People v. Flynn
Annotate this Case
No. 2--96--0016
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
__________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Kane County.
)
Plaintiff-Appellee, )
) No. 94--CF--800
v. )
)
JEFFREY M. FLYNN, ) Honorable
) Barry E. Puklin,
Defendant-Appellant. ) Judge, Presiding.
___________________________________________________________________
JUSTICE BOWMAN delivered the opinion of the court:
Defendant, Jeffrey Flynn, was charged with one count each of
home invasion (720 ILCS 5/12--11 (West 1994)), residential burglary
(720 ILCS 5/19--3(a) (West 1994)), and robbery (720 ILCS 5/18--1(a)
(West 1994)) stemming from an incident on May 11, 1994, where
Charles Loftus and Roger Schroeder (the complainants) encountered
him in the bedroom of their apartment. The trial court directed a
verdict as to the home invasion charge. The jury found defendant
guilty of residential burglary and robbery. The trial court
sentenced defendant to a term of 15 years' incarceration.
Defendant now appeals his conviction. We affirm.
BACKGROUND
Defendant was indicted on May 24, 1994. On August 5, 1994,
the trial court received a psychological consultation report about
defendant from the Kane County Diagnostic Center. The report
concluded that he was fit to stand trial, documented his diagnosis
of paranoid type schizophrenia, and described his use of
psychotropic medication. Immediately before trial began on January
23, 1995, defense counsel informed the trial court that defendant
"is competent synthetically. He has Thorazine prescribed for him.
The medicine *** has been revised to Stelazine."
At trial, Charles Loftus, the residential burglary
complainant, testified that in May 1994 he lived in an apartment
maintained by the Association for Individual Development (AID). He
explained that he lived with Roger, whose last name Loftus could
not recall, and Gary Scheckter. Loftus and Roger shared a bedroom
in the apartment. Sometime early on the morning of May 11, 1994,
he awoke suddenly and saw defendant, wearing "a cap and an
overcoat," standing in the bedroom. Loftus turned on the light in
the bedroom after he awoke. After he saw defendant, defendant went
over to Roger's bed and "wrestled with him." At that point, Loftus
saw defendant reach into Roger's pocket. He thought defendant
"pulled out money." While Loftus did not see anything in
defendant's hand, he "heard" that defendant had taken $14. After
the struggle with Roger ended, defendant left the apartment. Later
that morning, Loftus identified defendant's picture in a
photographic lineup. Loftus identified the defendant in court as
the person he saw when he awoke on the morning of May 11, 1994.
On cross-examination, Loftus admitted that he told
investigating officers that when he awoke he saw a "man in the
closet." However, Loftus testified at trial that the man in his
bedroom "didn't touch the closet." He further explained that when
he turned on the light in the bedroom Roger was awake. The man he
saw in the bedroom on May 11 wore a dark brown "20's style" cap and
a black knee-length overcoat. Loftus thought that the man hit
Roger in the stomach during their bedroom struggle.
Roger Schroeder, the robbery complainant, testified that in
May 1994 he lived with Charles Loftus and Gary Scheckter. On the
morning of May 11, 1994, Schroeder heard his bedroom door open and
a man entered his room and looked in the closet. The man then
approached Schroeder and asked him, "Do you have any money[?]" The
man held Schroeder down on his bed and Schroeder gave him 16 cents.
The intruder put the money in his pocket and then left the room.
At the time of the occurrence, the bedroom light was not on but the
room was "fairly well lit" by a light from the parking lot. When
asked by the prosecutor, Schroeder was unable to identify defendant
in court as the intruder.
On cross-examination, Schroeder explained that on May 10 he
went to bed at about 11 p.m. and the intruder arrived sometime
between 2:30 a.m. and 4 a.m. on May 11. According to Schroeder,
the intruder carried a knife. Schroeder observed the intruder
"going through" some pants in the closet. Schroeder stated that,
at the time he was struggling with the intruder, Loftus was asleep.
Schroeder denied that the intruder struck him in the stomach.
According to Schroeder, the intruder was "wearing a tan corduroy
coat with a *** brown fur collar" and was not wearing a hat. On
redirect examination, Schroeder denied telling police officers that
the intruder had stolen between $14 and $20.
Marja Huzevka testified that she is the clinical coordinator
at AID. She is Loftus' counselor and meets with him once per week
to work on his socialization skills, which were impaired by his
long institutionalization. Huzevka also used to visit with
Schroeder once per month until his departure from the AID program.
Loftus and Schroeder used to share a bedroom at the AID facility,
where they were taught self-care, housekeeping, money management,
community integration, and social skills that they had lost during
their illnesses. According to Huzevka, the only way that defendant
would have had the authority to be inside the building would be if
the complainants had consented to his presence. On cross-
examination, Huzevka admitted that, based on her experience with
Loftus, he demonstrates "some confusion at times about time
periods." She also explained that she had been present for a
conversation between Loftus and an assistant State's Attorney
wherein Loftus stated that defendant had previously been in the
apartment earlier on the night in question. On redirect
examination, Huzevka stated that Loftus is "very specific about
relating information *** about events."
Sergeant Nicholas Cornado of the Aurora police department
testified that on the morning of May 11, 1994, he met with Loftus,
Schroeder, and Huzevka because Loftus and Schroeder were signing
complaints against defendant. Sergeant Cornado interviewed Loftus
and Schroeder separately. Both complainants were shown
photographic lineups; while Loftus identified defendant in a
photograph, Schroeder was unable to make a positive identification.
During his interview, Schroeder described the intruder as a
black male, but, because it was dark and he was not wearing his
glasses at the time, Schroeder was unable to describe the
intruder's height and weight. Schroeder told Sergeant Cornado that
the intruder asked him for money while he was in bed. The intruder
then "rummaged through the bedroom closet." After Loftus turned on
the bedroom light, the intruder held down Schroeder, reached into
his pocket, and removed some money. Schroeder told Sergeant
Cornado that the intruder had removed $16 from his pocket.
Sergeant Cornado did not recall Schroeder saying anything about the
intruder carrying a knife. On cross-examination, Sergeant Cornado
stated that Loftus explained that he did not know the intruder, but
he told the police defendant's name because it was given to him by
a caseworker.
Officer Nancy Joan Stefanski of the Aurora police department
testified that she responded to the complainants' residence at 2:50
a.m. on May 11, 1994. Once there, Schroeder told her that an
intruder had taken close to $20 from him.
Jayarama Naidu, a psychiatrist, treated both Loftus and
Schroeder. The first time Loftus was evaluated, approximately one
year before trial, he suffered from "major depression" and
"borderline intellectual functioning." Loftus' depression
consisted of "feeling down in the dumps," having no energy, not
being able to concentrate, and not being able to take care of
himself. Through the use of medication, Loftus stabilized his
depression. His medications do not have side effects which would
diminish his ability to perceive events around him or truthfully
relate those events. Loftus' borderline intellectual functioning
indicates that "his average IQ seems to be around high 70's and low
80's." As such, he can neither process data quickly nor engage in
intelligent conversations. His condition, however, does not impact
his ability to perceive and understand events. His memory and
truthfulness are also unaffected by his condition. According to
Dr. Naidu, Loftus' conditions do not affect "the main body of his
memory, but because of the anxiety he might forget minor details."
In Dr. Naidu's opinion, Loftus' perception of important events is
magnified because of his anxiety and those events "make a greater
impression on [his] memory."
Dr. Naidu also evaluated Schroeder. Schroeder experiences
"dementia with Alzheimer Type." In addition to the memory problems
associated with Alzheimer's disease, Schroeder also experiences an
inability to care for himself. In May 1994, Schroeder was
experiencing confusion and memory problems. Because of his
Alzheimer's disease, "he really cannot remember anything at all ***
he tends to make up stories *** to fill in the gaps." On cross-
examination, Dr. Naidu further explained that Schroeder has
impaired short- and long-term memory, abstract thinking, and
judgment.
On redirect examination, Dr. Naidu stated that in May 1994
Loftus had been stable for more than a year and did not experience
any depressive tendencies. Moreover, in May 1994, Loftus was not
suffering from a diminished ability to concentrate, was not
psychotic or demented, was not hearing voices or seeing things, and
was not suffering from confabulation, a type of brain damage.
At the conclusion of Dr. Naidu's testimony, the State rested
its case in chief. The trial court granted defendant's motion for
a directed verdict as to the home invasion count and denied his
motion for a directed verdict as to the remaining counts.
Defendant then presented his case in chief.
Janice Lear, defendant's cousin, testified that defendant
lived with her in May 1994. On the evening of May 10, 1994,
defendant was "going in and out" of Lear's apartment while she
watched a series of television programs, the last of which began at
1 a.m. on May 11, 1994. She and defendant went to sleep in the
living room at approximately 1:30 a.m. Before retiring, Lear
locked the door to her apartment; defendant did not have a key to
the apartment. When she awoke later that morning, defendant was on
the couch across from her. On cross-examination, Lear admitted
that she had been convicted of forgery in 1990 and retail theft and
deceptive practices in 1991. She further explained that it is a
short three-minute walk from her apartment to the complainants'
residence. Finally, she admitted that, if a person unlocks her
door from the inside, he does not need a key to get back in later.
After the entry of stipulated testimony regarding the 1 a.m.
program Lear watched on May 11, 1994, defendant rested his case in
chief. On January 25, 1995, the jury found defendant guilty of
residential burglary and robbery.
Nonpublishable material under Supreme Court Rule 23 omitted.
On March 3, 1995, a new attorney was appointed for defendant
after he alleged that trial counsel had been ineffective. After a
hearing on December 8, 1995, the trial court denied defendant's
motion for new trial based on ineffective assistance of trial
counsel. On December 29, 1995, the trial court denied defendant's
posttrial motion and sentenced him to 15 years' imprisonment.
Thereafter, defendant filed this appeal.
On appeal, defendant has four contentions. He contends that
his convictions should be reversed because (1) the State failed to
prove him guilty beyond a reasonable doubt of residential burglary
and robbery; (2) he was not given a pretrial fitness hearing
regarding his use of a psychotropic drug; (3) the jury was
improperly instructed; and (4) the trial court erred in accepting
the jury verdict despite juror Patricia Hoffer's inconsistent
statements during polling. We will consider defendant's
contentions separately.
I
The material in this section is not to be published pursuant
to Supreme Court Rule 23.
Nonpublishable material under Supreme Court Rule 23 omitted.
II
Defendant's second contention on appeal is that, because he
was not given a pretrial fitness hearing regarding his use of a
psychotropic drug, he is entitled to a new trial. Defendant bases
his contention on a line of supreme court cases which held that
defendants who ingest psychotropic medication during trial and are
not first given a fitness hearing are entitled to an automatic
reversal of their convictions without regard to their actual
condition at the time of the proceedings below. See, e.g., People
v. Nitz, 173 Ill. 2d 151 (1996); People v. Birdsall, 172 Ill. 2d 464 (1996); People v. Gevas, 166 Ill. 2d 461 (1995); People v.
Brandon, 162 Ill. 2d 450 (1994). The State argues that we should
instead follow the supreme court's most recent pronouncement in
People v. Burgess, 176 Ill. 2d 289 (1997). There, the court held
that the "rule of automatic reversal" is not appropriate in cases
where a defendant's use of psychotropic medication did not affect
his mental functioning at the time of trial or sentencing.
Burgess, 176 Ill. 2d at 303. Before examining the merits of
defendant's contention, we believe that a brief review of the
supreme court's decisions is appropriate.
A
In People v. Brandon, 162 Ill. 2d 450 (1994), the supreme
court considered the defendant's argument that, under section 104--
21(a) of the Code of Criminal Procedure of 1963 (Code) (725 ILCS
5/104--21(a) (West 1994)), he was entitled to a fitness hearing
because he had been taking psychotropic medications continuously
through trial and sentencing. Brandon, 162 Ill. 2d at 456.
Section 104--21(a) of the Code provides in relevant part that "[a]
defendant who is receiving psychotropic drugs or other medications
under medical direction is entitled to a hearing on the issue of
his fitness while under medication." 725 ILCS 5/104--21(a) (West
1994).
The Brandon court construed the plain language of section 104-
-21(a) and determined that, consistent with due process (see Medina
v. California, 505 U.S. 437, 439, 120 L. Ed. 2d 353, 359, 112 S. Ct. 2572, 2574 (1992)), defendants had the right to a fitness
hearing if they were ingesting psychotropic medication at the time
of proceedings below (Brandon, 162 Ill. 2d at 455-56). Moreover,
the Brandon court held that this matter was not committed to the
discretion of the trial court; given a defendant's entitlement to
a fitness hearing and an expressed decision to invoke that right,
a trial court was under a duty to hold a fitness hearing. Brandon,
162 Ill. 2d at 461; see People v. Britz, 174 Ill. 2d 163, 195
(1996). Thus, because he had taken psychotropic medication and had
not received a fitness hearing, the defendant in Brandon was
entitled to a new trial. Brandon, 162 Ill. 2d at 459, 461.
Finally, the Brandon court also held that a defendant on
psychotropic medication could not knowingly waive issues arising
under section 104--21(a) of the Code. Therefore, issues improperly
preserved for appeal were reviewed as plain error. Brandon, 162 Ill. 2d at 457-58.
The supreme court revisited section 104--21(a) in People v.
Gevas, 166 Ill. 2d 461 (1995), and recognized that the
administration of psychotropic medication equated with a bona fide
doubt as to fitness to stand trial. Gevas, 166 Ill. 2d at 469-70.
In Gevas, the trial court was informed of the defendant's use of
psychotropic medication, but refused to conduct a fitness hearing.
As such, a reversal of the defendant's convictions and sentences
was warranted. Gevas, 166 Ill. 2d at 467-68. After Gevas, the
supreme court consistently held that, where the evidence
demonstrated that a defendant ingested psychotropic medication and
did not receive a fitness hearing, he was entitled to either a
remand for new trial or for a hearing to determine whether the
trial court had a duty to conduct a fitness hearing. See, e.g.,
Nitz, 173 Ill. 2d at 164-65; Birdsall, 172 Ill. 2d at 480; People
v. Kinkead, 168 Ill. 2d 394, 417 (1995).
B
Recently, however, in People v. Burgess, 176 Ill. 2d 289
(1997), the supreme court departed from the rule of automatic
reversal. In Burgess, the defendant was convicted of first degree
murder and aggravated battery of a child and sentenced to death on
the murder charge. Following the submission of defendant's initial
brief, the supreme court granted his motion to stay the briefing
schedule and to remand the cause to the trial court for a
supplementary hearing. The purpose of the supplementary hearing
was to determine whether the defendant had ingested psychotropic
medication at or near the time of trial and sentencing. The
evidence adduced at the hearing demonstrated that the defendant was
administered psychotropic medication throughout the course of his
trial and sentencing but was not granted a fitness hearing by the
trial court. Burgess, 176 Ill. 2d at 298-300.
Rather than ending the inquiry at that point and automatically
reversing the defendant's convictions and remanding for a new
trial, which would have been consistent with Brandon, the supreme
court reviewed evidence of the effects of the psychotropic
medication upon the defendant. The prescribing doctor testified
that, given the dosages of medication the defendant was ingesting
each night, the drugs would not have had any effect on his mental
condition the following day. The jail administrator testified that
he did not observe any change in the defendant's demeanor during
his incarceration and medication. A psychiatrist opined that two
of the three drugs the defendant was ingesting would not have had
any effect on the defendant's mental state; she did believe,
however, that the defendant could have been affected by the large
amount of a third psychotropic medication he was taking. The
defendant's father testified that, after his arrest and subsequent
medication, the defendant became uncharacteristically hostile,
disheveled, and unkempt. Finally, the defendant's trial attorney
testified that the defendant "had been able to assist him in the
preparation and presentation of a defense," had "discussed all
aspects of the trial with him, including voir dire, the selection
of defense witnesses, and the choice of questions for prosecution
and defense witnesses," and had "always appeared to be alert and
coherent." Burgess, 176 Ill. 2d at 301-02.
At the conclusion of the supplemental hearing, the trial court
entered written findings. The trial court explained that, based on
its observations, the defendant did not exhibit drowsiness, lack of
memory, or inattentiveness during the trial. Moreover, the
defendant actively participated in his defense, assisted with jury
selection, asked questions of the court, and communicated
frequently with counsel. Burgess, 176 Ill. 2d at 302. The trial
court concluded that the psychotropic medication "had no effect on
the defendant's 'mental functioning, mood or demeanor in the
courtroom.' " Burgess, 176 Ill. 2d at 302-03.
Based on this evidence, the supreme court chose to "depart
from [its] previous practice of automatic reversal and to make a
case-specific inquiry into the psychotropic drugs administered to
this particular defendant." Burgess, 176 Ill. 2d at 303.
According to the court, "we should not automatically assume that
every psychotropic drug will inevitably render the person taking it
unfit for purposes of trial or sentencing, and we therefore
conclude that retrospective hearings are sometimes proper."
Burgess, 176 Ill. 2d at 304. The court concluded that the evidence
presented at the supplemental hearing "compels the conclusion that
the defendant was suffering no impairment as a result of his
ingestion of psychotropic drugs during the time of his trial and
sentencing hearing." Burgess, 176 Ill. 2d at 304. Accordingly, he
was not entitled to an automatic reversal and his convictions were
affirmed.
C
The Burgess court seemingly has counseled that, in some
cases, an "after-the-fact" assessment of a defendant's fitness at
the time of trial may be appropriate, even though the court had
previously and consistently rejected the notion of conducting such
retrospective hearings. Burgess, 176 Ill. 2d at 325 (Harrison, J.,
dissenting); see Birdsall, 172 Ill. 2d at 480; Gevas, 166 Ill. 2d
at 471. The court made no mention of overruling Brandon or any of
its progeny. Due to the very recent nature of the Burgess
decision, no district of this court has yet ruled on which of the
diametrically opposed approaches, Burgess or Brandon, to follow.
We believe that, while Burgess represents a departure from the
rule of automatic reversal, it is still entirely consistent with
the fundamental underpinning of Brandon--to protect the due process
rights of a defendant who ingests psychotropic medication. Rather
than mandating an automatic reversal in such cases, Burgess
counsels that a reviewing court may examine the record to determine
whether a defendant who ingests psychotropic medication was able to
receive a fair trial in the absence of a fitness hearing. Simply
because a defendant was taking psychotropic medication does not
necessarily mean that he was incompetent and unfit for trial and
that any proceedings would violate his due process rights. See
Burgess, 176 Ill. 2d at 304. Rather, we read Burgess to mean that,
when the record reveals that a defendant was ingesting psychotropic
medication at the time of trial or sentencing and did not receive
a fitness hearing, we may review the record, rather than
automatically reversing that defendant's conviction, and determine
whether the defendant received a fair trial despite the presence of
psychotropic medication. The end result of this procedure is the
same--under either the Brandon reversal or the Burgess review, we
are still protecting the defendant's right to a fair trial.
D
In this case, before trial began, the trial court was provided
with a psychological evaluation of defendant. The report detailed
defendant's use of Thorazine, an antipsychotic drug, and his
subsequent switch to Stelazine, another similar psychotropic
medication. According to the report, once defendant's medicine was
changed to Stelazine, defendant's
"attitude and demeanor were remarkably different. *** Absent
were the hostile and paranoid tones to his voice. He seemed
desirous of moving along with the court procedures. *** His
thoughts were more goal oriented and his mood seemed
brighter. The jail psychologist reported that [defendant's]
confrontations with the corrections officers had lessened
and that he had become more cooperative. *** [Defendant]
seemed more pleased to cooperate with his attorney and to
trust his judgment."
The report further commented that defendant was "able to
participate in the court process[,] *** accurately understand[] the
court procedures and know[] the differing roles of the court
personnel." Moreover, defendant was "able to recall and relate
occurrences" and to "cooperate with his counsel." The report
concluded that despite suffering from "Schizophrenia, paranoid
type," defendant was "fit to stand trial."
On August 5, 1994, after the completion of the psychological
evaluation, defense counsel told the trial court that "[t]he
fitness issue is not viable at this time. You got a report." On
January 23, 1995, the day trial began, defense counsel reiterated
that defendant was "competent synthetically. *** The medicine ***
has been revised to Stelazine." Thus, before trial commenced, the
parties and the trial court were aware that defendant was being
medicated, but both the psychological evaluator and defense counsel
believed defendant was fit for trial.
After the trial ended, the trial court held a hearing on
defendant's motion for new trial based on ineffective assistance of
counsel. At the hearing, defendant admitted that he actively
participated in his defense. For example, defendant recalled that
during voir dire he instructed his counsel to strike a particular
juror because she had previously been the victim of a burglary.
Defendant further recalled his dislike for another juror because he
believed that she knew the complainants. Additionally, defendant
recalled instructing his trial attorney to put forth a defense of
insanity as to the charged offenses and engaging in several
discussions with counsel regarding such a defense.
The sum of this evidence demonstrates that, like the defendant
in Burgess, defendant here was fit to stand trial despite his use
of psychotropic medication and the lack of a fitness hearing. We
recognize that we do not have the amount of evidence as that
reviewed by the Burgess court because we do not have the benefit of
a supplemental hearing. However, like the defendant in Burgess,
defendant in this case actively participated in his defense. As
did the defendant in Burgess, defendant here discussed various
aspects of his case with counsel, participated in voir dire, and
remained alert and functioning throughout the trial and sentencing.
See Burgess, 176 Ill. 2d at 301-02. Defendant here perhaps
participated to an even greater extent than did the defendant in
Burgess; defendant here was so competent that he was able to
discuss a possible insanity defense with counsel. Given
defendant's obvious active participation in his case and the
documented improvement he showed when his medication was altered,
we find no evidence that his due process rights were violated by
the absence of a fitness hearing.
While defendant's participation in this case compares
favorably to that described by the Burgess court, we note that it
is in stark contrast to the defendant's abilities in Brandon. In
Brandon, for example, the evidence demonstrated that, in addition
to taking psychotropic medication, the defendant suffered from a
learning disability, functioned in the third percentile for people
in his age in terms of words he could understand and process,
functioned in the fifth percentile in memory capability and
" 'would not really be able to understand the proceedings in order
to be able to share [information with counsel].' " Brandon, 162 Ill. 2d at 454. In contrast to the defendant in Brandon, but
similar to the defendant in Burgess, defendant here was able to
participate fully in his defense, despite his ingestion of
psychotropic medication. Therefore, consistent with Burgess, we
find that defendant is not entitled to an automatic reversal,
fitness hearing, and new trial.
III
Defendant's third contention on appeal is that the jury was
improperly instructed as to the definition of a "dwelling." The
jury was given the following definition of "dwelling," as adapted
from Illinois Pattern Jury Instructions, Criminal, No. 4.03(1) (3d
ed. 1992) (hereinafter IPI Criminal 3d No. 4.03(1)): "The word
'dwelling' means a building or portion of a building which is used
or intended for use as a human habitation, home, or residence."
However, the Committee Note to this section states that IPI
Criminal 3d No. 4.03(2) should be given "in conjunction with
residential burglary." IPI Criminal 3d No. 4.03, Committee Note,
at 92. In pertinent part, IPI Criminal 3d No. 4.03(2) defines
"dwelling" as an apartment "in which at the time of the alleged
offense the *** (occupants) *** actually reside, or in their
absence, intend within a reasonable period of time to reside."
IPI Criminal 3d No. 4.03(2). Therefore, according to defendant,
because the jury should have been instructed with IPI Criminal 3d
No. 4.03(2) rather than with IPI Criminal 3d No. 4.03(1), he is
entitled to a new trial.
It is well settled that both an objection at trial and a
written posttrial motion raising the same issue are required to
preserve allegations of error for appellate review. People v.
Enoch, 122 Ill. 2d 176, 186 (1988); People v. Stokes, 281 Ill. App.
3d 972, 976 (1996). The failure to comply with these requirements
constitutes a waiver of the alleged error. Enoch, 122 Ill. 2d at
186. However, pursuant to Supreme Court Rule 451(c) (134 Ill. 2d
R. 451(c)), substantial defects in jury instructions "are not
waived by failure to make timely objections thereto if the
interests of justice require." 134 Ill. 2d R. 451(c).
Defendant concedes that he has waived consideration of this
issue by failing to object at trial. However, the essence of a
fair trial is ensuring that the jury is provided with the correct
legal principles so that it may reach the proper conclusion based
on the law and the evidence. People v. Novak, 163 Ill. 2d 93, 115-
16 (1994). Thus, because of the importance of jury instructions,
and principles of waiver notwithstanding, we will review the merits
of defendant's contention.
In this case, the trial court erred in improperly tendering to
the jury IPI Criminal 3d No. 4.03(1) when it should have given the
jury IPI Criminal 3d No. 4.03(2). See IPI Criminal 3d No. 4.03,
Committee Note, at 92. An instructional error is harmless if it
can be shown that the trial result would not have been different if
the proper instruction had been given. People v. Johnson, 146 Ill. 2d 109, 137 (1991).
The jury was told that a "dwelling" is a building or portion
thereof used or intended for use as a place for human habitation.
See IPI Criminal 3d No. 4.03(1). Instead, the jury should have
been told that a "dwelling" is an apartment in which, at the time
of the offense, humans actually reside. See IPI Criminal 3d No.
4.03(2). Under either definition, a "dwelling" is a place where
people live. Therefore, the jury was not misled by the improper
instruction. Nothing in the record indicates that the result of
the trial would have been different had the proper instruction been
given. Accordingly, the instructional error was harmless beyond a
reasonable doubt. See Johnson, 146 Ill. 2d at 137.
Defendant's reliance on our decision in People v. Donoho, 245
Ill. App. 3d 938 (1993), is misplaced. In Donoho, the defendant
was convicted of residential burglary and burglary in connection
with an incident that occurred in the complainant's attached
garage. The jury was instructed that a "dwelling" meant " 'a
building or portion of a building which is used or intended for use
as a human habitation, home or residence.' " Donoho, 245 Ill. App.
3d at 939. In other words, the jury in Donoho, as was the case
here, was given what is now IPI Criminal 3d No. 4.03(1) instead of
the proper instruction, which is now IPI Criminal 3d No. 4.03(2).
The proper instruction would have defined "dwelling" as " 'a house,
apartment, mobile home, trailer, or other living quarters in which
*** the owners or occupants actually reside.' " Donoho, 245 Ill.
App. 3d at 941, quoting Ill. Rev. Stat. 1989, ch. 38, par. 2--6(b).
We reversed the defendant's conviction and remanded the case for a
new trial because of the instructional error. We based our
decision on the fact that an attached garage is not necessarily "a
house, apartment, mobile home, trailer, or other living quarters in
which *** the owners or occupants actually reside." As such, the
defendant may have been acquitted of the residential burglary
charge had the proper instruction been given. Donoho, 245 Ill.
App. 3d at 941.
Unlike the attached garage in Donoho, there is no doubt that
the complainants' apartment in this case constitutes a "dwelling"
under either definition contained in IPI Criminal 3d No. 4.03.
Additionally, in contrast to our finding in Donoho, nothing in the
record before us indicates that the jury may have acquitted
defendant of residential burglary had the proper instruction been
given. Thus, the instructional error in this case was harmless.
IV
The material in this section is nonpublishable pursuant to
Supreme Court Rule 23.
Nonpublishable material under Supreme Court Rule 23 omitted.
CONCLUSION
As part of our judgment, we grant the State's request for fees
pursuant to section 4--2002(a) of the Counties Code (55 ILCS 5/4--
2002(a) (West 1994)) and People v. Nicholls, 71 Ill. 2d 166 (1978).
For the foregoing reasons, the judgment of the circuit court
of Kane County is affirmed.
Affirmed.
INGLIS and HUTCHINSON, JJ., concur.
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
__________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Kane County.
)
Plaintiff-Appellee, )
) No. 94--CF--800
v. )
)
JEFFREY M. FLYNN, ) Honorable
) Barry E. Puklin,
Defendant-Appellant. ) Judge, Presiding.
___________________________________________________________________
JUSTICE BOWMAN delivered the opinion of the court:
Defendant, Jeffrey Flynn, was charged with one count each of
home invasion (720 ILCS 5/12--11 (West 1994)), residential burglary
(720 ILCS 5/19--3(a) (West 1994)), and robbery (720 ILCS 5/18--1(a)
(West 1994)) stemming from an incident on May 11, 1994, where
Charles Loftus and Roger Schroeder (the complainants) encountered
him in the bedroom of their apartment. The trial court directed a
verdict as to the home invasion charge. The jury found defendant
guilty of residential burglary and robbery. The trial court
sentenced defendant to a term of 15 years' incarceration.
Defendant now appeals his conviction. We affirm.
BACKGROUND
Defendant was indicted on May 24, 1994. On August 5, 1994,
the trial court received a psychological consultation report about
defendant from the Kane County Diagnostic Center. The report
concluded that he was fit to stand trial, documented his diagnosis
of paranoid type schizophrenia, and described his use of
psychotropic medication. Immediately before trial began on January
23, 1995, defense counsel informed the trial court that defendant
"is competent synthetically. He has Thorazine prescribed for him.
The medicine *** has been revised to Stelazine."
At trial, Charles Loftus, the residential burglary
complainant, testified that in May 1994 he lived in an apartment
maintained by the Association for Individual Development (AID). He
explained that he lived with Roger, whose last name Loftus could
not recall, and Gary Scheckter. Loftus and Roger shared a bedroom
in the apartment. Sometime early on the morning of May 11, 1994,
he awoke suddenly and saw defendant, wearing "a cap and an
overcoat," standing in the bedroom. Loftus turned on the light in
the bedroom after he awoke. After he saw defendant, defendant went
over to Roger's bed and "wrestled with him." At that point, Loftus
saw defendant reach into Roger's pocket. He thought defendant
"pulled out money." While Loftus did not see anything in
defendant's hand, he "heard" that defendant had taken $14. After
the struggle with Roger ended, defendant left the apartment. Later
that morning, Loftus identified defendant's picture in a
photographic lineup. Loftus identified the defendant in court as
the person he saw when he awoke on the morning of May 11, 1994.
On cross-examination, Loftus admitted that he told
investigating officers that when he awoke he saw a "man in the
closet." However, Loftus testified at trial that the man in his
bedroom "didn't touch the closet." He further explained that when
he turned on the light in the bedroom Roger was awake. The man he
saw in the bedroom on May 11 wore a dark brown "20's style" cap and
a black knee-length overcoat. Loftus thought that the man hit
Roger in the stomach during their bedroom struggle.
Roger Schroeder, the robbery complainant, testified that in
May 1994 he lived with Charles Loftus and Gary Scheckter. On the
morning of May 11, 1994, Schroeder heard his bedroom door open and
a man entered his room and looked in the closet. The man then
approached Schroeder and asked him, "Do you have any money[?]" The
man held Schroeder down on his bed and Schroeder gave him 16 cents.
The intruder put the money in his pocket and then left the room.
At the time of the occurrence, the bedroom light was not on but the
room was "fairly well lit" by a light from the parking lot. When
asked by the prosecutor, Schroeder was unable to identify defendant
in court as the intruder.
On cross-examination, Schroeder explained that on May 10 he
went to bed at about 11 p.m. and the intruder arrived sometime
between 2:30 a.m. and 4 a.m. on May 11. According to Schroeder,
the intruder carried a knife. Schroeder observed the intruder
"going through" some pants in the closet. Schroeder stated that,
at the time he was struggling with the intruder, Loftus was asleep.
Schroeder denied that the intruder struck him in the stomach.
According to Schroeder, the intruder was "wearing a tan corduroy
coat with a *** brown fur collar" and was not wearing a hat. On
redirect examination, Schroeder denied telling police officers that
the intruder had stolen between $14 and $20.
Marja Huzevka testified that she is the clinical coordinator
at AID. She is Loftus' counselor and meets with him once per week
to work on his socialization skills, which were impaired by his
long institutionalization. Huzevka also used to visit with
Schroeder once per month until his departure from the AID program.
Loftus and Schroeder used to share a bedroom at the AID facility,
where they were taught self-care, housekeeping, money management,
community integration, and social skills that they had lost during
their illnesses. According to Huzevka, the only way that defendant
would have had the authority to be inside the building would be if
the complainants had consented to his presence. On cross-
examination, Huzevka admitted that, based on her experience with
Loftus, he demonstrates "some confusion at times about time
periods." She also explained that she had been present for a
conversation between Loftus and an assistant State's Attorney
wherein Loftus stated that defendant had previously been in the
apartment earlier on the night in question. On redirect
examination, Huzevka stated that Loftus is "very specific about
relating information *** about events."
Sergeant Nicholas Cornado of the Aurora police department
testified that on the morning of May 11, 1994, he met with Loftus,
Schroeder, and Huzevka because Loftus and Schroeder were signing
complaints against defendant. Sergeant Cornado interviewed Loftus
and Schroeder separately. Both complainants were shown
photographic lineups; while Loftus identified defendant in a
photograph, Schroeder was unable to make a positive identification.
During his interview, Schroeder described the intruder as a
black male, but, because it was dark and he was not wearing his
glasses at the time, Schroeder was unable to describe the
intruder's height and weight. Schroeder told Sergeant Cornado that
the intruder asked him for money while he was in bed. The intruder
then "rummaged through the bedroom closet." After Loftus turned on
the bedroom light, the intruder held down Schroeder, reached into
his pocket, and removed some money. Schroeder told Sergeant
Cornado that the intruder had removed $16 from his pocket.
Sergeant Cornado did not recall Schroeder saying anything about the
intruder carrying a knife. On cross-examination, Sergeant Cornado
stated that Loftus explained that he did not know the intruder, but
he told the police defendant's name because it was given to him by
a caseworker.
Officer Nancy Joan Stefanski of the Aurora police department
testified that she responded to the complainants' residence at 2:50
a.m. on May 11, 1994. Once there, Schroeder told her that an
intruder had taken close to $20 from him.
Jayarama Naidu, a psychiatrist, treated both Loftus and
Schroeder. The first time Loftus was evaluated, approximately one
year before trial, he suffered from "major depression" and
"borderline intellectual functioning." Loftus' depression
consisted of "feeling down in the dumps," having no energy, not
being able to concentrate, and not being able to take care of
himself. Through the use of medication, Loftus stabilized his
depression. His medications do not have side effects which would
diminish his ability to perceive events around him or truthfully
relate those events. Loftus' borderline intellectual functioning
indicates that "his average IQ seems to be around high 70's and low
80's." As such, he can neither process data quickly nor engage in
intelligent conversations. His condition, however, does not impact
his ability to perceive and understand events. His memory and
truthfulness are also unaffected by his condition. According to
Dr. Naidu, Loftus' conditions do not affect "the main body of his
memory, but because of the anxiety he might forget minor details."
In Dr. Naidu's opinion, Loftus' perception of important events is
magnified because of his anxiety and those events "make a greater
impression on [his] memory."
Dr. Naidu also evaluated Schroeder. Schroeder experiences
"dementia with Alzheimer Type." In addition to the memory problems
associated with Alzheimer's disease, Schroeder also experiences an
inability to care for himself. In May 1994, Schroeder was
experiencing confusion and memory problems. Because of his
Alzheimer's disease, "he really cannot remember anything at all ***
he tends to make up stories *** to fill in the gaps." On cross-
examination, Dr. Naidu further explained that Schroeder has
impaired short- and long-term memory, abstract thinking, and
judgment.
On redirect examination, Dr. Naidu stated that in May 1994
Loftus had been stable for more than a year and did not experience
any depressive tendencies. Moreover, in May 1994, Loftus was not
suffering from a diminished ability to concentrate, was not
psychotic or demented, was not hearing voices or seeing things, and
was not suffering from confabulation, a type of brain damage.
At the conclusion of Dr. Naidu's testimony, the State rested
its case in chief. The trial court granted defendant's motion for
a directed verdict as to the home invasion count and denied his
motion for a directed verdict as to the remaining counts.
Defendant then presented his case in chief.
Janice Lear, defendant's cousin, testified that defendant
lived with her in May 1994. On the evening of May 10, 1994,
defendant was "going in and out" of Lear's apartment while she
watched a series of television programs, the last of which began at
1 a.m. on May 11, 1994. She and defendant went to sleep in the
living room at approximately 1:30 a.m. Before retiring, Lear
locked the door to her apartment; defendant did not have a key to
the apartment. When she awoke later that morning, defendant was on
the couch across from her. On cross-examination, Lear admitted
that she had been convicted of forgery in 1990 and retail theft and
deceptive practices in 1991. She further explained that it is a
short three-minute walk from her apartment to the complainants'
residence. Finally, she admitted that, if a person unlocks her
door from the inside, he does not need a key to get back in later.
After the entry of stipulated testimony regarding the 1 a.m.
program Lear watched on May 11, 1994, defendant rested his case in
chief. On January 25, 1995, the jury found defendant guilty of
residential burglary and robbery.
Nonpublishable material under Supreme Court Rule 23 omitted.
On March 3, 1995, a new attorney was appointed for defendant
after he alleged that trial counsel had been ineffective. After a
hearing on December 8, 1995, the trial court denied defendant's
motion for new trial based on ineffective assistance of trial
counsel. On December 29, 1995, the trial court denied defendant's
posttrial motion and sentenced him to 15 years' imprisonment.
Thereafter, defendant filed this appeal.
On appeal, defendant has four contentions. He contends that
his convictions should be reversed because (1) the State failed to
prove him guilty beyond a reasonable doubt of residential burglary
and robbery; (2) he was not given a pretrial fitness hearing
regarding his use of a psychotropic drug; (3) the jury was
improperly instructed; and (4) the trial court erred in accepting
the jury verdict despite juror Patricia Hoffer's inconsistent
statements during polling. We will consider defendant's
contentions separately.
I
The material in this section is not to be published pursuant
to Supreme Court Rule 23.
Nonpublishable material under Supreme Court Rule 23 omitted.
II
Defendant's second contention on appeal is that, because he
was not given a pretrial fitness hearing regarding his use of a
psychotropic drug, he is entitled to a new trial. Defendant bases
his contention on a line of supreme court cases which held that
defendants who ingest psychotropic medication during trial and are
not first given a fitness hearing are entitled to an automatic
reversal of their convictions without regard to their actual
condition at the time of the proceedings below. See, e.g., People
v. Nitz, 173 Ill. 2d 151 (1996); People v. Birdsall, 172 Ill. 2d 464 (1996); People v. Gevas, 166 Ill. 2d 461 (1995); People v.
Brandon, 162 Ill. 2d 450 (1994). The State argues that we should
instead follow the supreme court's most recent pronouncement in
People v. Burgess, 176 Ill. 2d 289 (1997). There, the court held
that the "rule of automatic reversal" is not appropriate in cases
where a defendant's use of psychotropic medication did not affect
his mental functioning at the time of trial or sentencing.
Burgess, 176 Ill. 2d at 303. Before examining the merits of
defendant's contention, we believe that a brief review of the
supreme court's decisions is appropriate.
A
In People v. Brandon, 162 Ill. 2d 450 (1994), the supreme
court considered the defendant's argument that, under section 104--
21(a) of the Code of Criminal Procedure of 1963 (Code) (725 ILCS
5/104--21(a) (West 1994)), he was entitled to a fitness hearing
because he had been taking psychotropic medications continuously
through trial and sentencing. Brandon, 162 Ill. 2d at 456.
Section 104--21(a) of the Code provides in relevant part that "[a]
defendant who is receiving psychotropic drugs or other medications
under medical direction is entitled to a hearing on the issue of
his fitness while under medication." 725 ILCS 5/104--21(a) (West
1994).
The Brandon court construed the plain language of section 104-
-21(a) and determined that, consistent with due process (see Medina
v. California, 505 U.S. 437, 439, 120 L. Ed. 2d 353, 359, 112 S. Ct. 2572, 2574 (1992)), defendants had the right to a fitness
hearing if they were ingesting psychotropic medication at the time
of proceedings below (Brandon, 162 Ill. 2d at 455-56). Moreover,
the Brandon court held that this matter was not committed to the
discretion of the trial court; given a defendant's entitlement to
a fitness hearing and an expressed decision to invoke that right,
a trial court was under a duty to hold a fitness hearing. Brandon,
162 Ill. 2d at 461; see People v. Britz, 174 Ill. 2d 163, 195
(1996). Thus, because he had taken psychotropic medication and had
not received a fitness hearing, the defendant in Brandon was
entitled to a new trial. Brandon, 162 Ill. 2d at 459, 461.
Finally, the Brandon court also held that a defendant on
psychotropic medication could not knowingly waive issues arising
under section 104--21(a) of the Code. Therefore, issues improperly
preserved for appeal were reviewed as plain error. Brandon, 162 Ill. 2d at 457-58.
The supreme court revisited section 104--21(a) in People v.
Gevas, 166 Ill. 2d 461 (1995), and recognized that the
administration of psychotropic medication equated with a bona fide
doubt as to fitness to stand trial. Gevas, 166 Ill. 2d at 469-70.
In Gevas, the trial court was informed of the defendant's use of
psychotropic medication, but refused to conduct a fitness hearing.
As such, a reversal of the defendant's convictions and sentences
was warranted. Gevas, 166 Ill. 2d at 467-68. After Gevas, the
supreme court consistently held that, where the evidence
demonstrated that a defendant ingested psychotropic medication and
did not receive a fitness hearing, he was entitled to either a
remand for new trial or for a hearing to determine whether the
trial court had a duty to conduct a fitness hearing. See, e.g.,
Nitz, 173 Ill. 2d at 164-65; Birdsall, 172 Ill. 2d at 480; People
v. Kinkead, 168 Ill. 2d 394, 417 (1995).
B
Recently, however, in People v. Burgess, 176 Ill. 2d 289
(1997), the supreme court departed from the rule of automatic
reversal. In Burgess, the defendant was convicted of first degree
murder and aggravated battery of a child and sentenced to death on
the murder charge. Following the submission of defendant's initial
brief, the supreme court granted his motion to stay the briefing
schedule and to remand the cause to the trial court for a
supplementary hearing. The purpose of the supplementary hearing
was to determine whether the defendant had ingested psychotropic
medication at or near the time of trial and sentencing. The
evidence adduced at the hearing demonstrated that the defendant was
administered psychotropic medication throughout the course of his
trial and sentencing but was not granted a fitness hearing by the
trial court. Burgess, 176 Ill. 2d at 298-300.
Rather than ending the inquiry at that point and automatically
reversing the defendant's convictions and remanding for a new
trial, which would have been consistent with Brandon, the supreme
court reviewed evidence of the effects of the psychotropic
medication upon the defendant. The prescribing doctor testified
that, given the dosages of medication the defendant was ingesting
each night, the drugs would not have had any effect on his mental
condition the following day. The jail administrator testified that
he did not observe any change in the defendant's demeanor during
his incarceration and medication. A psychiatrist opined that two
of the three drugs the defendant was ingesting would not have had
any effect on the defendant's mental state; she did believe,
however, that the defendant could have been affected by the large
amount of a third psychotropic medication he was taking. The
defendant's father testified that, after his arrest and subsequent
medication, the defendant became uncharacteristically hostile,
disheveled, and unkempt. Finally, the defendant's trial attorney
testified that the defendant "had been able to assist him in the
preparation and presentation of a defense," had "discussed all
aspects of the trial with him, including voir dire, the selection
of defense witnesses, and the choice of questions for prosecution
and defense witnesses," and had "always appeared to be alert and
coherent." Burgess, 176 Ill. 2d at 301-02.
At the conclusion of the supplemental hearing, the trial court
entered written findings. The trial court explained that, based on
its observations, the defendant did not exhibit drowsiness, lack of
memory, or inattentiveness during the trial. Moreover, the
defendant actively participated in his defense, assisted with jury
selection, asked questions of the court, and communicated
frequently with counsel. Burgess, 176 Ill. 2d at 302. The trial
court concluded that the psychotropic medication "had no effect on
the defendant's 'mental functioning, mood or demeanor in the
courtroom.' " Burgess, 176 Ill. 2d at 302-03.
Based on this evidence, the supreme court chose to "depart
from [its] previous practice of automatic reversal and to make a
case-specific inquiry into the psychotropic drugs administered to
this particular defendant." Burgess, 176 Ill. 2d at 303.
According to the court, "we should not automatically assume that
every psychotropic drug will inevitably render the person taking it
unfit for purposes of trial or sentencing, and we therefore
conclude that retrospective hearings are sometimes proper."
Burgess, 176 Ill. 2d at 304. The court concluded that the evidence
presented at the supplemental hearing "compels the conclusion that
the defendant was suffering no impairment as a result of his
ingestion of psychotropic drugs during the time of his trial and
sentencing hearing." Burgess, 176 Ill. 2d at 304. Accordingly, he
was not entitled to an automatic reversal and his convictions were
affirmed.
C
The Burgess court seemingly has counseled that, in some
cases, an "after-the-fact" assessment of a defendant's fitness at
the time of trial may be appropriate, even though the court had
previously and consistently rejected the notion of conducting such
retrospective hearings. Burgess, 176 Ill. 2d at 325 (Harrison, J.,
dissenting); see Birdsall, 172 Ill. 2d at 480; Gevas, 166 Ill. 2d
at 471. The court made no mention of overruling Brandon or any of
its progeny. Due to the very recent nature of the Burgess
decision, no district of this court has yet ruled on which of the
diametrically opposed approaches, Burgess or Brandon, to follow.
We believe that, while Burgess represents a departure from the
rule of automatic reversal, it is still entirely consistent with
the fundamental underpinning of Brandon--to protect the due process
rights of a defendant who ingests psychotropic medication. Rather
than mandating an automatic reversal in such cases, Burgess
counsels that a reviewing court may examine the record to determine
whether a defendant who ingests psychotropic medication was able to
receive a fair trial in the absence of a fitness hearing. Simply
because a defendant was taking psychotropic medication does not
necessarily mean that he was incompetent and unfit for trial and
that any proceedings would violate his due process rights. See
Burgess, 176 Ill. 2d at 304. Rather, we read Burgess to mean that,
when the record reveals that a defendant was ingesting psychotropic
medication at the time of trial or sentencing and did not receive
a fitness hearing, we may review the record, rather than
automatically reversing that defendant's conviction, and determine
whether the defendant received a fair trial despite the presence of
psychotropic medication. The end result of this procedure is the
same--under either the Brandon reversal or the Burgess review, we
are still protecting the defendant's right to a fair trial.
D
In this case, before trial began, the trial court was provided
with a psychological evaluation of defendant. The report detailed
defendant's use of Thorazine, an antipsychotic drug, and his
subsequent switch to Stelazine, another similar psychotropic
medication. According to the report, once defendant's medicine was
changed to Stelazine, defendant's
"attitude and demeanor were remarkably different. *** Absent
were the hostile and paranoid tones to his voice. He seemed
desirous of moving along with the court procedures. *** His
thoughts were more goal oriented and his mood seemed
brighter. The jail psychologist reported that [defendant's]
confrontations with the corrections officers had lessened
and that he had become more cooperative. *** [Defendant]
seemed more pleased to cooperate with his attorney and to
trust his judgment."
The report further commented that defendant was "able to
participate in the court process[,] *** accurately understand[] the
court procedures and know[] the differing roles of the court
personnel." Moreover, defendant was "able to recall and relate
occurrences" and to "cooperate with his counsel." The report
concluded that despite suffering from "Schizophrenia, paranoid
type," defendant was "fit to stand trial."
On August 5, 1994, after the completion of the psychological
evaluation, defense counsel told the trial court that "[t]he
fitness issue is not viable at this time. You got a report." On
January 23, 1995, the day trial began, defense counsel reiterated
that defendant was "competent synthetically. *** The medicine ***
has been revised to Stelazine." Thus, before trial commenced, the
parties and the trial court were aware that defendant was being
medicated, but both the psychological evaluator and defense counsel
believed defendant was fit for trial.
After the trial ended, the trial court held a hearing on
defendant's motion for new trial based on ineffective assistance of
counsel. At the hearing, defendant admitted that he actively
participated in his defense. For example, defendant recalled that
during voir dire he instructed his counsel to strike a particular
juror because she had previously been the victim of a burglary.
Defendant further recalled his dislike for another juror because he
believed that she knew the complainants. Additionally, defendant
recalled instructing his trial attorney to put forth a defense of
insanity as to the charged offenses and engaging in several
discussions with counsel regarding such a defense.
The sum of this evidence demonstrates that, like the defendant
in Burgess, defendant here was fit to stand trial despite his use
of psychotropic medication and the lack of a fitness hearing. We
recognize that we do not have the amount of evidence as that
reviewed by the Burgess court because we do not have the benefit of
a supplemental hearing. However, like the defendant in Burgess,
defendant in this case actively participated in his defense. As
did the defendant in Burgess, defendant here discussed various
aspects of his case with counsel, participated in voir dire, and
remained alert and functioning throughout the trial and sentencing.
See Burgess, 176 Ill. 2d at 301-02. Defendant here perhaps
participated to an even greater extent than did the defendant in
Burgess; defendant here was so competent that he was able to
discuss a possible insanity defense with counsel. Given
defendant's obvious active participation in his case and the
documented improvement he showed when his medication was altered,
we find no evidence that his due process rights were violated by
the absence of a fitness hearing.
While defendant's participation in this case compares
favorably to that described by the Burgess court, we note that it
is in stark contrast to the defendant's abilities in Brandon. In
Brandon, for example, the evidence demonstrated that, in addition
to taking psychotropic medication, the defendant suffered from a
learning disability, functioned in the third percentile for people
in his age in terms of words he could understand and process,
functioned in the fifth percentile in memory capability and
" 'would not really be able to understand the proceedings in order
to be able to share [information with counsel].' " Brandon, 162 Ill. 2d at 454. In contrast to the defendant in Brandon, but
similar to the defendant in Burgess, defendant here was able to
participate fully in his defense, despite his ingestion of
psychotropic medication. Therefore, consistent with Burgess, we
find that defendant is not entitled to an automatic reversal,
fitness hearing, and new trial.
III
Defendant's third contention on appeal is that the jury was
improperly instructed as to the definition of a "dwelling." The
jury was given the following definition of "dwelling," as adapted
from Illinois Pattern Jury Instructions, Criminal, No. 4.03(1) (3d
ed. 1992) (hereinafter IPI Criminal 3d No. 4.03(1)): "The word
'dwelling' means a building or portion of a building which is used
or intended for use as a human habitation, home, or residence."
However, the Committee Note to this section states that IPI
Criminal 3d No. 4.03(2) should be given "in conjunction with
residential burglary." IPI Criminal 3d No. 4.03, Committee Note,
at 92. In pertinent part, IPI Criminal 3d No. 4.03(2) defines
"dwelling" as an apartment "in which at the time of the alleged
offense the *** (occupants) *** actually reside, or in their
absence, intend within a reasonable period of time to reside."
IPI Criminal 3d No. 4.03(2). Therefore, according to defendant,
because the jury should have been instructed with IPI Criminal 3d
No. 4.03(2) rather than with IPI Criminal 3d No. 4.03(1), he is
entitled to a new trial.
It is well settled that both an objection at trial and a
written posttrial motion raising the same issue are required to
preserve allegations of error for appellate review. People v.
Enoch, 122 Ill. 2d 176, 186 (1988); People v. Stokes, 281 Ill. App.
3d 972, 976 (1996). The failure to comply with these requirements
constitutes a waiver of the alleged error. Enoch, 122 Ill. 2d at
186. However, pursuant to Supreme Court Rule 451(c) (134 Ill. 2d
R. 451(c)), substantial defects in jury instructions "are not
waived by failure to make timely objections thereto if the
interests of justice require." 134 Ill. 2d R. 451(c).
Defendant concedes that he has waived consideration of this
issue by failing to object at trial. However, the essence of a
fair trial is ensuring that the jury is provided with the correct
legal principles so that it may reach the proper conclusion based
on the law and the evidence. People v. Novak, 163 Ill. 2d 93, 115-
16 (1994). Thus, because of the importance of jury instructions,
and principles of waiver notwithstanding, we will review the merits
of defendant's contention.
In this case, the trial court erred in improperly tendering to
the jury IPI Criminal 3d No. 4.03(1) when it should have given the
jury IPI Criminal 3d No. 4.03(2). See IPI Criminal 3d No. 4.03,
Committee Note, at 92. An instructional error is harmless if it
can be shown that the trial result would not have been different if
the proper instruction had been given. People v. Johnson, 146 Ill. 2d 109, 137 (1991).
The jury was told that a "dwelling" is a building or portion
thereof used or intended for use as a place for human habitation.
See IPI Criminal 3d No. 4.03(1). Instead, the jury should have
been told that a "dwelling" is an apartment in which, at the time
of the offense, humans actually reside. See IPI Criminal 3d No.
4.03(2). Under either definition, a "dwelling" is a place where
people live. Therefore, the jury was not misled by the improper
instruction. Nothing in the record indicates that the result of
the trial would have been different had the proper instruction been
given. Accordingly, the instructional error was harmless beyond a
reasonable doubt. See Johnson, 146 Ill. 2d at 137.
Defendant's reliance on our decision in People v. Donoho, 245
Ill. App. 3d 938 (1993), is misplaced. In Donoho, the defendant
was convicted of residential burglary and burglary in connection
with an incident that occurred in the complainant's attached
garage. The jury was instructed that a "dwelling" meant " 'a
building or portion of a building which is used or intended for use
as a human habitation, home or residence.' " Donoho, 245 Ill. App.
3d at 939. In other words, the jury in Donoho, as was the case
here, was given what is now IPI Criminal 3d No. 4.03(1) instead of
the proper instruction, which is now IPI Criminal 3d No. 4.03(2).
The proper instruction would have defined "dwelling" as " 'a house,
apartment, mobile home, trailer, or other living quarters in which
*** the owners or occupants actually reside.' " Donoho, 245 Ill.
App. 3d at 941, quoting Ill. Rev. Stat. 1989, ch. 38, par. 2--6(b).
We reversed the defendant's conviction and remanded the case for a
new trial because of the instructional error. We based our
decision on the fact that an attached garage is not necessarily "a
house, apartment, mobile home, trailer, or other living quarters in
which *** the owners or occupants actually reside." As such, the
defendant may have been acquitted of the residential burglary
charge had the proper instruction been given. Donoho, 245 Ill.
App. 3d at 941.
Unlike the attached garage in Donoho, there is no doubt that
the complainants' apartment in this case constitutes a "dwelling"
under either definition contained in IPI Criminal 3d No. 4.03.
Additionally, in contrast to our finding in Donoho, nothing in the
record before us indicates that the jury may have acquitted
defendant of residential burglary had the proper instruction been
given. Thus, the instructional error in this case was harmless.
IV
The material in this section is nonpublishable pursuant to
Supreme Court Rule 23.
Nonpublishable material under Supreme Court Rule 23 omitted.
CONCLUSION
As part of our judgment, we grant the State's request for fees
pursuant to section 4--2002(a) of the Counties Code (55 ILCS 5/4--
2002(a) (West 1994)) and People v. Nicholls, 71 Ill. 2d 166 (1978).
For the foregoing reasons, the judgment of the circuit court
of Kane County is affirmed.
Affirmed.
INGLIS and HUTCHINSON, JJ., concur.
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