*1 218 a crime can- culpability
A defendant who admits in- concerning instructed jury to have expect refused the crime. The trial judge properly nocence of verdict a not-guilty-of-involuntary-manslaughter submit Ill. Flanagan (1930), See v. People form to jury. 353. the trial judge properly therefore conclude that
We For the the conclusion of the trial. instructed the at court is forth, the of the appellate set judgment reasons court is af- of the circuit reversed and the judgment firmed. court of the decision that appellate
Because whether the case, in this it did not determine reached armed robbery for murder and sentences this cause to the Therefore, we remand excessive. were of this issue. for a determination remanded, Reversed with directions. (No. 58937. ILLINOIS, Appel- THE STATE OF
THE OF PEOPLE BARNARD, lee, Appellant. v. GARY 19, 1984. Opinion October filed *6 SIMON, J., dissenting. Harrisburg, Stewart, of & Nelson, of Nelson David
C. for appellant. of General, Springfield, Attorney F. Hartigan,
Neil Harris- of State’s Attorney, W. Hauptmann, and David At- Flaum, Assistant Ellen M. and L. Rotert (Mark burg Bieszczat, of Frank General, of and J. torneys Chicago, Commission, of Service Appellate the State’s Attorney’s of for Vernon, counsel), People. Mt.
CHIEF opinion JUSTICE RYAN delivered court:
The in defendant, Barnard, L. Gary charged by was formation in the circuit court of Saline with County murder, three counts under the of sections provisions and 1(a)(1) (2) of the Criminal Code of 1961 Rev. (Ill. 9— 1981, 38, Stat. ch. The defendant pars. 1(a)(1), (2)). 9 — also charged with three counts of armed violence Rev. Stat. ch. based on the (Ill. par. 2) 33A — different murder trial charges. Following defendant was count Ver convicted one of murder. dicts returned on guilty were the armed-violence counts. The im defendant was sentenced to 25 years’ prisonment $5,000 fined court. On appeal the appellate court, the defendant contended that trial court $5,000 abused its discretion imposing fine. He also in the appellate contended court that he should have received a credit of toward fine $145 the time he spent custody prior sentencing.
third issue raised in the urged *7 trial court erred in the allegations of the considering prior defendant’s criminal acts which had not in resulted convictions. The in appellate court, a Rule 23 (87 order Ill. 2d R. 23), vacated that of the part circuit court order imposing a fine the upon defendant and it to remanded the circuit court for further on hearings defendant’s abil to a fine. Ill. 3d ity pay (115 The App. remainder of the of the judgment circuit was affirmed. We the granted to petition leave 87 appeal. Ill. 2d R. 315.
On June Price (the Dennis and decedent), Moore and Larry Stanley Jackson drove in front of up in The evening.
the defendant’s house at about 6:45 the drinking. three of the had automobile been occupants had a The defendant went out to the automobile and three, the occu- conversation with the after which brief drink, to to something of the automobile left get pants televi- the returned to his house to watch and defendant men re- After a while he the thought might sion. bedroom, his trouble, cause so he went to turn and some and, in the leaving pistol loaded a .22-caliber pistol tel- bedroom, returned to the other room watch again later, Moore came evision. A short time decedent and without Jackson and entered house invitation. back argued not Price and Moore did come into house. each and on for half an hour as the with other off about watching was television. Finally defendant no leave, attempt them to and when made they asked so, got pistol and which do he went into bedroom He to the living he had loaded. returned previously him to leave. room, at Price and told pointed gun the defendant with his walking Price started toward “You don’t saying, hands held shoulder height, above want do that.” that, to do man. You don’t want he Defendant fired one shot into Price’s chest when then six feet the defendant. The defendant about from identified him- the Harrisburg police department, called address, that he had shot self, and said gave just should come and send Dennis Price and that the police died from the wound. an ambulance. Price verdict of first jury’s defendant contends violence of murder and not of armed based guilty guilty conviction, reversal of the murder requires on murder v. Frias People recent decision citing our Frias, In returned not agree. Ill. 193. We do vi- armed guilty of murder a verdict of guilty find- of the murder, which is the reverse based olence found In Frias we held that if the jury this case. ings *8 find murder, the not of it could not defendant guilty based on the defendant had committed armed violence finding murder. The that the defendant had not commit- ted the on which the armed-violence underlying felony, based, was virtue of collateral re- charge by estoppel, the armed-violence conviction be reversed. quired (99 193, 203.) Ill. We found the to be verdicts legally inconsistent. While there some inconsis- may logical the case, in verdicts in our are in- tency they not legally consistent. The of not of finding armed violence guilty based on murder is not a the defendant did finding not commit murder. We not do know what prompted verdict jury’s on armed-violence count. It guilty could have been an expression lenity which, course, does not render the verdicts legally inconsistent. Frias does not a reversal of the require murder conviction in this case.
In addition to the Frias issue, in this court that he urges of a fair deprived trial cer- by tain evidentiary rulings certain errors the in- structions to the jury. He also that he argues was de- prived of effective assistance counsel the trial court and in his to the appeal court. As appellate noted earlier in this opinion, the errors in the trial court now argued and the question trial counsel's were not competency in the raised to the court, and appeal appellate have been raised for the first time in the defendant’s petition for leave to to this court. appeal
At the trial defendant was represented by public defender. Following conviction, State Appellate Defender was defend- appointed represent ant 22, appeal On appellate 1983, court. July order, its which affirmed entered defendant’s conviction. time for filing petition leave to from 26, that order appeal August expired 315(b) under our Rule Ill. 2d (87 315(b)). R. On August filed a motion for 1983, defendant’s counsel present *9 file a for petition extension of time which to leave within to represent to that he had been retained appeal alleging 25, this it the defendant on 1983. In motion August did receive fair trial that the defendant not a alleged that he not counsel adequate representation by did have the trial the level. He further al appellate at either or to he to raise issues on this leged appeal that desired case, he court to the merits of the and that de going as sired to avoid such issue treated waived having any the counsel raise them. of failure of to appointed because to this were filed the State. This by motion Objections 16, the motion. On September court denied defendant’s to the 1983, filed a motion reconsider de of motion and thereto the pro nial attached previous for which contained the leave posed appeal, petition require grant trial errors it is now asserted alleged trial. The for leave to also ing petition appeal a new denied effective assist asserted that defendant was in the trial and courts. appellate ance counsel both asserted that it be a Defendant’s motion also would court resources this deny waste of judicial him raise the same is defendant’s motion have only in the post-conviction hearing pro sues in the trial court 122 — 1 et seq.). 1983, 38, par. Rev. Stat. ch. ceeding (Ill. the fil motion and granted permitted We of the for leave to ing petition appeal. brief,
The in that the defendant’s State, its argues the issues now ar- raise in the court appellate failure to This has held that issues constitutes waiver. gued court, in the but appellate have been raised that could (Hammond to have been waived. not, are deemed were Asbestos Corp. v. North American 195, Ill. 2d (1983), 97 Bank v. Savings Duggan Trust & Harris 95 (1983), 209; held However, court has also 516, Ill. 2d 366, 615), Ill. 2d and 615 Rules (87 under our Rules 366 to or decided decide issues not presented this court may Co. Drug v. Walgreen court. Gatto 38 Ill. 520; (1967), Hux v. Raben Ill. 2d (1975), 223, 224. 2d and the Hux decisions the Gatto and
We do view with Hammond therein to inconsistent cases cited set out in of Gatto is and Harris Trust. The rationale 223, 224, similar being 38 Ill. 2d as Hux v. Roben Rule 615 to the error” our concept expressed “plain Hux, stated: court, Ill. 2d R. also (87 615). provisions recognize responsibility
“These and for the mainte reviewing just court for a result body precedent may a sound and uniform nance of the considerations of waiver sometimes override Hux adversary system.” from the character of our stem v. Raben (1967), 38 Ill. 225. *10 that error is a have held on occasions many plain
We (See to the rule. general People limited waiver exception v. 75 Ill. 2d The for (1979), 1.) requisites apply- Roberts noted in this limited as Roberts and cases ing exception, therein, discussed are not in the present case before us. below, to the extent discussed the waiver rule Except applies.
The trial errors raised the defendant are not of dimension and cannot be as ba urged constitutional of a conviction under the Post-Con sis for the reversal 38, 1983, ch. (Ill. par. Act Rev. Stat. Hearing viction raise the However, since defendant may 122 — 1 et seq.). under the Post- of trial counsel’s competency question Act, it that the al Hearing appropriate Conviction relate to the trial errors be considered as leged they to ade right of the defendant’s constitutional question held that the This court has legal representation. quate from consider of waiver not to bar issues ought doctrine from waiver stems alleged incompetency ation where (People (1971), counsel on v. Frank appeal. appointed 48 Ill. Frank this court also stated that In there is no obligation counsel appointed to brief every conceivable issue on appeal and that it is not incompe- tence for counsel to refrain from those raising issues which, in his judgment, merit, are without unless his ap- praisal the merits is patently wrong. People v. Frank Ill. 2d 505. In the trial of this case defense counsel’s strategy was to establish the as a killing In justified homicide. opening statement defense counsel stated that he would raise the defense of self-defense and defense of the defendant’s dwelling. Counsel sought to follow that plan through the trial.
Defendant now argues this court the trial court erred in foreclosing evidence of any the decedent’s reputation violence and what the defendant knew about the decedent. It is argued evidence was relevant insight into the supply state of mind and his beliefs regarding he was in. danger The trial court did not evidence permit of this nature be- cause, as the court stated during conference in cham- bers, there was in the nothing record to disclose that the decedent had committed an act of aggression. evi- dence disclosed that the decedent had not with argued the defendant and he had not threatened him. It was not until the defendant went into his bedroom, procured his loaded pistol, returned to the living room, and it pointed at the decedent there was evidence of a any conver- sation between decedent and the defendant. In a confer- *11 ence between the court and counsel the chambers v. Adams court, citing People (1962), 568, Ill. 2d held that the reputation and character of the decedent could not be shown because there had been no evidence that he had committed an act. aggressive noted
We above that this issue was not in the raised People court As appellate by appellate counsel. stated not incompetence it is 48 Ill. 2d Frank (1971), v. which, in his judg- issues raising from
counsel refrain mer- merit, unless his ment, appraisal without are the trial based judge In this case wrong. is its patently court. decision this on a language rulings had that decedent no evidence that there was He found or not that evalu- act. Whether an committed aggressive not the before question is correct is of the evidence ation circumstances the under these that only us. We decide this not raise counsel’s decision erroneous. patently issue on is not appeal that was some evidence Defendant there argues now the use of force was he had a belief that subjective that have sua sponte and that the court should necessary instruc- a self-defense and voluntary-manslaughter given counsel conference defense During tion. instruction murder, on ar- to the issues instruction State’s objected also that was killing that State must guing prove that agreed, not The court justified. saying pre- than the evidentiary sented a different question question The held discussed above. court decedent’s reputation v. 82 Ill. if that under Lockett People a is of self-defense then any manslaugh- there evidence court then de- given. ter instruction should be asked fense counsel if he had an issues instruction murder Defense which contained the element of justification. he but if his instruction that did asked replied counsel au- manslaughter an instruction on given were would court defense if he given. The asked counsel tomatically a to that effect. Defense counsel said making motion he was he his instruction. The not, withdrew then the State’s instruction did not in- gave and showed that it was justification clude element of of the defendant. over objection given issue, the instruction it regard apparent With to be given defense counsel did want *12 232
manslaughter instruction. It the defense appears- to counsel’s was strategy present jurors with only of option or finding guilty guilty of the murder and not to charge, them with the present alternative on which voluntary manslaughter, they reach a might compromise verdict. We cannot say this demonstrated strategy incompetence counsel.
Also, we find that under these circumstances court was not under an a obligation self-defense give and a The manslaughter instruction sua burden sponte. instructions on the preparing parties and primarily not the trial court. the trial court is under no Generally, either obligation to give instructions or to rewrite in- structions tendered A by counsel. not raise on party may the failure to an appeal unless he give instruction shall have tendered it. v. 2d People (1978), Underwood Ill. 124.
The well trial was aware judge of defense counsel’s reluctance to have an on jury given instruction man- It slaughter. would therefore not been have proper to interfere defense judge with counsel’s strategy give self-defense and in- voluntary-manslaughter struction sua sponte. (See People Precup v. 73 Ill. (1978), It was for the therefore not incompetence appel- late counsel refrain from issue on raising appeal. See v. Frank 48 Ill. 2d People 500. in this court defendant cites several instances trial
wherein his counsel’s demonstrated performance lack of cites competence. He several instances where counsel failed to object allegedly damaging hearsay of one of the officers. Fol- testimony investigating police officer, the direct examination of this defense lowing counsel cross-examined him about this evidence hearsay made Moore to the offi- which concerned statements cer. It that Moore had been should be remembered with of the shooting the decedent drinking day was the decedent house when the defendant’s and was in ex- elicited on direct Much of the hearsay shot. evidence cross-exami- out on brought the evidence amination and that day earlier fight the decedent’s nation concerned Since fight. part the reason for the Moore and with as the decedent to depict strategy defense counsel’s *13 and to emphasize quarrelsome person an aggressive, cannot nature, we argumentive drunken condition and in- evidence to this hearsay that the failure to object say of the defend- on the part dicates a lack competence ant’s trial counsel. failure that defense counsel’s
Defendant also argues failure to make offers mistrial, for a and to move sustained, were when the prosecution’s objections proof re- The Court has Supreme demonstrated incompetence. re- considered the effective-assistance-of-counsel cently Consti- of the sixth amendment of Federal quirement (1984), 466 U.S. Washington tution. Strickland v. (See _, 674, court, 80 L. Ed. 2d The 2052.) 104 S. Ct. that effective assistance as opinion, adopted reasonably counseled the standard for attorneys’ performance with the in- against interfering constitutionally protected of counsel or the wide latitude dependence restricting counsel have in tactical decisions. U.S. making (466 _, _, 674, 694, 2052, L. 80 Ed. 2d 104 S. Ct. It was also stated that a must in a indulge court that counsel’s conduct falls within strong presumption wide reasonable assistance. range professional _, 674, 694, 104 S. Ct. (466 _, U.S. 80 L. Ed. 2d an error further 2052, 2065.) recognized hot unreasonable, does counsel, if professionally even by of a criminal pro- aside the setting judgment warrant no effect on judgment. if the error had ceeding must be in counsel’s is, performance That any deficiency ineffec- to constitute to the defense order prejudicial 674, 2d _, _, 80 L. Ed. assistance. 466 U.S. tive 2052, 2069. 104 S. Ct. 699, counsel’s performance trial
Judging Strickland, cannot said appel- it the standards of counsel’s fail- not to raise the trial decision late counsel’s his failure to move hearsay testimony, to object ure to make offers of mistrial, proof and his failure for a There- wrong. court was patently appeal in the issues, appel- been raised fore, having these See Ham- to have been waived. court, are deemed late Asbestos Corp. v. North American mond 97 Ill. (1983), Bank v. Savings Duggan Trust & Harris 209; 2d Ill. 526. instructions, re- jury of the reading Following at 3:15 At 6:30 p.m. p.m. consider the case tired to the court: three sent questions violence guilty Barnard of armed we find Mr. “Can of murder? finding guilty him without murder. definitions of three different There [sic] Do we of armed violence. Also, three different definitions guilty any one of these him or not guilty to find have all three definitions? definitions or *14 charge him of a lesser guilty to find any way Is there or armed violence?” other than murder counsel, of the court, agreement after secured having as follows: these responded questions of armed vio- guilty the defendant “You cannot find You can find guilty him of murder. finding lence without the three one of any of murder on guilty the defendant of all three guilty to find him You do not have counts. guilty return a verdict in order to counts of murder is true of the armed vio- The same charge. the murder of a guilty the defendant cannot find charges. lence You or armed violence.” other than murder charge continued these responses jury received After having time the informed at which jury until 11 p.m., to deliberate a dead- bailiff At that time deadlocked. were they Both the court. by read to the jury instruction was lock At midnight jury no objection. stated had they parties to the court: question another submitted of murder of one count guilty we find Barnard “Can armed violence.” guilty and not of stating: this question by
The court answered to find the defendant authority has the jury “The armed vi- guilty and not of one count murder guilty olence.” of this response; with the giving
The prosecutor agreed to it. however, defense counsel objected 1 a.m. asked another question jury before Shortly of the court: one charge if can Barnard with to know we
“We want that is we which count specify count of murder can form, him charging we signing guilty or would be by automatically.” with all three counts answered this ques- of counsel the court agreement With tion: of one count of jury guilty
“If the finds the defendant doubt, that is required a reasonable all beyond murder not mean form. This does signing appropriate verdict of all finding guilty jury that the would be three of murder.” counts
A minutes later the asked another question: few jury one will it charge
“If find Barnard of this be guilty we charge?” agreed only read and this to The court replied: in chambers discussing
“After the matter with counsel give answer this court can appear only it would that the ques- time ‘The answer to the former at this is as follows: applies to the court and that is tion submitted I at this say point’.” all can returned verdicts guilty
At 1:30 a.m. the jury murder violence. On the and not of armed guilty murder one count only.” notation “on verdict was handwritten *15 that the deliberation lengthy Defendant now contends the indicated by jury and submitted many questions were and that hopelessly equivocal that the instructions the court. guidance by was not jury given proper course, relates to the prior argument This of argument, the court should have sua sponte that instructed the and The defend manslaughter. on self-defense voluntary court that the armed-violence is ant also this argues in this case included the element sues instruction given whereas the issues in justification, of the absence contain for murder in this case did not given struction that was on the People the statement burden argues defendant justification. absence prove which acquitted that well have led might jury, violence, to conclude that the absence Barnard of armed in the mur was not be justification required proved noted that the conference on during der case. We above to the mur instructions State’s objected it not contain this ele der issues instruction because did it from the However, ment. discussion between appears that defense counsel did court and counsel chambers instruction, tender a he stated proper although giving he had one because he was concerned of a volun giving would also require such instruction instruction. Thus the issue of whether tary-manslaughter from the case by was removed killing justified the failure Defendant now argues defense counsel. murder is proper at the trial to submit attorney of his in and self-defense manslaughter sues instruction if structions, could find after the jury inquired they ineffective Barnard of a lesser constitutes charge, guilty earlier, these of trial counsel. As noted issues assistance and are counsel in the appellate were not raised it can be said that therefore waived unless of this issue to without merit pat counsel’s viewing v. Frank (People 48 Ill. 2d ently wrong. to tender of defendant’s trial counsel The failure
237 at this stage and instructions manslaughter self-defense of the same which we strategy well have been may part to or not guilty noted earlier to force the vote jury guilty on the murder and not to an charge give jury oppor- to the defendant tunity compromise finding guilty by to the manslaughter. By propounding questions to indicated that there was a reluctance judge, find the knowledge defendant of murder. With guilty that, to encouraged defense counsel well have may been adhere to the that his refusal same reasoning prompted at to tender self-defense and instructions manslaughter circumstances, the instruction conference. Under these could to ten- counsel view failure appellate properly der the instructions at this as a tactical choice and stage that the of this is- raising failure do so precluded sue on cannot that the counsel appeal. We say appellate was wrong not this in the patently raising question court. appellate
Judging the of defendant’s trial counsel performance whole, counsel as a cannot say we that the defendant was denied his constitutional right effective assistance of In counsel. conclu- reaching sion we have tested the of defendant’s performance counsel, both at trial and on appeal, standards by adopted Court in Strickland v. Supreme Washing- 698, _, _, 674, ton 466 U.S. L. Ed. 2d 80 that 2052, 2068. In that case the court held 104 S. Ct. perform- the defendant must show that his counsel’s (1) the deficient performance ance deficient and that (2) that the defense. It is not show enough prejudiced the out- some effect on counsel’s errors had conceivable hand, the other the defend- come of the On proceeding. performance ant need not show that counsel’s deficient the case. To than not altered the outcome of more likely ineffective assistance of counsel establish that, must there is a reasonable probability show of the errors, the result for counsel’s unprofessional but (466 _, would have been U.S. proceeding different. 2052, _, L. Ed. 104 S. Ct. stated, claim, as the court is of an ineffectiveness object In light large not to counsel’s grade performance. made in of ineffectiveness claims now being number State, of the criminal in this one admonishment appeals Strickland noteworthy: Court Supreme particularly should to ensure ineffectiveness “Courts strive counsel so burdensome to defense claims become as a the entire criminal suffers justice system *17 v. (Strickland Washington U.S. 466 (1984), result.” 674, 699-700, 2052, _,_, 80 L. 104 S. Ct. Ed. court if it is to The also advised that easier dis- claim on the of lack of pose ground of an ineffectiveness be sufficient that course should followed. As- prejudice, in of these light defendant’s counsels’ conduct sessing standards, the has not estab- we find defendant claim. lished his ineffective-assistance-of-counsel the of the appellate For the above reasons judgment to the cir- court is affirmed and the cause is remanded cuit in court of Saline for further County proceedings conformance with the of the court. opinion and remanded.
Affirmed SIMON, dissenting: JUSTICE I with the verdicts majority’s holding the agree not violence are guilty murder and armed guilty However, I that evidence was consistent. believe legally the in- excluded and was improperly jury properly receive a structed, and therefore should new trial. to admit evidence trial erred judge by refusing of. People on
the for violence. Based decedent’s reputation v. Adams trial ruled that Ill. 2d (1962), was evi- admissible after there only such evidence was and that dence that the defendant acted self-defense committed an act toward aggressive decedent However, defendant. we held in v. People Lynch case, this 104 Ill. 2d decided with simultaneously that similar to who was evidence was admissible prove case. The defend- That is an issue aggressor. ant here was that the attempting likelihood prove victim, violence, with his for reputation aggres- sor. However, the trial sustained to the judge objections use of to the own witnesses and reputation in this The defense in this case was testimony regard. self-defense, based and the trial entirely justifiable refusal to admit crit- judge’s evidence was reputation ical. I would here, hold that as in Lynch, reputation evidence was admissible to who was the prove aggressor. It would then to the decide how much up weight give to the evidence. I
Although agree we should not be second-guess- ing trial it is clear here that the judges, trial erred judge when he ruled that there was no act directed aggressive toward the defendant. The record indicates that three in- dividuals who had been came into the drinking defend- ant’s home and time. stayed some Two of these indi- viduals returned a short time later and began quarreling. The defendant them to pointedly leave, asked but they *18 them, did not. a When at the pointed gun victim, who was five or six feet only began walk- away, ing toward the defendant with his hands raised above level, shoulder and as he the coming toward defend- kept ant, said, he that, “You don’t want to do man. You don’t condition, want to do that.” Given the victim’s drunken behavior, his his from quarrelsome refusal to depart the asked, defendant’s home the could when defendant have believed that in- the victim was trying seriously him jure hands, with or to wrest the from the gun defendant order to shoot the defendant. would Why 240 rather than away man a holding gun
he toward a walk the was evidence that victim him? This was some from reputation of the victim’s and evidence aggressor, the this have a proper supplement would been violence showing. it two differ- critical, affected
This error was because theory to the defendant’s essential rulings, ent both there is in issue and First, once self-defense self-defense. the directed toward of an act of aggression is evidence the for vio- defendant, evidence of victim’s reputation Adams, the case on which the under lence is admissible v. Adams (People Ill. 2d (1962), 568), trial relied judge as under Lynch. Second, the victim’s aggressive as well argument jury the defendant’s conduct supports instruction. a justification should have received assertion not dispute The State does is an element of of justification the absence Instead, the trial argues the State of murder. crime sponte to sua instruct obligation under no was judge manslaughter, par- or either regarding justification jury not to offer defense counsel chose when ticularly However, conviction. manslaughter of a option record a clearer gives picture examination of the an to the Defense counsel objected occurred. what actually it did the State because offered by murder instruction Since “without justification.” not include the words as killing justi- to depict strategy entire defense essen- excusable, this element was therefore fiable and asked the defense counsel the defense case. When tial to instruction would au- a manslaughter whether judge trial instruc- a along justification with given tomatically defense counsel was asked whether tion, the trial judge com- The trial judge’s that effect. a motion to making led defense counsel believe in the trial ments earlier v. Lockett People Ill. 2d that, relying instruction justification give trial would judge *19 It was a instruction. manslaughter also giving without offer the defense was not to that strategy obvious defendant of the lesser jury option convicting the trial re- manslaughter. crime of Faced with judge’s re- to with the question, along judge’s fusal answer counsel’s strategy that he could not choose trial sponse him, no did not the defense counsel made motion and State’s offer his alternative instruction for murder. The over the instruction was defense ob- consequently given, jection.
Section of the Code Criminal of 1961 1(a) plainly 9— an states that who kills individual without person “[a] murder justification commits ***.” (Emphasis lawful Stat. added.) (Ill. Rev. ch. There par. 1(a).) 9 — no that a can be doubt defendant who an in requests struction which includes lack of is entitled to justification it. defendant was in case improperly prejudiced the refusal of the trial to by coun judge directly answer sel’s and inquiry, because the trial judge created mis leading impression he hold that a would justification instruction must with always be a paired manslaughter instruction, thereby counsel, who not to forcing wished raise the issue of manslaughter, forgo an instruction aon element statutory crucial his defense strategy. steering Instead of clear issues, the trial strategy as do, professed to it me judge seems to that he in directly volved himself with them. I do a trial as a regard contest of and moves countermoves. Rather, it should be an effort to assist determining what really The trial happened. judge, chilling defense counsel’s by lack efforts include murder in justification struction, that from prevented happening. distinguishable
Lockett does not control this In Lockett, case. the defendant’s requested manslaughter instruction was refused the trial This court court. that, held where presented evidence was both killing justified,
defendant believed and self-defense instruction should manslaughter *20 whether or the defend- given. would decide Lockett (People v. ant’s belief was reasonable. where, as Lockett did the issue Ill. 2d not address manslaugh- not wish to have a here, defendant does instruc- ter instruction but does want the murder given, Since justification. tion to include the element lack of as an element statute identifies justification a man- murder, and there is no that requirement since case, I murder be given every instruction slaughter evidence that provides believe a defendant who to an instruction on justified justifi- is entitled killing re- cation, also regardless whether an Justification manslaughter. instruction quests I issues. do legal separate are related but manslaughter they law Illinois requires not believe under all circumstances. coupled above, I have allowed For the reasons stated would violence concerning evidence victim’s reputation regarding I an instruction and would have allowed of justification. absence