*1 1051, 1056, 358, 360, 271, 272; Kooyenga, 216, 220; 695, 698, 1004, 1007. Spears, case, is not based on note or the amended order Except memorandum in the for the recollection court’s files or records. plaintiff’s attorney, nothing and the in the record indicates original filing a new plaintiff dismissal was without complaint cannot be pro under Since a order different theories. nunc tunc memories, solely entered an insufficient basis the reliance of there was entry of a the trial court did pro Consequently, nunc tunc order here. jurisdiction not have the order. to amend Accordingly, being without the amended order stricken entered jurisdiction.
Reversed. McGILLICUDDY,
McNAMARA JJ., concur. ILLINOIS, Plaintiff-Appellee, v. THE PEOPLE OF STATE OF THE LEWIS, Defendant-Appellant. WILLIAM (3rd Division) First No. 79-2089 District Opinion filed June *2 RIZZI, J., dissenting. P.
George Lynch, Chicago, appellant. P. of Orr, Carey, (Marcia Gray, Bernard L. Attorney, Chicago State’s B. Pamela People. Hynes, Attorneys, counsel), M. Assistant for the State’s John Mr. McNAMARA court: opinion delivered JUSTICE Defendant, Lewis, Timothy charged William with murder of Gilfillan. A jury the court guilty found defendant that crime and sentenced him years. jury, to a term of 20 to 25 In a trial without
co-defendant, crime. of the same guilty Brian was found not McCarthy, failing sua appeal On trial court erred defendant contends that the that he received sponte manslaughter; to instruct the jury as to counsel; that he was ineffective privately assistance from his retained court con- prejudiced by procedure by the bifurcated which trial McCarthy’s ducted defendant’s at the same time heard evidence, dying as a without a jury; allowing that the court erred into declaration, that the court hearsay testimony; certain prejudicial erred in allowing jurors during to take notes trial. later, 13, 1975, a.m., deceased, April
On hours at 1 who died five deceased was shot that he shot the defendant. Defendant maintained accountability in self-defense. on an McCarthy charged with murder gang known theory. a street McCarthy Defendant and were members of gang as the Latin known Kings, while was a leader of a rival deceased City Royals. gangs Simon A had “treaty” between the two fight by attempting broken two McCarthy weeks earlier when started a Royals’ steal sweaters. Walden, presented
The State Michael three occurrence witnesses: deceased; Steven Eugene Trumbo All friends of the Dodaro. were evening in Walden Royals. and Trumbo On were members of deceased, building question in a they, along apartment with in an were graffiti- near Chicago. Leland and St. the corner was a once Louis At *3 Royals the building just painted marred members of by which had group, as community project. a that a rival Royals The were concerned Walden Kings, building. such as the The deceased and would mark the building, went and outside to check the of the refurbished condition Pothead, a defendant, McCarthy, young observed man named young woman. and Walden Kings. The three men were Deceased men then retreated to The four apartment and notified the others. Walden and de- building through protection, exited the the rear. For pair paint. stir The picked uр ceased had been used to sticks which in sticks, towards the corner concealed the and the four men walked single saw defendant they file The witnesses testified that manner. three fired, ran raise his the deceased hand and fire a shot. After the shot ground that he fell to parked between two vehicles. Dodaro testified shoot Upon standing up, when he heard the first he saw defendant shot. shouting times, time position ground a downward three each toward the they heard King slogan. Latin Trumbo also testified Walden and ground. him three shots toward defendant call and saw fire out turned, and noticed apartment, Walden and Trumbo ran towards the him in the and found deceased was not them. Walden searched with hallway bleeding pain. apartment building, auto- entered his were fired he Dodaro testified that after the shots brought past him. Dodaro sped defendant and drove mobile and towards Dodaro he saw Pothead. screeching the automobile to a halt when blast and Pothead, shotgun heard a alighted stopped when he to chase drove out. Dodaro turned the windshield his automobile blown to see away police until he found officers. that the autopsy revealed
The medical examiner testified that de- The bullets entered deceased sustained four bullet wounds. fired indicating that the shots were body differing angles, ceased’s at simultaneously. Richards, was with defendant
Terry young woman who woman, she, evening in another question, testified for defendant they When reached the three men were enroute to a friend’s home. running Louis, came corner of St. and Walden Leland and the deceased An automobile alley shouting “Royal from the Love.” swinging bats and defendant stood. sped then down the street the curb near where and over air, four shot in the When defendant the street and fired one ran into persons defendant. emerged from the automobile and moved towards nearly simultaneously. fired three shots preju
We shall contention that he was initially consider defendant’s diced the trial court. procedure employed by the bifurcated trial time as
McCarthy’s was conducted at the same without a During judge defendant’s trial. determined voir dire McCarthy’s deflecting accountability might strategy result defense prejudice fault from defendant. McCarthy unduly to defendant and could judge thereupon whereby The direct examination procedure instituted a all presented jury, of State witnesses but cross-examination before by McCarthy’s judge The jury’s presence. counsel occurred outside the any additionally permitted to re-cross-examine defendant’s counsel so that McCarthy’s State’s witness after counsel had cross-examined brought out any counsel could elucidate new matters McCarthy’scounsel. perceive proce-
We this through no use of Indeed, dure. through opportunity defendant benefited his counsel’s through McCarthy’s sort counsel and cross-examination conducted Moreover, the any jury. to select positive aspects presentation tо the jury to alleviate thoroughly explained procedure potential (1964), holding Bradley for confusion. relies, readily distinguish- 198N.E.2d upon which defendant *4 There, armed trial for present able from the case. both defendants on State’s robbery proceeded theory improper identification. on Be- jury. key presence witness in the identified both defendants identification cause the defenses and because the witness’ were identical defendants, was crucial held that appropriately to both the court should have heard presented by the defense evidence co-defendant. Bradley, Unlike presents case distinct theories of defense. The cross-examination by McCarthy’s sought counsel to discredit testi- mony which placed McCarthy near him the scene or made accountable for the hand, crime. On the other position defendant’s was that he shot the deceased but that he in Testimony by self-defense. elicited sacted McCarthy’s and, may counsel not theory have assisted defendant in this feared, the trial judge may instead prejudiced have defendant. Moreover, theories, based on these distinct defense defendant was what, claims, not entitled to have hear amounted to the defendant “piercing” by McCarthy’s attorneys cross-examination suc- counsel. Both cessfullyimpeached by gun Walden eliciting testimony pending that a charge had been dropped exchange testimony. for his present McCarthy’s counsel additionally elicited from Walden that Dodaro tried over, to run defendant but Since after defendant had fired the shots. defendant’s self-defense claim depended firing on his the shots after the attempt over, to run him testimony preju- omission of this was not dicial to defendant. We abrogated also note that the trial court procedure bifurcated during upon determining McCarthy’s trial counsel was trying project upon blame defendant. Defendant was not denied a fair by trial procedure employed by the trial court.
Defendant cites the failure of the trial court to recall Trumbo as witness after McCarthy’s him example counsel had cross-examined as an procedure employed by caused bifurcated the trial court. Trumbo had testified on direсt examination after he saw shot, defendant raise his arm and fire the first he ran but turned to see defendant fire the next three shots. On defense cross-examination counsel, replied negative Trumbo if police when asked he told the he only heard by McCarthy’s the last three shots. later examination counsel outside the jury’spresence, that he earlier told the Trumbo stated police shots, he heard the last three but did not see defendant fire them. On the following day, permitted defense counsel asked that he be examine Trumbo further. acquiesced, The trial but Trumbo was not court, and the trial court indicated that renew the defense counsel could request. subsequently Counsel Trumbo was not request, renewed the recalled. prejudiced was not appears what to be an inadvertent
failure to recall Trumbo as self-defense a witness. Defendant’s claim of rested Terry on until testimony Richards’ did not shoot after attempted Dodaro to run down defendant with automobile. testified, however, Walden and Dodaro was driven the vehicle that he direction after shots had been fired. Trumbo testified did not see during shooting. Impeachment Dodaro course of
987 shots, as had the last three collateral matter of whether he heard them, opposed to little on defendant’s observing defendant fire bears theory undisputed self-defense that defendant did where im- this shooting. prejudiced by Defendant was not the omission of peachment procedure. nor bifurcated trial next instruct duty
We consider whether it the trial court to was the of the jury on its as of own initiative to the lesser included offense volun manslaughter. Where the sustain a for evidence would conviction tary manslaughter it is error for the trial court to refuse tendered 229, 282 (People Handley v. (1972), instruction on that offense. 2d 131; 302, 278 v. In People Joyner (1972), 50 756.) N.E.2d Ill. N.E.2d 2d tender, however, duty absence of such instruct the trial court has no to the jury sponte (People Taylor sua v. (1967), on voluntary manslaughter. 36 483, here, Ill. 2d Taylor, 224 266.) argued N.E.2d In on as defendant appeal that the trial court on its to required should be own initiative instruct the jury manslaughter as to the evidence would sustain whenever such a In rejecting argument, pages conviction. the court stated at 490-91:
“When the prose- will support charge evidence either and the offense, cution does not an tender instruction on the lesser choice, defendant has a subject judge’s authority to the instruct to sponte, sua of submitting one or both instructions. Different views have expressed been consequences submitting both ‘merciful, It instructions. has jurors may been said that or weak disregard proof even overwhelming culpability acquit entirely or convict than lower crime the evidence reflects.’ has give apt It that ‘is also said to both instructions [Citation.] to induce a doubtful to find less guilty the defendant of the serious offense rather than as to inno- to continue debate cence.’ [Citation.]
It may be that more if accurate results would be obtained trial judge required greater to instruct as both to verdict, lesser offenses whenever the evidence would sustain either jurisdictions requirement some such a imposed by has been statute sufficiently per- or But decision. we are not [Citation.] suaded that we willing by judicial are eliminate decision an to procedure established long operate has been considered to the benefit of those accused of crime. We therefore adhere our present procedure, err and hold the trial did not failing a manslaughter on his instruction own initiative.” (See People 553; Spataro also Ill. 3d 384 N.E.2d App. People v. Hall 50; v. Miller 3d 269; 21 Ill. App. v. Mitchell tender an 472.) that a failure to rule precludes
instruction in the on stems trial court a claim of error review 1, 387 Ill. 2d part from waiver. principles (People Roberts 331.) Significant may a defense strategy considerations influence counsel’s decision the full of lesser spectrum with is claimed. complete included offenses where a defense of self-defense Hence, (People Taylor.) from wholly the defense refrained where offense, tendering an possibility instruction on lesser included against such restraint may strategy have been a decision militates viable invoking our any exceptions the waiver doctrine.
In Joyner the court reversed on the basis supreme voluntary manslaughter. trial court’s instruct however, instruction, case, such an tendered *6 in refused to it the it form. The jury to because was defective supreme it trial court not to appropriately сourt that was error for the held voluntary jury instruct the man sponte sua on the correct definition instruction, an albeit slaughter when such defense counsel had submitted in v. Pernell erroneously defective form. Defendant relies on 664, Pernell, the (1979), 72 Ill. N.E.2d In we invoked App. 3d 391 to tender exception to the counsel failed waiver doctrine where defense We an held solitary instruction on defendant’s defense of self-defense. that in such an instruct the on self- sponte instance failure to sua grave fairness to defend defense was error which fundamental violated Pernell, fully ant. on self- In contrast to instructed present jury the defense. instruct on the lesser-included offense Failure to the voluntary removing the manslaughter by could have benefited defendаnt verdict, or that that possibility jurors compromise render a weak would jurors ground though take self-defense malicious would a middle even say that posture, In this we cannot (People Taylor.) demonstrated. v. manslaughter the by instructing the trial court on erred not when no instruction was tendered. duty reject bears the affirmative suggestion
We
the
that
court
determining
to
its discretion
state for
record
it has exercised
cases are rare
jury.
what
be submitted to the
The
instructions should
has refused to
supreme
recognized
which our
that a trial court
court has
discretion,
its
exercise
and such a
has been reached
when
conclusion
authority
it
the record
trial court believes lacked
clearly shows
to apply
(See,
its
in the
v. Autman
e.g.,
discretion
matter.
560,
171,
310
570;
58
56 Ill. 2d
Ill. 2d
People Queen
in which
166.)
has rendered decision
N.E.2d
But where
trial court
to
discretion,
refusal
of a clear
there no evidence
may exercise its
has
discretion,
the exercise
presumed
has
supreme exercise
our
Community Hospital
Industrial
duly
Chicago
occurred. See South
Com.
We next consider defendant’s contention Before erly hearsay dying as declarations. prejudicial admitted statements trial, motion to exclude hearing the court conducted trial court his prior certain statements of the deceased made to death. permitted dying as declarations. statements to be introduced must be
In there qualify dying order for statements declarations under were made determination the triаl court that the statements impending (People the fixed belief v. Odum death. totality 720.) may The belief be shown Tilley (People
circumstances both before and after the declaration. 328; (1950),406 Ill. People Broughton 100.) On is limited to whether inquiry review our record observed supports finding the factual of the trial who ruling admissibility witnesses and heard on the testimony when declaration. v. Broughton. case, a.m., bullet sustained four at the deceased later,
wounds. One hour his brother hospital he was visited at brother, that the presence, sister-in-law. A nurse told the the deceased’s lung pierced. deceased’s punctured had been and that his heart had later, Deceased then the deceased made declaration. Fifteen minutes brother, me, my stated to his “If sweater with something happens put recover, by me.” responded Deceased to an assurance he would saying, “I’m make it out of going right. going to be all I’m never sister-in-law, put here.” The you deceased then “I want requested of him, the sweater in with me.” When his tried to reassure brother insisted, “Please, Greg, deceased them in As his relatives put with me.” *7 exited, police officer made hospital entered the room and the deceased another declaration. The record the trial court’s determination supports that the spoke impending deceased while under “the fixed belief of death” when persons he told three had shot him. defendant by
Defendant also contends that was denied effective assistance he his privately defendant retained counsel. It is fundamental that where retains for counsel of his not be reversed own choice his conviction will that the incompetency representation of counsel unless was such at all. representation reduced to a sham a to no or farce or amounted (People 421, (1978), 677.) Accordingly, v. Ill. 381 Murphy 72 2d N.E.2d tactical, we do not judgment stand matters. discretionary review of or People 257, 128 v. Stephens (1955), 6 Ill. 2d N.E.2d 731. his incompetence cites example as an of his counsel’s
failure ask judg- for a clearly severance. This was a matter of tactical 990 (See v. part by
ment is us. of counsel and not reviewable 77, Turner (1976), 267.) heading, 36 Ill. 3d App. N.E.2d Under this severance, argues also defendant that had moved for a defense counsel McCarthy rights would his fifth have waived amendment and testified argument defendant. He thus an he was of the deprived encases that testimony of a counsel material witness within his contention that his demonstrated sever incompetence making pretrial not motion for A ance. investigate and uncover witnesses favorable accused, accused, particularly such testimony when would exonerate the may (People Stepheny v. representation constitute inadequate of counsel. 153, made, however, showing A83.) N.E.2d must be that not incompetence, counsel’s action amounted but also action, defendant was prejudiced particular as a of the substantially result (People v. without which the result probably would have different. Greer 103, 79 Ill. 203.) 2d No such has been showing made here. only suggestion McCarthy in the record that waived would have right constitutional is and testified for defendant the bare assertion post-trial
counsel in a the sub- motion. The record is also devoid as to stance McCarthy’s possible testimony. conjecture are left to We evidence, impact conjecture of this is a basis for omitted and such not Greer; a demonstration of counsel. (People ineffective assistance of People Witherspoon 18, 3.) 2d Elder held that where defendant testimony, fails to indicate the nature the omitted he has prove prejudice resulting failed to requisite from the omission.
In Cosey defendants’ post-trial alleging new counsel filed a motion ineffective representation by motion supported defendants’ trial counsel. The setting testimony affidavits from potential five witnesses forth their Nevertheless, favor of defendants. this court affirmed the conviction holding defendants had not demonstrated because regarding reliability prosecution court had no testi reservations mony and because as a result of their relation three affiants were biased case, heard the ship Similarly, with defendants. mur testimony of had prosecution eyewitnesses three McCarthy, testimony say dered deceased. cannot We defendant, the out obviously changed have biased would favor come. submit man
Similarly,
decision
defense counsel’s
pro
slaughter
of self-defense
comрlete
instruction when a
defense
for an
is a
serve as a basis
pounded
tactical decision which cannot
*8
representation
App.
ineffective
3d
People Kelly (1976),
claim.
39 Ill.
190,
tation his object hearsay certain introduced to evidence throughout the trial. object hearsay grounds The failure to to evidence on does not render assistance ineffective. privately retained counsel Moreover, (People 303.) Zwienczak 170 N.E. inwas way prejudiced by no the introduction into evidence ruled, the testimony of complains. which As he now we have deceased’s statements properly were as dying admissible declarations. Defendant also claims that object defense counsel failed when the State to introduced the testimony police eyewitnesses of a officer that told certain him defendant shot the testimony deceased. Not was this admissible presence due to the in court and the availability for cross-examination of witnesses, these but the testimony prejudice introduction of the no caused to defendant since there was dispute having no as to defendant fired the shots. Similarly, no resulted from defense counsel’s failure to object to the hearsay testimony that defendant was affiliated with Latin Kings. Defendant’s own evidence indicated that he and his friends were members of that gang. street Nor is representation ineffective dem onstrated defense object counsel’s failure prosecutor’s to the comment in closing argument that defendant and his friends were not at a birthday party prior were, shooting, instead, plan assembled to the deceased’s murder. if Even this an improper inference to draw evidence, from the it was not a material factor defendant’s conviction. (People v. Clark 52 Ill. 2d 363.) Nor was it necessary for when, examination, defense object counsel to on redirect the prosecutor Walden, impeached rehabilitated had who defense counsel on the basis of bias. Defense counsel had elicited testi mony from Walden that a pending gun charge against him had been dismissed because of his agreement testify casе. The prosecutor elicited from Walden that appeared testify he would have without incentive but for the Kings attempting Latin kill him while the case was pending.
This evidence was clearly admissible. The State was entitled to rehabilitate witness with tending its information to lessen the effect of the defense’s showing 159, 201 of bias. (People 52 Ill. Burke 2d 636 (girl hated father previously engaged because he had in illicit acts); see also Gammons 130 App.
866 (prior inconsistent
gang reprisal);
statement made because of fear People v.
DeMarco
(prior
Defendant offers subpoena defense counsel’s failure certain defense witness as example another incompetence. of Yet the record dis- closes that the whereabouts during of this witness were unknown both and after circumstances, trial. Under such subpoena a witness could not be incompetent. deemed
Defendant urges also as a demonstration of defense counsel’s incom- petence request defendant’s McCarthy’s present closing counsel argument on behalf Apart of request defendant. from the fact that this not itself showing of it incompetency, also must be noted that defendant mind, changed his wished closing argument, defense counsel to make the and that counsel did so. In regard, defendant maintains that defense counsel’s opening comment that he likes play hip” “to from the demon- strates that counsel had proper not made a An preparation. examination reveals, however, defense closing argument counsel’s that counsel’s remark was mere in light in-depth closing rhetoric and detailed argument which presented he jury. The remark not reveal did ineffective assistance of counsel. argues further that defense counsel demonstrated incom-
petence by instances, adopting, objections some the examination of or by McCarthy’s complains specifically counsel. Defendant that after McCarthy’s counsel questioned Terry presence Richards examination, on direct defense counsel second chose not to direct examination of the witness. no perceive We can accruing to defendant nor any incompetency of counsel the decision duplicate not to testimony. Richards’ Similarly, preju- defendant was not diced by defense counsel’s adoption objections of certain made McCarthy’s counsel. During objected rulings by the trial each counsel court; there necessity was no each attorney recite reasons for objections.
Finally, we reject argument acquittal McCarthy’s viewed next to defendant’s conviction demonstrates defense counsel’s representation ineffective presented against of defendant. The evidence the two men was on an completely McCarthy different. was tried accountability theory undisputed while it was that defendant fired the shots which killed State eyewitnesses the deceased. Three testified view, that provocation. fired those shots without In our defendant was guilty, representation found not because of the he received trial, him. We against overwhelming at evidence because of the vigorous believe that defendant a fair trial and received was afforded counsel. representation privately effective from his retained error We find that reversible no merit defendant’s contention such jurors permits occurred trial. The statute dining when took notes taking by jurors. note ch. par. Rev. Stat. reasons, the circuit court of judgment
For the aforementioned County Cook is affirmed.
Judgment affirmed.
McGILLICUDDY, J., concurs. RIZZI,
Mr. dissenting: PRESIDING JUSTICE agree I cannot majority. with the I would reverse conclusion of grant the conviction defendant a was not new because given voluntary manslaughter instruction the record demonstrates that the trial court recognize failed to and exercise its discretion when the instruction was not tendered. *10 trials, which,
In murder if if there is evidence in the believed record jury, the would reduce voluntary manslaughter, the crime to a vol untary manslaughter given. instruction should be (People Lockett 546, 550, 413 378, 381; Ill. 2d Peoрle N.E.2d v. Leonard 411, 420-21, 415 83 Ill. 2d 358, 363.) N.E.2d If the defendant fails to tender a voluntary manslaughter instruction, the trial discretion comes court’s play. discretion, into give the exercise of its the can the trial court instruction it sponte, give weight sua or can to the wishes of considerable Also, the defendant give and not the instruction. the trial court can exer cise its give discretion and objection the instruction over the of sponte sua 490-91, defendant. People Taylor (1967), 36 Ill. 2d 266, 270-71; 109, 117, Lewis Ill. 3d 446, 451-52; 456, 459, 294 v. Williams 98, 101.
Here, evidence, jury, there was sufficient if to believed have reduced the manslaughter. crime to voluntary Terry Richards was called testify to on behalf of McCarthy. co-defendant She testified that on Brian she, the eve of the shooting, at a McCarthy Brian and defendant had been birthdаy party from 8 p.m. shortly midnight. They until after left the party together, house, girl’s and while walking they to another reached the corner of St. Louis and Leland. Decedent and another member of the Royals gang ran out from alley waving an a baseball bat and another object and yelling “Royal Royals gang Love.” Another member of the then drove an up automobile which on the at defendant. “flew sidewalk” jumped,
Defendant ran around the left side into the of automobile and intersection, and fired a shot in the air. Royals gang Three or four other members jumped automobile, out of the yelled, and one of them “Grab him.” Then, ran to the northeast corner of the intersection. according Richards, Terry the following happened:
“Tim ran towards and swing started to baseball [the defendant] bat, and that’s when shooting started.” Under circumstances, if the jury given had been a voluntary manslaughter form, instruction and verdict it could have concluded that defendant subjectively believed that the use of necessary, force was subjective this belief was If jury unreasonable. reached that con clusion, then a verdict voluntary manslaughter of would have (See returned. Ill. 2; par. 7.05.) Rev. Stat. ch. IPI Criminal No. 9— Moreover, gave a self-defense instruction without objection by the State. supported Since the evidence a self-defense instruction, supported would also have voluntary manslaughter Lockett, 546, 551, instruction.
In regard to give instruction, manslaughter the majority upon relies Taylor quotes from 483, 224 However, N.E.2d 266. Taylor is distinguishable from this case. In Taylor, the record affirmatively give demonstrated that the failure the instruction was the result recognition of the trial court’s of exercise its discretion. In Taylor, the court stated:
“In exercising his discretion it is appropriate judge for consider that from point public of view of the in the interest punishment of wrongdoers, one whose is conduct unlawful should escape punishment altogether because does not believe that he is guilty greater appropriate It is him offense. also for view, to consider that from point the defendant’s the likelihood compromise may if per- conviction be enhanced mitted to consider involving degrees successive offenses lesser criminality. In reaching imрermissible his conclusion it is not weight prosecution to the views defense as In the requests indicated their for instructions. *11 present case attorney request the decision the not to manslaughter clearly response instructions was stated in to the trial judge’s inquiry, nothing suggests and in the record that the at- torney’s decision was reached without consultation with client.” (Emphasis 483, 491, added.) 266, 36 Ill. 2d 224 present case, case, In the Taylor not unlike the the record does show that the trial court recognized giving and its discretion in not the exercised Here, instruction. the majority recognized assumes that the trial court and
995 me, if the To given. not the instruction was exercised its discretion when it is not instruction and manslaughter supports voluntary a evidence the given, affirmatively the record must demonstrate of its discre exercise the was the of the trial court’s product instruction 570, 171, 176-77, 317 N.E.2d (Cf. v. Autman (1974), Ill. 2d tion. 166, 169; 572; 565, 560, People Queen (1974), 618, 629, 458.) It Jackson record, case, instruction is not if in shows that the sufficient the this that the trial court given. merely was not is at assume Too much stake to recognized the was not its when instruction and exercised discretion given.1 manslaughter
Where the instruction supports voluntary evidence a it is given, and not in the record as requirement showing there be a to whether trial in the giving the court discretion not instruc exercised its cases, tion is not imposition purely an court. In the trial criminal passive role of the trial instructions should determining court what give to is publication, availability no With longer acceptable.2 Instructions, and usе of Jury judicial the Illinois Pattern is system our now the age plays positive where the trial court an role in active ensuring that the properly person is instructed when a stands to lose instructions, his liberty. Ordinarily, judge at the conference on the trial has IPI in him, front he instructions in approves examines and accordance (See with the IPI when is Rev. applicable. the IPI Stat. 110A, Thus, ch. par. 451(a).) just the IPI is the benefit of for lawyers. It is also an determining essential tool the trial which for court Moreover, cases, instructions given. are to be trial court criminal has responsibility given (see ensure the essential instructions are Roberts 1, 13-14, 337; ABA Standards, Trial By Jury, Commentary, the IPI (1968))3, at 116 is tool which the trial court this responsibility. uses to fulfill
Here, we have a murder trial where there was sufficient evidence which, if believed jury, would reduce crime man- slaughter. The Committee Note IPI (voluntary manslaughter) 7.05 provides: regarding For importance right a discussion of a defendant’s to have the offenses,
instructed U.S. generally on included 65 L. see Beck Alabama 392, 100 2d 2 Ed. S. Ct. 2382. context, principle play positive another trial must court role ensuring Cuyler that the defendant receives a fair trial discussed in v. Sullivan 335, 351, 333, 348, 100 1708, 1719. U.S. 64 L. Ed. 2d S. Ct. 3In 60, 71, 86 680, 699, 62 457, 465, Glasser v. United S. Ct. States 315 U.S. L. Ed. “Upon stated: duty seeing rests that the is conducted with solicitude rights for the essential of the accused.” *12 996 defense, the murder, is self is the defense charge
“When the verdict, manslaughter instruction proof supports voluntary (Murder); first, Instruction 7.01 the order should be: of instructions second, 7.05; third, instruction from applicable this Instruction Chapter 24 —Defenses.” instructed, jury properly the
Consequently, order to ensure that instructions to exercise on duty was the of the trial court at the conference manslaughter IPI give give its discretion or not to the to here, Where, the record as instruction when it was not tendered. the given, not instruction was voluntary manslaughter shows that the the to the failure merely assume that consequences great are too to As a of discretion. court’s exercise instruction was the result of the trial the trial court result, assumption that majority’s I agree cannot with the jury sua instruct not to its and chose properly exercised discretion sponte on the lesser offense. However, relies, the doctrine of waiver. part, on majority also threaten sevеrely which serious errors necessity for the remediation of stands trial when the defendant fairness of a defendant’s fundamental (See People of waiver. lose his the doctrine liberty transcends Joyner People v. 532, 534; 67, 61, (1977), 69 Ill. 2d
Jenkins 72 v. Pernell 756, 759; People 302, 307, (1972), 50 Ill. 2d v. Martinez 87; 664, 666, 85, App. Ill. 3d N.E.2d Whitney 86, 89; 280, 283, 395 App. 3d N.E.2d Pernell, 617, 621, stated: this court 271.) In 3d may constitute instruction particular “While the failure to tender a given, have been should instruction a waiver of claim that the 25.05 No. Criminal tender IPI we failure to believe fairness as the to fundamental important not as with reference instructed properly be quintessential requirement Ill. 3d liberty.” (72 one stands lose his when . 87.) instruction, the self-defense give a Pernell Although involved the failure to instruction. manslaughter give a principle applies same to the failure 331, 336, court 1, 11-12, 387 N.E.2d People Roberts stated: regarding 302, an error Joyner
“In waived was not offense included instruct a lesser on because, the court: as noted possible it was factually and
‘This was a close case murder, guilty not 'guilty find the defendants jury to (50 Ill. self-defense, manslaughter.’ guilty of or reason of 302, 307.) manslaughter option instructing
The court felt not on open to the was not guilty manslaughter find defendants to tender the jury. The court noted the defendants’ failure also fundamental appropriate important instruction not as requirement properly be fairness their trial as the instructed.”
Likewise, had an factually this case is close to whether justified killing. unreasonable belief that circumstances existed which However, voluntary man- since the did instruсt *13 slaughter, guilty option finding did not defendant have the voluntary manslaugh- manslaughter. The difference between ter Under the obviously conviction and a murder is substantial. conviction circumstances, grave failed to error was committed when trial court recognize instructing any regard and exercise with discretion on voluntary manslaughter. the vol- Accordingly, the failure tender untary manslaughter with reference to important instruction is not as properly fundamental requirement fairness as the be instructed.4 The error should therefore be considered waived. is
There absolutely nothing in this record that the trial to demonstrate court even considered giving voluntary manslaughter the IPI instruction to the jury. Plainly, a record must demonstrate more than is shown here befоre a tenable assumption can be made that the instruction was not given because the trial court recognized and exercised its discretion when the instruction was not great tendered. is for me resulting injustice too to affirm a grant conviction of murder. I would the conviction and reverse defendant a new trial. voluntary manslaughter The failure to is also connection instruction raised argument alleged with prejudiced by incompetency defendant's that he was of his trial counsel, incompetency places importance counsel. On issue majority on the fact privately my opinion, defendant had retained whether had counsel.
privately appointed retained significance counsel or counsel of no issue the case. Cuyler 335, 344-45, See v. Sullivan 446 U.S. S. Ct. 64 L. Ed. 2d