                           NO. 4-05-0698        Filed 4/18/07

                       IN THE APPELLATE COURT

                            OF ILLINOIS

                          FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,   )    Appeal from
          Plaintiff-Appellee,          )    Circuit Court of
          v.                           )    Sangamon County
PHILLIP J. PETERSON,                   )    No. 03CF1091
          Defendant-Appellant.         )
                                       )    Honorable
                                       )    Leslie J. Graves,
                                       )    Judge Presiding.
_________________________________________________________________

           JUSTICE McCULLOUGH delivered the opinion of the court:

           On 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

"knowing" element of murder and the court denied the jury's

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.

           On January 26, 2004, a grand jury indicted defendant on

three counts of first degree murder (720 ILCS 5/9-1(a)(1), (a)(2)

(West 2002)) in connection with the shooting death of his girl-

friend, 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's death, and (3) discharged a firearm knowing

said act created a strong probability of death or great bodily

harm to Schuch.

            On 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's motion.

            On April 11, 2005, defendant's 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 knowl-

edge and recklessness.

            During deliberations, the jury sent a note to the trial

court requesting "clarification of a person acting recklessly

[versus a] person acting knowingly."    The jury's note stated that

the jurors knew and were reading the definitions in the instruc-

tions but were having a difficult time determining the differ-


                                - 2 -
ence.   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.

           On 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 defen-

dant's posttrial motion and sentenced him as stated.

           This appeal followed.

           On 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 "knowing" 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


                               - 3 -
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 ineffec-

tive assistance.

           The 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.

           IPI 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:

                "[1] A person [(knows) (acts knowingly

           with regard to) (acts with knowledge of)] the

           nature or attendant circumstances of his


                               - 4 -
           conduct when he is consciously aware that his

           conduct is of such nature or that such cir-

           cumstances exist.   Knowledge of a material

           fact includes awareness of the substantial

           probability that such fact exists.

                [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."

           The 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.

           In 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 improp-

erly instructed the jury in connection with the defendant's

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 "because the indictment charged [the] defendant with both


                                - 5 -
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."     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 Crimi-

nal 4th No. 5.01B.    Lovelace, 251 Ill. App. 3d at 618, 622 N.E.2d

at 867.

            In 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's conduct was at issue, the court agreed with the

State's position that only paragraph 1 was necessary.     Griffin,

351 Ill. App. 3d at 852, 815 N.E.2d at 63.

            On appeal, the defendant argued the trial court improp-


                                - 6 -
erly 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.       Grif-

fin, 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's death and the only

disagreement centered on the defendant's mental state when she

performed those acts.    Griffin, 351 Ill. App. 3d at 854, 815

N.E.2d at 64-65.

            In 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 "knowingly."

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.

            On 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 neces-

sary.    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


                                - 7 -
4th No. 5.01B, concerning the result of a defendant's 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's omission of a necessary instruction,

whereas, the case at bar involved the court's inclusion of an

extraneous instruction.     Palmer, 352 Ill. App. 3d at 893-94, 817

N.E.2d at 139-40.

            This court noted that the given instructions were an

accurate statement of the law, not conflicting or legally incor-

rect.   Palmer, 352 Ill. App. 3d at 894, 817 N.E.2d at 140.

Additionally, we stated "one part of the instruction was simply

irrelevant to the issues raised in the case" and "[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."     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 in-

struction.    Palmer, 352 Ill. App. 3d at 894, 817 N.E.2d at 140.

Further, we stated that "[t]he presence of the extraneous in-

struction was not a substantial defect that would render the

trial fundamentally unfair or excuse defendant's failure to

object to the instruction at trial."     Palmer, 352 Ill. App. 3d at


                                 - 8 -
894, 817 N.E.2d at 140.   Giving the instructions was not error.

          Here, defendant also argues the trial court erred by

denying the jury's request for clarification of a person acting

knowingly versus a person acting recklessly.   Regarding a jury's

request for clarification of instructions, this court has stated

as follows:

               "When 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 discre-

          tion 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's 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."

          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).


                               - 9 -
           As 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.

           Supreme 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).   "An 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."    Griffin, 351 Ill.

App. 3d at 855, 815 N.E.2d at 65.

           Here, the jury was adequately instructed and neither

the trial court's inclusion of an extraneous jury instruction nor

its response to the jury's request for clarification constitutes

plain error.   The parties agree that defendant committed the acts

that resulted in Schuch's death and that the central issue in the

case was defendant's mental state, i.e., whether he acted know-


                              - 10 -
ingly or recklessly.    Paragraph 2 of IPI Criminal 4th No. 5.01B,

regarding the prohibited result of a defendant's conduct, was the

appropriate instruction, and the record reflects it was given to

the jury.

            Unlike 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 diffi-

culty stemmed from the inclusion of paragraph 1 of IPI Criminal

4th No. 5.01B in the jury's instructions.    The jury was in-

structed that "[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."      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.

            Regarding the trial court's response to the jury's

request for clarification, we note defendant not only failed to

object to the court's response, his counsel specifically re-

quested the given response.    The jury's confusion centered on the

definition of recklessness versus the definition of knowledge.


                                - 11 -
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's response

to the jury was not a substantial defect that rendered the trial

fundamentally unfair.

            Also, the evidence in this case was not closely bal-

anced.   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's

versions were consistent with the physical evidence.

            The jury was adequately instructed and the given

instructions were an accurate statement of the law.    The record

is clear.    The trial court's rulings do not constitute plain

error.

            Defendant 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's performance was deficient,

falling below an objective standard of reasonableness and (2) he

was prejudiced in that, absent counsel's 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.


                               - 12 -
Washington, 466 U.S. 668, 687, 694, 80 L. Ed. 2d 674, 693, 698,

104 S. Ct. 2052, 2064, 2068 (1984).     "[A] defendant must satisfy

both the performance and prejudice prongs of Strickland."     Evans,

209 Ill. 2d at 220, 808 N.E.2d at 954.    Defendant has failed to

satisfy either Strickland prong.

          Defendant 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's 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.

          At defendant's 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.

          According to Childress, defendant directed the officers


                               - 13 -
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 "more extensive than

[their] initial contact."   Specifically, Childress asked defen-

dant "what happened" 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.

          Childress 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.

          Pursuant to Miranda, 384 U.S. at 444, 16 L. Ed. 2d at

706-07, 86 S. Ct. at 1612, a defendant's statements must be

suppressed if made in response to a custodial police interroga-

tion "unless preceded by a statement of basic constitutional

rights and a waiver of those rights."    People v. Newsome, 117

Ill. App. 3d 1005, 1007, 454 N.E.2d 353, 355 (1983).    A custodial

interrogation involves "questioning initiated by law enforcement

officers after a person has been taken into custody or otherwise


                                - 14 -
deprived of his freedom of action in any significant way."

Miranda, 384 U.S. at 444, 16 L. Ed. 2d at 706, 86 S. Ct. at 1612.

          "Miranda warnings are not *** necessary where the

police conduct a general on-the-scene questioning as to facts

surrounding a crime."   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.    "In such situations the compel-

ling atmosphere inherent in the process of in-custody interroga-

tion is not necessarily present."    Miranda, 384 U.S. at 478, 16

L. Ed. 2d at 726, 86 S. Ct. at 1630.

          Review of a trial court's ruling on a motion to sup-

press presents mixed questions of law and fact.    People v.

Pitman, 211 Ill. 2d 502, 512, 813 N.E.2d 93, 100 (2004).       The

court's 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.

          A review of the record reflects the trial court prop-

erly denied defendant's 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's location.   After

observing the victim, Childress asked defendant one question,


                              - 15 -
"what happened."    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.

            In this instance, Childress's 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's remaining contentions.

            Finally, 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's

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's (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.

            A defendant must receive sentence credit "for time

spent in custody as a result of the offense for which the sen-


                               - 16 -
tence was imposed."    730 ILCS 5/5-8-7(b) (West 2004).   A defen-

dant 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, "a defendant

will not be credited for the day of sentencing in which he is

remanded to [DOC]."    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's 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).

            Here, 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's

records reflect defendant's "custody date" 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.

            For the reasons stated, we affirm the trial court's

judgment.    As part of our judgment, we grant the State its

statutory assessment of $50 against defendant as costs of this


                               - 17 -
appeal.

           Affirmed.

           STEIGMANN, P.J., concurs.

           COOK, J., specially concurs.




           JUSTICE COOK, specially concurring:

           I concur, but it does appear the pattern instructions

are confusing.

           If defendant knows that his acts "create a strong

probability of death or great bodily harm," he is guilty of first

degree murder.   720 ILCS 5/9-1(a)(2) (West 2004).   If defendant

recklessly performed acts that "are likely to cause death or

great bodily harm," he is only guilty of involuntary manslaugh-

ter.   720 ILCS 5/9-3(a) (West 2004).   There does not seem to be

much difference between acts creating "a strong probability" and

acts "likely."

           A person "acts knowingly" with regard to "[t]he nature

or attendant circumstances of his conduct *** when he is con-

sciously aware that his conduct is of such nature or that such

circumstances exist."   (Emphasis added.)   720 ILCS 5/4-5(a) (West

2004).    A person "acts recklessly, when he consciously disregards


                               - 18 -
a substantial and unjustifiable risk that circumstances exist or

that a result will follow."    (Emphasis added.)   720 ILCS 5/4-6

(West 2004).    There does not seem to be much difference between

acting knowingly and acting recklessly, except that "recklessly"

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.

          The 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 unjusti-

fiable risk that such a result would follow (involuntary man-

slaughter).    How is a jury to distinguish between the two of-

fenses?




                               - 19 -
