Justia.com Opinion Summary: After a minor accident, the drivers' friends and relatives gathered, arguments ensued, and shots were fired. One victim survived; another died. Recovered bullets came from the same gun. There was testimony about defendant's use of a gun. Although an instruction on justifiable use of force in self-defense was given, defendant was convicted of first degree murder and aggravated battery with a firearm. He appealed the refusal to give an instruction that would have found him guilty only of second degree murder for having had an unreasonable subjective belief that the use of force was necessary. The appellate court reversed and remanded for a new trial. The Supreme Court affirmed. Evidence that supports a self-defense instruction also supports an instruction for second degree murder. It is the role of the court to determine if there is evidence to support a self-defense instruction, but it is the function of the jury to determine whether a defendant had a subjective belief that use of force was necessary and, if so, whether that belief was reasonable. The error would not automatically call for reversal, but with conflicting testimony, it was not harmless in the sense that the trial result would not have been different if the jury had been properly instructed.
Receive FREE Daily Opinion Summaries by Email Court description: In March of 2004, a minor traffic accident occurred near West 43rd Street and
South Lamon Avenue in Chicago. A crowd gathered, arguments ensued, and shots
were fired. The uncle of one of the drivers received gunshot wounds but survived. He
had been arguing with this defendant, Malvin Washington, who had come to the
scene because the other vehicle involved, which had been damaged, belonged to his
girlfriend. A bystander who was a relative of the first victim received fatal wounds.
The recovered bullets all came from the same gun, and there was trial testimony as
to the defendant’s use of a gun.
Washington was tried before a Cook County jury. Although an instruction on
justifiable use of force in self-defense was requested and given, he was convicted of
first degree murder and aggravated battery with a firearm, for which he received
consecutive 55- and 10-year sentences. On appeal, he complained of the trial court’s
refusal to give an additional instruction that would have found him guilty only of
second degree murder for having had a subjective belief that the use of force was
necessary under circumstances in which that belief was unreasonable. The appellate
court agreed with this contention, reversed, and remanded for a new trial. The State
appealed.
Case law has held that evidence which supports a self-defense instruction will
also support an instruction for second degree murder. The appellate court in this case
followed this precedent in ruling as it did. In this decision, the Illinois Supreme Court
found no reason to reach a different result. It held that the requirement stated in that
earlier decision (People v. Lockett, 82 Ill. 2d 546 (1980)) is mandatory.
The supreme court said that it is the role of a trial court to determine if there is
any evidence in the record to support the giving of a self-defense instruction.
However, it is the function of the jury to determine whether a defendant actually had
a subjective belief that the use of force was necessary and, if he did, whether that
belief was reasonable or unreasonable. This latter factual determination should not
be taken away from the jury.
This error was not a structural one which would automatically call for reversal.
But, because the testimony was conflicting, neither was it harmless in the sense that
the trial result would not have been different if the jury had been properly instructed.
The appellate court was affirmed in its reversal and its remand for a new trial.
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2012 IL 110283
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 110283)
THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
MALVIN WASHINGTON, Appellee.
Opinion filed January 20, 2012.
JUSTICE GARMAN delivered the judgment of the court, with
opinion.
Chief Justice Kilbride and Justices Freeman, Thomas, Karmeier,
Burke, and Theis concurred in the judgment and opinion.
OPINION
¶1
Defendant, Malvin Washington, was convicted of two counts of
first degree murder (720 ILCS 5/9-1(a)(1), (a)(2) (West 2002)) of
Marquis Reed and one count of aggravated battery with a firearm
(720 ILCS 5/12-4.2 (West 2002)) of Ronald Lee. The circuit court of
Cook County merged the counts of first degree murder and sentenced
defendant to a term of 55 years in prison on the murder conviction
and a consecutive term of 10 years in prison on the conviction for
aggravated battery with a firearm. Following the close of evidence
and relevant to this appeal, the circuit court instructed the jury on the
justifiable use of force in self-defense (720 ILCS 5/7-1 (West 2002)).
The court rejected defense counsel’s request to also instruct the jury
on second degree murder (720 ILCS 5/9-2(a)(2) (West 2002)) and
involuntary manslaughter (720 ILCS 5/9-3(a) (West 2002)).
Defendant appealed and the appellate court reversed and remanded
for a new trial, holding that where the evidence supports the giving
of a self-defense instruction, it was an abuse of discretion for the trial
court to refuse a defendant’s request for a second degree murder
instruction. 399 Ill. App. 3d 664. We granted the State leave to
appeal. Ill. S. Ct. R. 315 (eff. Feb. 26, 2010).
¶2
¶3
¶4
¶5
BACKGROUND
On March 21, 2004, Antonio Washington was visiting his cousin,
Topeka Washington, who was defendant’s sister. Antonio was
driving a car that belonged to Sharlene Parker, defendant’s girlfriend.
As Antonio backed out of his parking space, the car was struck by a
car driven by Antoine Lee. Both men got out of their cars. Phone calls
were made to members of both men’s families and soon several
people converged on the accident scene. Present were Antoine’s
mother, Angela Lee; her sister, Yvette Reed; her brother, Donald Lee;
and Yvette’s son, Marquis Reed. Another group of Antoine’s family
members arrived separately, including Antoine’s uncle, Ronald Lee;
LaTanya McGhee; LaTanya’s mother, Wanda Cook; and Victor
Lovelace, who was a friend of Ronald. Topeka called defendant’s
girlfriend to tell her of the accident. Defendant answered the phone
and he went to the accident scene. Defendant and Antoine began to
argue. At some point, defendant went to his girlfriend’s car and
retrieved a gun, as he did not want the police to find it. He put the gun
in the pocket of his green and black Milwaukee Bucks jacket. Ronald
Lee walked up to the two men. Antoine testified that Ronald told
defendant to “get the f*** away from my nephew.” Topeka joined in
the argument. Antoine testified that he decided that he and Ronald
should leave because too many people had arrived. Ronald told
Antoine, “F*** this s***, let’s go.” According to Antoine, as they
were walking away, he heard two or three gunshots. He turned around
and saw fire coming from defendant’s pocket.
Antonio Washington claimed that he was dazed after the accident.
He claimed a lack of memory concerning the salient events. However,
in a statement to police and in his grand jury testimony, Antonio
stated that defendant arrived on the scene and demanded that
someone pay for the damage to his girlfriend’s car. Antonio also
stated that the atmosphere was calm, but that the situation escalated.
At that point, Topeka “got crazy.” Antonio stated that he heard
several gunshots.
Ronald Lee testified that he and his family were driving in the
area and happened to come upon the accident. He got out of his car
and approached defendant and Antoine. Defendant was yelling and
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¶6
¶7
¶8
¶9
“fussing” at Antoine, who appeared frightened. When neither man
responded to Ronald’s question as to what was going on, Ronald told
Antoine to get in his car, that they would leave and call the police
about the accident from home. Ronald testified that he pushed
Antoine and defendant apart to prevent them from fighting and he and
Antoine started to walk away. Ronald testified that Topeka followed
them, yelling something about people minding their own business.
Ronald told her that this was his business because it involved his
nephew. As Ronald continued to walk to his car, he heard shouts of,
“He’s got a gun,” and Ronald turned around to see defendant pointing
a gun at him. Ronald tried to run away, but was shot three times.
Ronald denied having a gun that day and he also denied telling
defendant to “get the f*** away from my nephew” when he first
walked up to defendant and Antoine.
Angela Lee testified that when she approached the scene of the
accident, defendant and Antoine appeared to be talking calmly. She
saw Ronald walk up to them and ask what was going on. Defendant
asked Ronald in a normal tone of voice, “Who the f*** are you?”
Ronald stated that he was talking to his nephew, not to defendant.
When Ronald and Antoine started to leave, Angela saw defendant
shoot a gun in their direction. She ducked and fell to the ground. She
did not see anyone other than defendant with a gun. Angela testified
that there was no physical confrontation between defendant and
Ronald prior to the shooting.
Donald Lee testified that he saw Antoine arguing with a man who
was pushing Antoine with his body. Ronald walked up and stepped
between Antoine and the man and pushed them apart. Ronald became
involved in the argument, which was “very heated.” Donald did not
see any weapon in Ronald’s hands. He saw the man pull a gun from
his side. Donald ran when he heard gunshots; he did not have a gun
but would have used it if he had. Later, Donald saw his sister, Yvette,
sitting on the curb, holding her son Marquis, who was bleeding.
Yvette Reed testified that she was at Angela’s home when Angela
got a call from Antoine about a car accident. She, Angela, Donald,
and Marquis left to go to the accident scene. She stayed in the car,
while the others got out to see what was happening. Yvette heard
gunshots. She got out of the car and saw Marquis coming toward her
with blood on his mouth.
LaTanya McGhee was with Ronald when he walked up to
Antoine and defendant. Defendant was yelling at Antoine. Ronald
-3-
¶ 10
¶ 11
¶ 12
¶ 13
¶ 14
told Antoine to get in the car and call the police. Defendant began to
argue with Ronald. LaTanya denied seeing Ronald push or choke
defendant or hear him say, “Get the f*** away from my nephew.” A
woman approached Ronald and told him to mind his own business.
Ronald told the woman that this was his business. LaTanya saw
defendant remove a gun from his pocket and shoot three times at
Ronald. Everyone was running and screaming.
Wanda Cook saw that a crowd had gathered at the accident scene
and that people were arguing. Ronald was arguing with a man in a
black hoodie. The man pulled out a gun. Ronald ran away and she
heard three or four gunshots. Ronald fell to the ground at the door of
their car. Wanda stated that Ronald did not have a gun.
Forensics testing showed that all bullets and casings recovered
from the scene were fired from the same gun. The bullet that killed
Marquis had passed through another object or person before hitting
Marquis.
Topeka testified for the defense that when defendant initially
arrived on the scene he was calm. Both he and Antoine went to their
cars. When they came back, Ronald walked up. Ronald was angry and
things got out of hand. Ronald asked defendant if he was “F-ing” with
his nephew. Defendant stated that he was not. Ronald charged at
defendant and pushed him. Topeka asked Ronald why he was acting
like that and Ronald told her to shut up or he would slap her. Angela
Lee grabbed Ronald to try to calm him down. Ronald broke free and
charged at defendant, trying to choke him. Topeka heard a gunshot.
She ran and when she looked back, she saw Donald Lee running just
behind her with a gun that appeared to be jammed. She did not know
if Donald fired any shots. Topeka testified that she did not talk to the
police at any time in connection with the incident.
Finola Horad testified that she was at her neighbor’s house when
she heard between three and five gunshots. At first, she dropped to
the floor but quickly got up and went to the door because her
daughters were walking home from the store. She saw a man standing
in the street with a gun in his hand. She could not see his face and
could not tell his race or age. He was wearing a black hoodie and
jeans. A man was lying on the ground near him.
Defendant testified in his own behalf. After he retrieved his gun
from the car, he started to tell Topeka that he was going to put the gun
in her house. Ronald came up behind him, grabbed him by the neck
and pushed him. According to defendant Ronald told him to get the
-4-
¶ 15
¶ 16
“f***” away from Antoine. Defendant told Ronald not to put his
hands on him. Ronald started shouting and cursing. According to
defendant, Topeka tried to calm the situation and Angela Lee was
trying to hold Ronald back. However, Ronald broke loose and
grabbed defendant by the neck and they wrestled with each other.
After defendant pushed Ronald back, defendant saw Ronald reach for
his waistband and pull out a gun. Defendant described the gun as a
revolver with a wooden handle. Defendant testified that he was afraid
for his life and had no time to think. He reached for his gun and shot
at Ronald. Ronald lunged at him again and defendant shot him twice
more. Defendant stated he heard more gunshots from across the street
and he started to run away. While doing so, defendant saw Donald
Lee chasing him with a gun. It appeared the gun had jammed.
Defendant ran to a friend’s house. He was arrested six months later.
At the jury instruction conference, defense counsel requested an
instruction on self-defense. The trial court denied counsel’s request
for instructions on second degree murder and involuntary
manslaughter. The court determined that a question must exist as to
whether the defendant’s subjective belief in the need for the use of
force is reasonable and that there was no evidence in the instant case
that defendant had an unreasonable belief. As stated, the jury
convicted defendant.
Defendant appealed, arguing, inter alia, that the trial court erred
in refusing to give the jury an instruction on second degree murder.
The appellate court reversed and remanded for a new trial, finding
that the trial court abused its discretion in refusing the tendered
instruction.
¶ 17
¶ 18
¶ 19
ANALYSIS
I. Standard of Review
The question of whether sufficient evidence exists in the record
to support the giving of a jury instruction is a question of law subject
to de novo review. People v. Everette, 141 Ill. 2d 147, 157 (1990).
¶ 20
¶ 21
II
The State argues that the appellate court erred in reversing
defendant’s conviction and remanding for a new trial. In finding trial
court error for failure to give a second degree murder instruction, the
appellate court relied on this court’s decision in People v. Lockett, 82
-5-
¶ 22
¶ 23
Ill. 2d 546 (1980). Initially, we note that at the time Lockett was
decided, what is now second degree murder was called voluntary
manslaughter. In 1986, the legislature enacted Public Act 84-1450
(Pub. Act 84-1450 (eff. July 1, 1987) (amending section 9-2 of the
Criminal Code of 1961 (see Ill. Rev. Stat. 1985, ch. 38, ¶ 9-2)). The
Act renamed the offense of murder to first degree murder. Compare
Ill. Rev. Stat. 1985, ch. 38, ¶ 9-1, with Ill. Rev. Stat. 1987, ch. 38,
¶ 9-1. The Act also abolished the offense of voluntary manslaughter
and substituted for it the offense of second degree murder.
In Lockett, the defendant and his friends were driving in the
defendant’s car when they came upon the victim, an older man who
was pulling a cart filled with glass bottles. The defendant and his
companions became involved in an argument with the victim
concerning his cart blocking one lane of the street. The victim
approached the passenger side of the car and pulled a smoking pipe
out of his pocket. When the defendant and his friends began to laugh,
the victim pointed to his cart and said he had something in there to
make them move. He then started to pull a brown object out of the
cart. Someone in the car yelled for the defendant to watch out. The
defendant reached for his gun and shot at the victim, believing the
victim had a gun in his hand. When the police got to the scene, the
victim was lying dead in the street. No gun was found but an empty
whiskey bottle was lying near the body. The trial court gave the jury
an instruction on self-defense, but refused a tendered instruction on
voluntary manslaughter. The jury convicted the defendant of murder.
The appellate court reversed the conviction and remanded for a new
trial. Lockett, 82 Ill. 2d at 548.
This court affirmed the appellate court, rejecting the State’s
argument that because the defendant could have had a reasonable but
mistaken belief in self-defense, he was not entitled to an instruction
on voluntary manslaughter based on an unreasonable belief in selfdefense. The court noted with approval several appellate court cases
which held that if the evidence supports a self-defense instruction, it
will also support a voluntary manslaughter instruction. This court
observed that when a jury is given an instruction on self-defense, the
jury can conclude one of three things: (1) the defendant did not have
a subjective belief that use of force was necessary; (2) the defendant
had a subjective belief that use of force was necessary and that belief
was reasonable; or (3) the defendant had a subjective belief that use
of force was necessary and that belief was unreasonable. Therefore,
-6-
¶ 24
¶ 25
self-defense and voluntary manslaughter instructions should be given
when the evidence shows that the defendant had a subjective belief
that use of force was necessary. This court noted that it is for the jury
to determine whether that subjective belief was reasonable:
“It is not the province of the judge to weigh the evidence
and decide if defendant’s subjective belief was reasonable or
unreasonable. The judge’s duty is to determine if any
evidence is presented that the defendant had a subjective
belief. We can conceive of no circumstance when a judge
could determine, as a matter of law, that a jury could find the
defendant had a reasonable subjective belief the killing was
justified, but that the jury could not find the defendant’s
subjective belief was unreasonable. So long as some evidence
is presented from which a jury could conclude that defendant
had a subjective belief, the jury should determine if the belief
existed and, if so, whether that belief was reasonable or
unreasonable. Consequently, we hold that when the evidence
supports submitting an instruction on justifiable use of force,
a tendered [instruction] on voluntary manslaughter also
should be given.” Id. at 553.
The court noted the record in Lockett supported the trial judge’s
determination that the jury could have found that the defendant had
a subjective belief in the need for the use of force. Thus, a voluntary
manslaughter instruction on unreasonable belief in the use of force
should have been given, along with the self-defense instruction. Id.
The State argues that Lockett did not announce a rule that a
second degree murder instruction must be given as a mandatory
counterpart to a self-defense instruction in all murder cases. In fact,
the State argues, this was not even the issue before this court in
Lockett. Rather, the State argued there that because the defendant’s
defense theory was that he acted on a reasonable belief in selfdefense, he was therefore not entitled to an instruction on voluntary
manslaughter based on an unreasonable belief. This court rejected
that argument, stating that a defense based upon self-defense does not
preclude a voluntary manslaughter instruction in a murder
prosecution. The court went on to say that it is the settled rule in
murder cases that if there is evidence in the record which, if believed
by a jury, would reduce the offense to manslaughter, an instruction
defining manslaughter should be given. Further, the court continued,
it is equally well settled that such an instruction should not be given
-7-
¶ 26
¶ 27
if the evidence clearly shows that the crime was murder and there is
no evidence from which a jury might conclude that the defendant was
guilty of manslaughter, rather than murder. Id. at 550-51.
The State emphasizes this last passage in Lockett in arguing that
Lockett did not mandate the giving of a second degree murder
instruction whenever a self-defense instruction is given because the
Lockett court recognized that jury instructions must be supported by
some evidence in the record. The State views it as inconsistent for
this court to cite such a well-settled proposition of law, but then
establish a mandatory rule that a second degree murder instruction
must be given in all cases in conjunction with a self-defense
instruction regardless of whether the evidence supports the second
degree murder instruction. The State argues that, given the language
and background of Lockett and the “tenor” of the law at that time, it
is likely that Lockett was meant, at least in part, to convey a clear
message to the circuit courts that they should not hesitate to tender
jury instructions that are supported by the evidence even if the
instructions are inconsistent with the defendant’s own testimony or
the primary theory of the defense. Thus, according to the State, rather
than announcing a mandatory rule, Lockett merely reiterated that
where the record provides some evidence that could mitigate a crime
from first degree murder to second degree murder, a second degree
murder instruction should be given regardless of whether the
defendant chose an alternative theory of defense.
The State further argues that Lockett itself noted that the reason
the trial court in that case refused the voluntary manslaughter
instruction was not because the record lacked evidence to support the
instruction, but because the trial court concluded that self-defense is
seldom compatible with voluntary manslaughter. The trial court also
made certain comments which suggested a lack of belief in the
defendant’s testimony that he thought the victim was pulling a gun
when he shot him. Thus, the State argues, the trial court actually
identified evidence in the record to support the unreasonableness of
the defendant’s belief, but still refused to give the instruction. The
State also points to “permissive” language in Lockett, i.e., that “a selfdefense and a voluntary manslaughter instruction should be given
when any evidence is presented showing the defendant’s subjective
belief that use of force was necessary.” (Emphasis added.) Id. at 552.
Significantly absent, argues the State, is any wording describing an
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¶ 28
¶ 29
¶ 30
unequivocal command such as the words “requirement,”
“mandatory,” or “must” would convey.
Defendant, on the other hand, argues that Lockett did establish a
mandatory rule and that all but a few cases since then have followed
that rule. Defendant argues that Lockett neither used language of
limitation nor gave any indication that it was announcing anything
other than a broadly applicable per se rule. He emphasizes language
in Lockett in which this court stated that it could “conceive of no
circumstance when a judge could determine, as a matter of law, that
a jury could find the defendant had a reasonable subjective belief the
killing was justified, but that the jury could not find the defendant’s
subjective belief was unreasonable.” Id. at 553.
Reading Lockett as a whole convinces us that this court intended
to set forth a mandatory requirement. This court stated in Lockett that
“we hold that when the evidence supports submitting an instruction
on justifiable use of force, a tendered IPI Criminal No. 7.05 on
voluntary manslaughter also should be given.” (Emphasis added.) Id.
at 553. This holding came immediately after the court stated that it
was not the province of the judge to weigh the evidence and decide
whether the defendant’s belief was reasonable or unreasonable, and
that the court could conceive of no circumstance when a judge could
determine as a matter of law that a jury could find a defendant’s
subjective belief was reasonable but not find that the belief was
unreasonable. Id. at 553.
Further, Lockett is not the only case from this court to hold that a
second degree murder instruction should be given when the evidence
supports the giving of a self-defense instruction. Two years after
Lockett, this court decided People v. O’Neal, 104 Ill. 2d 399 (1984).
There, the defendant was charged with murder, rape, and other
offenses. It was alleged that he and the murder victim, Hendricks,
kidnapped a woman and sexually assaulted her in her car. The woman
testified that after the defendant finished assaulting her, Hendricks
removed his jacket and got on top of her. The woman further testified
that the defendant then shot Hendricks in the head. In contrast, the
defendant testified that while Hendricks was on top of the woman, the
defendant reached for the gun in Hendricks’ jacket pocket. Hendricks
then grabbed the defendant and tried to pull him into the backseat of
the car. The defendant testified that he shot Hendricks in self-defense.
The defendant stated that he was afraid of Hendricks due to
Hendricks forcing the defendant to commit criminal offenses and
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¶ 31
¶ 32
making threats against the defendant and his family. The trial court
gave the jury an instruction on self-defense, but refused to give an
instruction on voluntary manslaughter based on unreasonable belief
in the need to use deadly force. The issue before this court was
whether the trial court erred when it refused to instruct the jury on
voluntary manslaughter. This court noted that Lockett “held that
where there is evidence in the record to support a self-defense
instruction, a voluntary-manslaughter instruction must also be given
if tendered by defendant.” Id. at 405. The O’Neal court concluded,
after reviewing the record, that it agreed with the trial court that there
was sufficient evidence to submit a self-defense instruction to the
jury. Consequently, the court stated, the tendered instructions on
voluntary manslaughter should have also been given. The court
further held that the error was not harmless, noting that the finding by
the trial court of sufficient evidence in the record of the defendant’s
subjective belief in the necessity for the use of force to warrant a selfdefense instruction foreclosed any finding that the evidence of murder
was overwhelming. Consequently, the refusal to give the voluntary
manslaughter instruction was not harmless error. Id. at 406, 409.
More recently, People v. Jeffries, 164 Ill. 2d 104 (1995),
addressed issues surrounding the constitutionality of the second
degree murder statute. In that consolidated case, the defendants,
Jeffries and Newburn, were convicted of first degree murder. Jeffries
was accused of the stabbing death of his former girlfriend. The
victim’s aunt, who witnessed the stabbing, testified that Jeffries broke
into the victim’s residence and began repeatedly stabbing the victim
with a knife. When the victim ran outside and began screaming for
help, Jeffries followed her and continued stabbing her. Jeffries
testified that he stabbed the victim in self-defense and that two weeks
earlier, the victim had shot him in the arm. When he went to the
victim’s home to retrieve his belongings, she brandished a knife at
him and threatened to kill him. They struggled over the knife and
when Jeffries gained control of the knife, he repeatedly stabbed the
victim. Id. at 108.
In Newburn’s case, he and the victim engaged in two fist fights.
The victim then left his apartment and went across the street to the
liquor store. The victim’s roommate testified that she looked out the
window and saw Newburn, accompanied by another man,
approaching the apartment with a baseball bat. They chased the
victim out of the liquor store and Newburn struck the victim in the leg
-10-
¶ 33
with the bat. The victim ran toward the apartment building. Newburn
continued his pursuit of the victim and struck him again in the arm
and leg. He then bludgeoned the victim in the head with the bat three
times and ran away. The roommate and another witness testified that
no gun was involved in any of the confrontations between the victim
and Newburn. However, Newburn testified that the victim had a gun
during the final confrontation prior to the fatal incident. Newburn
testified that the victim began to chase him with the gun. After
evading the victim, Newburn got a baseball bat and walked to the
liquor store. When the victim emerged from the store, Newburn
swung the bat at him and struck him in the arm. The victim then
pulled his gun and Newburn, in trying to knock the gun out of the
victim’s hand, struck him in the head. When the victim dropped the
gun, the roommate picked it up and Newburn fled the scene. We note
the trial court gave a second degree murder instruction in Newburn’s
case. Id. at 109-10.
Pertinent to the instant case, the defendants in Jeffries argued that
under the second degree murder statute, the accused is required to
prove that he had an unreasonable belief in self-defense, which puts
the accused in the untenable position of arguing that he had a
reasonable belief in self-defense to obtain an acquittal and, at the
same time, arguing that his belief was unreasonable to obtain a
second degree murder conviction. This court noted that the
defendants, in essence, were arguing that the “but his belief is
unreasonable” language in the second degree murder statute is a part
of the requisite mitigation and that the accused bears the burden of
proving it. This court rejected that argument as a misconception of
what actually happens at a murder trial. Using the example of
Newburn’s trial, the court noted that the jury first evaluated all the
evidence and concluded that Newburn had killed the victim without
lawful justification. The jury then reevaluated the evidence to
determine whether, although legally unjustified, Newburn was acting
with the unreasonable belief that the circumstances justified his use
of deadly force. The jury found that Newburn had not proven the
mitigating factor of imperfect self-defense. Based upon this example,
this court concluded that a defendant is not required to argue that his
belief was unreasonable. Even if the jury found Newburn’s belief was
not objectively reasonable, he attempted to prove that he had an
actual belief in the necessity of self-defense by presenting evidence
that he had such a belief and that the belief was reasonable. Id. at 12426.
-11-
¶ 34
¶ 35
¶ 36
Finally, Jeffries clarified the burdens of proof under first degree
murder and second degree murder. The court noted that once an
affirmative defense has been raised, the State has the burden of
proving the defendant guilty beyond a reasonable doubt as to that
issue as well as the elements of first degree murder. After the State
establishes the elements of first degree murder, the trier of fact next
addresses the issue of lawful justification. In connection with
discussing the instruction of the jury on self-defense, this court cited
Lockett in a footnote. The footnote cited Lockett’s holding that selfdefense and second degree murder instructions should be given when
any evidence is presented showing the defendant’s subjective belief
that the use of force was necessary. Id. at 127.
Jeffries noted that to obtain a jury instruction on self-defense, a
defendant must establish some evidence of six factors: (1) force is
threatened against a person, (2) the person is not the aggressor, (3) the
danger of harm was imminent, (4) the threatened force was unlawful,
(5) the person actually and subjectively believed a danger existed that
required the use of the force applied, and (6) the person’s beliefs were
objectively reasonable. This court observed that a defendant’s belief
was not necessarily an element that the State was required to disprove
in defeating a claim of self-defense. Rather, the question of the
reasonableness of a defendant’s belief is merely one of six factors that
the State could choose to rebut. In summarizing, this court stated the
following:
“[W]hen a defendant is found guilty of second degree murder,
the trier of fact has, in essence, concluded that the evidence
that the defendant has offered was not sufficient to support his
claim of self-defense. The defendant, however, has proven by
a preponderance of the evidence the existence of a mitigating
factor sufficient to reduce the offense of murder to second
degree murder. The defendant is not compelled to show that
he had an unreasonable belief in the necessity for the use of
force to obtain a second degree murder conviction. Rather,
after the defendant has presented the best evidence for his
defense, the trier of fact has concluded that the evidence only
supports a finding of second degree murder and not absolute
justification for the defendant’s actions.” Id. at 129.
The State argues that Jeffries is of little applicability here because
the primary issue in that case was the constitutionality of the second
degree murder statute and that one of the defendants there, Newburn,
-12-
¶ 37
¶ 38
did receive a second degree murder instruction. While the State is
factually correct in its statements, we disagree with its conclusion.
The Jeffries defendants argued that they were required by the second
degree murder statute to prove an unreasonable belief in the need to
use force in self-defense. This court rejected that argument. The State
argues here that there must be some evidence in the record of an
unreasonable belief in self-defense to warrant a jury instruction on
second degree murder, or that at the very least, the reasonableness of
the defendant’s subjective belief must be actively in question. Jeffries
suggests otherwise. A defendant who claims self-defense puts forth
his best evidence on that affirmative defense. As this court stated in
Lockett, it is the trial court’s function to determine whether there is
evidence in the record of a subjective belief in the need to use force
in self-defense. If so, the trial court should instruct the jury on selfdefense and on second degree murder. This is so because, as noted by
this court in Lockett, it is the function of the jury to determine
whether the subjective belief existed and whether it was objectively
reasonable or unreasonable. In addition, Jeffries cited Lockett in a
footnote as it was discussing the instruction of a jury on the issue of
self-defense and the parties’ respective burdens of proof on the issues
of lawful justification. Id. at 127-28.
We find Jeffries relevant to the question of whether a second
degree murder instruction must be given when the evidence supports
the giving of an instruction on the justifiable use of force. It is
noteworthy that Jeffries found it unnecessary for a defendant who
asserts self-defense to also produce evidence that his subjective belief
in the need for the use of force was unreasonable in order to obtain a
jury instruction on second degree murder. It is enough, said Jeffries,
to produce evidence of an actual belief in the need for the use of force
in self-defense. From that evidence, if the jury finds the defendant had
a subjective belief, it may find the belief to be objectively reasonable
or objectively unreasonable. Consequently, we conclude that Jeffries
supports the holding of Lockett that if there is evidence in the record
to support the giving of an instruction on self-defense, that same
evidence will also support the giving of a second degree murder
instruction and such an instruction should be given.
In further support of its argument that Lockett did not intend to
require a second degree murder instruction as a mandatory
counterpart to a self-defense instruction, the State claims that the
appellate court cases cited with approval by Lockett were based upon
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¶ 39
¶ 40
factual situations in which there was testimony that the defendants
thought their victims were armed with deadly weapons. The State
argues that it was in this vein that Lockett explained that it was for the
trial court to determine whether there was any evidence in the record
to support a belief in self-defense but for the jury to determine
whether that belief was reasonable.
Lockett cited three cases. The first case cited was People v.
Wright, 24 Ill. App. 3d 536 (1974). There, the decedent and the
defendant had an altercation stemming from vehicles blocking the
street. During the altercation, the defendant shot the decedent. Several
witnesses testified, with varying accounts of what transpired. Some
testified that the decedent was the aggressor and others that the
defendant was the aggressor. The trial court gave the jury an
instruction on self-defense. On appeal from his murder conviction,
the defendant argued, inter alia, that the trial court erred in giving
certain jury instructions and in failing to give an instruction on the
unreasonable belief in use of force in self-defense. The appellate court
found that the trial court had given contradictory instructions on selfdefense and murder. The court also concluded that because the trial
court gave an instruction on self-defense, it should also have given a
voluntary manslaughter instruction on an unreasonable belief in the
justifiable use of force. In doing so, the appellate court noted that
when the evidence supports the giving of an instruction on the
justifiable use of force, the jury has three alternatives to consider, i.e.,
murder, self-defense, and unreasonable belief in the need for the use
of force. Id. at 541-42.
The second case relied on by the Lockett court is People v.
Zertuche, 5 Ill. App. 3d 303 (1972). There, the defendant was charged
with the murder of his former roommate. He admitted that he shot the
victim, but claimed self-defense. The defendant testified that the
roommate owed him money and when the defendant approached him
about payment, the victim refused and called him names. The
defendant and the victim had two additional confrontations during
which the victim again verbally attacked the defendant. On each of
these occasions, the defendant became frightened and left. After the
defendant left the scene of the final incident, he heard the door slam
behind him. When he turned around, he saw the victim coming
toward him as if to tackle him. Defendant pulled out a gun he had
been carrying for protection from the victim and shot him. The
defendant also testified that it was the victim’s habit to carry a gun
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¶ 41
¶ 42
and that he was taller, heavier, and younger than the defendant. There
were no eyewitnesses to the shooting. The trial court instructed the
jury on self-defense but refused to give a voluntary manslaughter
instruction on unreasonable belief. The appellate court reversed and
remanded for a new trial. The court noted it seemed inconsistent of
the trial court to find the existence of evidence from which the jury
could conclude that the defendant had a reasonable belief in the need
to use deadly force in self-defense, and at the same time find there to
be no evidence showing that the defendant had an unreasonable belief
in the need for the use of force. The court thus held that since the selfdefense instruction had been given, the voluntary manslaughter
instruction should also have been given. Id. at 306.
The third case cited by Lockett was People v. Johnson, 1 Ill. App.
3d 433 (1971), in which the victim was sleeping on a couch. The
defendant walked into the room and ordered the victim to get up and
leave. The sole eyewitness testified that the victim stood up and three
shots were fired. The defendant left the house, but returned when
police arrived and surrendered his weapon. The defendant testified
that when he awakened the victim, he jumped up with a funny look
in his eyes. The defendant knew the victim carried a knife and he was
afraid of the victim because the victim had previously broken a
woman’s leg with an iron pipe. According to the defendant, the
victim advanced toward him and threatened to beat the defendant.
The defendant then fired his gun when he was unable to run away.
The trial court gave the jury an instruction on the use of force in selfdefense; however, the court refused to give a voluntary manslaughter
instruction. The appellate court reversed and remanded, noting that
when the trial court determined that the evidence justified the giving
of an instruction on self-defense, there are three alternatives for the
jury’s consideration, i.e., murder, the use of force was justified, or
that while the defendant may have believed that the use of force was
necessary, that belief was unreasonable. It was for the jury to make a
choice among the several offenses disclosed by the evidence. Id. at
435.
The State attempts to distinguish these cases from the instant case
by noting that in Wright, Zertuche, and Johnson, the defendants only
thought that their victims were armed with deadly weapons. Here, in
contrast, defendant testified that he saw Ronald pull a revolver out of
his pocket. We fail to see the distinction. The defendants in the three
cases cited by Lockett believed their victims were armed with a
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¶ 43
¶ 44
deadly weapon. Defendant here testified that he saw Ronald pull a
gun. Since no weapon was found, the trier of fact in this case, if
instructed properly, could determine from the evidence that defendant
was mistaken and that his belief in the need for self-defense was
unreasonable. As Lockett noted, this was a question for the jury to
resolve, not the trial court.
The State argues that giving Lockett a mandatory interpretation is
contrary to the basic principle of law that whether a defendant is
entitled to a jury instruction on an affirmative defense depends upon
whether there is any evidence in the record to support that defense.
We agree that it is well settled that a defendant is only entitled to a
jury instruction on an affirmative defense if there is some evidence,
however slight, in the record to support that defense. See People v.
Jones, 175 Ill. 2d 126, 131-32 (1997). However, when the trial court
gives an instruction on the justifiable use of force, the court has
determined that the record contains evidence of the defendant’s
subjective belief that the use of force was necessary to defend
himself. As Lockett noted, it is not the trial judge’s role to weigh the
evidence and decide whether that belief was reasonable or
unreasonable. Lockett, 82 Ill. 2d at 553. The State’s argument
assumes that there will be instances in which, as a matter of law, the
defendant could not have had an unreasonable belief in the need to
use force in self-defense. In such a case, the State reasons, a second
degree murder instruction would not be supported by the evidence
and should not be given. The State argues that Lockett did not address
the situation presented in the instant case where the only question is
whether the factual scenario that the defendant alleges occurred
actually took place. The State cites two appellate court cases in
support, People v. Anderson, 266 Ill. App. 3d 947 (1994), and People
v. Billups, 404 Ill. App. 3d 1 (2010).
Anderson interpreted Lockett as holding only that a second degree
murder instruction must be given when there is a question as to the
reasonableness of a defendant’s subjective belief. In Anderson, the
defendant testified that the victim threatened him, pointed a gun at
him, and the gun went off during the ensuing struggle. Other
witnesses testified there was no physical altercation and that the
defendant walked up to the victim and shot him. Thus, according to
the appellate court, there was no question concerning whether the
defendant’s subjective belief in the use of force was unreasonable.
Anderson, 266 Ill. App. 3d at 951.
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¶ 45
¶ 46
¶ 47
¶ 48
A similar situation existed in Billups, where the defendant
claimed that the victim was attempting to rob him when he shot the
victim in self-defense. A third man present during the incident
testified that defendant said he had the gun all along. This man
testified that the defendant shot the victim within seconds of exiting
a van in which the three men were riding. Under these circumstances,
the appellate court found the defendant’s claim to be one of “perfect
self-defense,” i.e., if the jury believed the defendant’s version of the
facts, they must find the defendant not guilty by reason of selfdefense. In such circumstances, the court concluded, there is no issue
concerning the reasonableness of the defendant’s belief in the need to
use force to defend himself. Thus, the appellate court found there was
no evidence supporting the giving of a second degree murder
instruction in Billups, 404 Ill. App. 3d at 9-10. The Billups court
declined to read Lockett as changing well-settled law that the trial
court’s exercise of discretion as to the instructions to give the jury
depends upon that court’s assessment of whether some evidence
exists in the record that, if believed by the jury, would permit a
conviction for second degree murder. Id. at 11.
The appellate court in the instant case found the holding in
Anderson to be an aberration and disagreed with that case’s
conclusion that Lockett should be limited to situations where a
defendant’s subjective belief is actively in question. The court further
held that the trial court’s error in this case was not harmless because
the record contains evidence that defendant acted in either selfdefense or with an unreasonable belief in the need for the use of lethal
force. 399 Ill. App. 3d at 680-81.
The Anderson court misrepresented the holding of Lockett when
it said:
“Rather, Lockett held that self-defense and voluntary
manslaughter instructions should be given when any evidence
is presented showing the defendant’s subjective belief that
deadly use of force was necessary. A question must exist,
however, as to whether that subjective belief is reasonable,
resulting in a verdict of not guilty, or unreasonable, resulting
in a verdict of voluntary manslaughter.” (Emphasis added.)
Anderson, 266 Ill. App. 3d at 950-51.
Lockett did not hold or even imply that a question must exist as
to whether the defendant’s subjective belief was reasonable or
unreasonable. Instead, Lockett held that this was a question for the
-17-
¶ 49
¶ 50
fact finder to determine. The Anderson court tried to link Lockett’s
holding to the facts of that case and found that in Lockett the
defendant’s subjective belief was clearly in question. The language of
Lockett, however, does not lend itself to this interpretation. Nowhere
in its opinion did this court condition its holding on the facts of the
case before it. As Lockett, O’Neal, and Jeffries made clear, it is the
existence of the defendant’s subjective belief that the evidence must
show. It is for the jury to weigh the evidence and determine whether
that subjective belief existed and whether it was objectively
reasonable or unreasonable.
The principles expressed in Lockett have been applied by our
appellate court in the three decades since Lockett was decided. For
example, in People v. Russell, 215 Ill. App. 3d 8 (1991), the appellate
court applied Lockett in a situation where the trial court had given the
jury an instruction on second degree murder but refused to instruct the
jury on self-defense. There, the defendant was convicted of second
degree murder. He believed the victim, his half-brother, had stolen
some of his guns. The victim was involved with a group of people
whom the defendant considered to be dangerous. After his guns were
stolen, the defendant began wearing a bulletproof vest. He was
wearing the vest and carrying a gun when he confronted the victim
and his friends about the stolen guns. The defendant asked the group
to put their hands in the air because he believed they were armed. The
defendant testified that the victim started to turn to his right and the
defendant saw a gun in his hand. The victim swung the gun in the
defendant’s direction and the defendant raised his rifle and fired,
killing the victim. Afterward, one of the men with the victim threw
his gun under a car and took a gun from the victim’s body and threw
it under the car as well. Id. at 10-11.
The appellate court noted that this court held in Lockett that if the
evidence supports a self-defense instruction, it will also support a
second degree murder instruction. The court further noted that Lockett
had been followed since then. Although Russell involved the
converse of the situation in Lockett, the Russell court found the
reasoning of Lockett to still be applicable. In fact, the court noted that
the State in Russell did not seriously contest the basic proposition that
the jury should be instructed both as to self-defense and second
degree murder if evidence is produced that would establish a
subjective belief in the use of force in the defendant’s mind. Rather,
the trial court had refused to give the jury instruction on self-defense
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¶ 51
¶ 52
¶ 53
because it believed the defendant to be the initial aggressor. The
appellate court found that the evidence would support a finding either
way on that issue. Thus, the instruction should have been given. Id.
at 11-13.
People v. Edmondson, 328 Ill. App. 3d 661 (2002), involved a
gang shooting. The defendant was convicted of first degree murder
for killing two gang members. The defendant gave conflicting
versions of events in a written confession and in his trial testimony.
At trial, he claimed he acted out of self-defense, detailing a monthslong campaign of harassment and intimidation against him by
members of the gang. In his confession to police, he stated that he and
another man donned dark clothing and ski masks and went to a
certain street corner with the intent of shooting members of the gang.
Once there, the defendant and his companion started shooting at the
gang members. The defendant’s confession stated that he did not see
any weapons in the gang members’ hands. At the trial, the defendant
testified that he learned that the gang members were hanging out at
a street corner. He and his companion decided to meet them to
discuss the situation and try to reach an agreement. As they reached
the street corner, members of the gang rushed at them and the
defendant heard gunshots. He turned around and saw one of the gang
members exiting a car with a gun. The defendant testified that he
fired his gun in self-defense. The trial court instructed the jury on
self-defense; however, the court denied defense counsel’s tender of
instructions on second degree murder based on an unreasonable belief
in self-defense. Id. at 663-64.
On appeal, the defendant argued that this court’s decision in
Lockett required the giving of a second degree murder instruction
once the trial court determined that the evidence supported the giving
of a self-defense instruction. The appellate court agreed with the
defendant’s contention. The court noted the factors to be considered
in determining whether a second degree murder instruction is
warranted and applied those factors in light of the evidence. The court
noted that when the evidence conflicts on the issue of who initiated
the violence, the trial court must instruct the jury on the defendant’s
justifiable defenses supported by the evidence. This is true even if
inconsistencies exist in the defendant’s testimony. Id. at 664-65.
The Edmondson court further observed:
“The trial judge recognized that there were competing
theories factually at issue in this case and found the defendant
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¶ 54
¶ 55
¶ 56
¶ 57
¶ 58
was entitled to an instruction on self-defense because that
instruction was supported by the evidence. The submission of
the self-defense instruction by the trial judge indicates his
determination that the jury could conclude defendant acted
with the subjective belief his conduct was in self-defense.
There was sufficient evidence in the record to support that
determination. However, the refusal to instruct the jury on
second degree murder prevented the jury from determining
whether defendant’s subjective belief that he was justified in
self-defense was a reasonable or unreasonable belief. We
cannot reconcile the trial court’s finding sufficient evidence
to warrant a self-defense instruction, and thereby allowing the
jury to consider whether defendant’s subjective belief was
reasonable, with the trial court’s refusal to allow the jury to
consider whether that belief was unreasonable.” Id. at 665-66.
Citing Lockett, the Edmondson court noted that when the
evidence supports giving the jury an instruction on the justifiable use
of force in self-defense, then an instruction for second degree murder
should likewise be given.
Other cases also have applied the principles of Lockett. See, e.g.,
People v. Luckett, 339 Ill. App. 3d 93, 105-06 (2003); People v.
Toney, 337 Ill. App. 3d 122, 140-41 (2003).
We today reiterate Lockett’s holding that when the evidence
supports the giving of a jury instruction on self-defense, an
instruction on second degree murder must be given as a mandatory
counterpart. A failure to do so deprives the jury of the ability to make
a factual determination as to whether the defendant had a subjective
belief in the necessity for the use of force in self-defense but that
belief was unreasonable. Our holding applies only in cases, such as
Lockett and the instant case, where the trial court has determined that
the giving of an instruction on self-defense is warranted and the
defendant requests the giving of a second degree murder instruction.
III
The State argues that any error in refusing to give a second degree
murder instruction in this case was harmless because the evidence of
defendant’s guilt of first degree murder was overwhelming.
Defendant argues that the instructional error here is not amenable to
harmless-error analysis. The State counters that accepting defendant’s
contention would directly contradict this court’s previous holding that
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¶ 59
¶ 60
automatic reversal is mandated only for those errors that have already
been defined as structural errors by the United States Supreme Court.
See People v. Thompson, 238 Ill. 2d 598, 608-09 (2010).
We agree with the State that the failure by a trial court to instruct
the jury on second degree murder where the court has given an
instruction on self-defense is not subject to automatic reversal.
Automatic reversal is only required where the error is deemed
“structural,” i.e., a systemic error that serves to erode the integrity of
the judicial process and undermine the fairness of a trial. People v.
Glasper, 234 Ill. 2d 173, 197-98 (2009). The category of structural
errors is very limited. In Neder v. United States, 527 U.S. 1 (1999),
the Supreme Court considered whether a jury instruction that omitted
an element of the offense constituted structural error. The Court
found that it did not, noting that such errors are those that affect the
framework within which a trial proceeds, rather than simply an error
in the trial process itself. Such errors, the Court stated, deprive
defendants of basic protections without which a criminal trial cannot
reliably serve its function to determine guilt or innocence. Errors that
the Court has found to be structural include the complete denial of
counsel, trial before a biased judge, racial discrimination in the
selection of a grand jury, denial of the right of self-representation at
trial, denial of a public trial, and defective reasonable doubt
instructions. Id. at 8-9.
In contrast, instructional errors are deemed harmless if it is
demonstrated that the result of the trial would not have been different
had the jury been properly instructed. People v. Pomykala, 203 Ill. 2d
198, 210 (2003). The State argues that a second degree murder
instruction would not have changed the jury’s verdict because
defendant’s “fantastical tale of self-defense” was (1) utterly
implausible because his flight from the scene of the shooting
demonstrated blatant consciousness of guilt, (2) not supported by the
physical evidence that indicated only he possessed a gun, and (3)
directly contradicted his own witnesses. The State’s position appears
to be that since the jury rejected defendant’s claim of self-defense, it
would not have believed that defendant had an unreasonable belief in
the need for the use of force in self-defense. While there was evidence
that contradicted defendant’s claim of a reasonable belief in selfdefense, the evidence in this case was conflicting. Several witnesses
testified. All but one of the occurrence witnesses were members of
defendant’s or Ronald Lee’s family. Only one disinterested witness
-21-
testified and she did not see the shooting. The testimony was
diametrically opposed as to what transpired prior to and after the
shooting. It is the jury’s function to weigh the evidence, assess the
credibility of the witnesses, resolve conflicts in the evidence, and
draw reasonable inferences therefrom. People v. Williams, 193 Ill. 2d
306, 338 (2000). The trial court determined that there was sufficient
evidence in the record of a reasonable belief on defendant’s part to
justify giving an instruction on self-defense. Pursuant to Lockett and
its progeny, it was a question of fact as to whether defendant’s belief
was reasonable or unreasonable. By refusing to give a second degree
murder instruction, the trial court took the factual determination from
the jury. Based on this record, we cannot say that the result of the trial
would not have been different had the jury received a second degree
murder instruction.
¶ 61
¶ 62
IV
Finally, defendant argues that the trial court erred in refusing to
give a second degree murder instruction based on serious
provocation. See 720 ILCS 5/9-2(a)(1) (West 2002). The State argues
that defendant forfeited this argument because he did not raise it in
the appellate court. The State attaches to its reply brief pages of
defendant’s appellate court brief in which he details his arguments
concerning the alleged trial court error in failing to instruct the jury
on second degree murder, involuntary manslaughter, and unlawful
use of a weapon. The only argument raised with respect to the second
degree murder issue is defendant’s claim that the trial court failed to
instruct the jury on second degree murder–unreasonable belief. No
argument was raised regarding second degree murder–serious
provocation. Further, the appellate court opinion addressed
defendant’s arguments concerning alleged jury instruction error on
second degree murder, involuntary manslaughter, and unlawful use
of a weapon. The court noted that defendant provided no argument or
authority for his claim that the trial court erred in refusing to give a
jury instruction on unlawful use of a weapon. Thus, the court found
that argument forfeited. The court summarily disposed of defendant’s
claim of error in refusing to give an instruction on involuntary
manslaughter. 399 Ill. App. 3d at 676. The only issue regarding
second degree murder that the appellate court addressed was the
unreasonable belief issue that is now before this court. Where the
appellant in the appellate court fails to raise an issue in that court, this
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court will not address it. City of Urbana v. Andrew N.B., 211 Ill. 2d
456, 464 (2004). Although the appellate court briefs have not been
made a part of the record in this court, the foregoing discussion
adequately establishes that defendant did not raise the second degree
murder–serious provocation issue before the appellate court.
Accordingly, we find that defendant has forfeited this issue and we
decline to address it.
¶ 63
¶ 64
¶ 65
CONCLUSION
For the reasons stated, we affirm the appellate court’s judgment
reversing defendant’s convictions and remanding for a new trial.
Affirmed.
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