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      "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PHILLIP J. PETERSON, Defendant-Appellant."
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        "text": "JUSTICE McCULLOUGH\ndelivered the opinion of the court:\nOn April 19, 2005, a jury found defendant, Phillip J. Peterson, guilty of first degree murder. The trial court later sentenced him to 45 years in prison with credit for 649 days served. Defendant appeals, arguing (1) he is entitled to a new trial because the jury instructions incorrectly defined the \u201cknowing\u201d element of murder and the court denied the jury\u2019s request for clarification, (2) the court erred by denying his motion to suppress statements he made to police, and (3) he is entitled to two additional days of sentence credit. We affirm.\nOn January 26, 2004, a grand jury indicted defendant on three counts of first degree murder (720 ILCS 5/9 \u2014 1(a)(1), (a)(2) (West 2002)) in connection with the shooting death of his girlfriend, Jena Schuch. The indictment alleged defendant (1) shot Schuch with a shotgun with the intent to kill or cause great bodily harm, (2) shot Schuch with a shotgun knowing said act would cause Schuch\u2019s death, and (3) discharged a firearm knowing said act created a strong probability of death or great bodily harm to Schuch.\nOn June 9, 2004, defendant filed an omnibus motion to suppress. In connection with that motion, defendant contended, inter alia, statements he made to police officer Joseph Childress shortly after police arrived on the scene of the shooting should have been suppressed. He argued his statements resulted from a custodial interrogation but he was not advised of his Miranda rights (see Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966)). On February 28, 2005, the trial court denied that portion of defendant\u2019s motion.\nOn April 11, 2005, defendant\u2019s jury trial began. On April 19, 2005, following the presentation of evidence and arguments of the parties, the trial court instructed the jury on the offense of first degree murder and the included offense of involuntary manslaughter. Without objection from either party, the court also instructed the jury on the definitions of knowledge and recklessness.\nDuring deliberations, the jury sent a note to the trial court requesting \u201cclarification of a person acting recklessly [versus a] person acting knowingly.\u201d The jury\u2019s note stated that the jurors knew and were reading the definitions in the instructions but were having a difficult time determining the difference. Defense counsel suggested that the court direct the jurors to rely upon their own reading of the instructions to determine the verdict. The court replied to the jury, stating it had been fully instructed as to the law on those issues and asking the jurors to continue their deliberations. Later, on April 19, 2005, the jury returned a verdict, finding defendant guilty of first degree murder.\nOn May 10, 2005, defendant filed a posttrial motion. He noted that his motion was being filed without the benefit of trial transcripts and incorporated all objections made during the trial and all pretrial and trial motions the trial court denied, including his motion to suppress. Defendant further asserted that the evidence was insufficient to convict him beyond a reasonable doubt. On August 2, 2005, the court denied defendant\u2019s posttrial motion and sentenced him as stated.\nThis appeal followed.\nOn appeal, defendant, citing People v. Griffin, 351 Ill. App. 3d 838, 815 N.E.2d 52 (2004), first argues that the jury instructions incorrectly defined the \u201cknowing\u201d element of murder, resulting in jury confusion. Specifically, he contends the trial court erred by providing the jury with both paragraphs 1 and 2 of Illinois Pattern Jury Instructions, Criminal, No. 5.01B (4th ed. 2000) (hereinafter IPI Criminal 4th No. 5.01B), defining knowledge, when only paragraph 2 applied. Further, he maintains this error was compounded when the court failed to clarify the definition of knowledge for the jury. Defendant admits that he failed to preserve this issue for review but contends this court may consider it on appeal pursuant to the plain-error rule or because his trial counsel provided ineffective assistance.\nThe State maintains Griffin is distinguishable because it involved the omission of a necessary jury instruction, i.e., paragraph 2 of IPI Criminal 4th No. 5.01B, and in this case both paragraphs 1 and 2 of IPI Criminal 4th No. 5.01B were given. Further, it argues that a case more directly on point is People v. Palmer, 352 Ill. App. 3d 891, 894, 817 N.E.2d 137, 140 (2004), where this court held that a jury was not misled by an extraneous instruction, i.e., paragraph 1 of IPI Criminal 4th No. 5.01B. The State also asserts that the plain-error rule does not apply and that defendant failed to establish his trial counsel was ineffective.\nIPI Criminal 4th No. 5.01B contains three separate paragraphs; however, only paragraphs 1 and 2 are relevant to this appeal. The relevant portions of IPI Criminal 4th No. 5.01B provide as follows:\n\u201c[1] A person [(knows) (acts knowingly with regard to) (acts with knowledge of)] the nature or attendant circumstances of his conduct when he is consciously aware that his conduct is of such nature or that such circumstances exist. Knowledge of a material fact includes awareness of the substantial probability that such fact exists.\n[2] A person [(knows) (acts knowingly with regard to) (acts with knowledge of)] the result of his conduct when he is consciously aware that such result is practically certain to be caused by his conduct.\u201d\nThe committee notes to IPI Criminal 4th No. 5.01B further provide that paragraph 1 is to be used if the offense is defined in terms of prohibited conduct and paragraph 2 is to be used if the offense is defined in terms of prohibited result. If both conduct and result are at issue, then both paragraphs should be used. IPI Criminal 4th No. 5.01B, Committee Note, at 142.\nIn People v. Lovelace, 251 Ill. App. 3d 607, 617, 622 N.E.2d 859, 866 (1993), cited in the committee notes, the Second District was asked to determine whether the trial court improperly instructed the jury in connection with the defendant\u2019s aggravated-battery charges when it instructed the jury pursuant to only the first paragraph of IPI Criminal 4th No. 5.01B and not the second. The court found both conduct and result were in issue \u201cbecause the indictment charged [the] defendant with both aggravated battery by knowingly causing great bodily harm and aggravated battery of a peace officer with the underlying battery based on knowingly causing bodily harm.\u201d Lovelace, 251 Ill. App. 3d at 619, 622 N.E.2d at 867. Therefore, it determined the trial court erred by not giving the jury both paragraphs of IPI Criminal 4th No. 5.01B. Lovelace, 251 Ill. App. 3d at 618, 622 N.E.2d at 867.\nIn Griffin, 351 Ill. App. 3d at 839-40, 815 N.E.2d at 53-54, the case relied upon by defendant, the defendant was charged with first degree murder. The trial court instructed the jury on both first degree murder and involuntary manslaughter, as well as the definition of recklessness. Griffin, 351 Ill. App. 3d at 851-52, 815 N.E.2d at 63. During deliberations the jury expressed confusion over the definitions of knowledge and intent. Griffin, 351 Ill. App. 3d at 852, 815 N.E.2d at 63. In response, the court provided the jury with IPI Criminal 4th No. 5.01A, defining intent, and paragraph 1 of IPI Criminal 4th No. 5.01B, defining knowledge. Griffin, 351 Ill. App. 3d at 852, 815 N.E.2d at 63. Although the defendant argued the court should have instructed the jury using paragraph 2, because the result of the defendant\u2019s conduct was at issue, the court agreed with the State\u2019s position that only paragraph 1 was necessary. Griffin, 351 Ill. App. 3d at 852, 815 N.E.2d at 63.\nOn appeal, the defendant argued the trial court improperly instructed the jury on the definition of knowledge because it selected the wrong language from IPI Criminal 4th No. 5.01B. Griffin, 351 Ill. App. 3d at 851, 815 N.E.2d at 62-63. This court determined that instructing the jury pursuant to only the first paragraph of IPI Criminal 4th No. 5.01B was error. Griffin, 351 Ill. App. 3d at 852, 815 N.E.2d at 63. In so holding, we noted that there was no dispute over whether the defendant performed the acts that caused the victim\u2019s death and the only disagreement centered on the defendant\u2019s mental state when she performed those acts. Griffin, 351 Ill. App. 3d at 854, 815 N.E.2d at 64-65.\nIn Palmer, 352 Ill. App. 3d at 892, 817 N.E.2d at 138, the case relied upon by the State, the trial court instructed the jury as to the charged offense, aggravated battery. During deliberations, the jury asked the court to define \u201cknowingly.\u201d Palmer, 352 Ill. App. 3d at 892, 817 N.E.2d at 138-39. Without objection from the defendant, the court instructed the jury pursuant to both paragraphs 1 and 2 of IPI Criminal 4th No. 5.01B. Palmer, 352 Ill. App. 3d at 892, 817 N.E.2d at 139.\nOn appeal, the defendant argued the trial court erred by giving instructions pursuant to both paragraphs 1 and 2 of IPI Criminal 4th No. 5.01B when only the second paragraph was necessary. Palmer, 352 Ill. App. 3d at 893, 817 N.E.2d at 139. This court began by noting that the second paragraph of IPI Criminal 4th No. 5.01B, concerning the result of a defendant\u2019s conduct, was the appropriate instruction because the issue in the case was whether the defendant knowingly caused bodily harm when he hit the victim. Palmer, 352 Ill. App. 3d at 893, 817 N.E.2d at 139-40. However, we distinguished Lovelace, pointing out that it involved the trial court\u2019s omission of a necessary instruction, whereas the case at bar involved the court\u2019s inclusion of an extraneous instruction. Palmer, 352 Ill. App. 3d at 893-94, 817 N.E.2d at 139-40.\nThis court noted that the given instructions were an accurate statement of the law, not conflicting or legally incorrect. Palmer, 352 Ill. App. 3d at 894, 817 N.E.2d at 140. Additionally, we stated \u201cone part of the instruction was simply irrelevant to the issues raised in the case\u201d and \u201c[i]f the jury was confused, it was because it was trying to find a use for the portion of IPI Criminal 4th No. 5.01B relating to knowledge of circumstances.\u201d Palmer, 352 Ill. App. 3d at 894, 817 N.E.2d at 140. After considering all of the jury instructions together, we determined that the jury was not misled by the extraneous instruction. Palmer, 352 Ill. App. 3d at 894, 817 N.E.2d at 140. Further, we stated that \u201c[t]he presence of the extraneous instruction was not a substantial defect that would render the trial fundamentally unfair or excuse defendant\u2019s failure to object to the instruction at trial.\u201d Palmer, 352 Ill. App. 3d at 894, 817 N.E.2d at 140. Giving the instructions was not error.\nHere, defendant also argues the trial court erred by denying the jury\u2019s request for clarification of a person acting knowingly versus a person acting recklessly. Regarding a jury\u2019s request for clarification of instructions, this court has stated as follows:\n\u201cWhen a jury raises an explicit question manifesting juror confusion on a substantive legal issue, the trial court is obligated to respond. However, a trial court has discretion to refuse to answer and should consider factors including whether the instructions are readily understandable and sufficiently explain the relevant law, whether further instructions would serve no useful purpose or would potentially mislead the jury, whether the jury\u2019s inquiry involves a question of fact, or whether giving an answer would cause the court to express an opinion that would likely direct a verdict one way or another.\u201d People v. Comage, 303 Ill. App. 3d 269, 273, 709 N.E.2d 244, 247 (1999), citing People v. Childs, 159 Ill. 2d 217, 228-29, 636 N.E.2d 534, 539 (1994).\nAs noted by the parties, defendant has forfeited these issues on appeal because he failed to make objections at trial and failed to include the issues in his posttrial motion. See People v. Enoch, 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1130 (1988) (to preserve an issue for appeal, a defendant must object to the alleged error at trial and include it in a written posttrial motion). However, defendant contends we may review his alleged errors under the plain-error doctrine or because his trial counsel provided ineffective assistance.\nSupreme Court Rule 451(c) (210 Ill. 2d R. 451(c)) provides for review of substantial defects in jury instructions if the interests of justice require. Rule 451(c) is coextensive with the plain-error rule and the two are construed identically. People v. Herron, 215 Ill. 2d 167, 175, 830 N.E.2d 467, 473 (2005). \u201cAn erroneous jury instruction may be considered plain error only where evidence of guilt is closely balanced or when the error denied the defendant a fair trial.\u201d Griffin, 351 Ill. App. 3d at 855, 815 N.E.2d at 65.\nHere, the jury was adequately instructed and neither the trial court\u2019s inclusion of an extraneous jury instruction nor its response to the jury\u2019s request for clarification constitutes plain error. The parties agree that defendant committed the acts that resulted in Schuch\u2019s death and that the central issue in the case was defendant\u2019s mental state, i.e., whether he acted knowingly or recklessly. Paragraph 2 of IPI Criminal 4th No. 5.01B, regarding the prohibited result of a defendant\u2019s conduct, was the appropriate instruction, and the record reflects it was given to the jury.\nUnlike Lovelace and Griffin, the trial court did not omit a necessary instruction. Instead, it included paragraph 1 of IPI Criminal 4th No. 5.01B, an extraneous instruction. As in Palmer, we find the given instructions constituted an accurate statement of the law. Further, although the jury requested clarification of a person acting recklessly versus a person acting knowingly, it does not necessarily follow that its difficulty stemmed from the inclusion of paragraph 1 of IPI Criminal 4th No. 5.01B in the jury\u2019s instructions. The jury was instructed that \u201c[a] person acts knowingly with regard to the result of his conduct when he is consciously aware that such result is practically certain to be caused by his conduct.\u201d The jury was not misled and the inclusion of paragraph 1 of IPI Criminal 4th No. 5.01B was not a substantial defect rendering the trial fundamentally unfair.\nRegarding the trial court\u2019s response to the jury\u2019s request for clarification, we note defendant not only failed to object to the court\u2019s response, his counsel specifically requested the given response. The jury\u2019s confusion centered on the definition of recklessness versus the definition of knowledge. The jurors had before them appropriate instructions defining both terms. Moreover, defendant has failed to suggest a response that the court could have given that would not have been cumulative of information already before the jury. The trial court\u2019s response to the jury was not a substantial defect that rendered the trial fundamentally unfair.\nAlso, the evidence in this case was not closely balanced. Although defendant consistently maintained the shooting was an accident, the record reflects he gave several different versions of how the shooting occurred. None of defendant\u2019s versions were consistent with the physical evidence.\nThe jury was adequately instructed and the given instructions were an accurate statement of the law. The record is clear. The trial court\u2019s rulings do not constitute plain error.\nDefendant further argues that this court may consider his alleged errors because his trial counsel provided ineffective assistance. To establish ineffective assistance of counsel a defendant must show (1) his counsel\u2019s performance was deficient, falling below an objective standard of reasonableness and (2) he was prejudiced in that, absent counsel\u2019s deficient performance, a reasonable probability exists that the results of the proceeding would have been different. People v. Evans, 209 Ill. 2d 194, 219-20, 808 N.E.2d 939, 953-54 (2004), citing Strickland v. Washington, 466 U.S. 668, 687, 694, 80 L. Ed. 2d 674, 693, 698, 104 S. Ct. 2052, 2064, 2068 (1984). \u201c[A] defendant must satisfy both the performance and prejudice prongs of Strickland.\u201d Evans, 209 Ill. 2d at 220, 808 N.E.2d at 954. Defendant has failed to satisfy either Strickland prong.\nDefendant next argues the trial court erred by denying his motion to suppress regarding statements he made to Officer Childress. Specifically, he contends his statements were made during a custodial interrogation and he was not advised of his Miranda rights. The State responds that defendant\u2019s statements were admissible because they resulted from general on-the-scene questioning. Alternatively, it contends (1) defendant failed to prove he was in custody when Childress questioned him or (2) any error was harmless.\nAt defendant\u2019s suppression hearing, Childress testified that on September 13, 2003, he was a police officer and was dispatched to the scene of a shooting. He arrived on the scene at approximately the same time as two other uniformed police officers, Donald Gillette and Carl Crawford, and saw defendant standing outside of a residence. Childress testified he made contact with defendant and asked defendant who the victim was and where he or she was located. Childress noted defendant had blood on his clothes.\nAccording to Childress, defendant directed the officers into a residence. Upon entering, Childress observed the shooting victim, who was later identified as Schuch. Childress checked the residence for additional occupants while Gillette and Crawford attended to Schuch. Childress then went outside and had further contact with defendant that was \u201cmore extensive than [their] initial contact.\u201d Specifically, Childress asked defendant \u201cwhat happened\u201d and, in response, defendant provided a statement about how the shooting occurred. We note that the statement provided by defendant was inconsistent with both previous and subsequent statements he made to police and others.\nChildress testified his conversation with defendant lasted for only a couple of minutes and that he did not read defendant his Miranda rights. He stated defendant was not a suspect at that point in the investigation. Further, defendant was not in custody; however, he would not have been permitted to leave the scene.\nPursuant to Miranda, 384 U.S. at 444, 16 L. Ed. 2d at 706-07, 86 S. Ct. at 1612, a defendant\u2019s statements must be suppressed if made in response to a custodial police interrogation \u201cunless preceded by a statement of basic constitutional rights and a waiver of those rights.\u201d People v. Newsome, 117 Ill. App. 3d 1005, 1007, 454 N.E.2d 353, 355 (1983). A custodial interrogation involves \u201cquestioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.\u201d Miranda, 384 U.S. at 444, 16 L. Ed. 2d at 706, 86 S. Ct. at 1612.\n\u201cMiranda warnings are not *** necessary where the police conduct a general on-the-scene questioning as to facts surrounding a crime.\u201d People v. Parks, 48 Ill. 2d 232, 237, 269 N.E.2d 484, 487 (1971); Miranda, 384 U.S. at 477-78, 16 L. Ed. 2d at 725-26, 86 S. Ct. at 1629-30. \u201cIn such situations the compelling atmosphere inherent in the process of in-custody interrogation is not necessarily present.\u201d Miranda, 384 U.S. at 478, 16 L. Ed. 2d at 726, 86 S. Ct. at 1630.\nReview of a trial court\u2019s ruling on a motion to suppress presents mixed questions of law and fact. People v. Pitman, 211 Ill. 2d 502, 512, 813 N.E.2d 93, 100 (2004). The court\u2019s factual findings will be upheld unless they are against the manifest weight of the evidence. Pitman, 211 Ill. 2d at 512, 813 N.E.2d at 100. Its ruling on the ultimate question of whether to suppress the evidence is subject to de novo review. Pitman, 211 Ill. 2d at 512, 813 N.E.2d at 101.\nA review of the record reflects the trial court properly denied defendant\u2019s motion to suppress his statements to Childress. Childress was one of the first police officers to arrive on the scene of the shooting. Upon his arrival, he saw defendant, who directed him to the victim\u2019s location. After observing the victim, Childress asked defendant one question, \u201cwhat happened.\u201d In response, defendant provided a statement of how the shooting occurred. Their conversation lasted only a short period of time and occurred outside near the scene of the shooting.\nIn this instance, Childress\u2019s actions constituted general on-the-scene questioning as to facts surrounding a possible crime. Therefore, Miranda warnings were not required. Given our resolution of this issue, we need not address the State\u2019s remaining contentions.\nFinally, defendant contends he is entitled to two additional days of sentence credit. Specifically, he maintains he is entitled to 651 days of sentence credit instead of the 649 days ordered by the trial court because he was taken into custody on October 22, 2003, and remained in custody through August 2, 2005, the date he was sentenced. The State maintains the court\u2019s sentence-credit calculation is off by only one day because defendant is not entitled to credit for the day he was sentenced. However, it asks this court to take judicial notice of the Illinois Department of Corrections\u2019s (DOC) public records and find that defendant is not entitled to any additional sentence credit because DOC has already provided him with all of the credit to which he is legally entitled.\nA defendant must receive sentence credit \u201cfor time spent in custody as a result of the offense for which the sentence was imposed.\u201d 730 ILCS 5/5 \u2014 8\u20147(b) (West 2004). A defendant should receive credit against his sentence for any part of a day that he is held in custody. People v. Compton, 193 Ill. App. 3d 896, 904, 550 N.E.2d 640, 645 (1990). However, \u201ca defendant will not be credited for the day of sentencing in which he is remanded to [DOC].\u201d People v. Foreman, 361 Ill. App. 3d 136, 157, 836 N.E.2d 750, 768 (2005). Additionally, this court may take judicial notice of DOC\u2019s records because they are public documents. People v. White, 357 Ill. App. 3d 1070, 1072, 831 N.E.2d 657, 659 (2005); Ashley v. Pierson, 339 Ill. App. 3d 733, 739-40, 791 N.E.2d 666, 671-72 (2003).\nHere, defendant argues he is entitled to sentence credit beginning October 22, 2003, through the date of his sentencing. The record shows he was arrested on that date and, thereafter, remained in custody. As the State points out, DOC\u2019s records reflect defendant\u2019s \u201ccustody date\u201d to be October 22, 2003. Its records further show his projected parole date to be October 22, 2048, and his discharge-from-parole date to be October 22, 2051. Thus, DOC has provided defendant with all of the sentence credit to which he is entitled and it is unnecessary for this court to award any additional credit.\nFor the reasons stated, we affirm the trial court\u2019s judgment. As part of our judgment, we grant the State its statutory assessment of $50 against defendant as costs of this appeal.\nAffirmed.\nSTEIGMANN, EJ., concurs.",
        "type": "majority",
        "author": "JUSTICE McCULLOUGH"
      },
      {
        "text": "JUSTICE COOK,\nspecially concurring:\nI concur, but it does appear the pattern instructions are confusing.\nIf defendant knows that his acts \u201ccreate a strong probability of death or great bodily harm,\u201d he is guilty of first degree murder. 720 ILCS 5/9 \u2014 1(a)(2) (West 2004). If defendant recklessly performed acts that \u201care likely to cause death or great bodily harm,\u201d he is only guilty of involuntary manslaughter. 720 ILCS 5/9 \u2014 3(a) (West 2004). There does not seem to be much difference between acts creating \u201ca strong probability\u201d and acts \u201clikely.\u201d\nA person \u201cacts knowingly\u201d with regard to \u201c[t]he nature or attendant circumstances of his conduct *** when he is consciously aware that his conduct is of such nature or that such circumstances exist.\u201d (Emphasis added.) 720 ILCS 5/4 \u2014 5(a) (West 2004). A person \u201cacts recklessly, when he consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow.\u201d (Emphasis added.) 720 ILCS 5/4 \u2014 6 (West 2004). There does not seem to be much difference between acting knowingly and acting recklessly, except that \u201crecklessly\u201d is phrased in the negative. There does not seem to be much difference between being consciously aware that acts create a strong probability of death or great bodily harm and consciously disregarding a substantial and unjustifiable risk that death or great bodily harm will result.\nThe analysis may be different in this case than in cases involving a fight situation, such as DiVincenzo. If a defendant is playing with a loaded weapon and it goes off and kills someone, it would appear that defendant was consciously aware that his acts created a strong probability of death or great bodily harm (first degree murder). It would also appear that defendant consciously disregarded a substantial and unjustifiable risk that such a result would follow (involuntary manslaughter). How is a jury to distinguish between the two offenses?",
        "type": "concurrence",
        "author": "JUSTICE COOK,"
      }
    ],
    "attorneys": [
      "Daniel D. Yuhas and Keleigh L. Biggins, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.",
      "John E Schmidt, State\u2019s Attorney, of Springfield (Norbert J. Goetten, Robert J. Biderman, and Anastacia R. Brooks, all of State\u2019s Attorneys Appellate Frosecutor\u2019s Office, of counsel), for the Feople."
    ],
    "corrections": "",
    "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PHILLIP J. PETERSON, Defendant-Appellant.\nFourth District\nNo. 4\u201405\u20140698\nOpinion filed April 18, 2007.\nDaniel D. Yuhas and Keleigh L. Biggins, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.\nJohn E Schmidt, State\u2019s Attorney, of Springfield (Norbert J. Goetten, Robert J. Biderman, and Anastacia R. Brooks, all of State\u2019s Attorneys Appellate Frosecutor\u2019s Office, of counsel), for the Feople."
  },
  "file_name": "1010-01",
  "first_page_order": 1026,
  "last_page_order": 1036
}
