People v. DiVencenzo

Annotate this Case
People v. DiVincenzo, No. 82942 (6/18/98)

Docket No. 82942--Agenda 5--March 1998.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. VINCENT
DiVINCENZO, Appellant.
Opinion filed June 18, 1998.

JUSTICE NICKELS delivered the opinion of the court:
After a jury trial in the circuit court of Du Page County, defendant was
convicted of first degree murder (720 ILCS 5/9--1(a)(2) (West 1994)) and
sentenced to 26 years' imprisonment. The appellate court affirmed (No. 2--95--
1454 (unpublished order under Supreme Court Rule 23)). We allowed
defendant's petition for leave to appeal (166 Ill. 2d R. 315).

BACKGROUND
The case was presented to the grand jury on June 16, 1993. The State
presented evidence showing that defendant had beaten the victim, Joseph
Novy, following an argument between the two young men on May 27, 1993.
At some point during the argument, defendant punched and kicked the victim
several times, resulting in the victim's death. Assistant State's Attorney
Creswell asked the grand jury to return an indictment charging defendant with
first degree murder. The State sought to indict defendant on the theory that he
acted with the knowledge that his acts created a strong probability of death or
great bodily harm. See 720 ILCS 5/9--1(a)(2) (West 1994). It did not ask the
grand jury to indict defendant for first degree murder based on an intent to
kill. See 720 ILCS 5/9--1(a)(1) (West 1994). After deliberating, the grand jury
stated that it would return a "no bill" as to first degree murder but would
consider lesser charges after adjourning for lunch. Creswell told the grand jury
that she would return in the afternoon with a "no bill" form.
During the lunch break, one of the grand jurors approached a
Westmont police officer and told the officer that the grand jury had returned
a "no bill" because the State failed to prove that defendant had an intent to
kill. The police officer reported this conversation to the prosecutors. During
the afternoon session, Assistant State's Attorney Kinsella asked the grand jury
to reconsider its decision not to indict defendant for first degree murder.
Kinsella discussed the difference between first degree murder and involuntary
manslaughter. The grand jury then returned a "true bill" on first degree
murder.
Defendant filed a motion to dismiss the indictment based on the
violation of secrecy and prosecutorial misconduct. The circuit court conceded
that communication had occurred between the grand juror, police officer, and
prosecutors. The circuit court determined, however, that the grand jury
transcript showed no undue coercion or misrepresentation of law constituting
prosecutorial misconduct. Accordingly, the circuit court denied defendant's
motion to dismiss the indictment.
Trial commenced on June 9, 1995. At the time of the fight on May 27,
1993, defendant was 18 years old and a senior at Addison Trail High School.
In the evening of May 27, defendant was a passenger in a vehicle driven by
his friend, Daniel Frasca. While stopped at a red light, defendant observed the
victim driving a Geo Tracker. Defendant testified that he disliked the victim
because the victim had dated defendant's girlfriend several years earlier.
While stopped at the red light, defendant noticed the victim staring at
him and this upset defendant. Defendant told Frasca to follow the victim's
vehicle. Defendant and Frasca followed the victim's vehicle for some time as
it traveled along several different streets. Eventually, the victim turned his
vehicle into the driveway of a friend's home. At this time, defendant told
Frasca to stop the car. Defendant and the victim exited their respective
vehicles and met each other on the grass parkway near the driveway.
Defendant testified that the two men started arguing and swearing at
one another. The victim asked what defendant was doing and whether
defendant still had a grudge about his girlfriend. Defendant said that he was
still upset about the victim's relationship with the girlfriend. Defendant asked
why the victim had stared at him. The victim said he did not know what
defendant was talking about.
Defendant testified that the victim placed his hand on defendant's chest
and pushed defendant backwards. Defendant immediately pushed the victim's
hand away from his chest. Defendant testified that the victim stepped back
with his right foot and clenched his fist, as if getting ready to throw a punch.
In response, defendant hit the victim in the mouth with the open palm of his
hand. This blow caused the victim to stumble backwards, and the victim raised
his hands to his face in a defensive posture. Defendant testified that he then
punched the victim on the side of the face. This blow knocked the victim to
the ground. Defendant testified that he told the victim to stay on the ground.
In defendant's recorded police statement, he stated that after the victim
had fallen to the ground, he kicked the victim once in the stomach. At trial,
defendant denied that he kicked the victim but testified that he kneed the
victim once in the side. Defendant testified that he got into Frasca's vehicle
and left. Defendant did not think that the victim was injured seriously.
Daniel Frasca also testified. Much of his testimony was consistent with
defendant's. Defendant told Frasca to follow the Geo Tracker because
defendant knew the individual in the vehicle. When the victim pulled into a
driveway, defendant told Frasca to stop their car. Frasca testified that the three
of them all exited their respective vehicles. After exiting the vehicles,
defendant and the victim started arguing and swearing at each other. At some
point, defendant and the victim began to shove each other. The victim stepped
back with his right foot and clenched his right fist. Defendant slapped the
victim and punched him, knocking him down to the ground. Defendant told
the victim to stay down. Frasca testified that he and defendant left in their
vehicle. Frasca did not see defendant kick the victim.
Janet Berens, a neighbor, testified that she witnessed the incident from
the window of her home, which was next door. She testified that she saw
Frasca, defendant, and the victim standing outside just before 7 p.m. She
testified that she saw defendant move his arms. After this movement, she saw
the victim fall to the ground. Berens testified that, while the victim was lying
motionless on the ground, defendant kicked the victim three times, twice to the
back and once to the head. Following the third kick, defendant and Frasca got
into their vehicle and left. She testified that the entire incident was over in
seconds.
Janet Berens' husband, Leon Berens, also testified at trial. He testified
that he was watching television at the time of the incident. His wife told him
that a boy was being badly beaten outside. Leon Berens testified that he ran
out of his house and yelled at the boys. When he yelled, defendant and Frasca
got into Frasca's vehicle and left. Leon Berens approached the victim to check
on his condition. The victim was not moving and was bleeding from his nose
and mouth.
Janet and Leon Berens called the police and paramedics. The victim
received medical attention at the scene and was transported to a hospital. Janet
and Leon Berens also obtained the license plate number of Frasca's vehicle
and reported it to the police. Addison police officers went to the Frasca
residence and left word that they were looking for defendant and Frasca. At
about 8 o'clock that evening, defendant and Frasca turned themselves in to the
Addison police. Both defendant and Frasca made several statements, including
recorded statements, to the police. The victim died later that evening, while
defendant and Frasca were talking to the police.
The State's expert, Dr. Nancy Jones of the Cook County medical
examiner's office, conducted the autopsy on the victim. She testified that there
were several areas of bruising to the victim's face and that the victim's jaw
was fractured on the left side and dislocated on the right side. She further
testified that the victim had two bruises on his back and a bruise to the back
of his head. Dr. Jones found an area of bleeding on the undersurface of the
scalp corresponding to the bruised area on the back of the head. The injuries
suffered by the victim were consistent with blunt trauma caused by punching
and kicking. The victim had no injuries on his hands or arms indicating
offensive or defensive action. Dr. Jones found no indication of an aneurysm
or natural disease. In her opinion, the cause of death was a torn cerebral
artery, resulting in a subarachnoid hemorrhage. This injury was caused by the
extension, rotation, and tearing of structures at the base of the brain caused by
blunt trauma. On cross-examination, Dr. Jones testified that this type of injury
was a rare phenomenon.
Defendant called two experts to testify at trial. Dr. Robert Beatty was
a specialist in neurosurgery. Dr. Beatty opined that the hemorrhaging was due
to a ruptured aneurysm, not a torn cerebral artery. He did not see a tear in a
cerebral artery. A torn artery would be unlikely given the victim's trauma. Dr.
Beatty testified that he did not see any indication of an aneurysm but he
opined that it was the most likely possibility. He testified that the aneurysm
may have destroyed itself in the process of bleeding or the pathologist may
have cut through it and discarded it. Dr. Beatty further testified that the
confrontation may have caused an increase in the victim's blood pressure,
which, in turn, may have caused the aneurysm to rupture.
Defendant's other expert, Dr. Mark Steinberg, also testified. He had a
degree in medicine and in dentistry, specializing in reconstructive facial
surgery and oral surgery. He testified that a minimal amount of force was
required to fracture the jaw. Dr. Steinberg further testified that a blow to the
jaw does not usually cause cerebral bleeding. Such bleeding would ordinarily
be caused by massive head trauma. Dr. Steinberg had no opinion as to the
cause of the victim's bleeding but testified that the beating contributed to the
victim's death.
After the evidence was presented, the circuit court instructed the jury
on the offenses of first degree murder and second degree murder. Defendant
requested that the circuit court also instruct the jury on the offense of
involuntary manslaughter. The State objected to the giving of the instruction,
and the circuit court denied defendant's request for the instruction. After
deliberating, the jury found defendant guilty of first degree murder. The circuit
court sentenced defendant to 26 years' imprisonment. The appellate court
affirmed the conviction and sentence. Defendant raises three issues on appeal
to this court: (1) whether defendant should receive a new trial because the
circuit court failed to instruct the jury on involuntary manslaughter, (2)
whether the first degree murder conviction should be reduced to involuntary
manslaughter because the evidence was insufficient to support a first degree
murder conviction; and (3) whether the indictment should be dismissed based
on prosecutorial misconduct and violation of grand jury secrecy during the
grand jury proceedings.

I. Involuntary Manslaughter Instruction
Defendant first argues that he was entitled to a jury instruction on the
lesser offense of involuntary manslaughter. Defendant emphasizes that the
fight between defendant and the victim was a weaponless fight and involved
individuals of the same general size and strength. Defendant argues that a
reasonable jury could have concluded that he was reckless with respect to his
actions and did not have the mental state required for first degree murder.
Accordingly, defendant argues that he is entitled to a new trial before a
properly instructed jury.
Initially, we note that an instruction is justified on a lesser offense
where there is some evidence to support the giving of the instruction. People
v. Jones, 175 Ill. 2d 126, 132 (1997). If there is some credible evidence in the
record that would reduce the crime of first degree murder to involuntary
manslaughter, an instruction should be given. People v. Foster, 119 Ill. 2d 69,
87 (1987); People v. Ward, 101 Ill. 2d 443, 451 (1984). Where some evidence
supports the instruction, the circuit court's failure to give the instruction
constitutes an abuse of discretion. Jones, 175 Ill. 2d at 132.
The basic difference between involuntary manslaughter and first degree
murder is the mental state that accompanies the conduct resulting in the
victim's death. Foster, 119 Ill. 2d at 87. Involuntary manslaughter requires a
less culpable mental state than first degree murder. Under section 9--1(a)(2)
of the Criminal Code of 1961, a defendant commits first degree murder when
he kills an individual without lawful justification and he knows that his acts
create a strong probability of death or great bodily harm. 720 ILCS 5/9--
1(a)(2) (West 1994). In contrast, a defendant commits involuntary
manslaughter when he performs acts that are likely to cause death or great
bodily harm to another and he performs these acts recklessly. 720 ILCS 5/9--
3(a) (West 1994). Recklessness is statutorily defined:
"A person is reckless or acts recklessly, when he
consciously disregards a substantial and unjustifiable risk that
circumstances exist or that a result will follow, described by the
statute defining the offense; and such disregard constitutes a
gross deviation from the standard of care which a reasonable
person would exercise in the situation." (Emphasis added.) 720
ILCS 5/4--6 (West 1994).
In general, a defendant acts recklessly when he is aware that his conduct might
result in death or great bodily harm, although that result is not substantially
certain to occur. See 1 W. LaFave & A. Scott, Substantive Criminal Law
3.7(f), at 336-37 (1986); 1 T. Decker, Illinois Criminal Law 82 (1986).
Reckless conduct generally involves a lesser degree of risk than conduct that
creates a strong probability of death or great bodily harm. See People v. Davis,
35 Ill. 2d 55, 60 (1966); People v. Rosenberger, 125 Ill. App. 3d 749, 763
(1984).
In the instant case, the appellate court found that an instruction on
involuntary manslaughter was not warranted. The court stated that defendant
had purposely initiated the altercation. Defendant punched the victim and
kicked him while he was lying on the ground. Although the appellate court
acknowledged that defendant had denied kicking the victim, it stated that Dr.
Jones' testimony supported the evidence that defendant kicked the victim
several times while defendant was lying on the ground. The appellate court
therefore concluded that defendant's conduct was not reckless, but was willful,
vicious, and brutal.
Although not dispositive, certain factors may suggest whether a
defendant acted recklessly and whether an involuntary manslaughter instruction
is appropriate. These include: (1) the disparity in size and strength between the
defendant and the victim (see, e.g., People v. Terrell, 132 Ill. 2d 178, 204
(1989); People v. Brackett, 117 Ill. 2d 170, 180 (1987)); (2) the brutality and
duration of the beating, and the severity of the victim's injuries (see, e.g.,
Foster, 119 Ill. 2d at 88; Ward, 101 Ill. 2d at 451-53); and (3) whether a
defendant used his bare fists or a weapon, such as a gun or a knife (see, e.g.,
Brackett, 117 Ill. 2d at 180; People v. Jefferson, 260 Ill. App. 3d 895, 912-13
(1994)). In addition, an involuntary manslaughter instruction is generally not
warranted where the nature of the killing, shown by either multiple wounds or
the victim's defenselessness, shows that defendant did not act recklessly.
People v. Trotter, 178 Ill. App. 3d 292, 298 (1988). Whether an involuntary
manslaughter instruction is warranted depends on the facts and circumstances
of each case.
We disagree with the appellate court and find that defendant was
entitled to an involuntary manslaughter instruction in this case. Some evidence
was presented at trial that would support a finding of recklessness and
involuntary manslaughter. There was no disparity in size and strength between
defendant and the victim. The altercation was of very short duration. The three
experts all testified that the injury resulting in the victim's death was a rare
phenomenon. Defendant's experts also testified that the torn cerebral artery
was unlikely given the severity of the external injuries. Defendant did not use
a weapon, such as a gun or knife. In addition, there was disputed testimony
as to whether defendant kicked the victim while the victim was lying on the
ground. Some of this evidence could have suggested to the jury that defendant
acted recklessly but without knowledge of a strong probability of death or
great bodily harm. Although the evidence suggests that defendant may have
deliberately provoked the confrontation, a defendant may act recklessly where
he commits deliberate acts but disregards the risks of his conduct. See 720
ILCS 5/4--6 (West 1994).
It is the function of the jury to evaluate the credibility of the witnesses
and to make inferences based on the evidence presented. Determination of
defendant's mental state may be inferred from the circumstantial evidence
(Terrell, 132 Ill. 2d at 203-04), and this task is particularly suited to the jury.
Based on the evidence, the jury could reasonably have concluded that
defendant, by punching and kicking the victim, consciously disregarded a
substantial and unjustifiable risk of death or great bodily harm but did not
have the mental state required for first degree murder. We find the cases relied
on by the appellate court factually distinguishable. See People v. Rodgers, 254
Ill. App. 3d 148, 151-54 (1993), vacated on other grounds, 156 Ill. 2d 564
(1994), readopted in pertinent part, 265 Ill. App. 3d 1, 2 (1994) (involuntary
manslaughter instruction not warranted where the defendant punched the
victim in the head numerous times while the victim was sleeping and after the
defendant had repeatedly threatened to kill the victim); People v. Reeves, 228
Ill. App. 3d 788, 798-800 (1992) (no involuntary manslaughter instruction
warranted where there was a great disparity in size between the 250-pound
defendant and the 168-pound victim). Accordingly, the jury here should have
had the option of finding defendant guilty of involuntary manslaughter.

II. Sufficiency of the Evidence
In a related argument, defendant argues that the evidence presented by
the State was not sufficient to support a verdict of first degree murder.
Defendant argues that the evidence in this case could support only a verdict
of involuntary manslaughter, not first degree murder. If the evidence presented
at trial was insufficient to support first degree murder, the conviction should
be reversed outright and the State would be barred from again prosecuting
defendant for first degree murder. Where the State has failed to provide
sufficient evidence, it will not be given a second opportunity to gather
additional evidence, based on principles of double jeopardy. See Burks v.
United States, 437 U.S. 1, 10-11, 57 L. Ed. 2d 1, 9-10, 98 S. Ct. 2141, 2147
(1978); People v. Taylor, 76 Ill. 2d 289, 309 (1979). Accordingly, defendant
argues that we should not remand this cause for a new trial but should reduce
the first degree murder conviction to involuntary manslaughter.
When a defendant challenges the sufficiency of the evidence presented
at trial, this court will not retry the defendant. Brackett, 117 Ill. 2d at 176.
" `[T]he relevant question is whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.' " (Emphasis
in original.) People v. Collins, 106 Ill. 2d 237, 261 (1985), quoting Jackson
v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789
(1979); see also People v. Campbell, 146 Ill. 2d 363, 374 (1992). Whether a
defendant is guilty of first degree murder or involuntary manslaughter is
ordinarily a question for the trier of fact. People v. Bartall, 98 Ill. 2d 294, 307
(1983).
As stated, inferences as to defendant's mental state are a matter
particularly within the province of the jury. There was evidence supporting
first degree murder. An eyewitness testified that she saw defendant kick the
victim three times while he was lying motionless on the ground, once in the
head. Dr. Jones testified that the victim had two bruises on his back and one
on his head. After considering the credibility of these and other witnesses, a
jury could reasonably infer that defendant acted with the knowledge that his
acts created a strong probability of death or great bodily harm. An individual
who kills another by punching and kicking can be convicted of first degree
murder if he acts with the requisite mental state. After viewing the evidence
in the light most favorable to the State, a rational trier of fact could have
found the essential elements of first degree murder beyond a reasonable doubt.
The ultimate determination of defendant's guilt as to any offense must be
made by the trier of fact at a new trial.

III. Grand Jury Proceedings
Finally, defendant argues that prosecutors engaged in misconduct
during the grand jury proceedings. He argues that the prosecutors improperly
asked the grand jury to reconsider after it had returned a "no bill" on the
charge of first degree murder. He further argues that the prosecutors
improperly learned of the grand jury's secret deliberations and used this
knowledge to ask the grand jury to reconsider. Defendant also contends that
the prosecutors misstated the law and exerted undue pressure on the grand jury
to return a "true bill" on first degree murder. Defendant therefore argues that
the indictment should be dismissed. Alternatively, defendant argues that he is
entitled to an evidentiary hearing to determine if there was any misconduct.
Initially, we note that the grand jury determines whether probable cause
exists that an individual has committed a crime, warranting a trial. 725 ILCS
5/112--4 (West 1994); People v. Fassler, 153 Ill. 2d 49, 60 (1992). Pursuant
to statute, the grand jury proceedings are conducted in secrecy. See 725 ILCS
5/112--6 (West 1994). The State's Attorney's office plays a substantial role in
the grand jury proceedings and serves as advisor to the grand jury. People v.
Linzy, 78 Ill. 2d 106, 110 (1979). Prosecutors inform the grand jury of the
proposed charges and the pertinent law. See 725 ILCS 5/112--4 (West 1994).
Challenges to grand jury proceedings are limited. In general, a
defendant may not challenge the validity of an indictment returned by a legally
constituted grand jury. People v. Rodgers, 92 Ill. 2d 283, 287 (1982); People
v. Seehausen, 193 Ill. App. 3d 754, 759 (1990). A defendant may not seek to
challenge the sufficiency of the evidence considered by a grand jury if some
evidence was presented. People v. J.H., 136 Ill. 2d 1, 17-18 (1990); Rodgers,
92 Ill. 2d at 290 (1982). A defendant may, however, challenge an indictment
that is procured through prosecutorial misconduct. Fassler, 153 Ill. 2d at 58;
Rodgers, 92 Ill. 2d at 287; Linzy, 78 Ill. 2d at 109-10. In reviewing challenges
to an indictment, courts will generally limit consideration to the transcript of
the grand jury proceedings. Linzy, 78 Ill. 2d at 109; People ex rel. Sears v.
Romiti, 50 Ill. 2d 51, 59 (1971).
From the grand jury transcript, it is clear that the grand jury voted to
return a "no bill" during the morning session. One of the grand jurors talked
about the deliberations to a police officer during the lunch break, and the
police officer informed the prosecutors of this conversation. In the afternoon
session, Assistant State's Attorney John Kinsella told the grand jurors that he
was concerned that they might not have a clear understanding of the law. He
told the grand jurors that it was the obligation of the State's Attorney's office
to properly advise them on the law. Kinsella told the grand jury that the
charge presented against defendant did not require an intent to kill. Rather, the
charge required that defendant committed an act knowing that it created a
strong probability of death or great bodily harm. He further informed the grand
jurors that they could consider the consequences of defendant's conduct in
determining whether defendant had the requisite knowledge at the time of the
beating. Kinsella stated that beating with fists and kicking can constitute
murder. In response to questions from grand jurors, Kinsella and Creswell
explained the statutory requirements for second degree murder and involuntary
manslaughter. They also gave the statutory definition of recklessness.
Two jurors indicated that they had reservations about first degree
murder. One stated that he was uncertain because this case involved a fist fight
and because defendant may not have meant to kill anybody. Kinsella stated
that the question to be considered by the grand jury was whether there was
probable cause to determine that defendant performed acts knowing that they
created a strong probability of great bodily harm. The second juror stated the
grand jury had already deliberated on first degree murder and had rejected it
during the morning session. In response, Kinsella stated that he wanted to
make sure that the question was decided based on the pertinent law. If the
grand jury had applied the pertinent law to the evidence, then they had reached
the proper result and should not change it. Kinsella and Creswell left cases and
statutory definitions for the grand jury to consider. After deliberating, the
grand jury voted a "true bill" on first degree murder.
Even if a prosecutor has engaged in misconduct and grand jury secrecy
has been violated, this does not warrant dismissal of the indictment per se. In
Fassler, 153 Ill. 2d 49, the grand jury indicted the defendant for aggravated
criminal sexual abuse and battery. In violation of the statute governing grand
jury secrecy (Ill. Rev. Stat. 1989, ch. 38, par. 112--6(a)), the victim's mother
was present when her daughter testified before the grand jury. This court held
that a violation of the secrecy requirement does not, by itself, require dismissal
of the indictment. This court stated that a defendant must make a showing of
substantial injustice before the indictment will be dismissed. Fassler, 153 Ill. 2d at 55; see Ill. Rev. Stat. 1989, ch. 38, par. 114--1(a)(5)). Something more
than violation of the statute is required, such as a showing that the purposes
of the secrecy requirement were not met, or that, in fact, the indictment was
obtained as the result of undue influence or coercion. Fassler, 153 Ill. 2d at
56. While noting that the State's conduct was improper and not to be
condoned, this court held that the violation was not sufficient to warrant
dismissal of the indictment. This court further stated that the prosecutor's
conduct did not rise to the level of a deprivation of due process, prejudice the
defendant's right to a fair trial, or undermine the integrity of the judicial
process. Fassler, 153 Ill. 2d at 61.
As in Fassler, it is clear that grand jury secrecy was violated in this
case. A grand juror talked to a police officer about the deliberations of the
grand jury, who in turn informed the prosecutors. The prosecutors may have
acted on this information in asking the grand jury to reconsider the matter. We
believe that this conduct was improper and we do not condone it.
To warrant dismissal of the indictment, however, defendant must
ordinarily show that the violation of secrecy and any prosecutorial misconduct
affected the grand jury's deliberations. See Bank of Nova Scotia v. United
States, 487 U.S. 250, 256-57, 101 L. Ed. 2d 228, 238-39, 108 S. Ct. 2369,
2374-75 (1988). Prosecutorial misconduct must rise to the level of a
deprivation of due process or a miscarriage of justice. Fassler, 153 Ill. 2d at
58; J.H., 136 Ill. 2d at 12-13; People v. Lawson, 67 Ill. 2d 449, 455 (1977).
The due process rights of a defendant may be violated if the prosecutor
deliberately or intentionally misleads the grand jury, uses known perjured or
false testimony, or presents other deceptive or inaccurate evidence. See, e.g.,
J.H., 136 Ill. 2d at 13; United States v. Hogan, 712 F.2d 757, 759-62 (2d Cir.
1983); People v. Barton, 190 Ill. App. 3d 701, 708-09 (1989). An indictment
may also be dismissed where the prosecutor has applied undue pressure or
coercion so that the indictment is, in effect, that of the prosecutor rather than
the grand jury. See United States v. McKenzie, 678 F.2d 629, 631 (5th Cir.
1982). To warrant dismissal of the indictment, defendant must therefore show
that the prosecutors prevented the grand jury from returning a meaningful
indictment by misleading or coercing it.
In the instant case, the fact that the prosecutors asked the grand jury
to reconsider is not sufficient, by itself, to warrant dismissal of the indictment.
A determination of no probable cause carries no preclusive effect. See 725
ILCS 5/112--4 (West 1994). A determination of no probable cause does not
generally prevent a subsequent consideration of probable cause. See People v.
Creque, 72 Ill. 2d 515 (1978); People v. Kent, 54 Ill. 2d 161, 162-64 (1972);
People v. Mennenga, 195 Ill. App. 3d 204, 209-11 (1990); People v.
Overstreet, 64 Ill. App. 3d 287, 289 (1978). No doctrine limits a grand jury
to one vote on a proposed indictment. See United States v. Thompson, 251 U.S. 407, 413, 64 L. Ed. 333, 342, 40 S. Ct. 289, 292 (1920); McKenzie, 678 F.2d at 634. Standing alone, the prosecutors' request for reconsideration does
not show that the will of the grand jury was overborne by the prosecutors.
Defendant also argues that the prosecutors misstated the law to the
grand jury. Specifically, defendant argues that the prosecutors improperly
stated that a substantial body of case law existed that fist fights leading to
death typically constitute first degree murder. In addition, defendant argues
that the prosecutors misstated the mental state required for first degree murder.
After reviewing the transcript of the grand jury proceedings, we
disagree. Defendant has distorted some of the prosecutors' statements by
presenting them out of context. Many of the prosecutors' statements and
comments are either answers to the grand jurors' questions or elaborations on
the pertinent statutory offenses and definitions. Even assuming some of the
prosecutors' comments were improper, that would not warrant dismissal of the
indictment. The prosecutors repeatedly and correctly stated the pertinent
statutory law and definitions. The prosecutors also provided the grand jurors
with case law and told them where to find the statutory definitions of
recklessness and other mental states. The transcript shows an independent
grand jury that questioned the statements and suggestions of the prosecutors.
The grand jury exercised its own independent will and was not overborne by
the prosecution. We conclude that the prosecutors did not make fundamental
misstatements of the law or exercise undue coercion. See Seehausen, 193 Ill.
App. 3d at 760; McKenzie, 678 F.2d at 631-34.

CONCLUSION
Accordingly, dismissal of the indictment is not warranted here. For
reasons stated in part I of the opinion, however, we find that the jury should
have been instructed on involuntary manslaughter. We therefore reverse the
judgments of the circuit and appellate courts and remand for a new trial.

Appellate court judgment reversed;
circuit court judgment reversed;
cause remanded.

JUSTICE HEIPLE, dissenting:
The trial court was correct in refusing to give an involuntary
manslaughter jury instruction in this case. As the majority notes, the difference
between murder and involuntary manslaughter is the mental state that
accompanies conduct causing the homicide. People v. Foster, 119 Ill. 2d 69,
87 (1987). A defendant is guilty of first degree murder if he kills another, and
while performing the acts that cause the death, knows that his acts create a
strong probability of death or great bodily harm. 720 ILCS 5/9--1(a)(2) (West
1994). A defendant is guilty of involuntary manslaughter, however, if the
actions are likely to cause death or great bodily harm and are performed
recklessly. 720 ILCS 5/9--3(a) (West 1994). "Recklessness" is a conscious
disregard of the substantial and unjustifiable risk that a result will follow a
person's actions. 720 ILCS 5/4--6 (West 1994). A jury is to be instructed on
manslaughter where there is credible evidence in the record which would
support that charge. People v. Ward, 101 Ill. 2d 443, 451 (1984). Such
instruction should not be given, however, if there is no evidence which would
reduce the crime to involuntary manslaughter. Ward, 101 Ill. 2d at 451; People
v. Simpson, 74 Ill. 2d 497, 501 (1978). The evidence in this case does not
indicate reckless behavior in any way; rather, it shows that defendant acted
with intent to cause great bodily harm. Defendant held a grudge against the
victim, and had expressed hatred of him in the past. While out driving,
defendant spotted the victim at a traffic light and followed him. A verbal
altercation ensued after the victim pulled into a friend's driveway and exited
his car. The victim moved to shove defendant, whereupon defendant slapped
and punched the victim. The punch was forceful enough to break the victim's
jaw and knock him to the ground. While the victim lay motionless on the
ground, defendant kicked him three times, twice in the back and once in the
head. A witness testified that these kicks were forceful. From these blows or
a combination thereof, the victim died. In sum, defendant initiated the
confrontation by stalking the victim, hit him, broke his jaw, kicked him
forcefully while he was down, and left him lying on the ground. His actions
were premeditated, purposeful, vicious and brutal; and it is apparent that the
defendant both intended to inflict great bodily harm on the victim and that he
knew or should have known that his actions created a strong probability of
great bodily harm. This was not mere recklessness.
Accordingly, it was not error for the trial court to refuse an involuntary
manslaughter instruction. The murder conviction should be affirmed.