People v. Thompson, 2017 IL App (5th) 120079-B (May). Episode 368 (Duration 6:27)
Failure to instruct the jury on an essential element of the case does not necessarily constitute plain error.
After a jury trial in the circuit court of Hamilton County, defendant, Jeremy R. Thompson, was convicted of attempt to procure anhydrous ammonia with the intent to manufacture methamphetamine (720 ILCS 646/25(a)(2) (West 2010)) and tampering with anhydrous ammonia equipment (720 ILCS 646/25(d)(2) (West 2010)).
Defendant was sentenced as a Class X offender pursuant to section 5-4.5-95(b) of the Unified Code of Corrections to 18 years in the Department of Corrections to be followed by 3 years of mandatory supervised release.
At trial, Deputy Jason Stewart of the Hamilton County sheriff’s department testified how methamphetamine is produced using anhydrous ammonia, which is often stolen from local farm supply stores.
Deputy Stewart was dispatched to Hamson Ag after the three tanks’ caps were removed.
Stewart reviewed copies of recordings made by the surveillance camera. He testified the surveillance video showed a white male with short, dark hair and a balding or thinning spot on the back of the head, a large forehead, and a receding hairline, wearing a gray cut-off T-shirt and baggy pants, carrying a five-gallon bucket and a green soda bottle with a clear hose attached.
Stewart explained that a soda bottle attached to a hose is a common way to steal anhydrous ammonia.
Stewart noted the video showed the subject walking in front of the tanks, then out of view, then back in view, and then in between the tanks. The subject emerged from between the tanks carrying the bucket with the soda bottle and then ran off.
While Stewart did not recognize the subject, he circulated the video to other members of his department and to Chief Deputy William Sandusky to distribute to other counties and agencies. Police from another agency were able to identify the defendant.
Defendant admitted to manufacturing methamphetamine for the previous four to five months and said he had stolen approximately two gallons of anhydrous ammonia from Hamson Ag on four or five occasions. Defendant explained he either used the anhydrous ammonia to manufacture methamphetamine or traded it to get cigarette money.
Defendant also said he purchased pseudoephedrine, a necessary ingredient in the manufacture of methamphetamine, over the last four or five months.
On appeal defendant contends the trial court failed to instruct the jury on “substantial step,” an essential element of attempt, thereby removing a fact question from the jury and depriving him of his right to a fair trial.
The reviewing court, however, agreed with the State.
Because defendant did not request an instruction on substantial step, he forfeited this issue.
The State further replies that while Illinois Supreme Court Rule 451(c) (eff. July 1, 2006) supplies limited relief from the forfeiture rule, defendant has failed to carry his burden of establishing either plain error or ineffective assistance of counsel.
Generally, failure to ask for an instruction at trial and raise the issue in a post trial motion results in the issue being forfeited. However, where instructional errors are so grave that they affect the requirements of a fair and impartial trial, the plain error doctrine set forth in Supreme Court Rule 451(c) provides an exception to the forfeiture rule.
That rule states that substantial defects in criminal jury instruction “are not waived by failure to make timely objections thereto if the interests of justice require.” Ill. S. Ct. R. 451(c) (eff. July 1, 2006). This rule is meant to correct grave or serious errors and errors in cases so factually close that fundamental fairness requires that the jury be properly instructed.
The rule is coextensive with the plain error clause of Supreme Court Rule 615(a), which states: “ ‘Any error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded. Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court.’ ” Id. (quoting Ill. S. Ct. R. 615(a)).
The plain error doctrine allows us to consider an unpreserved error when
(1) a clear or obvious error occurred and the evidence is so closely balanced that the error alone threatened to tip the scales of justice against the defendant, regardless of the seriousness of the error, or
(2) a clear or obvious error occurred and that error is so serious it affected the fairness of defendant’s trial and challenged the integrity of the judicial process, regardless of the closeness of the evidence.
The Attempt Instruction
Illinois Pattern Jury Instructions, Criminal, No. 6.05 (4th ed. 2000) defines attempt as follows:
“A person commits the offense of attempt when he, [without lawful justification and] with the intent to commit the offense of ___, does any act which constitutes a substantial step toward the commission of the offense of ___.”
In the instant case, defense counsel did not ask that this instruction be given.
The erroneous omission of a jury instruction only rises to the level of plain error when its omission creates a serious risk that the jury incorrectly convicted the defendant because the jurors did not understand the applicable law, so as to severely threaten the fairness of the trial.
This standard is a difficult one to meet.
People v. Bell
This precise issue has been before the court before.
In People v. Bell, 2012 IL App (5th) 100276, 968 N.E.2d 1262, this court addressed the issue of whether, in a case of attempted possession of anhydrous ammonia, the trial court’s failure to give the pattern jury instruction including “substantial step” in the definition of attempt rose to the level of plain error, and held that it did not.
The essential disputed issue here is the identity of the suspect not an accountability issue.
The State is correct that the essential issue at trial did not even concern whether an attempt was made. Here, there was overwhelming evidence of a “substantial step”.
Because of the overwhelming evidence against defendant, we conclude that failure to instruct the jury concerning “substantial step” did not rise to the level of plain error.
The error caused by not giving a “substantial step” instruction is simply not so great nor is the case so factually close that the fundamental fairness of the trial is in question. There is no reasonable probability that the result would be different given the surveillance video, admission by defendant, subsequent recantation by defendant, and presentation of an alibi defense at trial.
Because defendant has failed to show prejudice, we will not correct the forfeited error.