*1 Pеople Illinois, Plaintiff-Appellee, of the State of v. David Rollins, Defendant-Appellant.
Littleton 11,068.
Gen. No. Fourth District. January 26, 1970. *4 CRAVEN, J., dissenting. P. Stifler, Chicago
John C. (Ray- Tucker and John G. of mond, Mayer, Block, counsel), appellant. Jenner & for County, Greanias, Attorney
Basil G. State’s of Macon Decatur, appellee. for SMITH, J.
Appeals involve, know, review errors said to have been committed However, trial court. every generally only error will be those reviewed — that have been wittingly, speak. committed so This happenstance means that complained somehow brought must have been court, to the attention of the many gives opportunity for instances it an mishap. avoid way or otherwise obviate the A common *5 time, doing by ideally, objection, of but so is ahead any opportunity. But, party event, can at the first happenings he (in view) and does erroneous his waive against hearsay. by objecting. A so not Take the rule given might party in a situation. He wish to waive doing nothing. opts Conversely, he to does if so signals by objection, rule, he his enforce the nonwaiver giving an its thus notice of issue of law and terms. Here, precisely problem. our
But this is not generally we are to remand for which asked errors brought they not to the not be reviewable because were court, they at time the trial at least the attention of however, say “generally,” because have been. should We plain they rights are affect if the errors substantial them act The occur can indeed thereon. we notice complained of, as instruc now other two rences than to tions, They passed at the are said be unnoticed trial. to “plain error.” statutory of the rule reads: definition affecting Plain substan- . . errors defects
“. although rights not may tial be were noticed brought trial Ill attention of the court.” Rev Supreme 1967, 110A, (a), c Rule Court Stats § 615. apparent, “plain rule the effect
As is error” has get giving right foot defendant though happenings appellate even door for review aggrieved “perfected,” as feels were make “preserved,” “saved,” or as it is said. We rule question not to of the but the wisdom statement emphasize its effective invocation rather to will only happening are concerned when so far we really really plain does affect substantial error causing miscarriage justice. rights capable and is change meaning, adverbs, do supplying the we In supply rather it. If we do not rule in this articulate the system. belaboring fashion debase Without *6 point public justice the administration is not sub- trials, served new the more so errors when the that might just command that could have been avoided— say by letting pro- the in on court it at the time. Our single contemplates cedure a occasion—one trial —not perfect-error-free successive occasions until the trial more, achieved. the What rule that errors must bе preserved, perfected, against saved or works tactic lamentably only still extant when defendant’s interest “collecting goes is in use error” for here if the result badly. giving party to would not be a to We want aid by inadvertently to comfort those so inclined broad- ening point error, amounting the rule to that the plain error, to can in be collected silence and then be occasion, which, used to as obtain second we have said, saying this, In should be are eschewed. we implying such juncture, case here. At this Judge the observations of in Learned Hand United States (2nd Brown, 321, 1935) 79 apt: v. F2d Cir is most very clear; merits the case are “When when only honestly emerge; one result can and when the jury satisfied, longer has fact no been look upon procedure ritual, part as criminal a sacred no breaking can be without omitted charm. by jury rough best; is a Trial scales at the beam ought tip not to for motes and straws.” up takе foreword we the matter before With us burglary. appeal —an from conviction of The facts succinctly put. all-night can be Defendant attended an apartment party beer at friend’s it where was de- procure nearby cided to a television set from a house conveniently happened vacant for the weekend —this ear- morning. ly Easter The set was indeed obtained. Five breaking boys involved, three did actual were stayed entering, front, one out in and defendant back. reappeared from After the three the house with television, apartment. all five to the returned Whoever instigated misadventure, adventure, or rather had forehandedly telephoned just make the house to sure empty. it All The of them this. intake knew of beer had been considerable and no contributed doubt omnipresent mildly. self-restraint, put an lack of posse Indeed, one, passed as to had constraint was luckily very оut and missed turned be not out to gave much police fun at all. Defendant statement very which differed little from above recitation and testimony his at the trial. The same can said appeal two do not as to codefendants —who —and the one accomplice who became a so-called witness. *7 defense short, prank. was lack of a intent —in urged point outright
The first for reversal —does —and plain might not expected involve the as errоr rule be very charge after all have said. It involves the it- (other post- self. Here for the time first than in the judgment motion) argued it is that the information failed charge requisite necessary to the intent to sustain a con- viction, specifically, charge that the information failed to promote that defendant intended to or facilitate the during burglary either before or its commission aid- ing abetting and the others in its commission.
willWe assume basic that as one can’t bе charged. point convicted of an offense not can cer tainly any charged at time. The asserted information authority building a defendants “entered without occupied possessed and . intent to . . commit there with charge burglary. adequate in a for theft” —an Defendant arguing inadequacy proof its states showed best, be, him to at an and abetter and aider refers us Code, 1967, 38, to Ill 5-2 of Criminal Rev c Stats § 5-2, which, says, requires expanded he more intent §
for thosе are “mere” aiders and Such sec- who abetters. tion reads: person legally
“A for is accountable the conduct of another when:
(( (cid:127) (cid:127) (cid:127) during “(c) or of an Either before commission promote offense, and the intent to or facilitate agrees commission, aids, abets, solicits, he or such attempts aid, person planning such to other of the . .” commission offense. . Assuming proof of the called for in this section intent support necessary conviction, have to does it charge? assuming words, forth in thе In other be set abetter, he he was an aider convicted charged? an offense not particu is
This section definition of crime, can be lar when one rather is statement criminally parties accountable —it relates held abetter, responsible. an Even if aider when are charged, defendant tried and convicted can still be put, Simply no such abets. there is crime aids and being All 5-2 does an aider and section abetter. crime burglary— does аid and abet a one is make who any burlgar! descriptive It offense. It descriptive can render one accountable of conduct which By emphasizing physical aspects of bur crime. for sloughs purport plain glarious off conduct defendant *8 clear can be it that one makes section which being is physically crime committed while absent proof guilty scene. That yet those on the be as as necessary sup may to 5-2 be § intent called for saying given conviction, intent is not that such port a charge. support To a convic in the forth must be set enough charge burglary if it it shown tion on that one convicted was so-called aider and abetter of that offense. complained “plain
The of occurred first error” regard concerning testimony to state defendant’s narrating police. ment —or In cir confession —to the cumstances the he de officer testified that informed rights, present fendant of his that his father who was telephoned attorney, after defendant “hesitat Attorney argument, ed” and then talked. In the State’s pointed guilt: to this as consciousness of say
“He hesitates. He doesn’t about his want guilty involvement because he it knows he is shows charged.” of the crime objection any argument
There no toas of this. The goes excerpt argu- that this evidence and the from the highly ment prejudicial they so amount plain notice, they errors which wе can therefore as affect rights substantial aof constitutional nature and that being eligible naught notice, for we have to do but do then so and remand for new trial. is, know,
Now “hesitation” as all con- we mere probably, clusion and if objection, there been an had satisfactorily may dealt The same as to with. said telephone argument call to counsel and the out set wonders, however, above. One evidence whether “hesitating” talking poliсe preceding before to the attorney really such a call to one’s does the in- raise says Attorney ferences defendant do. State’s apparently too, argued just he thinks so as arguing does, have seen. But either there or here, might doesn’t make it so. What be said favor of position he if had refused to talk defendant’s is beside point. repeated The fact remains that he did upon is, therefore, what he told officer the stand. It inflammatory hаrd to read into this context infer- *9 to enees said arise from these trial events. are Cases testify to us of cited comment on an accused’s failure to cooperate police. germane. or to the Such are not with only variety case, We deal with this not an infinite of single say might, instances. Strain as cannot we we “plain that in these occurrences error” that there was notice, can we much less as a for a remand. use basis raisеs, mind, pro “Hesitation” in and our inferences con—at least this case it does. Even if could char- happenings very error, acterize these the far as error being “plain.” from error, too, told,
Plain arewe involves the admission long into evidence matters the of that occurred after alleged burglary.” of have to do “commission the These testimony opened “the and that defendant unlocked with apart- the door when . . the arrived back” at thе . others helped carry ment, he the the television back to apartment, not, present he if did with did, accomplice-witness and evidence that those who argument goes attempted to sell the set. The that de- charged burglary, theft and that fendant with breaking anything subsequent to the occurred evidence, entering commented on is immaterial. This heightened prejudice, argument, it is or so said. breaking
Burglary is the definition felony entering theft. intent to commit a —here way in the minds this intent we know show best prove crime of is to and enter of break those who permanent encompassing the idea Theft theft itself. phrase cases asportation, the older deprivation certainly one object theft, it, or removal of Indeed, just way, proving that. way, if not best probative an intent commit more could be set from the television removal of here than the theft defendants apartment whence house owner’s ul- television’s proof of the and, so, too, just had come *10 disposition tímate deprive Proof of an intent —sale? given an of owner a proof article would include of the anything article’s sale and in There between. awas “consensus” —defendant’s own word —thus common design to obtain the set and the rule is that such where exists the acts of one become the of all acts who were part of such complained “consensus.” The evidence propеrly was admitted, thus, again, there no error was at all—much plain. less was it point
The next has to do not with the admission of evi- dence but rather Again, its exclusion. no there was objection and proof though easily no offer of one can — conjure up its content had it been made. The asserted re- striction relates to defendant’s character An witnesses. attempt was made to acquaintance- show witnesses’ ship knowledge of the defendant “to substantiate opinion basis for their reputation as to defendant’s community.” in the Objection inquiry to such line of was sustained. only
The basis that a character need witness have is that he general reputation know defendant’s for the relevant objectionable trait. It would not be in permit most circumstances elaboration on this how knowledge obtained, certainly was but such is discretion ary particularly offering party. as to the Since — they witnesses did enough. statе that knew —that is party An adverse can test this cross-examination. The fact that it was not so tested furnishes a basis for contraargument knowledge the witness’ was suf —that important aspect reputation testimony ficient. An is knowledge that the upon particu witnesses’ is not based specific Reputation lar acts or instances. is community person. thinks of a A character does witness give “opinion” somebody’s reputation. Rep as to utation is fact. Doеs the know it witness or not? It “opinion” testimony, in which most instances does Characterizing proof call for kind substantiation. of this “opinion” testimony may con- have led to defendant’s eminently imposed proper. fusion. The limitation upon “plain involves error” most relied argument. error, together opening It said that atmosphere others, an created prosecution perverted presumption innocence and sought “by any any at cost.” or devicе conviction means “pros argument, Specifically, stated Anglo-Ameri ignoring ecutor, the most basic tenets jurors that unless jurisprudence, announced to the can bring charges guilty, a verdict of returned every against each one of them.” of misconduct arraigned: argument excerpt from the so is the This *11 guilty of “Everyone of an act violation that disregard . . . law, in utter for law stands anything to con- juror other than to do a that fails trust, guilty of of a breach vict those individuals is every charge juror. And I as a would of misconduct you that every you of with one one of —each guilty.” in this case were if the verdict offense argu- fact, during objection. In the whole There nowas only one covering there pages of the record ment six But quibble to cost. now objection it concerned review, state- appellate this aftermath in the cool atmosphere bringing the “trial upon as ment is seized “denunciatory with and is likened focus” сlearest into Century attainder —a device writ to 12th fervor” Century. until the 17th verdicts by judges to coerce used Attorney “would says, the State’s Now, defendant indeed,” long way in that his the clock back turn “if charge jurors misconduct with “threat” to only in de- guilty . . differs . of not a verdict returned by the result achieve the same to gree efforts from the fine.” imprisonment or a attainder, threat of writ 128 context, In another likened Commission was where Stuarts, to the Star Chamber of the Mr. Justice Cardozo might “hyperbole thought in the that find historians 1, sanguinary SEC, simile.” See Jones v. US way. (1936). L the same Somewhat Ed 1015 feelWe him, “denunciatory upon at the fervor” visited abashed Attorney says should read the whole the State’s so, ex- argument, context, text and that if dowe cerpt objected It is on a flavor. different takes juncture the court note that amiss at this between attorneys the state- no one construed and two defense say this mean ment to mean it is said to now. We threat, remotely if even it could be considered because say itself, certainly interjected have the court would day nothing say in this of counsel. even We would placed age momentarily construction now if even by the State’s upon paragraph realized had been quick an admoni- Attorney, to add have been implied— tory explanation, “threat” that no should duty. exhorting merely do their that he them to language argues complained Attorney State’s jury аdjuration to remember precisely to the that —an way, duty. it that read to do their We their oaths and “charge” urges, equate cannot, as defendant too. We say “misconduct” is “prosecute,” nor can we although Code “crime,” the Criminal synonym for and introduced “feasances” the various of 1961 discarded *12 crimes descriptive of various “misconduct,” word as the responsibilities— public relating performing of to the day present that jurors here. doubt We as thаt such “Charge” way. has var- it that jurors understand would “prosecute.” It can meanings than broader ious —much synonym of adjure. It is equated exhort or be with “charges” court practice, the the Federal In “instruct.” argument made in had been Maybe jury. if this meaning dire would more Century, a and different 17th 129 today. aghast attach to to dis- it—but not be We would Being that verdict. cover this statement coerced a plain aghast, say an error so we cannot that was rights trial and so destructive of substantial that new Considering testimony, should be had. defendant’s own argument challenged part cannot be said of the are have been material factor his conviction. We overreaching. intentional convinced that there no Judge Hand in another case: As said any contemporane- upon now,
“To seize without objection exception, quite It ous unwarranted. certainly have corrected. Few almost been would justice scrutiny, such records could survive prosecution requires has once been that very se- accepted, unraveled. In shall not later be might perhaps even intervene when rious matter corrected, but mistake would have been specula- wholly prejudice inferential here was guilt, (United v. Frank- tive, clear.” and the States 1938]; 290 285, cert denied el, 288 Cir 65 F2d [2d [1933]). US remaining can be dealt matters
The two were ob They quickly. deal with instructions with instruction, identical accomplice аlmost jected An to. (1968), in IPI —Criminal the one recommended with reads: given request It of the State. 3.17, at the No. testifies that accomplice is one who “An witness crime of a with in the commission involved he was accomplice testimony anof wit- The the defendant. acted suspicion, subject and should ness is carefully examined upon It should be caution. in the case.” light evidence the other might jury objection to this instruction definition fell defendant within concluded have testi- view “accomplice” therefore *13 many suspect. sought as an Defendant instruction which alleged would differentiate his role as an defendant- accomplice witness-accomplice. from that of a jury a find hard how
We it to see “he think of this as testified that defendant one who was involved in the commission of a crime with the defend all, After ant.” he one of the three defendants was jurors and even the naive of must have most known guilt. very that all The instruction itself three denied defendant, accomplice makes it clear that an cannot be a accomplice guilt, by admits defendant definition proper it. and the ten denies The instruction was one by properly rejected. Nothing gained to be dered was stating ac an instruction the defendants were straight complices. instruction is also out second Criminal, 3.07: No. IPI — you
“You have before evidence that the defend- charged ant that he cоmmitted the crime confessed you in the It is to determine indictment. for what weight given In deter- should be confession. mining you weight given confession, be to a all of under should consider circumstances made.” which was rather, argues no
Defendant that there was confession — “statement,” police he told the was acknowledgment guilt, an whereas statement is correct. A con- confession is. This differentiation guilt comprehensive of facts fession admission guilt. directly imрly necessarily Defendant says police not a confession he told the that what others he told the officer that he stood while because But and removed the television. the house entered accountability, one our discussion have seen from wings, were, yet held as it off in can stand stage. told center the action What for accountable just de- a confession as we have police indeed *14 fined it. a There is reasonable inference from he what police told the crime officer that he committed the charged. he was That his answers were accountability in couched of terms the statutes on burglary hardly is remarkable —it have been re- would they if markable had been. The facts he recounted to reasonably police directly implied guilt, hence and proper. the characterization was fairly fairly Defendant tried and con was jury rightfully victed. From the a evidence could and reasonably guilt. requisite therefore, and, infer the intent Simply intent mean because denied such does not thereby. They that triers of the fact are bound had right opt they just opin In did that. our otherwise ion, error intervene. the verdict not forced nor did was accordingly judgment The is affirmed.
Affirmed.
TRAPP, J., concurs. dissenting.
CRAVEN, J.,P. dissenting:
CRAVEN, J.P closing argument, Attorney, in used his The State’s which, my view, prejudicial in improper remarks rights affecting plain error the substantial constitute error necessitates remandment оf the defendant. This trial. for new majority issue, on
As I understand argument improper agree conclude that but that the require a trial prejudice not such as to new guilt. of of the evidence view closing argument, prosecutor, in said: guilty an of the “Everyone of act violation that disregard law, that has for the law, in utter stands respect law, no for the that demonstrates that brought conduct, jury’s their when anything attention, juror other fails to do guilty than to convict those individuals is of breach juror. I trust, And would misconduct as charge every you every one one —each you in this with that the verdict case offense if guilty. following were not You would you any law, paying all not be attention at say up you to the evidence. I it isn’t to de- today (Em- cide here should be. . . .” law phasis added.)
Any jury reasonably member of have under- this could argument guilty stood from this verdict charge against juror result in a of misconduct juror. appre- A verdict arrived at under such an hensiоn, explicit implicit, or should stand. Supreme People
That Court stated in v. Romero, 315, (1967), applicable 36 Ill2d 223 121 NE2d (at (223 124)): court at here. The stated NE2d held, have in civil “. . . often both and crim- arguments cases, ‘prejudicial inal if are made objection of counsel or interference of the without parties litigant to the extent trial court judicial process a fair trial and the cannot receive upon deterioration, then stand without review assignments may error, consider such even court objection ruling though no made and no made ” (Citing cases.) preserved in the trial court.’