People v. Parker

Docket No. 101064.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
RONALD PARKER, Appellant.
Opinion filed December 21, 2006.
JUSTICE KILBRIDE delivered the judgment of the court, with
opinion.
Chief Justice Thomas and Justices Freeman, Fitzgerald, Garman,
Karmeier, and Burke concurred in the judgment and opinion.
OPINION
Following a jury trial in the circuit court of Cook County,
defendant, Ronald Parker, was convicted of second degree murder
(720 ILCS 5/9–2(a)(2) (West 2002)) and sentenced to 20 years’
imprisonment. On appeal, defendant contended he was denied a fair
trial because the trial court improperly instructed the jury and failed to
give the jury a general “not guilty” verdict form as required by Illinois
Pattern Jury Instructions, Criminal, No. 26.01A (4th ed. 2000)
(hereinafter IPI Criminal 4th). The appellate court affirmed
defendant’s conviction, holding that although the trial court erred in
failing to give the jury a general “not guilty” verdict form, the error
was de minimis and did not result in fundamental unfairness. 358 Ill.
App. 3d 371.
We allowed defendant’s petition for leave to appeal. 177 Ill. 2d R.
315. We now affirm.
BACKGROUND
Following a jury trial, defendant, Ronald Parker, was found guilty
of second degree murder (720 ILCS 5/9–2(a)(2) (West 2002)) in the
shooting death of Jonathan Derrick Lemon. The trial court sentenced
him to 20 years’ imprisonment. Defendant contended on appeal that
the trial court failed to give the jury a general “not guilty” verdict form
as required by IPI Criminal 4th No. 26.01A; it erred in instructing the
jury on the burden of proof; it failed to instruct the jury on the
definition of “preponderance of the evidence”; and it issued
inconsistent and contradictory instructions, thus denying him a fair
trial.
We review the background of only those jury instructions at issue
in this appeal. At the jury instruction conference, the parties agreed
the jury would be instructed on first and second degree murder, with
an instruction based on IPI Criminal 4th No. 2.01A. That instruction,
submitted by defense counsel, stated that defendant is charged with
first degree murder, that he has pleaded not guilty, and “[u]nder the
law, a person charged with first degree murder may be found not
guilty; or guilty of first degree murder; or guilty of second degree
murder.” In tendering IPI Criminal 4th No. 2.01A, defense counsel
indicated he was submitting the instruction because “they [the jury]
have to find first the Defendant satisfied certain elements, and then if
they find he’s committed First Degree Murder, then they can go to the
next step of Second Degree Murder.”
The State submitted IPI Criminal 4th No. 2.03 on the presumption
of innocence and the State’s burden of proof. Defense counsel
indicated “No objection.”
Defense counsel tendered IPI Criminal 4th No. 7.05, defining
“mitigating factor.” The court instructed the jury that a mitigating
factor reduces the offense of first degree murder to the lesser offense
of second degree murder.
Defense counsel tendered the issues instruction, IPI Criminal 4th
No. 7.06. The State initially objected, but then joined in the tender.
The trial court instructed the jury, pursuant to IPI Criminal 4th No.
-2-
7.06, that to sustain the charge of first or second degree murder the
State must prove that (1) defendant performed acts that caused
Lemon’s death; (2) defendant intended to kill or do great bodily harm
to Lemon, or knew that his acts would cause Lemon’s death, or knew
that his acts created a strong probability of death or great bodily harm;
and (3) defendant was not justified in using the force. The trial court
further instructed, in accordance with IPI Criminal 4th No. 7.06:
“If you find from your consideration of all the evidence
that any one of these propositions has not been proved beyond
a reasonable doubt, your deliberations on these charges should
end, and you should return a verdict of not guilty of first
degree murder.
If you find from your consideration of all the evidence that
each one of these propositions has been proved beyond a
reasonable doubt, then you should go on with your
deliberations to decide whether a mitigating factor has been
proved so that the defendant is guilty of the lesser offense of
second degree murder instead of first degree murder.
You may not consider whether the defendant is guilty of
the lesser offense of second degree murder until and unless
you have first determined that the State has proved beyond a
reasonable doubt each of the previously stated propositions.
***
If you find from your consideration of all the evidence that
the defendant has proved by a preponderance of the evidence
that a mitigating factor is present so that he is guilty of the
lesser offense of second degree murder instead of first degree
murder, you should find the defendant guilty of second degree
murder.
If you find from your consideration of all the evidence that
the defendant has not proved by a preponderance of the
evidence that a mitigating factor is present so that he is guilty
of the lesser offense of second degree murder instead of first
degree murder, you should find the defendant guilty of first
degree murder.”
When the State tendered IPI Criminal 4th No. 26.01A, defense
counsel stated “No objection” twice. The court accordingly instructed
-3-
the jury it would be provided with “three verdict forms: ‘not guilty’,
‘guilty of first degree murder’, and ‘guilty of second degree murder.’ ”
Defense counsel also affirmatively indicated “No objection” to the
State’s tendered IPI Criminal 4th No. 26.02, stating: “We, the jury,
find the defendant Ronald Parker not guilty of first degree murder of
Jonathan Derrick Lemon.”
The jury was then provided with the following three verdict forms:
(1) not guilty of first degree murder; (2) guilty of first degree murder;
and (3) guilty of second degree murder. During its deliberations, the
jury sent a note to the court, stating: “We find a mitigating
circumstance for the first shot[.] [D]oes it apply to the second shot?
If not[,] can we find 1st degree on the 2nd shot[?]” After consultation
with the parties, the trial court responded: “You have the evidence
and instructions. Continue to Deliberate.” The jury subsequently
found defendant guilty of second degree murder. Defendant did not
raise any jury instruction issues in his motion for a new trial.
The appellate court affirmed defendant’s conviction, holding that
although the trial court erred in failing to give the jury a general “not
guilty” verdict form, the error was de minimis and did not result in
fundamental unfairness or cause a severe threat to the fairness of
defendant’s trial. 358 Ill. App. 3d 371. The appellate court denied
defendant’s petition for rehearing.
ANALYSIS
Defendant argues the appellate court erred in not finding plain
error in the trial court’s failure to tender a general “not guilty” verdict
form to the jury. Defendant contends the trial court error was
compounded when it improperly instructed the jury on the burden of
proof and the definition of “preponderance of evidence,” and issued
inconsistent and contradictory instructions.
As defendant correctly notes, the purpose of jury instructions is to
provide the jury with correct legal principles that apply to the
evidence, thus enabling the jury to reach a proper conclusion based on
the applicable law and the evidence presented. People v. Novak, 163
Ill. 2d 93, 115-16 (1994). We first examine the jury instructions to
determine any error.
-4-
Defendant argues that IPI Criminal 4th No. 26.01A requires, and
the committee note to IPI Criminal 4th No. 26.02 requires, that a
general “not guilty” form be used when a jury is instructed on first and
second degree murder. Moreover, Supreme Court Rule 451(a)
provides that when the IPI Criminal contains an applicable instruction,
it “shall be used, unless the court determines that it does not
accurately state the law.” 210 Ill. 2d R. 451(a).
Here, the issue of whether the jury instructions accurately
conveyed to the jury the applicable law is reviewed de novo. People
v. Herron, 215 Ill. 2d 167, 174 (2005). We must determine whether
the instructions, taken as a whole, fairly, fully, and comprehensively
apprised the jury of the relevant legal principles. People v. Terry, 99
Ill. 2d 508, 516 (1984) (“Instructions in criminal cases must be read
as a whole. ‘It is sufficient if the series of instructions, considered as
a whole, fully and fairly announce the law applicable to the respective
theories of the People and the defense’ ”), quoting People v. Kolep,
29 Ill. 2d 116, 125 (1963). Jury instructions are intended to guide the
jury in its deliberations and to assist the jury in reaching a proper
verdict through application of legal principles to the evidence and law.
People v. Hester, 131 Ill. 2d 91, 98 (1989). Jury instructions should
be construed as a whole, rather than read in isolation. People v. Ward,
187 Ill. 2d 249, 265 (1999).
When, as here, a jury is to be instructed only on first and second
degree murder, IPI Criminal 4th No. 26.02 requires that the jury be
given a general “not guilty” verdict form. IPI Criminal 4th No. 26.02,
Committee Note. When the jury is to be instructed on some other
charge or charges, in addition to first and second degree murder, IPI
Criminal 4th requires that specific “not guilty of first degree murder”
forms be used. See IPI Criminal 4th No. 7.06, Committee Note, at
206 (“Use bracketed language ‘[of first degree murder]’ and ‘[on
these charges]’ when the jury will be instructed on other offenses in
addition to first degree murder and second degree murder”); see also
IPI Criminal 4th No. 7.06, Committee Note. Obviously, a specific not-
guilty verdict form must be given when a jury is instructed on charges
in addition to first and second degree murder because the additional
charges will require separate specific not guilty verdict forms. IPI
Criminal 4th No. 26.02, Committee Note, at 452.
-5-
Defendant relies on People v. Cross, 272 Ill. App. 3d 354 (1995),
overruled on other grounds, People v. Barney, 176 Ill. 2d 69 (1997),
in support of his argument that his conviction should be reversed and
the matter remanded for a new trial. In Cross, the appellate court held
that the trial court’s failure to give the jury a general “not guilty”
verdict form when the jury was instructed only on first and second
degree murder undermined the reliability of the verdict and denied the
defendant a fair trial. The Cross court reasoned:
“Lawyers and judges may understand that finding a
defendant not guilty of first degree murder permits the jury to
stop deliberations as to guilt right there. The jury in this case
was not so instructed. Instead, it was directed to look for a
form which the State said it would furnish, but did not, and the
court instructed the jury would be provided, but was not. The
circuit court’s failure to give this instruction deprived the jury
of considering an alternative to guilty of second degree
murder, which the court said it would give, since the only ‘not
guilty’ instruction given was that related to first degree
murder, without any further explanation. Prejudice to
defendant under these circumstances should need no
highlighting.” Cross, 272 Ill. App. 3d at 361.
The appellate court therefore reversed the defendant’s conviction and
remanded for a new trial. Cross, 272 Ill. App. 3d at 365.
The dissent in Cross disagreed with the majority that the trial
court’s failure to give a general “not guilty” verdict form constituted
reversible error. Cross, 272 Ill. App. 3d at 368-69 (DiVito, J.,
dissenting). The dissent observed that second degree murder is simply
a lesser mitigated offense of first degree murder and concluded that
the jury was properly instructed pursuant to IPI Criminal 3d No.
7.06A (Illinois Pattern Jury Instructions, Criminal, No. 7.06A (3d ed.
1992))1 that if it found the elements of first degree murder were not
proved beyond a reasonable doubt, it must find the defendant not
guilty of first degree murder and its deliberations must end. Cross, 272
1
IPI Criminal 3d No. 7.06A was renumbered as IPI Criminal 4th No.
7.06 in the most recent edition of the Illinois Pattern Jury Instructions and
contains virtually the same language.
-6-
Ill. App. 3d at 368 n.2 (DiVito, J., dissenting). The dissent found the
jury was sufficiently instructed that it could acquit the defendant of
both first and second degree murder, essentially amounting to a
general “not guilty” verdict. Accordingly, the dissent concluded that
the specific “not guilty of first degree murder” verdict form was a
“valid verdict form, even if the giving of a general not guilty form was
both preferable and required by No. 26.01A.” Cross, 272 Ill. App. 3d
at 368-69 (DiVito, J., dissenting).
Defendant also relies on People v. Kauffman, 308 Ill. App. 3d 1
(1999), to support his position that failure to tender a general “not
guilty” verdict form was erroneous. In Kauffman, the defendant was
convicted of second degree murder. The jury in Kauffman was
instructed pursuant to IPI Criminal 3d Nos. 2.01A, 7.06A, and
26.01B, and not given a general “not guilty” verdict form. The
Kauffman court explained that the “A” and “B” series from IPI
Criminal 3d Nos. 2.01 and 26.01 are incompatible. Kauffman, 308 Ill.
App. 3d at 15. In other words, whenever the “A” series is used from
IPI Criminal 3d No. 2.01, then the “A” series from IPI Criminal 3d
No. 26.01 must be given, and whenever IPI Criminal 3d No. 2.01B is
given, then IPI Criminal 3d No. 26.01B must be given. Kauffman, 308
Ill. App. 3d at 16. The Kauffman court acknowledged that IPI
Criminal 3d No. 7.06A was given, but that the instruction was
insufficient to cure any jury confusion that may have resulted from the
conflicting “A” and “B” series instructions. Kauffman, 308 Ill. App.
3d at 16. The Kauffman court also relied on the conclusion in Cross
that failure to issue a “not guilty” verdict form “ ‘deprived the jury of
considering an alternative to guilty of second degree murder.’ ”
Kauffman, 308 Ill. App. 3d at 15, quoting Cross, 272 Ill. App. 3d at
361.
The appellate court in this case declined to follow Cross and
Kauffman and, instead, relying on the reasoning of the Cross dissent,
determined that the trial court’s failure to give the jury a general “not
guilty” verdict form was a de minimis error that did not result “in
fundamental unfairness or cause a [ ] ‘severe threat’ to the fairness of
[the defendant’s] trial.” 358 Ill. App. 3d at 378. Accordingly, the
appellate court concluded that no confusion resulted from the trial
court’s failure to give the jury a general “not guilty” verdict form. 358
Ill. App. 3d at 378.
-7-
While we agree with the reasoning of the appellate court, we
disagree with its conclusion that error occurred. Here, both defense
counsel and the State tendered specific “not guilty of first degree
murder” instruction forms, except for the concluding instruction, IPI
Criminal 4th 26.01A, informing the jury that they would receive a
general “not guilty” verdict form, and 2.01A, informing the jury that
defendant may be found “not guilty.” While the instructions and
verdict form did not strictly follow the IPI Criminal format, the forms
were all proper statements of applicable law.
This court has made clear that second degree murder is a lesser
mitigated offense of first degree murder. People v. Jeffries, 164 Ill. 2d
104, 122 (1995). Only after the State proves the elements of first
degree murder may a defendant seek to mitigate the charge to second
degree murder. Jeffries, 164 Ill. 2d at 122. The logical corollary is that
a defendant need not seek to mitigate first degree murder if that
offense is not proven because guilt of first degree murder is an
element of the crime of second degree murder. 720 ILCS 5/9–2(a)
(West 2002). Accordingly, the use of the specific “not guilty of first
degree murder” verdict form makes logical sense.
Furthermore, IPI Criminal 4th No. 7.06, jointly tendered by
defense counsel and the State, specifically told the jury that if the State
failed to prove any one of the propositions, “your deliberations on
these charges should end, and you should return a verdict of not guilty
of first degree murder.” Thus, a finding that the defendant is not guilty
of first degree murder bars the jury from considering second degree
murder, and the jury verdict form of “not guilty of first degree
murder” would unambiguously establish the jury’s intention to acquit
on all charges.
Defendant also relies on People v. Durr, 215 Ill. 2d 283 (2005).
In Durr, the defendant was convicted of three counts of predatory
criminal sexual assault and one count of aggravated kidnaping. On
appeal, the defendant argued that the trial court erred in giving a
nonpattern jury instruction and effectively denied the jury the option
of fully acquitting him of all charges. This court concluded that the
trial court did err when it gave a non-IPI instruction. Durr, 215 Ill. 2d
at 302. However, this court held that the error was de minimis
because the instruction reflected the appropriate IPI structure and
specifically advised the jurors they could find the defendant not guilty
-8-
of the greater offense and each of the lesser-included offenses. Durr,
215 Ill. 2d at 301. This court reasoned:
“If the instructions given the jury had denied the jury the
option of returning a general ‘not guilty’ verdict, as defendant
contends, a significant structural error would have occurred
for purposes of our rules, substantial rights would in fact have
been violated, and the fairness and integrity of the trial process
would have been compromised. However, that is not what
happened in this case.” Durr, 215 Ill. 2d at 302.
Defendant argues that the hypothetical scenario this court outlined
in Durr is what occurred in this case. We disagree with defendant. As
we have explained, a verdict of “not guilty of first degree murder”
precludes a finding that defendant is guilty of second degree murder,
and the instructions gave the jury the option of acquitting defendant
by signing the “not guilty of first degree murder” verdict form.
Significantly, defense counsel told the trial court that IPI Criminal
4th No. 7.06 should be given to the jury because they would
understand that “if they find he’s committed First Degree Murder,
then they can go to the next step of Second Degree Murder.” Even
defense counsel effectively understood that a verdict of “not guilty of
first degree murder” precluded the jury from considering second
degree murder.
Thus, the Cross court erroneously concluded that second degree
murder is an alternative to first degree murder. We reiterate, second
degree murder is a lesser mitigated offense of first degree murder.
Jeffries, 164 Ill. 2d at 122. Accordingly, we agree with and adopt the
reasoning of the Cross dissent and, to the extent that Cross has
remained viable, despite being previously overruled on other grounds,
we expressly overrule Cross.
We further find Kauffman distinguishable as the jury in this case
was consistently and properly instructed in accordance with the “A”
series of IPI Criminal 3d Nos. 2.01 and 26.01. However, to the extent
that Kauffman relied on Cross, we overrule that part of Kauffman.
Defendant argues that this court chose not to overrule Cross when
given the opportunity in People v. Villarreal, 198 Ill. 2d 209 (2001).
As aptly pointed out by the State, this court did not review or approve
of Cross, but simply noted that the jury in Villarreal received the
-9-
verdict forms corresponding to their instructions, thus avoiding the
situation found to warrant reversal in Cross. This court simply did not
address the issues raised in Cross because they were not an issue in
Villarreal.
We find no merit in defendant’s argument that the jury was given
inconsistent instructions. We find no inconsistency in the instructions
where the terms “not guilty” and “not guilty of first degree murder”
were used interchangeably. The record clearly refutes defendant’s
claim that the instructions were confusing. There is no indication in
the record that the instructions caused any confusion to the jury. To
the contrary, the record reveals that the jury completely understood
the trial court’s instructions when it posed the following question
during its deliberation:
“We find a mitigating circumstance for the first shot[.] [D]oes
it apply to the second shot? If not[,] can we find 1st degree on
the 2nd shot[?]”
The jury obviously followed the step-by-step instructions set forth in
IPI Criminal 4th No. 7.06.
Moreover, the record indicates defendant waived any jury
instruction issues by affirmatively agreeing to all instructions as
submitted to the jury. At the jury instruction conference, the parties
agreed on the instructions that would be given to the jury. Defendant
further did not include the matter in his posttrial motion, and his
failure results in a procedural default of the issue on appeal. People v.
Enoch, 122 Ill. 2d 176, 186 (1988).
This court has recognized that “[t]he burden of preparing
instructions is primarily on the parties and not the trial court.” People
v. Barnard, 104 Ill. 2d 218, 232 (1984). In Barnard, this court stated:
“Generally, the trial court is under no obligation either to give
instructions or to rewrite instructions tendered by counsel. A
party may not raise on appeal the failure to give an instruction
unless he shall have tendered it. [Citation.]” Barnard, 104 Ill.
2d at 232.
Here, as pointed out by the State, defendant did not tender a
general “not guilty” verdict form. Rather, when the State tendered the
specific “not guilty of first degree murder” verdict form during the
jury instruction conference, defense counsel specifically replied, “No
-10-
objection.” Defendant therefore waived any objection to the specific
“not guilty of first degree murder” verdict form.
Defendant urges this court not to conclude that IPI Criminal 4th
No. 7.06 could have cured any verdict form error because IPI
Criminal 4th No. 7.06 was erroneous. Moreover, defendant argues
that the trial court’s use of IPI Criminal 4th No. 7.06 exacerbated the
verdict form error because it rendered the instructions far more
conflicting than those in Cross. Even if we were to conclude that any
error occurred in instructing the jury in this case, it was defense
counsel that submitted IPI Criminal 4th No. 7.06, and because defense
counsel submitted the instruction, defendant cannot directly attack the
instruction. Villarreal, 198 Ill. 2d at 227. “To allow defendant to
object, on appeal, to the very verdict forms he requested at trial,
would offend all notions of fair play.” (Emphasis in original.)
Villarreal, 198 Ill. 2d at 227. Accordingly, defendant invited any error
by submitting IPI Criminal 4th No. 7.06 and agreeing to IPI Criminal
4th No. 26.02. See People v. Carter, 208 Ill. 2d 309, 319 (2003)
(“Under the doctrine of invited error, an accused may not request to
proceed in one manner and then later contend on appeal that the
course of action was in error. [Citations.]”).
Defendant also argues that the trial court failed to instruct the jury
on the definition of “preponderance of the evidence” in accordance
with IPI Criminal 4th No. 4.18. Defendant further contends that the
trial court erred in instructing the jury on the general burden of proof
pursuant to IPI Criminal 4th No. 2.03, instead of No. 2.03A
instructing the jury on the specific burden of proof in first and second
degree murder cases. As the State points out, IPI Criminal 4th No.
7.06 specifically instructed the jury on the definition of
“preponderance of the evidence” and the specific burden of proof in
first and second degree murder cases. Moreover, defendant did not
tender IPI Criminal 4th No. 4.18 or 2.03A to the trial court and has
forfeited this issue. Herron, 215 Ill. 2d at 175 (“Generally, a defendant
forfeits review of any putative jury instruction error if the defendant
does not object to the instruction or offer an alternative instruction at
trial and does not raise the instruction issue in a posttrial motion.
[Citations.]”).
-11-
CONCLUSION
Defendant has failed to show any error occurred in the trial court’s
instruction of the jury in this case. Even if we were to conclude that
any error occurred in instructing the jury, defendant has invited the
error and waived any objection. We therefore affirm the judgment of
the appellate court affirming defendant’s conviction.
Affirmed.
-12-