{ "id": 5378485, "name": "The People of the State of Illinois, Plaintiff-Appellee, v. Clarence Briggman, Defendant-Appellant", "name_abbreviation": "People v. Briggman", "decision_date": "1974-07-23", "docket_number": "No. 59206", "first_page": "747", "last_page": "754", "citations": [ { "type": "official", "cite": "21 Ill. App. 3d 747" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "156 N.E.2d 551", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "16 Ill.2d 82", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2762777 ], "opinion_index": 0, "case_paths": [ "/ill-2d/16/0082-01" ] }, { "cite": "160 N.E.2d 766", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "17 Ill.2d 23", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5333858 ], "opinion_index": 0, "case_paths": [ "/ill-2d/17/0023-01" ] }, { "cite": "177 N.E.2d 142", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "22 Ill.2d 518", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2789215 ], "opinion_index": 0, "case_paths": [ "/ill-2d/22/0518-01" ] }, { "cite": "219 N.E.2d 554", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "74 Ill.App.2d 12", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2581518 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/74/0012-01" ] }, { "cite": "252 N.E.2d 745", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "117 Ill.App.2d 104", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1586048 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/117/0104-01" ] }, { "cite": "281 N.E.2d 617", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "51 Ill. 52", "category": "reporters:state", "reporter": "Ill.", "opinion_index": 0 }, { "cite": "137 N.E.2d 246", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "9 Ill.2d 224", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5319969 ], "opinion_index": 0, "case_paths": [ "/ill-2d/9/0224-01" ] }, { "cite": "303 N.E.2d 555", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "14 Ill.App.3d 754", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2687595 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/14/0754-01" ] }, { "cite": "283 N.E.2d 685", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "51 Ill.2d 514", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5391261 ], "opinion_index": 0, "case_paths": [ "/ill-2d/51/0514-01" ] }, { "cite": "386 U.S. 18", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6168882 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/386/0018-01" ] }, { "cite": "296 N.E. 2d 373", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "11 Ill.App.3d 292", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2929547 ], "weight": 2, "pin_cites": [ { "page": "297" }, { "page": "297" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/11/0292-01" ] }, { "cite": "276 N.E.2d 825", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "2 Ill.App.3d 556", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2751736 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/2/0556-01" ] }, { "cite": "244 N.E.2d 358", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "104 Ill.App.2d 294", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1601073 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/104/0294-01" ] }, { "cite": "195 N.E.2d 687", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "30 Ill.2d 136", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2827844 ], "opinion_index": 0, "case_paths": [ "/ill-2d/30/0136-01" ] }, { "cite": "308 N.E.2d 577", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "56 Ill.2d 361", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5404559 ], "weight": 4, "pin_cites": [ { "page": "364" }, { "page": "364" }, { "page": "365" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/56/0361-01" ] }, { "cite": "310 N.E.2d 166", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "56 Ill.2d 560", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5404489 ], "opinion_index": 0, "case_paths": [ "/ill-2d/56/0560-01" ] } ], "analysis": { "cardinality": 822, "char_count": 17649, "ocr_confidence": 0.729, "pagerank": { "raw": 2.576283919258583e-07, "percentile": 0.8167174997461242 }, "sha256": "357f6ea27b8bfbbd7918580d1c7b7a902ea000820c58fc97637abd4e25a09e61", "simhash": "1:9deef4ecebf6add3", "word_count": 2926 }, "last_updated": "2023-07-14T15:11:03.342046+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. Clarence Briggman, Defendant-Appellant." ], "opinions": [ { "text": "Mr. JUSTICE STAMOS\ndelivered the opinion of the court.\nDefendant, Clarence Briggman, was charged with aggravated battery causing great bodily harm (Ill. Rev. Stat. 1971, ch. 38, par. 12 \u2014 4(a)), aggravated battery using a deadly weapon (Ill. Rev. Stat. 1971, ch. 38, par. 12 \u2014 4(b)(1)) and armed robbery (Ill. Rev. Stat. 1971, ch. 38, par. 18 \u2014 2). After a jury trial he was found guilty on all three counts, and was sentenced to a term of 4 to 10 years on the count charging him with armed robbery. On appeal defendant contends that (1) the trial cotut erred in refusing the jury\u2019s request to hear a certain portion of the testimony; (2) the prosecutor committed reversible error by reference to defendant\u2019s prior illegal activity; (3) defendant\u2019s guilt on the armed robbery charge was not proven beyond a reasonable doubt; and (4) both aggravated battery convictions arose from the same conduct.\nAt trial the following evidence was adduced. The complaining witness, Larry Koenig, testified that on June 11, 1972, at approximately 1:25 A.M., he left his home at 5734 North Winthrop Avenue, Chicago, IHIinois, to purchase a newspaper. As he walked south on Winthrop toward the elevated station at Bryn Mawr Avenue, defendant demanded money and hit Koenig once with a piece of lead pipe. Defendant reached into Koenig\u2019s coat pocket and took approximately $12. Koenig was able to grab the pipe and a 7- or 8-minute struggle with defendant ensued. Defendant ran north and Koenig proceeded south on Winthrop to obtain aid. After Koenig had walked less than one block, defendant came up from behind and proceeded to hit Koenig 12 or 15 times in the face with a broomstick. This second struggle lasted 4 or 5 minutes, whereupon defendant fled again. The police arrived shortly thereafter,, and Koenig described his assailant. As Koenig was being driven to the hospital in the squad car, he observed defendant standing on the northwest comer of Bryn Mawr and Winthrop, and identified him as his attacker. Defendant was arrested approximately % of a block from the scene of the second assault.\nKoenig, further testified that, during the entire incident, he observed defendant three times. He first noticed defendant when defendant was 5 to 6 feet away and was walking toward him. During the first scuffle Koenig viewed defendant face-to-face for 7 or 8 minutes. The area was illuminated by lights from surrounding apartments and from a street light 12 to 15 feet away. During the second scuffle, Koenig again observed defendant\u2019s face. At this time Koenig was bleeding slightly, but his vision was unimpaired. He described the assailant to the police as \u201cshort, moustache, tan corduroy jacket, blue shirt, blue jeans, and scuffed-up shoes.\u201d Defendant matched this description when he was identified by Koenig on Bryn Mawr.\nOn cross-examination Koenig testified that he wears glasses for reading. He recalled that there were very few persons on the street at the time of the incident, but lights in the apartments were on. Koenig stated that when he was struck he knew his nose was broken, but he was not in tremendous pain, and during the entire incident, he was not upset.\nChicago Police Officer David Sandlund testified that on June 11, 1972, at approximately 1:25 A.M., he responded to a radio call and proceeded to 5702 North Winthrop. He observed Larry Koenig standing in the street in a dazed condition, bleeding from Ms face and with bruises about his eyes. Koenig told him that he had been robbed and described the offender. Koenig was placed in the squad car to be transported to the hospital. While proceeding south on Winthrop, Koemg observed defendant and yelled \u201cThat\u2019s the man.\u201d When he was stopped and arrested, defendant was walking southbound and was at the northwest comer of Winthrop and Bryn Mawr. Defendant perfectly matched the description previously given by Koemg.\nOn cross-examination the officer testified that some apartment lights were on and that there were approximately 10 street lights on that block. No weapons were found on defendant\u2019s person; he had in Ms possession at the time of his arrest $3.73. The officers attempted to search the area, but neither the pipe nor the broomstick was found. The officer testified that \u201cempty fields\u201d in the area made a thorough search difficult. However, keys and loose change were discovered in the grass at the location of the initial attack.\nIt was stipulated by the parties that if Koenig\u2019s treating physician from Weiss Memorial Hospital were called to testify, he would state that in the early morning hours of June 11, 1972, he examined Larry Koemg and determined that he had suffered a fractured nasal bone and multiple lacerations of the face.\nDefendant, Clarence Briggman, then testified that on the evemng of June 10, 1972, he had been at Bryn Mawr Beach. He spent the evening walking on the beach and talking to persons whom he knew from seeing there. Defendant was unable to name any of the persons he was with that evening. At approximately midnight he left the beach to return to Ms home at 4826 North Winthrop. He walked to Bryn Mawr and then turned south onto WintMop. At tMs point he was stopped by the police and arrested. Defendant stated that he stopped nowhere between the time he left the beach at midnight and the time of his arrest. He also denied ever previously seeing Larry Koenig or ever striking or robbing him.\nAfter the jury had been instructed in the law, one of the jurors asked the trial court if he could ask a question. The court responded:\n\u201cNo sir. You may return to the jury room. If there is a question and the foreman is elected you may write the question on a piece of paper and deliver it to tire bailiff. If it pertains to the case I will consider it. You may not get an answer, you will get a response, but you may not get an answer.\u201d\nDuring the deliberation of the jury, the trial court received a note from the jury which read:\nWhat direction was defendant walking when he was arrested by the policemen as testified to by the policeman.\nThe court instructed the bailiff to \u201ctell the jury there is no answer to the question.\u201d The jury resumed deliberation and thereafter returned verdicts of guilty on all counts.\nTwo recent Illinois Supreme Court opinions, People v. Queen, 56 Ill.2d 560, 310 N.E.2d 166 and People v. Pierce, 56 Ill.2d 361, 308 N.E.2d 577, discuss the issue of a jury\u2019s request to review testimony. Both opinions adopt the view that it is within the discretion of the trial court to allow or refuse a jury\u2019s request to review testimony. The court in Pierce stated its reasons for adoption of this rule:\n\u201cThe trial court will have a full knowledge of the case. It will know the charges against the accused, the witnesses and their supporting or defeating testimony and other evidence which may have been presented. It will be in a position to assess the request and judge whether a review of testimony, considering the circumstances, will be helpful or hurtful to the jury\u2019s proper deliberations. This question of review, like so many others which appear in the course of trial, is best entrusted to the trial court\u2019s sound discretion.\u201d 56 Ill.2d 361, 364.\nThe court in Queen discussed a related issue and held that a statement by the court, in response to the jury\u2019s request to rehear testimony, that it could not consider such a request constituted error. A court\u2019s refusal to exercise discretion in the erroneous belief that it has no discretion as to the issue presented is error.\nWe have perused the record in the instant case, and we conclude that the trial court committed error in refusing the jury\u2019s request. We are of the opinion that this refusal, coupled with the fact that apparently neither defendant nor his attorney was present in the courtroom during the communication with the jury, constitutes error which deprived defendant of his right to a fair trial.\nAs in other situations involving discretion of the trial court, a court of review wiH not disturb a decision within the trial court\u2019s discretion absent a showing of abuse. People v. Pierce, supra. The court in Pierce found no abuse inasmuch as:\n\u201cA review of the testimony [requested by the jury] * * * discloses only testimony that is unequivocally incriminating and damaging to the defendant, who did not present any defense at trial. The jury had already reached two verdicts at the time of its request * * * and it is clear that the defendant\u2019s attorney acted protectively and in the defendant\u2019s interest in agreeing that the testimony * * * should not be reviewed for the jury. If it could be said on any ground that the trial court should not have refused the jury\u2019s request, any consequent error was a species of harmless error, error which favored the defendant and of which he cannot complain. [Citations omitted.]\u201d 56 Ill.2d 361, 364.\nUpon our reading of the record in the instant case we are convinced that this situation is not analogous to that in Pierce. Here the jury requested the policeman\u2019s testimony concerning the direction in which defendant was walking or facing at the time of his arrest. The questioning of the victim and of defendant at trial involved the route taken by the victim from his home to the elevated station at Bryn Mawr, the locations of the attacks and the route taken by defendant from Bryn Mawr Beach to his home. We cannot characterize the testimony requested by the jury as \u201cinsignificant\u201d as does the State; rather we are convinced that a review of the requested testimony, considering the circumstances of this case, would have been crucial to the jury in its deliberation. This testimony was not \u201cunequivocaHy incriminating\u201d to defendant, as in Pierce, but, in fact, corroborated defendant\u2019s testimony regarding his arrest. Moreover, the court\u2019s ambiguous response to the jury may have unintentionally confused or misled the jury.\nThis error must be considered highly prejudicial when it is considered that neither defendant nor his attorney was present when this communication with the jury ensued. Apparently, the attorneys were granted leave by the court when the jury retired to deliberate, and were to be summoned to court when the verdicts were to be returned.\nIt is clear that an accused has an absolute right to be present at proceedings which involve his substantial rights. (People v. Mallett, 30 Ill.2d 136, 195 N.E.2d 687.) It has generally been held that the proper practice is to discuss the jury\u2019s request with defendant\u2019s counsel and the prosecutor prior to responding to that request. (People v. Harmon, 104 Ill.App.2d 294, 244 N.E.2d 358; People v. Longstreet, 2 Ill.App.3d 556, 276 N.E.2d 825.) In People v. Pierce, supra, defendant\u2019s counsel was present during the communication with the jury, but defendant was not present. The court there held that:\n\u201cconsidering that the refusal of the jury\u2019s request was in the defendant\u2019s favor * # we judge it cannot be said that substantial rights of the defendant were affected by the trial court\u2019s refusal. Even if it could be said that- substantial rights were involved and the refusal was error, the error was benign and the defendant will not now be heard to remonstrate.\u201d 56 Ill.2d 361, 365.\nAgain, the situation in the case at bar is not analogous to that in Pierce. The court in Pierce recognized that in some instances concerning communication with the jury, substantial rights of an accused will be involved. Under the circumstances of this case, we are of the opinion that the communication with the jmy as to vital testimony affected the substantial rights of defendant, and that defendant was denied his right to be present at such a proceeding. People v. Harmon, supra.\nThe State relies on People v. Pulley, 11 Ill.App.3d 292, 297, 296 N.E. 2d 373, wherein the court found that \u201cwhile the record seems to suggest that defendant\u2019s attorney was present [during the communication with the jury], it clearly does not indicate that [defendant] was not present.\u201d Further, the court indicated that a request concerning testimony, unlike a request concerning instructions of law, and a refusal of that request, are not grounds for reversal, even if \u201cdefendant\u2019s attorney was not present.\u201d (11 Ill.App.3d 292, 297.) In the case at bar, we reiterate that the testimony sought by the jury was obviously pertinent to their deliberations. We do not rely on Pulley. We conclude that the court erred in refusing the jury\u2019s request to rehear a certain portion of the testimony, and that the court erred in communicating with the jmy outside the presence of defendant and his counsel. These errors resulted in a denial of defendant\u2019s right to a fair trial.\nIt is clear that errors involving an accused\u2019s constitutional rights will not require reversal where such errors are found to be harmless beyond a reasonable doubt. (Chapman v. California, 386 U.S. 18, 17 L.Ed.2d 705, 87 S.Ct. 824.) Once errors of constitutional magnitude have been established, the burden shifts to the State to prove beyond a reasonable doubt that the errors did not contribute to an accused\u2019s conviction. (People v. Bracey, 51 Ill.2d 514, 283 N.E.2d 685.) Viewing all the evidence in the case at bar, we cannot say that the State has sustained its burden. Although defendant was arrested near the scene of the attacks only minutes after the attacks, the money taken from the victim was not recovered and was not in defendant\u2019s possession, and the weapons wielded by the attacker were not found. In addition, the police officer testified that when he arrived at the scene, the victim was in a \u201cdazed condition,\u201d and was bleeding from the face. We therefore are not convinced that the evidence of defendant\u2019s guilt was so overwhelming as to render the errors harmless beyond a reasonable doubt. Accordingly, we reverse defendant\u2019s convictions and remand the cause for a new trial.\nIn view of our disposition of this case, we deem it necessary only to comment upon defendant\u2019s second assignment of error: that he was unduly prejudiced by the prosecutor\u2019s reference in his closing argument to defendant\u2019s admission that on the night of the offenses \u201che had smoked some reefers.\u201d On cross-examination defendant was asked whether he had been drinking on the beach. Defendant admitted drinking wine, and also volunteered the information that he had been smoking \u201creefers.\u201d The following colloquy then ensued:\nProsecutor: You smoke a reefer?\nDefendant: Yes.\nProsecutor: That is what is commonly referred to as marijuana?\nDefendant: Yes.\nDefense Counsel: Objection.\nCourt: Sustained.\nProsecutor: And drinking wine?\nDefendant: Yes.\nNear the conclusion of his closing argument the prosecutor made mention of defendant\u2019s volunteered statement:\n\u201cFurthermore, he told you that he was drinking within that night, and that he had smoked some reefers. Could it be that he doesn\u2019t remember what he did that night? * * *\u201d\nInitially, we note that no objection was raised to the prosecutor\u2019s comment in his argument, and therefore any error may be deemed to have been waived. (People v. Tolefree, 14 Ill.App.3d 754, 303 N.E.2d 555.) However, this court may consider assignments of error as to seriously prejudicial arguments of counsel, even though no objection was made at trial. People v. Moore, 9 Ill.2d 224, 137 N.E.2d 246.\nIn any event, we are of the opinion that, under the circumstances, the prosecutor\u2019s comment was proper. It is well settled that it is proper for a prosecutor to pursue a line of questioning which is initiated by a defendant. (People v. Bridgeforth, 51 Ill. 52, 281 N.E.2d 617.) Here defendant testified on direct examination as to his activities at the beach. The prosecutor pursued this line of questioning and inquired if defendant had been drinking. Defendant then volunteered the information that he had been smoking \u201creefers.\u201d Once defendant volunteered such inform^tion, he assumed the risk that his testimony would be subject to elaboration by cross-examination or comment in closing argument. See People v. Sevastos, 117 Ill.App.2d 104, 252 N.E.2d 745; People v. Snell, 74 Ill.App.2d 12, 219 N.E.2d 554. While defendant\u2019s volunteered statement may have been inadmissible if elicited by the prosecution, it is axiomatic that defendant cannot complain of testimony he volunteered. People v. Musinski, 22 Ill.2d 518, 177 N.E.2d 142; People v. Kirkwood, 17 Ill.2d 23, 160 N.E.2d 766; People v. Pride, 16 Ill.2d 82, 156 N.E.2d 551.\nFurthermore, we are of the opinion that the prosecutor\u2019s question concerning marijuana was merely an attempt to clarify defendant\u2019s volunteered statement, and was well within the scope of proper cross-examination. By a defendant\u2019s testimony, as any other witness\u2019, he opens himself to cross-examination on matters relevantly raised by that testimony. (People v. Sevastos, supra; see People v. Snell, supra.) We are of the opinion that the trial court improperly sustained defense counsel\u2019s general objection to the question. Therefore, defendant\u2019s testimony regarding his use of marijuana was properly in evidence, and was the proper subject of comment by the prosecutor in his closing argument.\nIn view of the foregoing, we need not consider defendant\u2019s remaining assignments of error. The judgment of the trial court is reversed and the cause is remanded for a new trial.\nReversed and remanded.\nLEIGHTON and DOWNING, JJ., concur.", "type": "majority", "author": "Mr. JUSTICE STAMOS" } ], "attorneys": [ "Paul Bradley, of State Appellate Defenders Office, of Chicago, for appellant.", "Bernard Carey, State\u2019s Attorney, of Chicago, for the People." ], "corrections": "", "head_matter": "The People of the State of Illinois, Plaintiff-Appellee, v. Clarence Briggman, Defendant-Appellant.\n(No. 59206;\nFirst District (2nd Division)\nJuly 23, 1974.\nPaul Bradley, of State Appellate Defenders Office, of Chicago, for appellant.\nBernard Carey, State\u2019s Attorney, of Chicago, for the People." }, "file_name": "0747-01", "first_page_order": 771, "last_page_order": 778 }