People v. Lewis

¶1dissenting:

¶2I cannot agree with the conclusion of the majority. I would reverse the conviction and grant defendant a new trial because the jury was not given a voluntary manslaughter instruction and the record demonstrates that the trial court failed to recognize and exercise its discretion when the instruction was not tendered.

¶3In murder trials, if there is evidence in the record which, if believed by the jury, would reduce the crime to voluntary manslaughter, a voluntary manslaughter instruction should be given. (People v. Lockett (1980), 82 Ill. 2d 546, 550, 413 N.E.2d 378, 381; People v. Leonard (1980), 83 Ill. 2d 411, 420-21, 415 N.E.2d 358, 363.) If the defendant fails to tender a voluntary manslaughter instruction, the trial court’s discretion comes into play. In the exercise of its discretion, the trial court can give the instruction sua sponte, or it can give considerable weight to the wishes of the defendant and not give the instruction. Also, the trial court can exercise its discretion and give the instruction sua sponte over the objection of the defendant. People v. Taylor (1967), 36 Ill. 2d 483, 490-91, 224 N.E.2d 266, 270-71; People v. Lewis (1977), 51 Ill. App. 3d 109, 117, 366 N.E.2d 446, 451-52; People v. Williams (1973), 10 Ill. App. 3d 456, 459, 294 N.E.2d 98, 101.

¶4Here, there was sufficient evidence, if believed by the jury, to have reduced the crime to voluntary manslaughter. Terry Richards was called to testify on behalf of co-defendant Brian McCarthy. She testified that on the eve of the shooting, she, Brian McCarthy and defendant had been at a birthday party from 8 p.m. until shortly after midnight. They left the party together, and while walking to another girl’s house, they reached the corner of St. Louis and Leland. Decedent and another member of the Royals gang ran out from an alley waving a baseball bat and another object and yelling “Royal Love.” Another member of the Royals gang then drove an automobile which “flew up on the sidewalk” at defendant. Defendant jumped, ran around the left side of the automobile and into the intersection, and fired a shot in the air. Three or four other Royals gang members jumped out of the automobile, and one of them yelled, “Grab him.” Defendant ran to the northeast corner of the intersection. Then, according to Terry Richards, the following happened:

“Tim ran towards [the defendant] and started to swing his baseball bat, and that’s when the shooting started.”

¶5Under the circumstances, if the jury had been given a voluntary manslaughter instruction and verdict form, it could have concluded that defendant subjectively believed that the use of force was necessary, but that this subjective belief was unreasonable. If the jury reached that conclusion, then a verdict of voluntary manslaughter would have been returned. (See Ill. Rev. Stat. 1979, ch. 38, par. 9 — 2; IPI Criminal No. 7.05.) Moreover, the trial court gave the jury a self-defense instruction without objection by the State. Since the evidence supported a self-defense instruction, it would also have supported a voluntary manslaughter instruction. Lockett, 82 Ill. 2d 546, 551, 413 N.E.2d 378, 381.

¶6In regard to the failure to give a voluntary manslaughter instruction, the majority relies upon and quotes from People v. Taylor (1967), 36 Ill. 2d 483, 224 N.E.2d 266. However, Taylor is distinguishable from this case. In Taylor, the record affirmatively demonstrated that the failure to give the instruction was the result of the trial court’s recognition and exercise of its discretion. In Taylor, the court stated:

“In exercising his discretion it is appropriate for the judge to consider that from the point of view of the public interest in the punishment of wrongdoers, one whose conduct is unlawful should not escape punishment altogether because a jury does not believe that he is guilty of the greater offense. It is also appropriate for him to consider that from the defendant’s point of view, the likelihood of a compromise conviction may be enhanced if the jury is permitted to consider successive offenses involving lesser degrees of criminality. In reaching his conclusion it is not impermissible for the judge to give weight to the views of the prosecution and defense as indicated by their requests for instructions. In the present case the decision of the defendant’s attorney not to request manslaughter instructions was clearly stated in response to the trial judge’s inquiry, and nothing in the record suggests that the attorney’s decision was reached without consultation with his client.” (Emphasis added.) 36 Ill. 2d 483, 491, 224 N.E.2d 266, 271.

¶7In the present case, unlike the Taylor case, the record does not show that the trial court recognized and exercised its discretion in not giving the instruction. Here, the majority assumes that the trial court recognized and exercised its discretion when the instruction was not given. To me, if the evidence supports a voluntary manslaughter instruction and it is not given, the record must affirmatively demonstrate that the failure to give the instruction was the product of the trial court’s exercise of its discretion. (Cf. People v. Autman (1974), 58 Ill. 2d 171, 176-77, 317 N.E.2d 570, 572; People v. Queen (1974), 56 Ill. 2d 560, 565, 310 N.E.2d 166, 169; People v. Jackson (1975), 26 Ill. App. 3d 618, 629, 325 N.E.2d 450, 458.) It is not sufficient if the record, as in this case, only shows that the instruction was not given. Too much is at stake to merely assume that the trial court recognized and exercised its discretion when the instruction was not given.1

¶8Where the evidence supports a voluntary manslaughter instruction and it is not given, a requirement that there be a showing in the record as to whether the trial court exercised its discretion in not giving the instruction is not an imposition on the trial court. In criminal cases, the purely passive role of the trial court in determining what instructions it should give to the jury is no longer acceptable.2 With the publication, availability and use of the Illinois Pattern Jury Instructions, our judicial system is now of the age where the trial court plays an active and positive role in ensuring that the jury is properly instructed when a person stands to lose his liberty. Ordinarily, at the conference on instructions, the trial judge has the IPI in front of him, and he examines and approves the instructions in accordance with the IPI when the IPI is applicable. (See Ill. Rev. Stat. 1979, ch. 110A, par. 451(a).) Thus, the IPI is not just for the benefit of lawyers. It is also an essential tool for the trial court in determining which instructions are to be given. Moreover, in criminal cases, the trial court has a responsibility to ensure that the essential instructions are given (see People v. Roberts (1979), 75 Ill. 2d 1, 13-14, 387 N.E.2d 331, 337; ABA Standards, Trial By Jury, Commentary, at 116 (1968))3, and the IPI is a tool which the trial court uses to fulfill this responsibility.

¶9Here, we have a murder trial where there was sufficient evidence which, if believed by the jury, would reduce the crime to voluntary manslaughter. The Committee Note for IPI 7.05 (voluntary manslaughter) provides:

“When the charge is murder, the defense is self defense, and the proof supports a voluntary manslaughter instruction and verdict, the order of instructions should be: first, Instruction 7.01 (Murder); second, this Instruction 7.05; third, applicable instruction from Chapter 24 — Defenses.”

¶10Consequently, in order to ensure that the jury was properly instructed, it was the duty of the trial court at the conference on instructions to exercise its discretion to give or not to give the IPI voluntary manslaughter instruction when it was not tendered. Where, as here, the record only shows that the voluntary manslaughter instruction was not given, the consequences are too great to merely assume that the failure to give the instruction was the result of the trial court’s exercise of discretion. As a result, I cannot agree with the majority’s assumption that the trial court properly exercised its discretion and chose not to instruct the jury sua sponte on the lesser offense.

¶11The majority also relies, in part, on the doctrine of waiver. However, the necessity for the remediation of serious errors which severely threaten the fundamental fairness of a defendant’s trial when the defendant stands to lose his liberty transcends the doctrine of waiver. (See People v. Jenkins (1977), 69 Ill. 2d 61, 67, 370 N.E.2d 532, 534; People v. Joyner (1972), 50 Ill. 2d 302, 307, 278 N.E.2d 756, 759; People v. Pernell (1979), 72 Ill. App. 3d 664, 666, 391 N.E.2d 85, 87; People v. Martinez (1979), 76 Ill. App. 3d 280, 283, 395 N.E.2d 86, 89; People v. Whitney (1980), 86 Ill. App. 3d 617, 621, 408 N.E.2d 268, 271.) In Pernell, this court stated:

“While the failure to tender a particular instruction may constitute a waiver of any claim that the instruction should have been given, we believe the defendant’s failure to tender IPI Criminal No. 25.05 is not as important with reference to fundamental fairness as the quintessential requirement that the jury be properly instructed when one stands to lose his liberty.” (72 Ill. App. 3d 664, 666, 391 N.E.2d 85, 87.) .

¶12Although Pernell involved the failure to give a self-defense instruction, the same principle applies to the failure to give a manslaughter instruction. In People v. Roberts (1979), 75 Ill. 2d 1, 11-12, 387 N.E.2d 331, 336, the court stated:

“In People v. Joyner (1972), 50 Ill. 2d 302, an error regarding the failure to instruct on a lesser included offense was not waived because, as noted by the court:

‘This was a close case factually and it was possible for the jury to find the defendants 'guilty of murder, not guilty by reason of self-defense, or guilty of manslaughter.’ (50 Ill. 2d 302, 307.)

The court felt that by not instructing on manslaughter the option to find the defendants guilty of manslaughter was not open to the jury. The court also noted that the defendants’ failure to tender the appropriate instruction was not as important to the fundamental fairness of their trial as the requirement that the jury be properly instructed.”

¶13Likewise, this case is close factually as to whether defendant had an unreasonable belief that circumstances existed which justified the killing. However, since the court did not instruct the jury on voluntary manslaughter, the jury did not have the option of finding defendant guilty of voluntary manslaughter. The difference between a voluntary manslaughter conviction and a murder conviction is obviously substantial. Under the circumstances, grave error was committed when the trial court failed to recognize and exercise any discretion with regard to instructing the jury on voluntary manslaughter. Accordingly, the failure to tender the voluntary manslaughter instruction is not as important with reference to fundamental fairness as the requirement that the jury be properly instructed.4 The error should therefore not be considered waived.

¶14There is absolutely nothing in this record to demonstrate that the trial court even considered giving the IPI voluntary manslaughter instruction to the jury. Plainly, a record must demonstrate more than is shown here before 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 tendered. The resulting injustice is too great for me to affirm a conviction of murder. I would reverse the conviction and grant defendant a new trial.