specially concurring.
I completely concur with everything in the majority’s opinion. I write separately to highlight three recent decisions which I believe are pertinent.
Our supreme court recently reviewed a case that is procedurally very similar to the instant case. In People v. Knaff, 196 Ill. 2d 460 (2001), the State indicted the defendant on two counts of delivery of a controlled substance while on a public way, within 1,000 feet of a public housing property. The indictment also included two counts alleging that the same sales occurred, but without the location language. Prior to jury selection, the State nol-prossed the two lesser counts. After the State rested its case, the trial court indicated that it did not believe the State had proved the location element. The State then moved to amend the remaining counts of the indictment by deleting the location element. Over a defense objection, the trial court allowed the amendment and the jury convicted the defendant of the lesser charges. The supreme court affirmed the defendant’s convictions, rejecting the defendant’s contentions on appeal that the trial court erred in allowing the State to amend the indictment after the evidence was in, holding:
“[W]e reject the defendant’s argument that the trial court erred in allowing amendment of the indictment and the submission of the lesser charges to the jury. We believe that it would be illogical not to allow a trial judge presiding over a jury trial to ultimately submit a lesser-included offense to the jury under the present circumstances. The State’s request to dismiss the lesser charges prior to jeopardy attaching in this case was of no import, as the defendant did not actually need to be charged with the lesser offense in order to be convicted of it. The charging instrument provided both the defendant and the State with a closed set of facts, and both parties had notice of all possible lesser-included offenses and could plan their trial strategies accordingly. See Novak, 163 Ill. 2d at 113.” Knaff, 196 Ill. 2d at 473.
Similarly, in the instant case, defendant was charged with first degree murder and second degree murder of the victim in addition to felony murder. It was not until the day of trial that the first degree and second degree murder counts were nol-prossed. On appeal, defendant posits that the trial court could have found defendant guilty of involuntary manslaughter had the State not nol-prossed the first degree murder charge. This being so, as in Knaff, the charging instrument provided the parties “with a closed set of facts, and both parties had notice of all possible lesser-included offenses and could plan their trial strategies accordingly.” Knaff, 196 Ill. 2d at 473.
The defendant also argues that the concerns expressed by Presiding Justice O’Mara Frossard in her concurring opinion in People v. Williams, 315 Ill. App. 3d at 41-42, are very much applicable to the instant case. In Williams, Presiding Justice O’Mara Frossard disagreed with the majority’s reliance on the holding in People v. Rixie, 190 Ill. App. 3d 818 (1989),
“because such reliance tends to lend approval to the prosecution gamesmanship condoned by the court in Rixie, where the prosecution was allowed to limit jury instruction to only the charge of felony murder by deciding to nol-pros the charge of first degree murder after evidence had been heard by the jury on the charge of first degree murder and after the court agreed to instruct the jury on the lesser-included offenses of murder. Rixie, 190 Ill. App. 3d at 825 (1989).” Williams, 315 Ill. App. 3d at 42 (O’Mara Frossard, PJ., specially concurring).
Presiding Justice O’Mara Frossard continued:
“Once the charges are brought and evidence is presented and as a result of those charges and evidence the record reflects that instruction on a lesser-included offense is warranted by the evidence, I believe fundamental fairness requires that a prosecution motion to dismiss the charges that provide the basis for the lesser-included offense instruction should be denied and instruction on the lesser-included offense should be given. Where there is sufficient evidence to support an instruction to the jury on a lesser-mitigated offense, yet the trial court denies the jury the opportunity to return a verdict of guilty on that mitigated offense, such denial contributes to the likelihood of not only inaccurate, hut substantially unfair, jury verdicts.” Williams, 315 Ill. App. 3d at 42 (O’Mara Frossard, P.J., specially concurring).
In the instant case, the State nol-prossed the first and second degree murder counts before the bench trial began. Consequently, the actions of the State in this case are really not the same as those of the State in Williams. Perhaps more importantly, acting at the behest of the defendant, the trial court in the instant case went beyond the protections suggested by Presiding Justice O’Mara Frossard in her concurrence in Williams. The trial court rendered a finding that defendant was guilty of the “mitigated offense.” It is this action of the trial court of which defendant now complains.
Finally, our supreme court recently addressed the manner in which courts of review should consider findings made by trial courts after a bench trial. In People v. McCoy, 207 Ill. 2d 352 (2003), our supreme court applied their holding in People v. Jones, 207 Ill. 2d 122 (2003), that inconsistent verdicts may not provide the sole basis to challenge an appellant’s convictions, to bench trials. McCoy, 207 Ill. 2d at 355. Our supreme court based their decision in Jones on the decision of the United States Supreme Court in United States v. Powell, 469 U.S. 57, 83 L. Ed. 2d 467, 105 S. Ct. 471 (1984), which “reiterated that consistency in the verdicts is not required as a matter of constitutional law and that inconsistent verdicts can often be explained as a product of juror lenity.” Jones, 207 Ill. 2d at 130, citing Powell, 469 U.S. at 63, 83 L. Ed. 2d at 467, 105 S. Ct. at 475.
In McCoy, our supreme court held:
“Though we do not encourage trial judges to stray from their duty to follow the law, we do acknowledge, without condoning, the clear reality that trial judges may exercise lenity in what they perceive as the interests of justice.” McCoy, 207 Ill. 2d at 358.
While the McCoy court said this in the context of what they termed “inconsistent verdict[s] rendered in a bench trial” (McCoy, 207 Ill. 2d at 358), I believe that it is applicable to our review of the actions of the trial court in the instant case. Here, the defendant asked the trial court to consider the holding in People v. Davis, 335 Ill. App. 3d 1102, appeal allowed, 203 Ill. 2d 554, and find the defendant guilty of involuntary manslaughter. Had the trial court not done as defendant requested, the only alternatives for the trial court would have been to find defendant either guilty or not guilty of felony murder. While the State was willing to take this risk, defendant was not. I believe that while there was a good deal of evidence to support the trial court’s finding that defendant’s actions demonstrated a reckless indifference to human life, the evidence in the record would also support a finding of guilty of either felony murder or first degree murder based on defendant’s knowledge that his acts created a strong probability of death or great bodily harm to the victim. Consequently, defendant’s decision to ask the trial court to consider involuntary manslaughter benefitted him greatly.