dissenting:
While I agree with the majority’s analysis of nearly all issues in this case, I am compelled to dissent from its approval of the State’s modified IPI Criminal 4th No. 7C.06. I am most disturbed by the majority’s decision to obfuscate defendant’s true argument and focus instead on an extended dissection of the argument’s grammatical particulars. This unusual approach ignores, rather than seriously addresses, the underlying merits of the core assertion stated in defendant’s brief, asserting that the instruction “was confusing and misstated the law concerning when and how the jury was to sign a ‘no death’ verdict.”
Moreover, the majority’s extensive reliance on highly technical grammar treatises further illustrates the error in applying this approach when reviewing jury instructions. As the majority notes, “[t]he purpose of jury instructions is to provide the jury with the correct legal principles applicable to the evidence, so that the jury may reach a correct conclusion according to the law and the evidence. People v. Parker, 223 Ill. 2d 494, 501 (2006); People v. Ramey, 151 Ill. 2d 498, 535 (1992); People v. Hester, 131 Ill. 2d 91, 98 (1989). Jury instructions should not be misleading or confusing. Their correctness depends not on whether defense counsel can imagine a problematic meaning, but whether ordinary persons acting as jurors would fail to understand them. [People v.] Herron, 215 Ill. 2d at 187-88.” (Emphasis added.) 232 Ill. 2d at 81. Thus, the critical consideration is the layperson’s understanding of the law, as stated in the jury instructions. Herron, 215 Ill. 2d at 187-88. While it is possible that the jurors were all thoroughly trained in the identification and interpretation of grammatical aberrations such as double negatives, that assumption remains a highly unreliable basis for proper appellate review. The jurors were also unaided by the six grammar references guiding the majority’s analysis, leaving them ill-prepared to parse the linguistic intricacies of the jury instruction ostensibly provided to lead them to the no-death verdict form. Indeed, the highly abstracted and artificial nature of the majority’s analysis of this issue should itself be sufficient to give this court pause.
While the majority’s careful grammatical analysis has indeed persuaded me that the precise source of the problem with the instruction is not the presence of the “ ‘now substandard syntactic construction’ ” commonly known as a double negative (232 Ill. 2d at 85, quoting Webster’s Third New International Dictionary 678 (1993)), that conclusion does not even purport to address the real problem asserted by defendant. A careful analysis of the plain meaning of the instruction reveals that it is inherently confusing and legally inaccurate.
The problematic final paragraph of the instruction states:
“If you do not unanimously find from your consideration of all the evidence and after weighing the factors in aggravation and mitigation that death is not the appropriate sentence, then you should sign the verdict requiring the court to impose a sentence other than death.” (Emphasis added.)
Defendant argues that this language is confusing and inaccurate because, when read literally, it tells the jury it must unanimously find that a death sentence is not appropriate before it may sign the no-death verdict.
The majority rejects defendant’s interpretation and instead declares the challenged paragraph to be a correct statement of the law based only on a cursory examination of its first six words: “If you do not unanimously find.” See 232 Ill. 2d at 86. The majority concludes that these words “plainly refer[ ] to one or more, but less than all,” thus instructing the jury to sign the no-death verdict form “if one juror or more, but less than all jurors, find that death is not the appropriate sentence.” 232 Ill. 2d at 86. Unfortunately for defendant, this abbreviated analysis fails to consider the remaining language in the clause.
The problem with the majority’s interpretation is apparent when the second “not” is eliminated from the instruction given. The instruction would then state:
“If you do not unanimously find from your consideration of all the evidence and after weighing the factors in aggravation and mitigation that death is *** the appropriate sentence, then you should sign the verdict requiring the court to impose a sentence other than death.” (Emphasis added.)
Stripped to its barest bones, this instruction would say:
“If you do not unanimously find *** that death is *** the appropriate sentence, then you should sign the verdict requiring *** a sentence other than death.” (Emphasis added.)
That is undeniably a complete and accurate statement of when the jury is to sign the no-death verdict form. It defies both logic and common sense for the majority to conclude, based solely on the initial few words of the instruction, that it could convey the same meaning both with and without the second “not,” located, not surprisingly, in the portion of the instruction remaining wholly unexamined by the majority.
In addition, a comparison of instruction given and the relevant language in the applicable statute further proves the point. The applicable statute states:
“If after weighing the factors in aggravation and mitigation, one or more jurors determines that death is not the appropriate sentence, the court shall sentence the defendant to a term of imprisonment under Chapter V of the Unified Code of Corrections.” (Emphasis added.) 720 ILCS 5/9— 1(g) (West 2006).
When reduced to its simplest form, the statute reads:
“If *** one or more jurors determines that death is not the appropriate sentence, the court shall sentence the defendant to a term of imprisonment under Chapter V of the Unified Code of Corrections.” (Emphasis added.) 720 ILCS 5/9 — 1(g) (West 2006).
The statutory language is simple and clear. It provides an ideal basis for drafting a proper jury instruction. Standing in stark contrast, the instruction approved by the majority states, “[i]f you do not unanimously find *** that death is not *** appropriate.” That clause bears a markedly different meaning from that of the plain statutory language. Thus, the instruction given to the jury does not correctly state the applicable law, contrary to the majority’s conclusion. 232 Ill. 2d at 86.
Indeed, the majority’s recommendation of the instruction tendered by defendant but rejected by the trial court acknowledges that it best echoes the statutory language. 232 Ill. 2d at 83. Defendant’s instruction states:
“If after weighing the factors in aggravation and mitigation, one or more of you determine that death is not the appropriate sentence, then you should sign the verdict requiring the court to impose a sentence other than death ***.” See 232 Ill. 2d at 84 n.2.
A direct comparison shows that defendant’s instruction clearly and accurately reflects the statute’s simple terminology and structure.
Nonetheless, the majority justifies affirming the trial court’s rejection of defendant’s accurate instruction in favor of the State’s flawed No. 7C.06 by looking at the jury instructions as a whole. The majority specifically relies on the presence of the correct unanimity standard in the no-death verdict form, noting that “had the jury chosen to sign a no-death verdict, it would have signed a piece of paper recognizing that one or more of the jurors had determined that death was not the appropriate sentence.” (Emphasis added.) 232 Ill. 2d at 87. The hypothetical nature of the premise underlying this rationale is the key to its undoing. The jury’s selection of a verdict form is obviously dependent on its understanding of the verdict-choice instructions, the very instructions defendant maintains are incorrect and confusing. Without the benefit of clear and accurate instructions on the unanimity standard, the jury cannot reliably be expected to review the no-death verdict form that mentions the correct standard. Thus, the assertion that providing the correct standard on the no-death form somehow overcomes the confusing and legally inaccurate standard in the challenged instruction merely creates the illusion of a causal connection when none properly exists. We cannot assume that the jury ever examined the no-death verdict form when the instruction leading to its selection was fatally flawed.
Finally, having approved the trial court’s decision to give the State’s modified No. 7C.06 to the jury despite its acknowledgment that the instruction was “less than ideal” (232 Ill. 2d at 86), the majority limits the damage done by its ruling only to the instant defendant. The majority directs that
“our determination of this issue should not be read as an endorsement of the challenged paragraph in modified No. 7C.06 tendered by the State. Rather, defendant’s version of No. 7C.06 should be used until this court’s Committee on Pattern Jury Instructions in Criminal Cases formally revises this series of instructions to track the language of amended section 9 — 1(g) of the Criminal Code [citation].” (Emphasis added.) 232 Ill. 2d at 87.
Thus, ironically, defendant’s appeal has ensured that other, similarly situated, capital defendants will receive the “benefit” of sentencing juries that have received clear and accurate instructions on a key component of the deliberative process, namely, the selection of the proper verdict form. Defendant himself, however, fails to obtain the benefit of having a properly instructed jury decide whether he lives or dies.
Although defendant may well have erred in specifying the exact grammatical source of the confusion and critical legal errors inherent in the State’s modified No. 7C.06, he clearly argued that the instruction was confusing and legally inaccurate. My examination of that instruction reveals that he is correct; his sentence should be vacated and the cause remanded for a new sentencing hearing before a properly instructed jury. At a minimum, defendant’s core argument deserves to be evaluated on its merits, with a complete examination of the relevant language. Because the majority’s analysis has failed to provide this minimal review, I must respectfully dissent.