{ "id": 3635647, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EDDIE LEE FLOWERS, Defendant-Appellant", "name_abbreviation": "People v. Flowers", "decision_date": "1985-06-27", "docket_number": "No. 4-84-0709", "first_page": "324", "last_page": "328", "citations": [ { "type": "official", "cite": "134 Ill. App. 3d 324" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "143 N.E.2d 239", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "11 Ill. 2d 360", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2786129 ], "opinion_index": 0, "case_paths": [ "/ill-2d/11/0360-01" ] }, { "cite": "387 N.E.2d 331", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "75 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2991135 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-2d/75/0001-01" ] }, { "cite": "431 N.E.2d 1387", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "1389" } ], "opinion_index": 0 }, { "cite": "103 Ill. App. 3d 1074", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5480783 ], "weight": 2, "pin_cites": [ { "page": "1077" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/103/1074-01" ] }, { "cite": "407 N.E.2d 999", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "86 Ill. App. 3d 77", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3184215 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/ill-app-3d/86/0077-01" ] }, { "cite": "442 U.S. 140", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1532023 ], "weight": 6, "pin_cites": [ { "page": "159-60" }, { "page": "793-94" }, { "page": "2226" } ], "opinion_index": 0, "case_paths": [ "/us/442/0140-01" ] }, { "cite": "420 N.E.2d 151", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1985, "pin_cites": [ { "page": "153" } ], "opinion_index": 0 }, { "cite": "84 Ill. 2d 415", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3045347 ], "weight": 3, "pin_cites": [ { "page": "420" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/84/0415-01" ] }, { "cite": "442 U.S. 510", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1531962 ], "weight": 6, "opinion_index": 0, "case_paths": [ "/us/442/0510-01" ] }, { "cite": "85 L. Ed. 2d 344", "category": "reporters:federal", "reporter": "L. Ed. 2d", "case_ids": [ 6202354 ], "weight": 6, "year": 1979, "opinion_index": 0, "case_paths": [ "/us/471/0307-01" ] } ], "analysis": { "cardinality": 472, "char_count": 8722, "ocr_confidence": 0.75, "pagerank": { "raw": 9.251337565661582e-08, "percentile": 0.5111940889217865 }, "sha256": "e1b878b84c9dbb15943b5fca232ced5f76a772c0d5ce28cfca0712d18dee6b3d", "simhash": "1:264a9aa8ef9d7a24", "word_count": 1429 }, "last_updated": "2023-07-14T19:26:11.266607+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EDDIE LEE FLOWERS, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE MILLS\ndelivered the opinion of the court:\nDid the jury instruction require a mandatory presumption of intent?\nYes.\nWe must reverse and remand.\nRetail theft. The sufficiency of the evidence is not challenged on appeal and, therefore, we shall recite only the elementary facts.\nEric Meyer, the night manager of Richard\u2019s Marketplace Convenience Center, testified that he observed defendant stuff two cartons of cigarettes down his pants, walk past the cash registers and toward the front doors. Meyer confronted defendant, a struggle ensued, and four cartons of cigarettes fell to the floor. Meyer subdued defendant and held him in an office until the police arrived. Defendant introduced no evidence at trial.\nThe trial court gave the jury People\u2019s Instruction No. 10 which stated:\n\u201cIf any person conceals upon his person or among his belongings unpurchased merchandise displayed for sale or in a retail mercantile establishment and removes that merchandise beyond the last known station for receiving payments for that merchandise in that retail mercantile establishment, such person shall be presumed to have possessed such merchandise with the intention of retaining it without paying the full retail value of such merchandise.\u201d\nThis instruction was patterned after section 16A \u2014 4 of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, par. 16A\u20144), which provides:\n\u201cIf any person:\n(a) conceals upon his or her person or among his or her belongings, unpurchased merchandise displayed, held, stored, or offered for sale in a retail mercantile establishment; and\n(b) removes that merchandise beyond the last known station for receiving payments for that merchandise in that retail mercantile establishment such person shall be presumed to have possessed, carried away or transferred such merchandise with the intention of retaining it or with the intention of depriving the merchant permanently of the possession, use or benefit of such merchandise without paying the full retail value of such merchandise.\u201d\nThe only issue on appeal is whether the trial court erred in giving People\u2019s Instruction No. 10. Defendant argues that he was denied due process because the instruction contained a mandatory presumption establishing the element of intent and, therefore, alleviated the State\u2019s burden of proving every element of the offense beyond a reasonable doubt.\nThe due process clause of the fourteenth amendment prohibits the State from using evidentiary presumptions in a jury charge that have the effect of relieving the State of its burden of persuasion beyond a reasonable doubt of every essential element of a crime. (Francis v. Franklin (1985), 471 U.S._, 85 L. Ed. 2d 344, 105 S. Ct. 1965; Sandstrom v. Montana (1979), 442 U.S. 510, 61 L. Ed. 2d 39, 99 S. Ct. 2450.) The initial inquiry in ascertaining the validity of a presumption is to determine whether it constitutes a mandatory or permissive presumption. When the presumption is mandatory \u2014 that is, when the jury must infer the presumed fact if the. State proves the predicate facts \u2014 the presumed fact must flow beyond a reasonable doubt from the predicate facts. (Sandstrom v. Montana (1979), 442 U.S. 510, 61 L. Ed. 2d 39, 99 S. Ct. 2450; People v. Housby (1981), 84 Ill. 2d 415, 420 N.E.2d 151.) When the presumption is permissive\u2014 that is, when the jury is given the option of ignoring or relying on the presumption \u2014 the due process clause is violated only if the presumed fact is not one that reason and common sense justify in light of the proved facts. Francis v. Franklin (1985) 471 U.S._, 85 L. Ed. 2d 344, 105 S. Ct. 1965; cf. People v. Housby (1981), 84 Ill. 2d 415, 420 N.E.2d 151.\nThe State does not dispute that its instruction created a mandatory presumption. The jury had been instructed that, upon proof of certain predicate facts, defendant \u201cshall be presumed\u201d to have possessed the cigarettes with the intention of retaining them without paying the full retail value. No option was available; the jury was instructed that it must infer the presumed fact if the State proved the predicate facts. Under Housby and Sandstrom, the State\u2019s instruction is unconstitutional unless \u201cthe inferred fact [flows] beyond a reasonable doubt from the established fact.\u201d (People v. Housby (1981), 84 Ill. 2d 415, 420, 420 N.E.2d 151, 153.) Because the presumption was mandatory, it must be examined on its face to determine the extent to which the presumed and predicate facts coincide. County Court v. Allen (1979), 442 U.S. 140, 60 L. Ed. 2d 777, 99 S. Ct. 2213.\nThe validity of the presumption under the facts of the present case is not conclusive. As the Supreme Court stated in County Court v. Allen:\n\u201cTo the extent that the trier of fact is forced to abide by the presumption, and may not reject it based on an independent evaluation of the particular facts presented by the State, the analysis of the presumption\u2019s constitutional validity is logically divorced from those facts and based on the presumption^s-aeeur racy in the run of cases. It is for this reason that the Court has held it irrelevant in analyzing a mandatory presumption *** that there is ample evidence in the record other than the presumption to support a conviction.\u201d 442 U.S. 140, 159-60, 60 L. Ed. 2d 777, 793-94, 99 S. Ct. 2213, 2226.\nWe find that possession of merchandise with the intent to permanently deprive a merchant of possession of the merchandise without paying its full retail value would not necessarily flow beyond a reasonable doubt \u201cin the run of cases\u201d from the predicate facts set forth in section 16A \u2014 4 of the Criminal Code of 1961. Although highly unlikely under the subject facts, it is not completely unreasonable to hypothesize a person carrying an item of merchandise past the last payment station, without paying for it, due to inadvertence or thoughtlessness and not due to an intention of retaining it without paying its full retail value.\nOur holding is in accord with People v. Martin (1980), 86 Ill. App. 3d 77, 407 N.E.2d 999, wherein the court also held that an instruction patterned after section 16A \u2014 4 of the Criminal Code of 1961 was unconstitutional. Furthermore, in People v. Killings (1982), 103 Ill. App. 3d 1074, 431 N.E.2d 1387, we considered an instruction patterned after section 16A \u2014 4, but modified so that the instruction created a permissive presumption. We disapproved of the use of the instruction in future cases and further noted: \u201cThe State does not dispute that the instruction would have been a violation of defendant\u2019s due process rights had it been phrased in the mandatory terms of section 16A \u2014 4 defining an irrebuttable presumption.\u201d 103 Ill. App. 3d 1074, 1077, 431 N.E.2d 1387, 1389.\nThe State argues that defendant\u2019s failure to challenge the constitutionality of People\u2019s Instruction No. 10 at the time it was tendered constituted a waiver of his argument on appeal. Generally, the failure to make an objection at trial to an error in jury instructions waives the issue for appeal. (People v. Roberts (1979), 75 Ill. 2d 1, 387 N.E.2d 331.) However, Supreme Court Rule 451(c) (87 Ill. 2d R. 451(c)) provides that \u201csubstantial defects\u201d in instructions in criminal cases \u201care not waived by failure to make timely objections thereto if the interests of justice require.\u201d Moreover, the supreme court has stated that the waiver rule will not operate to deprive an accused of his constitutional rights of due process. (People v. Roberts (1979), 75 Ill. 2d 1, 387 N.E.2d 331; People v. Burson (1957), 11 Ill. 2d 360, 143 N.E.2d 239.) In the present case, the People\u2019s instruction clearly denied defendant his right to due process and, in the interest of justice, we choose not to apply the waiver rule.\nThe State next argues that other instructions given to the jury clearly indicated that the State had the burden of proving each element of the offense beyond a reasonable doubt. However, because we find that a reasonable juror would have interpreted People\u2019s Instruction No. 10 as creating a mandatory presumption, the constitutional infirmity resulting from this presumption cannot be cured by other instructions. See Francis v. Franklin (1985), 471 U.S___, 85 L.Ed. 2d 344, 105 S. Ct. 1965.\nReversed and remanded.\nMcCULLOUGH and MORTHLAND, JJ., concur.", "type": "majority", "author": "JUSTICE MILLS" } ], "attorneys": [ "Daniel D. Yuhas and Lawrence Bapst, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.", "Thomas J. Difanis, State\u2019s Attorney, of Urbana (Robert J. Biderman and Gwendolyn Klingler, both of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EDDIE LEE FLOWERS, Defendant-Appellant.\nFourth District\nNo. 4\u201484\u20140709\nOpinion filed June 27, 1985.\nDaniel D. Yuhas and Lawrence Bapst, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.\nThomas J. Difanis, State\u2019s Attorney, of Urbana (Robert J. Biderman and Gwendolyn Klingler, both of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People." }, "file_name": "0324-01", "first_page_order": 346, "last_page_order": 350 }