People v. McDonald, 2016 IL 118882 (December). Episode 287 (Duration 4:45)

What's the appropriate standard a reviewing court should follow when deciding whether there was error in not giving a lesser included instruction: Abuse of discretion or de novo review?

Facts

This was a pretty bad domestic related stabbing.

Defendant stabbed his boyfriend in the face, chest, and arm.

The one in the face killed him.

Instructions

Defendant asked for and got the second degree murder unreasonable defense instruction but was denied the involuntary manslaughter and second degree murder serious provocation instructions.

Standard For Lesser-Included

The Illinois Supreme Court helped resolve some confusion on this issue and held that the appropriate standard for determining whether a defendant is entitled to a jury instruction on a lesser-included offense is…

Standard of Review on Appeal

On appeal when a reviewing court reviews a trial court's opinion they may adopt either an abuse of discretion or a de novo standard of review.

An abuse of discretion occurs where the trial court’s decision is arbitrary, fanciful, or unreasonable to the degree that no reasonable person would agree with it. The question is not whether the reviewing court would have made the same decision if it were acting as the lower tribunal.

In contrast, de novo review does not require the reviewing court to defer to the trial court’s judgment or reasoning; it is completely independent of the trial court’s decision. Under the de novo standard, the reviewing court performs the same analysis that the trial court would perform. The question is thus whether the trial court’s decision was correct as a matter of law.

Defendant essentially argued that the trial court always abuses that discretion by refusing to give a lesser included instruction if it is supported by slight evidence. As to the appropriate standard of review the high court held that when the trial court, after reviewing all the evidence, determines that there is insufficient evidence to justify the giving of a jury instruction, the proper standard of review of that decision is abuse of discretion.

Involuntary Manslaughter

The difference between first degree murder and involuntary manslaughter lies in the defendant’s mental state.

Certain factors, while not dispositive, may be considered in deciding whether an involuntary manslaughter jury instruction is warranted:

(1) the disparity of size and strength between the defendant and the victim,
(2) the duration of the altercation and the severity of the victim’s injuries,
(3) whether the defendant used a weapon,
(4) whether the defendant inflicted multiple wounds, and
(5) whether the victim was defenseless.

Analysis

Involuntary Manslaughter

Here, on the day of the fatal incident, defendant, while holding a knife, expressed his belief that the victim was having an affair and said he was going to kill him.

The victim was stabbed 3 times and was unarmed.

Defendant was trying to prevent the victim from leaving by keeping him from taking his bicycle. As they struggled over the bicycle, defendant swung the knife and stabbed him three times.

There was no evidence that defendant was threatened in anyway.

The stab wound to the cheek was deep enough to strike the carotid artery.

Given the dearth of evidence of recklessness, the reviewing concluded that the trial court did not abuse its discretion in refusing to give a jury instruction on involuntary manslaughter.

Intense Provocation

Nor was this a case that justified the second degree murder sudden or intense provocation instruction.

A person commits second degree murder when he or she commits first degree murder and either of two mitigating factors exists.

The first factor involves an unreasonable belief in self-defense.

The trial court gave a jury instruction on this factor. The second mitigating factor is that at the time of the killing, the offender was acting under a “sudden and intense passion resulting from serious provocation by the individual killed or another whom the offender endeavors to kill, but he or she negligently or accidentally causes the death of the individual killed.” 720 ILCS 5/9-2(a)(1).

The statute defines “serious provocation” as “conduct sufficient to excite an intense passion in a reasonable person.” 720 ILCS 5/9-2(b).

The only categories recognized by this court to constitute serious provocation are substantial physical injury or substantial physical assault, mutual quarrel or combat, illegal arrest, and adultery with the offender’s spouse.

Mutual combat is a fight or struggle that both parties enter willingly or where two persons, upon a sudden quarrel and in hot blood, mutually fight upon equal terms and where death results from the combat.

Here, defendant was spoiling for a fight before his boyfriend arrived at the house that evening.

There was no evidence that the victim attempted to take the knife from defendant.

The only injuries suffered by defendant were a superficial laceration on his lip and scrapes on his knees.

Thus, there was scant evidence of any real struggle.

The victim had no defensive wounds.

Even if, as defendant contends, the victim did hit him, defendant’s response was completely out of proportion to the provocation. In fact, it appears like the victim wanted to leave, but defendant continued the fight by preventing him from doing so.

The reviewing court was correct in holding that there was insufficient evidence of serious provocation to warrant the requested jury instruction. The trial court did not abuse its discretion in refusing to instruct the jury on second degree murder based upon serious provocation.

The Dissent

See the dissent for the case that because the trial court does not assess the credibility of the evidence, there is no reason for a reviewing court to give deference to the trial court’s determination.

Thus, a de novo standard should be applied on review.

The majority agreed that, when deciding whether there is some evidence in the record to support the giving of a lesser-included offense instruction, the trial court may not assess the credibility of the evidence.

That being so, why should the trial court’s determination be given any deference?

The majority, rather than apply the proper standard and determine whether there was some evidence to support the giving of the instruction, does exactly what it said the trial court is not supposed to do—it weighs the evidence.