People v. Brown, 2017 IL App (3d) 140514 (May). Episode 367 (Duration 14:51)

The jury signed the not guilty of first degree murder conviction and they signed the second degree murder instruction, this was inconsistent, yet the conviction is sustained.

Facts

This was a home invasion that led to a struggle resulting in the shooting death of the home owner.

Defendant crashes through the back door with a gun puts a gun to the head of the handyman and starts walking him through the house.

The homeowner hears his wife screaming and he comes to confront the defendant. A struggle ensues and the homeowner is killed.

Defendant says it was a drug deal and victim was ripping him off.

They fought and he had to shoot him in the back in self defense.

Jury Instructions

At the jury instruction conference, the trial court approved instructions pertaining to self defense and second degree murder.

Murder Type A

The first degree murder instructions were modified by agreement to differentiate between Count II, which was referred to as First Degree Murder (Type A), and Count I, the felony murder count, which was referred to as First Degree Murder (Type B).

The parties agreed that Illinois Jury Pattern Instruction, Criminal, No. 2.01B (4th ed. 2000) (hereinafter, IPI Criminal 4th) was to be given, modified to refer to first degree murder (Type A), which provided:

“Under the law, a person charged with first degree murder may be found (1) not guilty of first degree murder; or (2) guilty of first degree murder; or (3) guilty of second degree murder.”

IPI Criminal 4th No. 2.01B.

The jury was also given IPI Criminal 4th No. 2.03A, which instructed that if the State proved beyond a reasonable doubt that the defendant was guilty of first degree murder (Type A), then the defendant had the burden of proving by a preponderance of evidence that a mitigating factor was present so that he was guilty of the lesser offense of second degree murder and not guilty of first degree murder (Type A).

The jury was also instructed that it could not consider whether the defendant was guilty of the lesser offense of second degree murder unless it first determined that the defendant was proved guilty beyond a reasonable doubt of first degree murder.

With respect to the charge of first degree murder (Type A), the jury was given three verdict forms:

(1) not guilty of first degree murder (Type A);
(2) guilty of first degree murder (Type A); and
(3) guilty of second degree murder.

The judge instructed the jury to select one verdict and sign it and not to write on the other two forms.

The jury was also given four other verdict forms:

(1) not guilty of first degree murder (Type B);
(2) guilty of first degree murder (Type B);
(3) the allegation that the defendant personally discharge the firearm was proven; and
(4) the allegation that the defendant personally discharged the firearm was not proven.

Jury Decision

After deliberations, the jury returned its verdicts. Indeed, many strange things can happen during a jury trial.

It did not follow the directions regarding signing only one of the verdict forms relative to first degree murder (Type A) and only signing the discharge of firearm verdicts if it found the defendant guilty of first degree murder.

The jury signed two verdict forms: not guilty of first degree murder (Type A) and guilty of second degree murder.

The jury also signed the verdict forms stating that defendant was not guilty of first degree murder (Type B) and that the allegation that the defendant had personally discharged the weapon was proven.

The jury was not polled, the verdicts were received and entered, and the jury was discharged.

Motion For A New Trial

The defendant filed a motion for a new trial, arguing, among other things, that he was not proved guilty beyond a reasonable doubt. The trial court denied the motion and proceeded to sentencing.

The defendant was sentenced to a 24-year term of imprisonment. The defendant’s motion to reconsider his sentence was denied and defendant appealed.

The defendant argues that his conviction of second degree murder must be vacated because a finding of not guilty verdict of first degree murder precluded a finding that he was guilty of second degree murder.

Issue on Appeal

The sole argument defendant has advanced is that the State has failed to prove an essential element of the crime—that he is guilty of first degree murder. Throughout his initial and reply briefs, he has persisted in that very argument.

Nowhere in his briefs has he raised a claim of inconsistent verdicts.

Nor does his argument implicate the principles or precedent relating to lesser included offenses.

The State argues that the jury mistakenly filled out extra verdict forms. Also, the State argues that the defendant forfeited this issue on appeal because he failed to make a timely objection or include the issue in his posttrial motion and did not argue plain error.

A defendant who fails to make a timely objection and include the issue in a posttrial motion forfeits review of the issue. Herron, 215 Ill. 2d at 175. There is no dispute that the defendant did neither of these.

Clearly Inconsistent Verdicts

The defendant’s argument, although he denies it, is basically that the verdicts were inconsistent. Since the defendant argued for plain error review in his reply brief, we will consider the issue for plain error under the second prong of the plain error analysis, i.e., where the error is so serious that the defendant was denied a substantial right and thus a fair trial. See People v. Williams, 193 Ill. 2d 306, 348 (2000); Herron, 215 Ill. 2d at 179.

The defendant primarily relies upon People v. Parker, 223 Ill. 2d 494 (2006), wherein the Illinois Supreme Court stated that “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.” Parker, 223 Ill. 2d at 505. However, the conviction in Parker was upheld and that jury received accurate jury instructions and actually committed no error when they signed their guilty verdict.

In that case, however, the Court was addressing jury verdict forms, not inconsistent verdicts. While the jury in the instant case was similarly correctly instructed, it is clear that the jury did not follow the instructions because it filled out more than one verdict form and signed the form on the allegation that the defendant personally discharged the firearm.

It is without question that second degree murder is a lesser mitigated offense of first degree murder. Thus, the jury found essential elements, the elements of first degree murder, to exist and to not exist, resulting in inconsistent verdicts. See People v. Lefler, 2016 IL App (3d) 140293, ¶ 20 (jury verdicts are legally inconsistent when an essential element of each offense is found to exit and to not exist, even though the offenses arise out of the same set of facts); People v. Porter, 168 Ill. 2d 201, 214 (1995) (verdicts that defendant was guilty but mentally ill of both second degree and first degree murder for the death of his mother were inconsistent because they found the murder both provoked and unprovoked at the same time).

Analysis

This is not a case of inconsistent guilty verdicts, but rather a guilty verdict that is inconsistent with an acquittal on another count. See The United States Supreme Court, in United States v. Powell, 469 U.S. 57 (1984). The Powell court found that inconsistent verdicts were in error, but not of a constitutional nature.

The rationale for not allowing the defendant to challenge such an inconsistent jury verdict was that the government could not challenge the acquittal and it was unclear who the jury’s error favored. Also, the error could have been the result of jury lenity. Finally, the defendant was protected against jury irrationality or error because of sufficiency of the evidence review.

The difference between the instant case and the Powell and Jones line of cases is that those defendants were convicted of the lesser-included offense and acquitted of the greater offense, while the defendant in this case was convicted of the lesser-mitigated offense and acquitted of the greater offense.

However, the rationale of Powell still applies.

While it is clear that the jury was in error in returning inconsistent verdicts, in the words of the U.S. Supreme Court in Powell, “it is unclear whose ox has been gored,” and it is unclear who the jury’s error favored. The government could not challenge the acquittal.

Also, the verdict could still be explained as the result of jury lenity: second degree murder is a “lesser” offense than first degree murder because its penalties are lesser.

Finally, the defendant was protected against jury irrationality or error because he could have sought a review of the sufficiency of the evidence. This sufficiency of the evidence review, which will protect a defendant against jury irrationality, requires us to independently assess the evidence adduced at trial and determine if it would support any rational determination of guilt of second degree murder beyond a reasonable doubt.

The reviewing court went on to independently balance the sufficiency of the evidence and held there was enough there so that the jury could rationally determine that the defendant was the aggressor, that he was not justified in using deadly force, and that any belief that deadly force was necessary was unreasonable.

The court then held the jury erred by returning inconsistent verdicts, the entry of a conviction inconsistent with an acquittal is not of a constitutional nature and it did not deny the defendant a substantial right. The defendant has, therefore, failed to meet his burden of showing that the error affected the fairness of his trial or challenged the integrity of the judicial process.

Accordingly, the second prong of plain-error review does not provide a basis for excusing the defendant’s procedural default, and we affirm the defendant’s conviction of second degree murder.

The Dissent

See the dissent who said that any review of the sufficiency of the evidence to either attack or justify the first degree murder acquittal is both improper and unconstitutional.

Moreover, such a procedure would invite the State to come through the back door to finesse an argument, as it appears to do here, that the jury really intended to find defendant guilty of first degree murder because it intended to find him guilty of second degree murder.

If the State is constitutionally prohibited from a frontal attack on the jury’s finding of not guilty, it surely is similarly barred from assaulting it by indirection or subterfuge.

It is clear that the jury misunderstood the instructions about how to fill out the verdict forms and that a mistake was made.

It is not at all clear, however, what that mistake was.

Despite the arguments of the State, there is no actual factual basis for determining that the jurors did not, in fact, intend to acquit of first degree murder. Without such a finding, his conviction of second degree murder cannot legally stand.

To determine that the jurors did not so intend is to engage not only in an unconstitutional review of his acquittal but also in wanton speculation.

To find defendant guilty of second degree murder in the face of his acquittal of first degree murder flies in the face of the plain and unambiguous language of the statute and frustrates the manifest intent of the legislature.

In summary, the jury acquitted defendant of the first degree murder of the victim; that acquittal cannot be challenged constitutionally by either the defendant or the State; the statute clearly and unambiguously requires, as the first necessary element of proof for second degree murder, that the State prove defendant guilty of first degree murder; the State did not—indeed, could not—provide such proof because of the acquittal; therefore, the evidence was insufficient as a matter of law to prove him guilty of second degree murder.

I can see no choice but to reverse that conviction.

If we do not do so, we will have violated our sworn duty to enforce the law as written and enacted by the legislature. It is possible, but not certain, that defendant was wrongly acquitted of first degree murder. He is nonetheless legally not guilty.

It seems trite but is nevertheless true to say that it is better to risk exonerating a possible wrongdoer than to

(1) ignore the unambiguous language of a duly enacted statute or
(2) intentionally and deliberately undermine the most fundamental constitutional principles and procedures undergirding our criminal justice/criminal judicial system.