dissenting:
I respectfully dissent. Neither the trial court’s evidentiary rulings nor the State’s arguments constituted plain error, and the verdict forms given to the jury were proper.
STATE-OF-MIND EVIDENTIARY RULINGS After objections to questions concerning why defendant was carrying a gun had been sustained, defendant’s attorney made the following offer of proof:
"Specifically he was carrying the weapon for his protection not only because of the area, the neighborhood, but more specifically because he knew or had information in his possession that Prince Phillips was coming up to settle some business with him.”1
In his opening statement, defense counsel connected defendant’s carrying a gun to "what violence occurs here”; during trial, defendant testified that he was in a very violent, high crime area; and, in closing argument, defense counsel talked about the reasonableness of defendant’s carrying a gun in his neighborhood. That defendant carried the gun because of his concern about dangers in the area of the shooting was before the jury. Plainly, defendant was not prevented from offering that explanation for his carrying the gun.
It is true that the court’s rulings did not allow him to specifically explain that he carried the gun because of fear of Phillips. Nevertheless, through the admission of his statement to the assistant State’s Attorney, that defendant was "warned” that Phillips "had said he would harm [him] if he found him” and that he brought the gun with him for protection were in evidence and before the jury. Additionally, defendant, who testified that he did not know whether the gun he carried was loaded, testified that he was told that "they had a bullet on my name [sic] when I come down Yates,” and he testified variously that he fired his gun because of fear for his own life, because he had no avenue of escape, because he was being beaten, and because someone else had pulled a gun. This evidence prompted defense counsel’s closing argument that Phillips and the other State witnesses were "assassins” who "were coming to give some pay back.” Although the court should have allowed defendant to present the proffered state-of-mind testimony that his carrying the gun was partially due to his fear of Phillips, that fact was before the jury in many different ways. The court’s rulings therefore did not constitute plain error. People v. Parker (1990), 194 Ill. App. 3d 1048, 1058-59, 551 N.E.2d 1012 (improperly excluded evidence concerning defendant’s state of mind merely cumulative where defendant gave both direct and circumstantial evidence on the issue); People v. Sims (1994), 265 Ill. App. 3d 352, 638 N.E.2d 223 (considering entire record, excluded state-of-mind evidence that victim carried and pulled gun day before shooting was harmless).
VERDICT FORMS
Regarding the verdict-form issue, the majority is correct that "[a]t the jury instruction conference in this case, both sides agreed to IPI Criminal 3d No. 26.01A.” (272 Ill. App. 3d at 367.) This is a concluding instruction where the jury is to be instructed on first and second degree murder and not on any other charge. It provides that the jury will be "provided with three verdict forms: 'not guilty’, 'guilty of first degree murder’, and 'guilty of second degree murder’.” (IPI Criminal 3d No. 26.01A.) The majority interprets this to mean that the court’s failure to give the jury a general "not guilty” verdict form amounts to reversible error. This interpretation is incorrect.
IPI Criminal 3d No. 26.01B, a concluding instruction to be given when the jury is also to be instructed on some other charge or charges, is nearly identical to IPI Criminal 3d No. 26.01A in its first five paragraphs. The last two paragraphs concern the other, nonmurder, charges. But where IPI Criminal 3d No. 26.01A states that the jury will be provided with verdict forms indicating that the defendant is " 'not guilty’, 'guilty of first degree murder’, and 'guilty of second degree murder,’ ” IPI Criminal 3d No. 26.01B states that the jury will be provided with verdict forms indicating that the defendant is " 'not guilty of first degree murder’, 'guilty of first degree murder’, and 'guilty of second degree murder.’ ” This is a proper instruction, although it differs from No. 26.01A.
The committee notes to No. 26.01B make this point clear:
"The Committee considered and rejected the idea of making one of the verdict forms read, 'not guilty of first degree murder and not guilty of second degree murder.’ Under the present statutory scheme concerning homicide offenses, there can be no such verdict as, 'not guilty of second degree murder.’ *** Only after the State has first proved the defendant guilty of first degree murder may the jury consider whether the defendant has met his burden of proving the existence of a mitigating factor to reduce his crime to the lesser offense of second degree murder. Thus, a finding by the jury that the defendant is not guilty of first degree murder bars the jury from considering second degree murder at all. Accordingly, the jury need be provided only with a verdict form of 'not guilty of first degree murder’.” IPI Criminal 3d No. 26.01B, Committee Note, at 349.
The Illinois Supreme Court’s decision in People v. Jeffries (1995), 164 Ill. 2d 104, 646 N.E.2d 587, reinforces this position. In discussing the mental state required for second degree murder, the court stated:
"Having determined that the mental states for murder and second degree murder are identical, it is evident that second degree murder is not a lesser included oifense of first degree murder. Rather, second degree murder is more accurately described as a lesser mitigated offense of first degree murder.” (Emphasis in original.) (Jeffries, 164 Ill. 2d at 122, 646 N.E.2d at 595.)
In Jeffries, the court cited People v. Newbern (1991), 219 Ill. App. 3d 333, 579 N.E.2d 583, with approval for its holding that "second degree murder *** is a mitigated oifense because it is first degree murder plus defendant’s proof by a preponderance of the evidence that a mitigating factor is present.” (Emphasis in original.) Jeffries, 164 Ill. 2d at 122, 646 N.E.2d at 595.
Only after the State proves the elements of first degree murder may a defendant seek to mitigate the charge to second degree murder. The only possible verdicts the jury could return are: (1) not guilty of first degree murder; (2) guilty of first degree murder; or (3) guilty of second degree murder, which is guilty of first degree murder plus mitigation. There can be no such verdict as not guilty of second degree murder under our statutory scheme.
In this case, the court instructed the jury using IPI Criminal 3d No. 26.01A, which on its face requires a general not guilty verdict form. The actual verdict forms given to the jury, however, included the form described in No. 26.01B: "We, the jury, find the defendant, Terrence Cross, Not Guilty of First Degree Murder.” As the majority points out (272 Ill. App. 3d at 360), defendant did not object. Because this is a valid verdict form, even if the giving of a general not guilty form was both preferable and required by No. 26.01A, defendant was not prejudiced.2
The majority’s reliance on People v. James (1993), 255 Ill. App. 3d 516, 626 N.E.2d 1337, is misplaced. Unlike the situation in this case, in James the court was dealing with a lesser included offense. A finding of not guilty of aggravated arson would still have exposed the defendant to a conviction for arson. Because no not guilty of arson verdict form was tendered, the defendant in James faced automatic conviction on some charge. That is not the case here, where second degree murder is most emphatically not a lesser included offense of first degree murder. Acquittal on the first degree murder charge would have cleared defendant of both first degree murder and the lesser mitigated charge of second degree murder.
FINAL ARGUMENT ISSUES
The majority should never have addressed the final argument issues because it reverses defendant’s conviction on other grounds. (See People v. Melock (1992), 149 Ill. 2d 423, 466, 599 N.E.2d 941.) Having chosen to address the issues, however, the majority should have found that defendant waived them because he failed to object or to include the issues in his post-trial motion.
Nothing said in final argument constituted plain error. As the supreme court has said, our standard of review is that "in order for the statements to be considered plain error they must be either 'so inflammatory that defendant could not have received a fair trial or so flagrant as to threaten deterioration of the judicial process.’ (People v. Albanese (1984), 104 Ill. 2d 504, 518.)” People v. Phillips (1989), 127 Ill. 2d 499, 524, 538 N.E.2d 500, 509.
The prosecutor’s comments that defendant’s testimony was not supported by any other witness may have been improvident, but viewed in the context of what the prosecutor said about the "ridiculous” nature of the story told by defendant as he discussed the numerous inconsistencies in defendant’s versions, it was merely a comment on the fact that his testimony lacked credibility. Similar comments were approved by the supreme court in People v. Phillips (127 Ill. 2d at 526-27, 538 N.E.2d at 510-11). These comments did not constitute plain error.
As for the prosecutor’s comment about defendant’s motive for testifying, the majority cites People v. Watts (1992), 225 Ill. App. 3d 604, 588 N.E.2d 405, but neglects to point out that the similar comments made there did not rise to the level of plain error. Nor did they rise to that level here.
CONCLUSION
The majority’s declaration that this is a close case does not withstand scrutiny. A number of witnesses corroborated the State’s version. Defendant’s version was offered only by him. Some of the evidence that impeached defendant’s version of what occurred included his flight and disposal of the gun; his failure to state in earlier statements that he had been beaten by anyone, that anyone had pulled a gun, or that anyone had fired a gun; his failure to report any injury and the absence of any sign of injury on him; and the absence of any physical evidence at the scene, such as bullets or shell casings or bullet damage, that would have corroborated his version that 12 shots were fired at him.
Plain error considerations do not warrant reversal of this conviction.
1 rhe majority too broadly states that the court excluded state-of-mind testimony. Thus, it concludes:
"[Defendant was precluded from testifying as to how seriously he took Phillips’ alleged threat or how fearful he was as he walked the streets that evening. This deprived defendant of the opportunity to show his reasonableness in carrying a gun and, more importantly, why firing two shots may have been reasonable in preventing his death or great bodily harm.” (272 Ill. App. 3d at 359.)
The only issue presented by the record before us, however, is whether the court’s rulings, in not allowing defendant to testify that he carried the gun as protection against Phillips, constituted plain error.
The majority incorrectly states that the jury was not instructed "that finding a defendant not guilty of first degree murder permits [szc] the jury to stop deliberations as to guilt right there.” (272 Ill. App. 3d at 361.) On the contrary, the jury was properly instructed as to the process it was to follow. It received an instruction based on IPI Criminal 3d No. 7.06A, which in relevant part stated as follows:
"If you find from your consideration of all the evidence that any one of these propositions [relating to first degree murder] has not been proved beyond a reasonable doubt, you should find the defendant not guilty of first degree murder and your deliberations on this charge should end.
If you find from your consideration of all the evidence that each one of these propositions has been proved beyond a reasonable doubt, then you should go on with your deliberations to decide whether a mitigating factor has been proved so that the defendant is guilty of the lesser offense of second degree murder instead of first degree murder.
You may not consider whether the defendant is guilty of the lesser offense of second degree murder until and unless you have first determined that the State has proved beyond a reasonable doubt each of the propositions of first degree murder.”