dissenting:
I agree with the conclusion that it was error to give IPI Criminal 4th No. 7.03 in the absence of any evidence of provocation. But I disagree with the majority’s conclusion that defendant properly preserved an objection to this trial error. The majority’s erroneous conclusion that defendant properly preserved the issue leads the majority down the wrong course of applying a harmless-error test that requires the State to show that the evidence was overwhelming in order to avoid a remand for a new trial. I believe that because defendant failed to properly preserve the issue, a plain-error standard is instead applicable, which would place the burden on defendant to show that the evidence was closely balanced in order to warrant a new trial. Defendant has not shown that the evidence was closely balanced. I, therefore, would not reverse the conviction and remand for a new trial, as the majority does. Accordingly, I respectfully dissent.
Defendant was originally charged in this case with the first degree murder of Sheila Sutton. At the first trial, Scott Reilly, a friend of defendant, testified that defendant remembered committing the crime after undergoing hypnosis. Specifically, defendant remembered going into Sutton’s bedroom. Sutton slapped defendant, a fight ensued, and defendant punched her and “choked her out.” The jury convicted defendant of the lesser offense of second degree murder. The appellate court reversed and remanded for a new trial, ruling that Reilly’s testimony was inadmissible.
On remand, defendant was only charged with second degree murder because the law prohibits retrial for first degree murder in this situation where defendant had been tried for first degree murder but convicted of only-second degree murder.
The evidence at the second trial showed that defendant was out drinking with Sutton at two different bars on the night in question. Sutton eventually drove defendant back to her house, ostensibly so that defendant could see a room Sutton had for rent in her basement. Defendant told police after he was apprehended that he and Sutton kissed a couple of times, but that he “felt uncomfortable with what was going on” and that this was “not what he was looking for.” Sutton did not want to drive defendant home that night because she had been drinking, and so she told defendant he would have to stay downstairs in her basement. Defendant had not had a driver’s license for several years. Defendant claimed that he took off his shirt, but left his boots on and went to sleep in the basement at 5 a.m. He woke up around 7 a.m., went upstairs and called for Sutton. He claimed that when he got no answer, he pushed her bedroom door open and saw blood everywhere. He did not check for a pulse to see if Sutton was still alive. Instead, he vomited and then fled the scene without calling police. He said that he “immediately assumed that [he] did it” because he had been “the only one in the house.”
The forensic evidence showed that Sutton had been brutally stabbed five times, had a large bruise to her face area, and had a broken larynx from choking. A knife found in the kitchen had been wiped clean, but still had some of the victim’s blood on it. Traces of Sutton’s blood were found throughout the bathroom near the bedroom where her body was found. Defendant’s right toe print was found on this bathroom’s linoleum floor. No two people in the world, not even identical twins, can leave the same toe print. Defendant’s toe print on the linoleum floor turned a dark blue when forensic scientist Eileen Taylor applied amido black to it. Amido black is a dye solution that is specific for blood proteins and will turn a blood-contaminated print a dark blue color when blood proteins are present.
There was no sign of any forced entry, and there was no evidence that anything was missing from inside the victim’s home. Defendant could not remember how he got home after Sutton was murdered. Police found Sutton’s car with the keys in the ignition back at the last bar where defendant and Sutton drank together.
The information on retrial had alleged that defendant committed the offense of second degree murder while acting under sudden and intense provocation. Defendant did not object to the information prior to trial. During opening statements, the prosecutor read the information and then told the jury that the State was conceding the point of the mitigating factor of sudden and intense provocation. Defendant moved for a directed verdict at the close of the State’s case, arguing that the information injected motive into the case and that there was no evidence to back it up. Defendant never argued that the sudden-and-intense-provocation language should be stricken from the charging instrument. The trial court found that the State did not have any burden to prove motive and therefore denied defendant’s motion for a directed verdict. Thereafter, defendant did not present any evidence on his own behalf.
At the jury instruction conference, the State tendered IPI Criminal 4th Nos. 7.01S, 7.02S and 7.03 for second degree murder. IPI Criminal 4th No. 7.0IS is entitled “Definition of Second Degree Murder When First Degree Murder is Not Charged” and provides that “[a] person commits the offense of second degree murder when he kills an individual *** if, in performing the acts which cause the death, he knows that such acts create a strong probability of death or great bodily harm to that individual.” IPI Criminal 4th No. 7.01S.
IPI Criminal 4th No. 7.02S is entitled “Issues in Second Degree Murder When First Degree Murder is Not Charged” and states as follows:
“To sustain the charge of second degree murder, the State must prove the following propositions:
First Proposition: That the defendant performed the acts which caused the death of [the victim]; and
Second Proposition: That when defendant did so,
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he knew that his acts created a strong probability of death or great bodily harm to [the victim].
If you find from your consideration of all the evidence that each one of these propositions has been proved beyond a reasonable doubt, you should find the defendant guilty.
If you find from your consideration of all the evidence that any one of these propositions has not been proved beyond a reasonable doubt, you should find the defendant not guilty.” IPI Criminal 4th No. 7.02S.
IPI Criminal 4th No. 7.03 is entitled “Definition of Mitigating Factor — Second Degree Murder — Provocation” and provides that
“[a] mitigating factor exists so as to reduce the offense of first degree murder to the lesser offense of second degree murder if, at the time of the killing, the defendant acts under a sudden and intense passion resulting from serious provocation by the deceased. Serious provocation is conduct sufficient to excite an intense passion in a reasonable person.” IPI Criminal 4th No. 7.03.
Defendant objected to all three instructions on the same basis that he moved for a directed verdict. He simply maintained that all three instructions were improper because they do not “allege that mitigation has to be shown.” He did not argue, however, that IPI Criminal 4th No. 7.03 was improper because there was no evidence to support it and therefore it should not be given at all.
My colleagues in the majority claim that defendant did object to IPI Criminal 4th No. 7.03 at trial, because “he argued that the instruction was improper for the reasons he offered in his directed verdict motion.” See 228 Ill. 2d at 64.
Examination of the record shows that defendant did not make a sufficient objection at trial to preserve the issue. The majority chides the State for essentially asking us to tailor the forfeiture rule so as to require a defendant to assert the exact, identical argument at both trial and in a posttrial motion in order to preserve the issue. See 228 Ill. 2d at 65. But this is not what the State is asking. Instead it is asking this court to hold defendant to the well-established rule that a defendant must make a specific trial objection in order to raise that same issue on review, and that a specific objection to a jury instruction waives all other unspecified grounds. People v. Cuadrado, 214 Ill. 2d 79, 89 (2005), citing People v. O’Neal, 104 Ill. 2d 399, 407 (1984); see also People v. Edwards, 144 Ill. 2d 108, 133 (1991). A defendant forfeits a jury instruction error if the defendant does not raise the instruction issue at trial and does not raise the instruction in a post-trial motion. People v. Herron, 215 Ill. 2d 167, 175 (2005). “Both a trial objection and a written post-trial motion raising the issue are required for alleged errors that could have been raised during trial.” (Emphases in original.) People v. Enoch, 122 Ill. 2d 176, 186 (1988). There is no support in our case law for the notion proposed by my colleagues that a defendant may simply object to an instruction on a nonmeritorious ground and that such an objection is sufficient to preserve any issue later raised with respect to the instruction.
Here, defendant at the close of the State’s case moved for a directed verdict, arguing that the information alleged sudden and intense passion resulting in provocation, thereby introducing motive into the case without any evidence to back it up. Defendant was essentially arguing that the State had failed to prove its case, and therefore the court should direct a verdict on his behalf. The trial court denied the motion to grant a directed verdict for defendant because defendant’s premise that the State had to prove the mitigating factor was incorrect. See People v. Burks, 189 Ill. App. 3d 782, 784-85 (1989) (neither the State nor defendant has any burden to prove the mitigating factor of provocation in this situation where the provocation element has been conceded). Defendant did not argue that any language in the information itself was inappropriate.1
Later, at the jury instruction conference, defendant objected to all three second degree murder instructions (IPI Criminal 4th Nos. 7.01S, 7.02S and 7.03S) by simply arguing that his motion for a directed verdict should have been granted and that none of the instructions “allege that the mitigation has to be shown.” This trial objection was again denied because it wrongly posits that the State has the burden to prove provocation and that the instructions must say that the State has this burden. By contrast, in his posttrial motion and on appeal, defendant made the entirely different contention that IPI Criminal 4th Nos. 7.01S and 7.02S should have been given, but that IPI Criminal 4th No. 7.03 should not have been given because the provocation issue should not have been submitted to the jury at all. Defendant’s specific, nonmeritorious objection at the jury instruction conference waived his later posttrial and appellate argument with respect to the instruction, an argument which was not specified at trial.
The majority’s ruling to the contrary erodes the bedrock requirements that both a trial and posttrial objection are required to preserve a trial error, and that a specific objection at trial waives all other unspecified grounds that might later be raised with respect to a jury instruction. In doing so, the majority ignores the purpose for requiring a specific trial objection. The reason for the waiver rule is that timely objections to defective instructions permit the court to correct the defects before the instructions are given, and do not therefore permit a party failing to object to gain the advantage of obtaining reversal based on his own failure to act, either intentionally or inadvertently. People v. Piatkowski, 225 Ill. 2d 551, 564 (2007); People v. Roberts, 75 Ill. 2d 1, 11 (1979); see also People v. Carlson, 79 Ill. 2d 564, 577 (1980). By the time defendant raised the specific objection in his posttrial motion that he raised on appeal, IPI Criminal 4th No. 7.03 had already been given to the jury and the jury had already found defendant guilty. Had defendant objected to the instruction at the jury conference on the specific ground he raised on appeal, the trial court may have decided not to give it, thereby saving the time and expense of empaneling a new jury for a third trial in this case.
Supreme Court Rule 451(c), however, provides that “ ‘substantial defects’ in criminal jury instructions ‘are not waived by failure to make timely objections thereto if the interests of justice require.’ ” Herron, 215 Ill. 2d at 175, quoting 177 Ill. 2d R. 451(c). Rule 451(c) fashions a limited exception to the general waiver rule in order to correct “ ‘grave errors’ and errors in cases ‘so factually close that fundamental fairness requires that the jury be properly instructed.’ ” Herron, 215 Ill. 2d at 175, quoting People v. Hopp, 209 Ill. 2d 1, 7 (2004). Rule 451(c) is coextensive with the plain-error clause of Supreme Court Rule 615(c), and the two rules are construed identically. Herron, 215 Ill. 2d at 175. Rule 615(a) states the following: “Any error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded. Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court.” 134 Ill. 2d R. 615(a).
We recently reiterated that the plain-error doctrine allows a reviewing court to consider unpreserved error with respect to a jury instruction only when (1) a clear or obvious error occurs and the evidence is so closely balanced that the error alone threatened to tip the scales against the defendant, regardless of the seriousness of the error, or (2) a clear and obvious error occurs and that error is so serious that it affected the fairness of the defendant’s trial and challenged the integrity of the judicial process, regardless of the closeness of the case. People v. Piatkowski, 225 Ill. 2d 551, 565 (2007).
The error in giving IPI Criminal 4th No. 7.03 was not so serious that it affected the fairness of defendant’s trial and challenged the integrity of the judicial process, regardless of the closeness of the case. Thus, defendant had the burden on appeal in this case to show that the error was prejudicial — in other words, he must show that the quantum of evidence presented by the State against defendant rendered the evidence “closely balanced.” See People v. Piatkowski, 225 Ill. 2d at 566.
Defendant has not demonstrated that the evidence presented against him was closely balanced. In fact, it could reasonably be said that the evidence against him was overwhelming, and this is precisely what Justice Schmidt found in his appellate court dissent after reviewing the evidence and concluding that any error was harmless:
“Evidence at trial established a brutal murder with evidence of a struggle. Sutton suffered extensive bruising to her face. Her nose was fractured in two places and the skin between her eyes was torn. She suffered a large, bruised area inside her cheek and lip and one tooth was chipped. A stab wound to the left side of her neck cut her jugular vein and struck her sixth vertebrae. Another stab wound near her collarbone severed the subclavia vein. A third stab wound penetrated her lower chest. A fourth stab wound passed through her liver, stomach, pancreas, and left kidney. She suffered a fifth stab wound to the right side of her back. Two projections of cartilage on the sides of her larynx were fractured. All of this took place during the two-hour period while defendant allegedly slept on the floor below Sutton. Sutton’s house was of modest size.
Furthermore, even though defendant denied ever removing his boots or pants at Sutton’s home, his toe print was found in Sutton’s bathroom. A butcher knife, which had obviously been washed or wiped, was found in a butcher block knife holder in Sutton’s kitchen. It was found to contain traces of Sutton’s blood. There were no signs of forced entry into the house.
If defendant did not kill Sutton, then someone else entered the house during the two hours that defendant claims he was sleeping, brutally attacked and murdered Sutton, wiped or washed the knife blade, then returned it to the butcher block in the kitchen and exited the house without waking defendant. Somehow defendant’s toe print was transferred to the bathroom floor through the sole of the boot that he was wearing. Defendant claims he vomited at the scene and yet police found no evidence of that in searching the house. Sutton’s car was also stolen and then later recovered near the last tavern where defendant and Sutton drank together hours before the murder.
Defendant did not call the police when he found Sutton’s body, but claims he cannot recall how he got home. He was with his best friend, Scott Reilly, when a news report came on television about the murder. Defendant said nothing.
There was no evidence of anyone being in the house at the time of the murder except Sutton and defendant. In light of all the evidence, and even excluding defendant’s admission of guilt to Scott Reilly, no reasonable jury would vote to acquit.” No. 3 — 04—0816 (Schmidt, EJ., dissenting) (unpublished order under Supreme Court Rule 23).
Under these circumstances, there can be no doubt that defendant has failed to meet his burden to show that the evidence was closely balanced. I would therefore reverse the judgment of the appellate court and would affirm defendant’s conviction and 20-year sentence.
Even if defendant had objected to the language of the charging instrument at the time of his motion for a directed verdict, which he did not, defendant’s conviction would not be subject to reversal on that basis because defendant suffered no prejudice, as the information apprised defendant of the precise offense charged with sufficient specificity to prepare his defense and allow pleading a resulting conviction as a bar to future prosecutions arising out of the same conduct. Cuadrado, 214 Ill. 2d at 86-87 (where a defendant objects to a charging instrument mid-trial he must show this prejudice).