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Illinois Supreme Court,
2nd Judicial District

Larry D. Drury, J.D.

Justice S. Louis Rathje

Justice Robert Thomas

Hon. Bonnie M. Wheaton

Illinois Appellate Court,
2nd Judicial District

Jack O’Malley, J.D.

By Justice S. Louis Rathje

Garcia

In Garcia, the supreme court held that a trial judge has the discretion to instruct the jury sua sponte on lesser-included offenses over a defendant’s objection. The defendant was charged only with possession of a controlled substance with the intent to deliver. At the instructions conference, the trial court asked the defendant’s attorney whether he was offering an instruction on simple possession. The attorney and the defendant agreed that they did not want the jury instructed on the lesser-included offense. The trial judge then stated that he had a responsibility to give the lesser-included offense instruction sua sponte because the evidence warranted it. The trial court gave the lesser-included offense instruction, and the jury convicted the defendant of the lesser offense.

Millsap

In Millsap, the supreme court was faced with the question of whether a trial judge could instruct the jury on accountability for the first time after the jury had already begun its deliberations. The defendant was charged with home invasion and robbery. The victim was robbed in her home at approximately 4 a.m. She was asleep on her couch when she was awakened by a gloved hand pushing down on her face. The victim believed that there had been two intruders in her house, but she could not be sure. While keeping his hand over her face, the intruder rummaged through some purses that the victim kept underneath her coffee table. A wallet containing over $2,000 was taken from one of the purses. The police apprehended the defendant a few houses away. He had the victim’s wallet, money, and several bills with her address on them.

The State charged the defendant with home invasion and robbery. The indictments charged him as a principal and accused him of being the person who held his hand over the victim’s face and who took the money. The State never pursued an accountability theory

at trial, and the attorneys’ closing arguments addressed only whether the defendant was guilty as a principal. Forty minutes into their deliberations, the jurors sent the judge a note that read, "Is the accomplice just as guilty at [sic] the offender who causes injury in a home invasion?" At least some members of the jury apparently believed that the defendant was a second intruder and was not the person who held his hand over the victim’s face. The trial judge then gave the jury an accountability instruction over the defendant’s objection, and the jury returned a verdict of guilty.

The appellate court affirmed, holding that an accountability instruction was appropriate based on the evidence and that trial courts have a duty to answer jurors’ questions when the jurors request clarification on a point of law.7 The defendant then filed a pro se petition for leave to appeal, which the supreme court allowed. The defendant argued that his due process right to a fair trial was denied when the court instructed the jury on a new theory after the jury had begun its deliberations. The defendant contended that the trial court’s action deprived him of his right to address the accountability theory in his closing argument.

The supreme court reversed the appellate court and ordered that the defendant be given a new trial. Millsap held that, although the trial court has a duty to answer jurors’ questions when the jury has requested clarification on a point of law, the trial court should not submit new charges or new theories to the jury at this stage of the proceedings. On the facts of the case, an accountability instruction would have been appropriate if the State would have requested one at the appropriate time. By giving the instruction when it did, however, the trial court deprived the defendant of the opportunity to address that theory in his closing argument.

The supreme court’s decision was based on both a statute and the Constitution. Section 2–1107(c) of the Code of Civil Procedure8 (made applicable to criminal cases by Supreme Court Rule 451(c)9) requires that jury instructions be settled before the attorneys give their closing arguments. This allows the attorneys to know the law on which the jury will be instructed so that the attorneys can tailor their arguments accordingly.

Millsap further held that, although the court’s action violated a statutory procedure, it impinged upon a constitutional right. The United States Supreme Court held in Herring v. New York10 that a defendant’s right to make a closing argument is guaranteed by the Constitution. Although Millsap did not involve a complete denial of the right to make a closing argument, the defendant was denied the right to address the theory of guilt upon which he may have been convicted. The supreme court held that, when faced with this situation, the trial judge should have told the jurors that they had the instructions applicable to the case and to keep deliberating.

Millsap did not change the general rule that a trial court should answer questions from the jury when the jury requests clarification on a point of law arising from facts about which there is doubt or confusion. The distinction in Millsap was that the jury’s question involved a point of law that had not been introduced into the case. By instructing the jury on accountability after the jury had begun deliberating, the court was injecting a new theory into the case without giving the defendant a chance to address that theory.