*1 Mario has not demonstrated an abuse of discretion. While the court could have admitted the evidence, it required was not to do so. Kriedler could not comparisons draw between Columbia College programs other offering similar programs in theatre and dance. The court’s decision the evidence would not aid the trier of fact was not an abuse of discretion.
CONCLUSION evidence, degree, supports to some argument Mario’s being required pay he is too for daughters’ much his tuition to College. Columbia It indicates that he will have to work hard to fit a $15,000 expense budget. Nevertheless, into his he was able to make payments similar high expenses for school and child support. Despite some support position, evidence to Mario’s we cannot find that the trial court abused its ordering discretion in payments. tuition addition,
In the court did refusing expert not err in testimony of Daniel comparisons Kriedler. The attempted Kriedler to draw were programs that were not similar to the program offered at Columbia and were of probative limited value. The order of the circuit County ordering court of Will educational expenses is affirmed. Affirmed. JJ., BARRY,
SLATER and concur. ILLINOIS, THE PEOPLE OF THE STATE OF Plaintiff-Appellee, LONA v. GRIFFIN, R. Defendant-Appellant.
Fourth District No. 4 — 01 — 1019 August 24,
Opinion filed 2004. *2 Appel- of (argued), both State Daniel D. Yuhas and Robert N. Markfield Office, Springfield, appellant. of for late Defender’s (Norbert Goetten, Yoder, Bloomington Attorney, J. A. State’s of William Attorneys Biderman, (argued), all of State’s Robert J. and Denise M. Ambrose counsel), Office, People. Appellate Prosecutor’s of for opinion of the court: JUSTICE STEIGMANN delivered Griffin, defendant, 2001, jury Lona R. first In June convicted (720 2000)) 1(a)(2) (West son, degree ILCS of her infant murder 5/9 — years prison. to 25 Joseph. The trial court later sentenced her (1) (a) by erred arguing that the trial court appeals, Defendant (b) knowledge, jury definition improperly instructing the on the evidence, and granting the motion in limine to exclude certain State’s (c) when, after the failing days an several inquiry to conduct major- verdict, stating letter that the the court received a rendered its ineffective; jurors to have been ity of the considered defense counsel (2) counsel of trial counsel because she received ineffective assistance (3) confession; and she did of her challenge failed to the voluntariness sentence. a motion to reconsider knowingly right waive her to file argument, reverse agree with defendant’s first we Because we remand.
I. BACKGROUND degree 2001, first charged defendant with January In the State murder, alleging that she knowingly performed the acts that caused Joseph’s death when forcefully pressed his face and chest into her chest, suffocate, causing him to knowing such strong acts created a (720 1(a)(2) (West probability of great bodily death or harm ILCS 5/9 — 2000)). trial, At defendant’s June 2001 the following evidence was presented pertinent that is to our decision in this case.
A. Regarding Defendant’s Calls Joseph 23, On January 2001, defendant, years old, then 20 lived in a trailer in Bloomington boyfriend, with her Robb, Frederick and their (born 1999) (born children, 1, two Jordan July Joseph December 2000). They all slept got in the same up bedroom. Robb a little go work, after 5 a.m. and the others were still in bed. Defendant lying bed, on one side of the and Jordan and Joseph were in the middle of the bed. a.m.,
Around 6:20 defendant called Robb gas at the station where he worked and told him Joseph breathing. was not She asked him do, what she should told her to call 9-1-1 and then call his sister, Stacy Nesby, who lived close and knew cardiopulmonary resuscitation.
Defendant called 9-1-1 and reported was not breath- ing. Emergency personnel shortly arrived thereafter and attempted *3 Joseph, they treat whom found to be in cardiac and respiratory arrest. They transported hospital. then him to a Joseph hospital, breathing,
When arrived at the he was not had no rhythm spontaneous heart or pressure, making blood and was day. movements. He died the next
B. Defendant’s Initial Explanation Joseph’s for Death Defendant told of the paramedics treating one Joseph that she had been sleeping Joseph Jordan, bed with and up, and when she woke Joseph was the thought maybe on floor. She that Jordan had knocked him off the bed.
Nesby talked to at hospital shortly defendant after was Joseph brought in and happened. Nesby asked her what Defendant told that floor, when she up, Joseph pushed woke was on the the bassinet was away, Joseph breathing. and provided was not Defendant that same emergency hospital, information to the room in the physician. While given defendant opportunity Joseph was to hold but declined. likely die, When the medical personnel told defendant that he was very said, she became tearful and “I kill my would never babies.”
C. Police Defendant’s Interviews Bloomington police extensively defendant officers interviewed and tape-recorded statement was Defendant’s first January 2001. lasted which videotape, videotaped statement. gave a she later jury. hours, played was for three around she and Robb statement, said that defendant videotaped In her of the trailer lot, move out lately arguing a and she would had been However, always she around. too difficult to be Robb was when drink, occasionally Robb would day Although two. returned after her, kill he to beat or her, threaten things, her, at throw shove yell although Robb that Defendant said actually her. struck had never Robb because children, caretaker primary she was their loved worked. story she had essentially same initially police told
Defendant found she had awakened personnel namely, told medical — her that informed of the detectives floor. When one Joseph on the that he had been suf- autopsy and learned Joseph’s had attended first, defendant change story. her At focated, slowly began to did[,] If I I didn’t [Joseph]. over on “might she have rolled stated that say she was scared it to Defendant then said happen.” mean for again up that she woke saying once happened what and reverted details, Then, providing any lying on the floor. without anyone think I don’t want said, my “I didn’t mean to kill son. she did.” the officers interrogation, defendant informed
After a break in the being only person from having that she had been a lot stress defendant had suggested The officers taking care of the children. acknowledged needed, getting and defendant help not been occurred: following colloquy that was true. Then the Joey. I might “[DEFENDANT]: have suffocated Huh? [DETECTIVE]: him, might I don’t know.
[DEFENDANT]: I have suffocated him? might You have suffocated [DETECTIVE]: Yes,I don’t know. [DEFENDANT]: Did might have suffocated him? [DETECTIVE]: How your mouth? put hand over his anything. him or No. If he moved
[DEFENDANT]: * * * [defendant], you know it’s not that And [DETECTIVE]: *4 him. might You did suffocate have suffocated him. know, trying say. I’m I that’s what
[DEFENDANT]: him[,] you? didn’t [DETECTIVE]: You suffocate Through feelings, probably I that I did. my feel [DEFENDANT]: Through what? [DETECTIVE]: I did. Through my feelings, probably I feel that
[DEFENDANT]: Okay,how? [DETECTIVE]:
842
[DEFENDANT]: I have no clue.” Upon questioning, further said that she “had a lot of [her].” frustration explained work, She after Robb left for began crying upset, get was and she could stop him to crying. After acknowledging again that she the one was who suffocated Joseph, following discussion occurred: you
“[DETECTIVE]: Did him your hold chest when crying get stop crying? him to
[DEFENDANT]: For a I few minutes did. you really
[DETECTIVE]: Were holding tightly? him [DEFENDANT]: Yes.
[DETECTIVE]: To where he couldn’t breath? might
[DEFENDANT]: don’t know. I have. stop [DETECTIVE]: crying? stop crying How did he Did he while you holding tight your were him chest? yes. just
[DEFENDANT]: After a while
I am
so scared.
you
wrong
[DETECTIVE]: And
something
knew that
bad was
then,
Joey
you,
stopped crying?
didn’t
when he
(inaudible).”
[DEFENDANT]: I called the ambulance and that
point
interrogation,
At this
in the
the officers
advised defendant
(Miranda
Arizona,
her Miranda
v.
rights
L. Ed. 2d
U.S.
(1966)).
694,
not. after and left for crying? started Yes,
[DEFENDANT]: he did.
* * * up Joey [DETECTIVE]: Did Jordan wake crying? when started up [DEFENDANT]: He woke a little bit after.
[DETECTIVE]: He was kind of in and out?
[DEFENDANT]: Yeah. Joey really just wail- sleeping. [DETECTIVE]: In and out of Was ing? just crying.
[DEFENDANT]: He was sorry? [DETECTIVE]: I’m crying.
[DEFENDANT]: He was mean, really [DETECTIVE]: I loud? No, know, really was, you it
[DEFENDANT]: wasn’t loud. It little bit louder than normal. getting
[DETECTIVE]: And frustrated? [DEFENDANT]: Yeah.
[DETECTIVE]: And so what did do? only thing lay him [DEFENDANT]: The I could do was beside and hold him. *5 sorry? I’m [DETECTIVE]: lay him do was said, only thing I could I [DEFENDANT]: tight. bit holding him a little And I was hold him. me and
beside * * * you your chest up on when Joey you have Did [DETECTIVE]: your back? lying on were [sic], Yes,I was [DEFENDANT]: chest? you[r] face in Joey’s you Did have [DETECTIVE]: right here. his head was with He [DEFENDANT]: facing your chest? directly his face Okay,was [DETECTIVE]: might have been. It [DEFENDANT]: Joey really hard? you squeeze And did [DETECTIVE]: might hard. I have really him squeeze I didn’t [DEFENDANT]: really, re- squeeze him tight, but I didn’t a little too him squeezed ally hard. tight? mean, him too you squeezing doWhat [DETECTIVE]: you know, tighter than mean, you him I hold [DEFENDANT]: tight. really do, really, him squeeze I didn’t normally but you than tighter him you squeeze why And [DETECTIVE]: normally would? to rock him. Just
[DEFENDANT]: crying? stop To him make [DETECTIVE]: Yes. [DEFENDANT]: head, crying would so his you it so his Did have
[DETECTIVE]: understand, going on in what was we understand And be muffled? life, very point? at that frustrated your were Yes,I was. [DEFENDANT]: angry?
[DETECTIVE]: Were a [sic] I was angry angry but never I was [DEFENDANT]: angry. [a] I was little bit frustrated. Joey? Angry at angry? bit You a little
[DETECTIVE]: crying. For him [DEFENDANT]: do, too. is what we thing? Which At the whole [DETECTIVE]: kids, you know? angry our getWe everybody does. I’m sure [DEFENDANT]: fussing, Joey was angry because you were But [DETECTIVE]: Joey top your on chest? you held Yes[,]I did. [DEFENDANT]: Joey’s head? top your hand Did have
[DETECTIVE]: No, on his back area. I had them [DEFENDANT]: your again;:it pressing of his back In the middle [DETECTIVE]: chest? Yes.
[DEFENDANT]: [sic] air? gasping from Was Joe [DETECTIVE]: I don’t know. [DEFENDANT]:
[DETECTIVE]: Huh?
[DEFENDANT]: I don’t know. just [DETECTIVE]: trying get Joey You were stop crying, you? weren’t Yes,
[DEFENDANT]: I was. I my hope did not mean to kill kid. you guys understand that.
[DETECTIVE]: We understand that. got
[DETECTIVE]: But at the way [szc] same time we can’t half now.
[DEFENDANT]: I know. Okay, get
[DETECTIVE]: have everything we out there and be honest.
[DEFENDANT]: I understand. back,
[DETECTIVE]: try things okay? You can’t to hold [DETECTIVE]: But that’s happened, what wasn’t it? Yes, [DEFENDANT]: it was. Joey
[DETECTIVE]: you died holding against because were him chest, your right? (head nodding yes).
[DEFENDANT]:
* * [*] you you [DETECTIVE]: What did do him once realized there problem? him, a Once you you’re squeezing was realize he stops terrible, crying, you something you and then realize possibly. Do know, you what did do with him then? only thing might
[DEFENDANT]: The I can think of is that I dropped picked him. I him I I up, [Robb] have When called called the ambulance.”
During interrogation, additional explained further what happened: 11[DETECTIVE]: Joseph lying Was on the floor? I, said, dropped
[DEFENDANT]: like I I think I him after I was holding him. confused, I am little going go
[DETECTIVE]: bit and we are through every this, okay? bit You were on the bed in the back bedroom?
[DEFENDANT]: Urn hum. you holding Joey your
[DETECTIVE]: And were close to chest quit crying? until he
[DEFENDANT]: Urn hum. you you squeezing
[DETECTIVE]: And were him harder than usually do?
[DEFENDANT]: Yes. floor, you you just Joey
[DETECTIVE]: Did find on the did pick up carry living him and him to the room? hysterical.
[DEFENDANT]: I was What? [DETECTIVE]: him. dropped I had hysterical, and I I was said [DEFENDANT]: In the bedroom? [DETECTIVE]: up and carried picked I had him and then Yes [DEFENDANT]: room. him to the front * * * you hysterical? If you Okay. made Now what
[DETECTIVE]: breath- him that he wasn’t you dropped until after didn’t realize you dropped him? enough that hysterical ing, why you get did him. I had killed I scared Because was [DEFENDANT]: him? you killed you scared [DETECTIVE]: Because were [DEFENDANT]: Yes. you notice that had Because of what? What
[DETECTIVE]: him? you had killed made think hard, kind of. holding him too [DEFENDANT]: was sorry. I’m [DETECTIVE]: Holding him too hard.
[DEFENDANT]: hard, was he holding him too were [DETECTIVE]: While moving? crying was, he for a few minutes.
[DEFENDANT]: Yes holding him and point At some when [DETECTIVE]: making noise? moving quit tight, quit did he was crying. quit [DEFENDANT]: He quit moving? Did he [DETECTIVE]: Yes,he did. [DEFENDANT]: *** you thought he dead? why is that And [DETECTIVE]: Yes,it is. [DEFENDANT]: go limp? Did he
[DETECTIVE]: *7 Yes.
[DEFENDANT]: Kinda, you feel that? and did [DETECTIVE]: YesI did. [DEFENDANT]: through this frustration you going When were
[DETECTIVE]: on, going problems things that were all the terrible over, boiling [Robb], all the frustration was baby crying, and him, you were you squeezing what you grabbed him and were thinking? okay. thinking I was he’d be
[DEFENDANT]: You were what? [DETECTIVE]: thinking okay, but he he’d be I said I was
[DEFENDANT]: frustrated, yes. I wasn’t. was for a reason. something, you do it you do When
[DETECTIVE]: squeez- Why you squeezing him. were grabbed You him. You were point, at that time? ing him at that to calm down. trying get to him DEFENDANT]: I was Trying get [DETECTIVE]: him to what?
[DEFENDANT]: Calm down. [DETECTIVE]: thing Normal for somebody get do them put your calmed down is to swing them in arm and them and stuff that, So, okay? like just it calm trying is down or to make him stop? I trying
[DEFENDANT]: was quit crying. make him [Defendant], you you [DETECTIVE]: did doing know what were could hurt him?
[DEFENDANT]: No. you
[DETECTIVE]: You didn’t doing know what to him could hurt him? No, I
[DEFENDANT]: didn’t. squeezing... [DETECTIVE]: You didn’t know that I, yes, hurt, I squeezing [DEFENDANT]: Well did know that will I could hurt. But did not think I would.
[DETECTIVE]: You would what?
[DEFENDANT]: him.” Hurt gave detectives then the defendant a doll so that she could demonstrate how she held on her As chest. she held the doll to chest, following her discussion occurred.
“[DETECTIVE]: And he crying? as continued like [DEFENDANT]: went this to him. you press
[DETECTIVE]: Did harder and harder and harder? harder, yes. [DEFENDANT]: A little bit [DETECTIVE]: A little bit harder?
[DEFENDANT]: Yes. continued, kept crying, you press [DETECTIVE]: As he harder and harder? No,
[DEFENDANT]: I didn’t. just kept a
[DETECTIVE]: You constant... Yes, I
[DEFENDANT]: did. against pressure [DETECTIVE]: Pressure him? more of a But right, right? than knew was Yes,
[DEFENDANT]: it was. chest, your [DETECTIVE]: And then his head do know? No,
[DEFENDANT]: I don’t. crying his [DETECTIVE]: You don’t know. Was muffled? bit, yes. A little [DEFENDANT]: limp? [DETECTIVE]: And then said that went [DEFENDANT]: Yes. crying? stopped
[DETECTIVE]: And he *8 you’re telling wondering [DETECTIVE]: What am from what you you you Do held his chest me is what believe. believe down breath, was held that his face or he couldn’t to where down he couldn’t breath? so face. I think it was his
[DEFENDANT]: face, okay. It was his [DETECTIVE]: back? on his you pressing also But were [DETECTIVE]: hard, no. wasn't hard It [DEFENDANT]: *** old, know, and Yeah, one[ you Joey ]month is [DETECTIVE]: before pressure a lot of doesn’t take whole pounds. [I]t he is seven Joey kind of stuff. breaking bones and that probably be would very fragile, right? is Yes.
[DEFENDANT]: than knew pressing him more But [DETECTIVE]: have, right? you should Yes, I
[DEFENDANT]: was.” if asking defendant their interview The detectives concluded “I would never and said she did not. Joseph, she intended to harm she kids,” my hurt defendant stated. custody in the McLean day, defendant, who then in
The next was who had one of the detectives County jail, speak asked to that she day. her the Defendant told the detective questioned previous if she had slept a and better. He asked her what feeling had lot was truth, He and said it was. day told them the before was the Joseph had held her chest asked defendant whether she breathing, he and defendant squeezed stopped too hard until acknowledged had. Testimony
D. Medical The January January 23 and pediatrician Joseph treated on who 24, 2001, testified follows: as suffocation, asphyxia, from which is a form of
“Joseph suffered period of he not allowed to take a breath for some where was minutes, probably pressure applied, applied either had some chest, marks to his neck. to his since there were no squeezed pressed between Joseph or held or asphyxiated *** enough object, objects and not allowed to breath with an two up his heart and back into head. to force the blood out of his force *** oxygen cause period After a of a few minutes the lack would eventually stop.” breathing his heart would stop him to autopsy performed the pathologist The forensic who (suf- asphyxia of his was nonaccidental opined that the cause death focation). testified as follows: She also especially if get oxygen, person struggling is to breathe
“[A]s [a] occluded, baby, there occur in his nose and mouth are like would *9 struggle. a very is And not long, depending that’s on if there is total struggle might seconds, occlusion. So the last 30 and then there would be loss of consciousness. But then to cause death one [pressure] any would have to maintain that to prevent oxygen from getting into the blood—into the brain. essentially The brain would minutes, many die after anoxia, and then the oxygen, brain lack of stop. would cause the heart to That would be the mechanism. So a person generally would lose after 30 if consciousness seconds acute, occlusion is person and if the struggling, longer period is of time, and then eventually person limp, [the would] become unconscious, comatose, dead.
Q. Now, [BYPROSECUTOR]: with an infant Joseph, such as will there be struggling? still Yes, course, A. very he’s not [stc] weak neck his muscles but, very strong,
aren’t yes, there struggle. try will be a He will to get air.
Q. opinion Do your education, have an based on training, experience degree to certainty a reasonable of medical as to long how pressure it would take from the time of the onset of to begin asphyxiation until stop beating? the time the heart would total, oxygen
A. If the lack of is then at least for four minutes die, brain to and then the brain stop. death will cause the heart to So, Longer at four struggle incomplete least minutes. if there is prevention of oxygenation.
Q. And talking long we’re about that’s pressure how that has to constantly be Is applied. that correct?
A. Yes.
Q. opinion education, Do your training, have an based on examination, and experience, and to Joseph’s injuries as whether were caused accidental or nonaccidental trauma? They
A. were nonaccidential.”
E. Testimony Defendant’s at Trial birth, Defendant informed the that Joseph’s after she had heavy vaginal bleeding occasionally dizzy. weighed made her She birth, 110 pounds Joseph’s between and 115 after but six months later, trial, at the time of weighed pounds. she She had called the hospital bleeding to ask heavy what she could do about the and was However, taking to lie down and relax. because she was care advised children, two she could not do that.
In January family defendant had a few members who oc- casionally helped children, essentially out but care with she took typically working drinking. of them herself. Robb was either or out children, Defendant wanted Robb to he help with but would not. They argued every day almost about that. Joseph had question, morning that on the testified Defendant little, him a “squeezed him her chest so held crying,
been she She hard[,] limp.” and he went squeeze him too know, but I didn’t thinking it “I him because was squeezing explained that she was long squeezed how she She did not know crying.” from stop him would pressure long.” applied him, wasn’t When “[i]t but she pressure said that the Defendant Joseph’s chest, quit crying. hard,” pressure applied and she Joseph’s chest “was applied on if she continued she was asked on his back. When by her hands only morning, said, I know.” On that, “Not that after she squeeze dizzy.” kind of bleeding heavily and “felt had she been story time she told acknowledged that the first Defendant spoke was when she pressure Joseph’s chest applying about that she did not She police explained at the station. the detectives scared. report that fact because initially *10 only a matter of a few that it was explained further Defendant crying. She also Joseph tightly held while was minutes that she practice that before. Her usual when that she had not done explained She did not try him and to calm him. crying a child was was to hold on this occasion. why Joseph know she did not do that with any not emotion at the explained Defendant that she did show Later, going she to lose her child. hospital because she was scared was dead, chose not to hold him because Joseph when she told was she was alive, to not dead. she wanted remember him videotape of her inter- that she Defendant further testified saw nothing to in court. She had by police played when it rogation was incident as change description about her of the shown videotape. defendant and her following colloquy then occurred between
trial counsel: you
“Q. Now, you applied pressure Joseph, to did intend when to kill him at that time?
No,A. I didn’t.
Q. bodily you great him harm at that time? Did intend cause No,A. I did not.
Q. Well, baby, you you might think pressure to a did applying harm him? no, bit, I did not thought might him a little but
A. I I have hurt kid, my kill no.” intend to cross-examination, out that defendant prosecutor pointed
On Joseph had was just applying she was pressure testified that not was true. Defendant hard whether that statement and asked responded true, added, might might have—it then “It that it was but hard, have been a little but not too hard intentionally him, hurt no.” (1) Defendant acknowledged then Joseph her was not first (2) child; she the proper way knew get to hold him to him to stop cry- (3)
ing; and she knew that squeezing baby way was the proper do that. She also agreed that it “pretty much common sense” that possibly could hurt “a Joseph little bit” doing what she was do- ing.
On further cross-examination, the prosecutor elicited the follow- ing statements from defendant: “Q. you When were standing bedroom next to the bed you Joseph against
after had held your chest, and he stopped cry- ing stopped moving, you you you indicated were scared might have killed him? Yes,
A. I was. Q. you What was it that you made think might have killed him? moving. A. That he wasn’t
Q. you Because had held him too hard? True,
A. true. Q. tape you And in the told Shepherd you you [D]etective that — squeezing did know that will hurt him or could hurt him? A. True.
* * * Q. you And [the detective] told us that you, you asked press harder, harder and harder and harder, yes. said a little bit Is that true? intentionally him, But not
A. to hurt no.
Q. Pardon? intentionally
A. said but not to hurt him.
Q. But pressing were harder?
AA. little bit.
Q. And holding against while you, his crying *11 was muffled?
A. Yes.
Q. go limp? Correct? And he did
A. Yes.
* * * Q. And stop crying? he did
A. Yes.
Q. And pressing knew that were him more than should have?
A. True.”
F. The Lesser-Included Offense stated, degree As earlier charged State first defendant with caused the acts that performed knowingly she murder, alleging that her chest into his face and forcefully pressed she Joseph’s death when a created such acts suffocate, knowing that chest, causing him During the him. bodily harm to great strong of death probability court conference, the trial defendant asked jury instructions 3(a) (720 manslaughter ILCS involuntary jury instruct 5/9 — 2000)) The (West degree first murder. offense of a lesser-included as objection. the State’s court did so over deliberations, several jury foreman submitted
During jury notes, only is the one of which court. The first these notes to trial regarding mental appeal, requested clarification pertinent this opinion. of this in the next section states and is discussed deliberations, jury foreman day of the first At the end of to first split six-to-six as jurors that the the trial court informed yet not considered they had degree The foreman stated murder. manslaughter involuntary charge. murder, degree of first ultimately jury convicted appeal her as stated. This followed. and the trial court sentenced
II. ANALYSIS Knowledge Defining Instruction Jury A. The improperly erred when it argues Defendant first that the trial court jury knowledge. Specifically, of instructed the on the definition Illinois Pat- wrong language from that the court selected the contends 2000) (hereinafter (4th Jury Instructions, Criminal, No. 5.01B ed. tern 4th), jury’s first note. The State response IPI Criminal to the (1) it argument including defendant forfeited this responds motion, plain apply; error rule does not and posttrial in her and the (2) merits, responding jury’s err in to the on the the court did not that the court com- question. agree We with defendant conclude plain mitted error. Recklessness
1. The Instructions and the Issues Definition degree first murder on both The trial court instructed read, in pertinent involuntary manslaughter. Those instructions part, as follows: murder, the State must charge degree
“To of first sustain the followingpropositions: prove the performed the acts which Proposition: That the defendant
First [Joseph]; caused the death so, he [sz'c] Proposition:
Second That when the defendant strong of death or probability acts [szc] knew that his created great bodily [Joseph], harm to
852 charge
To involuntary sustain the manslaughter, the State prove must following propositions: Proposition: First That the performed defendant the acts which caused the death [Joseph]; Proposition:
Second That the performed those acts recklessly; and
Third Proposition: That those likely acts were death cause great bodily harm.”
These instructions are derived from IPI Criminal 4th Nos. 7.02 and 7.08, respectively.
The trial court also jury instructed on the definition of recklessness, found in IPI 5.01, Criminal 4th No. as “A person follows: acts recklessly when consciously disregards a substantial unjustifiable risk that circumstances exist or that a follow, result will and such disregard constitutes a gross deviation from the standard of care which a person reasonable would exercise in the situation.”
2. The Jury Note During deliberations, jury its following sent the note trial court: “The jury why would like to knowing know is not the same as [sic]. intention doing How can know what are not intend In response, it?” the court determined that give it would IPI 5.01A, defining intent, Criminal 4th No. and an instruc- tion from IPI 5.01B, Criminal 4th No. defining knowledge.
3. Instruction 5.0IB 5.01B, IPI Criminal 4th No. defining knowledge, contains three separate paragraphs, only paragraphs but 1 and 2 pertinent are to this case. Paragraph knowledge deals with prohibited in terms of conduct. Paragraph 2 knowledge prohibited deals with in terms aof result. When the trial court determined that IPI Criminal 4th No. 5.01B should given, be it asked the parties positions regarding for their which paragraph suggested should be used. The State paragraph 1. argued Defendant that because the issue was not defendant’s conduct but the result of her conduct the court should instruct jury using paragraph agreed gave 2. The court with the paragraph State and 1. This was error. paragraph
The of IPI Criminal gave 4th No. 5.01B the trial court reads as “A person follows: knows the nature or circum- attendant stances of his conduct when he is consciously aware that his conduct is of such nature Knowledge or that such circumstances of a exist. material fact includes awareness of the probability substantial such fact exists.” paragraph alternative that defendant asked the trial court to (acts [(knows) regard knowingly with person follows: “A
give reads as of)] (acts he is to) conduct when result of his knowledge to be caused certain practically such result is consciously aware that 5.01B(2). IPI Criminal 4th No. conduct.” his provides, 5.01B 4th No. note to IPI Criminal The committee *13 as follows: pertinent part, [1] if the given, paragraph use is the instruction “In cases where paragraph conduct. Use prohibited in terms of offense is defined See were at issue.” mitted reversible conduct and not both [868,] [2] if People the 190 Ill. offense is defined paragraphs v. result are at Lovelace, Dec. 829 (Emphasis error [1] and 251 Ill. by giving the (2d issue, Dist. in terms of omitted.) App. 3d [2], 1993), use both when jury only paragraph IPI Criminal 607, [621,] 622 a where both conduct and prohibited paragraphs [1] the trial court com 4th No. result. N.E.2d [1], and If both 5.01B, result 859, [2]. Note, at Committee 142. battery. aggravated defendant of Lovelace, jury
In a convicted the with “knowingly” on the definition of jury The had been instructed jury the on the to instruct The trial court refused regard to conduct. delibera During its regard to result. “knowingly” definition of indicating it confused that was tions, jury the a note to the court sent jury responded to the The court “knowingly.” the definition of about ap given. it had been The the instructions that that it should follow at issue and result were pellate that both conduct court concluded bat aggravated with both charged the defendant because indictment battery aggravated causing great bodily harm and tery by knowingly knowingly battery underlying a the based peace of officer with at Lovelace, 251 3d at 622 N.E.2d causing bodily App. harm. Ill. (1) that Thus, prove to both required 867. because the State was (2) knew performed knowingly defendant’s conduct was refusing conduct, give erred to of his the trial court likely result Further, ap 4th No. 5.01B. of IPI Criminal paragraph the second prejudiced appellate defendant. The concluded that error pellate court may jury suggested that jury’s question reasoned that court it battery even if guilty aggravated of the have found the defendant likely conduct was did know that his had found that the defendant 619-20, 622 Lovelace, Ill. 3d at App. harm. 251 great bodily to cause at 867-68. N.E.2d ‘knowing’ element Lovelace, “[t]he
Citing defendant contends clearly pertains knowing in murder proving to be established result, agree. conduct.” We prohibited rather than prohibited 4th No. 5.0IB IPI Criminal Paragraph 4. The Need for of jury to the A of the issues instructions submitted comparison shows that propositions first degree for both first murder and involuntary manslaughter Further, are identical. the record shows no dispute parties between the over whether performed “defendant acts which caused the [Joseph],” death of language which is the of the Indeed, first proposition. the State and defendant are essential agreement as to what defendant did and only how she did it. The disagreement concerns defendant’s performed mental state as she is, those acts —that perform recklessly them (involuntary manslaughter), or, performed when she acts, those did she know they strong probability great created bodily death or harm (first murder)? degree jury
That the focused on defendant’s mental state sought clarification on that issue from the trial court should come as no surprise Yet, under these circumstances. regrettably, the State throughout this trial and during the conference on instructions as- serted that no mental-state present. issue was apparently court found this assertion persuasive give when it paragraph declined 2 of IPI Criminal 4th No. 5.01B. The court’s decision is all the more because, peculiar earlier, a few hours when it overruled the State’s objection to instructing on the lesser-included offense *14 involuntary manslaughter, provided explanation the court an that revealed it understood that defendant’s mental state was the real is- in sue this case:
“[I]nvoluntary [manslaughter] has language pled the same that is degree [in in this the charge], case first murder and that is that the likely great bodily only conduct was to cause death or harm. The alleges difference the knowing, is State it was and the defense is suggesting it likely was reckless. So we’re left with to cause death harm, great bodily performed or the acts were the defendant. undisputed. That’s
The question they performed recklessly is whether under recklessly knowingly, the definition of although which haven’t we given that, a definition going get point of I mean we’re to to that at juncture.” some appeal,
We note that on belatedly the State point understands this only and writes in its brief disputed “[T]he [in as follows: issue this case] was whether defendant was aware that her conduct with her strong great bodily infant created a of probability son death or harm reckless, merely guilty her her making or whether acts were of involuntary manslaughter.” exactly right That statement is explains why jury the 2 IPI guidance paragraph the needed of of pertaining Criminal 4th No. 5.0IB as it evaluated the evidence Specifically, being defendant’s mental state. in addition to instructed
855
“knew”
that she
had to find
guilty,
jury
the
find defendant
great bodily
of death or
strong probability
acts created a
that her
“knew” what
that defendant
to know
jury needed
Joseph,
harm
“that
consciously aware
ifbe
she was
her conduct would
the result of
death)
to be
certain
practically
was]
Joseph’s
[(namely,
such result
jury
to so instruct
court’s failure
The trial
by her conduct.
caused”
case, plain error.
this
particular
facts of
error, and under the
Error
5. Plain
post-
in her
an issue
fails to raise
when a defendant
Generally,
appeal.
that issue
to raise
motion,
opportunity
she forfeits the
trial
(1991).
538,
446,
543
435,
575 N.E.2d
Shields, 143 Ill. 2d
People v.
Court Rule
Supreme
is not absolute.
However, this forfeiture rule
451(c))
451(c) (177
allows
exception that
a limited
Ill. 2d R.
sets forth
if the interests
defects in instructions
the review of substantial
may
plain
be considered
jury instruction
justice require. An erroneous
the er
closely
or when
guilt
is
balanced
only where
error
evidence
446, 575
Shields, 143 Ill. 2d at
a fair trial.
ror denied the defendant
at 543.
N.E.2d
451(c)’s exception to the waiver
of Rule
application
“The tests for
exception to
that ‘demonstrate that the
rule are ‘strict tests’
only to
errors
applicable
and is
serious
which
waiver rule is limited
of the defendant’s trial.’
severely threaten the fundamental fairness
(1979).
331,
1, 15[,
337-38]
Roberts,
Ill. 2d
387 N.E.2d
People v.
75
jurors
jury
convey
is
to the
the law
The function of
instructions
they
reach a correct conclusion.”
applies
to the facts so
can
(2004).
1190,
1, 8,
2d
N.E.2d
People Hopp,
v.
209 Ill.
plain
Thus,
to the level of
error
an erroneous
instruction rises
jurors
incor
risk that
“only when the omission creates
serious
not understand
they
because
rectly convicted the defendant
law,
of the trial.”
severely
the fairness
applicable
so as to
threaten
at
As this court wrote to (1999), determining response a “[i]n 248 whether 709 N.E.2d helped, significant a factor is what jury’s inquiry would have response Here, would have been.” weighs this factor heavily against State, for we know not only what response would have been (paragraph 5.01B, of IPI Criminal 4th No. as requested), defendant but important also how response this inwas this one-issue case.
If properly jury instructed were to find this guilty of degree first evidence, murder on this we could affirm that conviction. But this court has no confidence in the guilty verdict now before us the jury because that returned that verdict made clear it needed help with the mental-state help the trial court failed to instructions — provide.
B. Other Issues We decline lengthen to opinion this by further addressing substantively the other issues appeal defendant raises on except say (1) (2) the trial court’s motion in limine rulings were correct and other are unlikely issues arise retrial.
III. CONCLUSION stated, For the reasons we reverse the judgment trial court’s remand for proceedings. further
Reversed and remanded.
APPLETON, J., concurs. McCULLOUGH,
JUSTICE dissenting: respectfully I disagree majority’s with the determination that the trial court erred when it instructed the on the definition of knowledge. agree with the State that defendant has by forfeited this issue
failing to include the posttrial same her motion. Plain error applies; and on merits, trial court did not err in its instructions response question. to the jury’s
The of failure the trial court to give paragraph 2 of IPI Criminal 4th No. 5.01B does not plain rise to the level of error. trial court’s given instructions pursuant 5.01, 5.01B, to IPI Criminal 4th 7.02, Nos. and 7.08 adequately jury. instructed the suggest
I dare given that the required instruction a stricter ele- proof, ment “awareness the substantial probability that such fact (IPI 5.01B(1)) exists” Criminal 4th No. as compared “consciously aware that such is practically result certain to be caused his (IPI 5.01B(2)). conduct” Criminal 4th No. The defendant is entitled to trial, a fair not a perfect trial. given by
The instructions as the trial court were appropriate, the court’s order should be affirmed.