{ "id": 2555445, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RAYMOND M. BURG, Defendant-Appellant", "name_abbreviation": "People v. Burg", "decision_date": "1990-12-31", "docket_number": "No. 4-90-0154", "first_page": "67", "last_page": "71", "citations": [ { "type": "official", "cite": "207 Ill. App. 3d 67" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "473 N.E.2d 880", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "898" } ], "opinion_index": 0 }, { "cite": "105 Ill. 2d 103", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3141650 ], "pin_cites": [ { "page": "137" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/105/0103-01" ] }, { "cite": "142 Ill. 2d 353", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3236794 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/ill-2d/142/0353-01" ] }, { "cite": "462 N.E.2d 989", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "994" } ], "opinion_index": 0 }, { "cite": "123 Ill. App. 3d 514", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 3493347 ], "year": 1985, "pin_cites": [ { "parenthetical": "guilty of attempt murder, armed violence, and reckless conduct" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/130/1006-01" ] }, { "cite": "478 N.E.2d 335", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1985, "pin_cites": [ { "parenthetical": "guilty of murder, voluntary manslaughter, and involuntary manslaughter" } ], "opinion_index": 0 }, { "cite": "106 Ill. 2d 186", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3138004 ], "year": 1985, "pin_cites": [ { "parenthetical": "guilty of murder, voluntary manslaughter, and involuntary manslaughter" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/106/0186-01" ] } ], "analysis": { "cardinality": 492, "char_count": 8752, "ocr_confidence": 0.744, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.08213837949625634 }, "sha256": "4b448e01d9932e9f0c11a2afe2c7f2bb7c06d638e89c97e15706eac0881c1bc5", "simhash": "1:712b98f4eac99987", "word_count": 1449 }, "last_updated": "2023-07-14T17:11:09.339704+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. RAYMOND M. BURG, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE STEIGMANN\ndelivered the opinion of the court:\nDefendant, Raymond Burg, was convicted of armed robbery (Ill. Rev. Stat. 1989, ch. 38, par. 18 \u2014 2) and sentenced to seven years\u2019 imprisonment. On appeal, defendant argues that he was denied effective assistance of counsel because his trial attorney failed to object to a jury instruction he claims de-emphasized the lesser included offense of robbery. Because the instruction in question was proper, we affirm.\nOn April 27, 1990, defendant entered a grocery store, removed a package of candy from the shelf, and proceeded to a check-out aisle. Defendant handed the checker a bag and demanded that he \u201cput the money in the bag.\u201d Defendant was holding a gun, but it was covered with a newspaper such that only one to two inches of the barrel could be seen. The checker handed defendant the money from the cash register and defendant fled. Both the checker and a customer later identified defendant as the holdup man from a collection of photographs. At trial, defendant denied committing the robbery.\nIllinois Pattern Jury Instructions, Criminal, No. 26.01Q (2d ed. Supp. 1989) (hereinafter IPI Criminal 2d Supp.) was given to the jury and stated as follows:\n\u201cWhen you retire to the jury room you first will elect one of your members as your foreperson. He or she will preside during your deliberations on your verdict.\nYour agreement on a verdict must be unanimous. Your verdict must be in writing and signed by all of you, including your foreperson.\nThe defendant is charged with the offense of Armed Robbery. Under the law, a person charged with Armed Robbery may be found not guilty, or may be found guilty of Armed Robbery or guilty of Robbery.\nYou are to decide based upon the evidence and the law in this case whether to return a verdict of not guilty, a verdict of guilty of Armed Robbery, or a verdict of guilty of Robbery.\nAccordingly, you will be provided with three verdict forms: \u2018not guilty\u2019, \u2018guilty of Armed Robbery\u2019, and \u2018guilty of Robbery\u2019.\nFrom those three verdict forms, you should select the one verdict form that reflects your verdict and sign it as I have stated. Do not write on the other two verdict forms. Sign only one of these verdict forms.\nIf you find the State has proved the defendant guilty of both Armed Robbery and Robbery, you should select the verdict form finding the defendant guilty of Armed Robbery and sign it as I have stated. Under these circumstances, do not sign the verdict form finding the defendant guilty of Robbery.\u201d (Emphasis added.) See IPI Criminal 2d Supp. No. 26.01Q, at 367-68.\nFollowing deliberations, the jury returned a guilty verdict for the offense of armed robbery.\nDefendant argues that the last paragraph of this instruction \u201cdeemphasized the importance of the lesser charge\u201d of robbery. He claims that the instruction tells the jury that if it cannot agree as to whether defendant committed the greater or lesser offense, defendant should be convicted of the greater offense. We are unpersuaded.\nThe Illinois Supreme Court Committee on Pattern Jury Instructions in Criminal Cases explains in its introductory note to chapter 26.00 of IPI Criminal 2d Supp. the purpose of the italicized paragraph in instruction No. 26.01Q. That explanation reads as follows:\n\u201cThe Committee is aware of instances where a confused jury has returned logically or legally inconsistent verdicts. (For examples of problems the Committee is seeking to avoid, see People v. Hoffer, 106 Ill. 2d 186, 478 N.E.2d 335, 88 El. Dec. 20 (1985) (guilty of murder, voluntary manslaughter, and involuntary manslaughter); People v. Spears, 130 Ill. App. 3d 1006, 475 N.E.2d 8, 86 Ill. Dec. 202 (3d Dist. 1985) (guilty of attempt murder, armed violence, and reckless conduct); People v. Coleman, 131 Ill. App. 3d 76, 475 N.E.2d 565, 86 El. Dec. 351 (1st Dist. 1985) (guilty of attempt murder and reckless conduct).) To avoid such confusion in future cases, the Committee has expanded these concluding instructions to be given to the jury and has made them more specific depending upon the particular charges to be considered by the jury and the relationship of those charges to each other.\u201d IPI Criminal 2d Supp. No. 26.00, Introductory Note, at 317.\nA defendant is entitled to have the jury instructed on a lesser offense that is included in the greater offense with which he is charged. (People v. Bryant (1986), 113 Ill. 2d 497, 502, 499 N.E.2d 413, 415; see also Beck v. Alabama (1980), 447 U.S. 625, 636-37, 65 L. Ed. 2d 392, 401-02, 100 S. Ct. 2382, 2388-89.) Defendant in this case was entitled to have his jury instructed on the three options available to it under the law: not guilty, guilty of the less serious offense (robbery), or guilty of the more serious offense (armed robbery). (See Bryant, 113 Ill. 2d at 502, 499 N.E.2d at 415.) In the present case, defendant\u2019s jury was properly instructed as to all these available options.\nDefendant claims that the instructions made it unnecessary for the jury to decide whether the defendant possessed a gun. We disagree. The jury was given IPI Criminal 2d Nos. 14.01 (definition of armed robbery), No. 14.02 (issues in armed robbery), No. 14.03 (definition of robbery), and No. 14.04 (issues in robbery) (1981). Therefore, the gun possession issue was before the jury and they were fully instructed as to the options available.\nDefendant argues further that IPI Criminal 2d Supp. No. 26.01Q would allow the jury to convict him for the greater offense \u201ceven if some members of the jury believe that he was only guilty of the lesser offense.\u201d In support of this argument he cites People v. Summers (1990), 202 Ill. App. 3d 1, 14, 559 N.E.2d 1133, 1141. However, we find defendant\u2019s reliance on Summers inapplicable to the present case because Summers was concerned with greater and lesser offenses (first degree murder and involuntary manslaughter) that have mutually inconsistent mental states (intentional or knowing acts for first degree murder, as opposed to reckless acts for involuntary manslaughter). In the present case, conflicting mental states do not exist between armed robbery and robbery. Further, this jury was clearly told by instruction No. 26.01Q that its verdict must be unanimous, and no construction to the contrary of that instruction makes sense.\nDefendant cites the decision of this court in People v. Whitelow (1987), 162 Ill. App. 3d 626, 515 N.E.2d 1327, as support for his position, but we find Whitelow to be inapposite. In Whitelow, this court specifically approved of jury instructions designed to avoid legally inconsistent verdicts, such as instruction No. 26.01Q in the present case, but cautioned that such instructions should not take away the jury\u2019s necessary choice by de-emphasizing the importance of offenses with lesser penalties. (Whitelow, 162 Ill. App. 3d at 631, 515 N.E.2d at 1330-31.) However, our concern was primarily based upon the use in the instructions in Whitelow of the terms \u201cgreater\u201d and \u201clesser.\u201d We note with approval that instruction No. 26.01Q and all of the instructions in the 26.01 series of IPI Criminal 2d Supp. avoid the use of those terms.\nAlthough the evidence may support a conviction on both charges, when there is but one act, there can be but one conviction. (People v. Jones (1985), 105 Ill. 2d 342, 359, 475 N.E.2d 832, 840; People v. Paden (1984), 123 Ill. App. 3d 514, 521, 462 N.E.2d 989, 994.) If multiple convictions are returned, the defendant should be sentenced only for the most serious offense. (People v. Pitsonbarger (1990), 142 Ill. 2d 353; People v. Mack (1984), 105 Ill. 2d 103, 137, 473 N.E.2d 880, 898.) Had the jury in this case been permitted to return verdicts finding defendant guilty of both armed robbery and robbery, based upon this authority, defendant would be appropriately sentenced for his armed robbery conviction. Under these circumstances, we fail to see what possible prejudice defendant suffered by having a jury that has found him guilty of armed robbery return only that verdict instead of both a guilty of armed robbery verdict and a guilty of robbery verdict.\nBecause the instructions given were not erroneous, counsel\u2019s failure to object to them does not amount to ineffective assistance of counsel.\nAffirmed.\nGREEN and KNECHT, JJ., concur.", "type": "majority", "author": "JUSTICE STEIGMANN" } ], "attorneys": [ "Richard D. Frazier and D. Peter Wise, both of Metnick, Barewin & Wise, of Springfield, for appellant.", "Donald M. Cadagin, State\u2019s Attorney, of Springfield (Kenneth R. Boyle, Robert J. Biderman, and Dale M. Wood, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RAYMOND M. BURG, Defendant-Appellant.\nFourth District\nNo. 4 \u2014 90\u20140154\nOpinion filed December 31, 1990.\nRichard D. Frazier and D. Peter Wise, both of Metnick, Barewin & Wise, of Springfield, for appellant.\nDonald M. Cadagin, State\u2019s Attorney, of Springfield (Kenneth R. Boyle, Robert J. Biderman, and Dale M. Wood, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0067-01", "first_page_order": 89, "last_page_order": 93 }