arrive on the scene of the shooting. Upon his arrival, he saw
defendant, who directed him to the victim's location. After
observing the victim, Childress asked defendant one question,
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"what happened." In response, defendant provided a statement of
how the shooting occurred. Their conversation lasted only a
short period of time and occurred outside near the scene of the
shooting.
In this instance, Childress's actions constituted
general on-the-scene questioning as to facts surrounding a
possible crime. Therefore, Miranda warnings were not required.
Given our resolution of this issue, we need not address the
State's remaining contentions.
Finally, defendant contends he is entitled to two
additional days of sentence credit. Specifically, he maintains
he is entitled to 651 days of sentence credit instead of the 649
days ordered by the trial court because he was taken into custody
on October 22, 2003, and remained in custody through August 2,
2005, the date he was sentenced. The State maintains the court's
sentence-credit calculation is off by only one day because
defendant is not entitled to credit for the day he was sentenced.
However, it asks this court to take judicial notice of the
Illinois Department of Corrections's (DOC) public records and
find that defendant is not entitled to any additional sentence
credit because DOC has already provided him with all of the
credit to which he is legally entitled.
A defendant must receive sentence credit "for time
spent in custody as a result of the offense for which the sen-
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tence was imposed." 730 ILCS 5/5-8-7(b) (West 2004). A defen-
dant should receive credit against his sentence for any part of a
day that he is held in custody. People v. Compton, 193 Ill. App.
3d 896, 904, 550 N.E.2d 640, 645 (1990). However, "a defendant
will not be credited for the day of sentencing in which he is
remanded to [DOC]." People v. Foreman, 361 Ill. App. 3d 136,
157, 836 N.E.2d 750, 768 (2005). Additionally, this court may
take judicial notice of DOC's records because they are public
documents. People v. White, 357 Ill. App. 3d 1070, 1072, 831
N.E.2d 657, 659 (2005); Ashley v. Pierson, 339 Ill. App. 3d 733,
739-40, 791 N.E.2d 666, 671-72 (2003).
Here, defendant argues he is entitled to sentence
credit beginning October 22, 2003, through the date of his
sentencing. The record shows he was arrested on that date and,
thereafter, remained in custody. As the State points out, DOC's
records reflect defendant's "custody date" to be October 22,
2003. Its records further show his projected parole date to be
October 22, 2048, and his discharge-from-parole date to be
October 22, 2051. Thus, DOC has provided defendant with all of
the sentence credit to which he is entitled and it is unnecessary
for this court to award any additional credit.
For the reasons stated, we affirm the trial court's
judgment. As part of our judgment, we grant the State its
statutory assessment of $50 against defendant as costs of this
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appeal.
Affirmed.
STEIGMANN, P.J., concurs.
COOK, J., specially concurs.
JUSTICE COOK, specially concurring:
I concur, but it does appear the pattern instructions
are confusing.
If defendant knows that his acts "create a strong
probability of death or great bodily harm," he is guilty of first
degree murder. 720 ILCS 5/9-1(a)(2) (West 2004). If defendant
recklessly performed acts that "are likely to cause death or
great bodily harm," he is only guilty of involuntary manslaugh-
ter. 720 ILCS 5/9-3(a) (West 2004). There does not seem to be
much difference between acts creating "a strong probability" and
acts "likely."
A person "acts knowingly" with regard to "[t]he nature
or attendant circumstances of his conduct *** when he is con-
sciously aware that his conduct is of such nature or that such
circumstances exist." (Emphasis added.) 720 ILCS 5/4-5(a) (West
2004). A person "acts recklessly, when he consciously disregards
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a substantial and unjustifiable risk that circumstances exist or
that a result will follow." (Emphasis added.) 720 ILCS 5/4-6
(West 2004). There does not seem to be much difference between
acting knowingly and acting recklessly, except that "recklessly"
is phrased in the negative. There does not seem to be much
difference between being consciously aware that acts create a
strong probability of death or great bodily harm and consciously
disregarding a substantial and unjustifiable risk that death or
great bodily harm will result.
The analysis may be different in this case than in
cases involving a fight situation, such as DiVincenzo. If a
defendant is playing with a loaded weapon and it goes off and
kills someone, it would appear that defendant was consciously
aware that his acts created a strong probability of death or
great bodily harm (first degree murder). It would also appear
that defendant consciously disregarded a substantial and unjusti-
fiable risk that such a result would follow (involuntary man-
slaughter). How is a jury to distinguish between the two of-
fenses?
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