dissenting:
In People v. Klingenberg, 172 Ill. 2d 270 (1996), this court reaffirmed a rule that has been the law of this state since at least 1983: “where a jury returns legally inconsistent verdicts acquitting a defendant of one offense and convicting him of another, the conviction must be reversed.” Klingenberg, 172 Ill. 2d at 277, citing People v. Frias, 99 Ill. 2d 193 (1983). In so holding, the Klingenberg court expressly rejected the United States Supreme Court’s decision in United States v. Powell, 469 U.S. 57, 83 L. Ed. 2d 461, 105 S. Ct. 471 (1984), which holds that verdicts need not be consistent. Today the majority overrules Klingenberg and reverses a rule of law that has been adhered to for two decades and adopts in its place Powell. Because the majority offers no principled basis for this departure from prior precedent, I disagree with the majority’s decision, and therefore respectfully dissent.
The allegedly inconsistent verdicts in the case at bar consisted of defendant’s conviction for mob action, on the one hand, and his acquittals on charges of aggravated battery, on the other. The original trial court judge vacated the mob action conviction, finding that it was inconsistent with the acquittals for aggravated battery, and he set the mob action charge for retrial. Defendant’s motion to bar reprosecution was denied by a different trial court judge, who found no inconsistency between defendant’s acquittals and his conviction. The original order setting the mob action charge for retrial was allowed to stand. A divided appellate court affirmed the circuit court’s finding that defendant’s conviction and acquittals were legally consistent. However, the appellate court concluded that it lacked authority to reinstate the mob action conviction, which was left for retrial. Defendant appealed.
Before this court, defendant argues, inter alia, that his conviction for mob action is legally inconsistent with his acquittals for aggravated battery, and the mob action conviction should not be reinstated. The majority, however, concludes that it does not matter whether the conviction and the acquittals are legally consistent. The majority overrules Klingenberg and adopts the rule in Powell that legally inconsistent verdicts should be shielded from review.
I. KLINGENBERG AND POWELL
In Powell, as in Klingenberg, the defendant was convicted of a compound offense but was acquitted of the predicate offense upon which the compound offense was based. The defendant in Powell was found not guilty of the predicate offenses of possessing cocaine with the intent to distribute and of conspiring to possess cocaine with the intent to distribute, but was found guilty of the compound offense of using a telephone to commit these same felonies. The Court in Powell did not dispute that these verdicts were inconsistent. Instead, pointing to Dunn v. United States, 284 U.S. 390, 76 L. Ed. 356, 52 S. Ct. 189 (1932), the Court reaffirmed the holding in Dunn that “ ‘[consistency in the verdict is not necessary.’ ” Powell, 469 U.S. at 62, 83 L. Ed. 2d at 467, 105 S. Ct. at 475, quoting Dunn, 284 U.S. at 393, 76 L. Ed. at 358, 52 S. Ct. at 190.
The Court in Powell acknowledged that, in support of this holding, the Court in Dunn made a statement about res judicata that “can no longer be accepted.” Powell, 469 U.S. at 64, 83 L. Ed. 2d at 468, 105 S. Ct. at 476. However, the Court in Powell nonetheless reaffirmed Dunn. The Court stated:
“We believe that the Dunn rule rests on a sound rationale that is independent of its theories of res judicata, and that it therefore survives an attack based upon its presently erroneous reliance on such theories.” Powell, 469 U.S. at 64, 83 L. Ed. 2d at 468, 105 S. Ct. at 476.
The Court in Powell then explained this independent rationale.
According to Powell, the inevitable uncertainty that is inherent in inconsistent verdicts argues in favor of leaving them intact. When a court of review is faced with inconsistent verdicts, the court is necessarily uncertain whether the error lies in the acquittal or the conviction. If the error lies in the acquittal, the jury’s “true” verdict was the conviction, and it is the State that is harmed by the inconsistent verdicts. Conversely, if the true verdict was the acquittal, then it is the conviction that was in error, and the defendant is the one harmed by the inconsistent verdicts. Because of this uncertainty as to “whose ox has been gored” {Powell, 469 U.S. at 65, 83 L. Ed. 2d at 469, 105 S. Ct. at 477), Powell concludes that the best course is simply to leave the verdicts untouched.
In support of this conclusion, the Court in Powell suggests that the error in inconsistent verdicts usually lies in the acquittal rather than the conviction, i.e., it is the State that is usually harmed. Citing Dunn, the Court asserts that “such inconsistencies often are a product of jury lenity.” Powell, 469 U.S. at 65, 83 L. Ed. 2d at 469, 105 S. Ct. at 477. In other words, an inconsistent acquittal often represents the jury’s attempt to be merciful. Under this view, the jury’s true verdict was the conviction, but the jury apparently believed that this conviction was punishment enough. As the Court stated in Dunn:
“ ‘The most that can be said in such cases is that the verdict shows that either in the acquittal or the conviction the juiy did not speak their real conclusions, but that does not show that they were not convinced of the defendant’s guilt. We interpret the acquittal as no more than their assumption of a power which they had no right to exercise, but to which they were disposed through lenity.’ ” Dunn, 284 U.S. at 393, 76 L. Ed. at 359, 52 S. Ct. at 190 (quoting Steckler v. United States, 7 F.2d 59, 60 (2d Cir. 1925), and quoted with approval in Powell, 469 U.S. at 63, 83 L. Ed. 2d at 467, 105 S. Ct. at 475).
In further support of shielding inconsistent verdicts from review, Powell asserted that it would be unfair to the State if such verdicts were reviewable. According to Powell, if a defendant were allowed to challenge a legally inconsistent conviction, this would leave the State at a disadvantage because the State is barred by the double jeopardy clause from challenging an acquittal. Because of this imbalance in favor of the defendant, Powell concluded that, in fairness, neither side should be allowed to challenge inconsistent verdicts.
Finally, Powell explained that, even though a defendant may not challenge legally inconsistent verdicts, he still is afforded a measure of protection against the jury irrationality or error that is inherent in such verdicts. The defendant may always challenge his conviction on sufficiency-of-the-evidence grounds. According to Powell, such sufficiency-of-the-evidence review is protection enough, even where the verdicts are legally inconsistent. “We do not believe that further safeguards against jury irrationality are necessary.” Powell, 469 U.S. at 67, 83 L. Ed. 2d at 470, 105 S. Ct. at 478.
In Klingenberg, as in the case at bar, the State argued that this court should adopt the approach set forth in Powell. However, in Klingenberg this court rejected every argument put forth in Powell for shielding inconsistent verdicts from review. Instead of following Powell, Klingenberg reaffirmed the rule from People v. Frias that “where a jury returns legally inconsistent verdicts acquitting a defendant of one offense and convicting him of another, the conviction must be reversed.” Klingenberg, 172 Ill. 2d at 277, citing Frias, 99 Ill. 2d 193.
Explaining our rejection of Powell, this court in Klingenberg specifically objected to Powell’s assumption that the error in inconsistent verdicts “would generally lie in the acquittal alone, rather than in the conviction.” Klingenberg, 172 Ill. 2d at 278. Responding to this assumption, the Klingenberg court stated: “we cannot simply presume that the jury recognized the defendant’s guilt and chose to be merciful, where it is equally possible that the jury, through mistake or error, convicted an innocent defendant.” Klingenberg, 172 Ill. 2d at 278.
According to Klingenberg, if it could be said with assurance that inconsistent acquittals always arose from jury lenity, then perhaps it would be acceptable to leave inconsistent verdicts untouched. However, as the Court in Powell conceded (see Powell, 469 U.S. at 65, 83 L. Ed. 2d at 468, 105 S. Ct. at 476), it is equally possible that an inconsistent acquittal did not arise from jury lenity but instead represented the jury’s true verdict. In such a case, the error would lie in the conviction rather than the acquittal, and the jury, “through mistake or error, [would have] convicted an innocent defendant.” Klingenberg, 172 Ill. 2d at 278.
Klingenberg also took issue with Powell’s argument that it would be unfair to the State to allow review of inconsistent verdicts. According to Powell, because the double jeopardy clause bars the State from challenging an inconsistent acquittal, a defendant should also be prohibited from challenging an inconsistent conviction. In response to this contention, this court in Klingenberg stated: “We are not persuaded that the framers of the double jeopardy clause intended to achieve the symmetry between defendants and the prosecution that the Powell decision creates.” Klingenberg, 172 Ill. 2d at 279; see also E. Muller, The Hobgoblin of Little Minds ? Our Foolish Law of Inconsistent Verdicts, 111 Harv. L. Rev. 772, 806 (1998) (“The Double Jeopardy Clause, like the other criminal protections in the Bill of Rights, quite obviously benefits the criminal defendant. That was its purpose. If the Double Jeopardy Clause creates an imbalance favoring the criminal defendant on appeal, perhaps the Court should treat this disadvantage to the government as a constitutionally designed cost of being the government”).
A similar view is expressed in an article cited by the majority in Klingenberg. The author summarizes Powell’s fairness argument as follows:
“In other words, although a defendant’s conviction might be erroneous, he or she may not challenge it because the framers of the Constitution afforded him or her the protection of the Double Jeopardy Clause (thereby precluding the Government from challenging the defendant’s possibly erroneous acquittal). Seeking a symmetry that the framers of the Double Jeopardy Clause failed to provide, the Supreme Court hammered the defendant’s shield into the prosecutor’s sword. Partly because of her constitutional privilege, the defendant in Powell went to prison; without it, she might have been free.” A. Alschuler, The Supreme Court and the Jury: Voir Dire, Peremptory Challenges, and the Review of Jury Verdicts, 56 U. Chi. L. Rev. 153, 213 (1989).
In Klingenberg’s view, Powell gives too little consideration to the possibility that a jury that renders inconsistent verdicts might be convicting an innocent defendant, rather than simply granting the defendant a merciful acquittal on some charges. Conversely, the Court in Powell is overly concerned that the State might be at an unfair disadvantage because the double jeopardy clause bars it from challenging a possibly erroneous acquittal. Klingenberg concludes that it is extremely doubtful that the symmetry the Powell decision creates between defendants and the State was intended by the framers of the double jeopardy clause. Klingenberg, 172 Ill 2d at 279; 56 U. Chi. L. Rev. at 213; 111 Harv. L. Rev. at 806; see also Green v. United States, 355 U.S. 184, 187-88, 2 L. Ed. 2d 199, 204, 78 S. Ct. 221, 223 (1957) (“The underlying idea [of the constitutional protection against double jeopardy], one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty” (emphasis added)), quoted with approval in 111 Harv. L. Rev. at 806 n.186.
Having rejected the rule in Powell regarding inconsistent verdicts, Klingenberg articulated the rationale underlying the opposite rule, which Klingenberg asserts is based on “common sense and sound logic.” Klingenberg, 172 Ill. 2d at 281.
“Legally inconsistent verdicts cannot stand because they are unreliable. At a minimum, such verdicts suggest confusion or misunderstanding on the part of the jury. Legally inconsistent verdicts are particularly unreliable in cases such as this, where the jury acquits a defendant of a predicate offense and convicts of the compound offense. In such a case, the former verdict necessarily suggests that the evidence failed to establish an essential element of the compound offense. At the very least, the inconsistency constitutes evidence of arbitrariness that undermines confidence in the quality of the jury’s conclusion. We can have no confidence in a judgment convicting the defendant of one crime when the jury, by its acquittal on another crime, has rejected an essential element needed to support the conviction. In such circumstances, the conviction, as a matter of law, cannot stand.” Klingenberg, 172 Ill. 2d at 281-82.
II. STARE DECISIS
In the case at bar, the State argues that we should overrule Klingenberg and adopt Powell in its place. As Justice Kilbride notes, the majority addresses this argument without ever resolving the narrower issue of whether the verdicts are legally inconsistent. I agree with Justice Kilbride that the legal inconsistency question should have been decided first. If the majority had concluded, as did the appellate court below, that the verdicts were consistent, there would have been no need to address the State’s alternative and more far-reaching contention that Klingenberg should be overruled.
The State’s argument that we should overrule Klingenberg necessarily implicates the doctrine of stare decisis. “The doctrine of stare decisis ‘proceeds from the first principle of justice, that, absent powerful countervailing considerations, like cases ought to be decided alike.’ ” People v. Tisdel, 201 Ill. 2d 210, 228 (2002) (McMorrow, J., dissenting, joined by Freeman and Kilbride, JJ.), quoting 5 Am. Jur. 2d Appellate Review § 599 (1995); see also People v. Mitchell, 189 Ill. 2d 312, 363 (2000) (Freeman, J., dissenting, joined by Harrison, C.J., and McMorrow, J.) (“ ‘ “precedents and rules must be followed, unless flatly absurd or unjust” ’ ”), quoting J. Stein, The Hobgoblin Doctrine: Identifying “Foolish” Consistency in the Law, 29 Tex. Tech. L. Rev. 1017, 1019 (1998), quoting 1 W. Blackstone, Commentaries *70. “The doctrine of stare decisis is the means by which courts ensure that the law will not merely change erratically, but will develop in a principled and intelligible fashion. Stare decisis permits society to presume that fundamental principles are established in the law rather than in the proclivities of individuals.” Chicago Bar Ass’n v. Illinois State Board of Elections, 161 Ill. 2d 502, 510 (1994); see also Wakulich v. Mraz, 203 Ill. 2d 223, 230 (2003) (“The doctrine promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.’ Payne v. Tennessee, 501 U.S. 808, 827, 115 L. Ed. 2d 720, 737, 111 S. Ct. 2597, 2609 (1991)”). It is well established that prior precedent should be overruled “only on the showing of good cause” (Heimgaertner v. Benjamin Electric Manufacturing Co., 6 Ill. 2d 152, 167 (1955)) and only where there are “compelling reasons” for the departure (People v. Robinson, 187 Ill. 2d 461, 463-64 (1999)). This court has recognized that it will not depart from prior precedent “ ‘merely because the court is of the opinion that it might decide otherwise were the question a new one.’ ” Robinson, 187 Ill. 2d at 464, quotingMaki v. Frelk, 40 Ill. 2d 193, 196-97 (1968), citing Prall v. Burckhartt, 299 Ill. 19 (1921).
In the case at bar, the arguments advanced by the State in support of Powell are no different from the arguments that were rejected in Klingenberg. The State presents nothing to indicate that in the seven years since Klingenberg was decided, the decision has become unworkable, nor does the State present any other reason for ignoring stare decisis. Indeed, though the State urges us to overrule Klingenberg, it makes no mention of the doctrine of stare decisis whatsoever.
This court has recently held that where the grounds raised in support of a change in the law “are identical to the grounds we considered and rejected” in a previous decision, that decision should not be overruled. Wakulich v. Mraz, 203 Ill. 2d 223, 231, 237 (2003). In the case at bar, the State’s arguments in support of changing the law of inconsistent verdicts were considered and rejected in Klingenberg. Accordingly, there is no basis for granting the State’s request to overrule Klingenberg.
Notwithstanding the foregoing, the majority today chooses to depart from stare decisis and overrule Klingenberg in favor of Powell. Although the State has failed to present any justification for this departure, the majority and the special concurrence nevertheless advance reasons of their own. As is discussed more fully below, the justifications offered by the majority and the special concurrence fall far short of the “good cause” (Heimgaertner, 6 Ill. 2d at 167) or “compelling reason[ ]” (Robinson, 187 Ill. 2d at 463-64) that we have held is necessary to justify overruling prior precedent.
A. The Majority’s Explanation
In the case at bar, the majority explains its departure from stare decisis by noting that one of the reasons given in Klingenberg for rejecting Powell “was based on a fundamental misstatement of the law.” 207 Ill. 2d at 134. Given this misstatement of the law, the majority concludes that Klingenberg must be reexamined to determine whether it “still supplies the better approach or whether we should join the majority of jurisdictions in following Powell.” 207 Ill. 2d at 136.
The majority points to the assertion in Klingenberg that, if Powell were followed and all legally inconsistent convictions were affirmed, this would force defendants to bear the burden of a trial judge’s error. According to Klingenberg, “[wjhere a jury returns legally inconsistent verdicts, it is the trial court’s duty to refuse the verdicts and to require the jury to deliberate further.” Klingenberg, 172 Ill. 2d at 279. Under this view, inconsistent verdicts result when the trial court fails to recognize the inconsistency and fails to direct the jury to continue deliberating. The error in this approach, according to the majority, lies in its assumption that a trial judge faced with a conviction that is legally inconsistent with an acquittal should direct the jury to deliberate further. In the majority’s view, while such a procedure is perfectly proper where two legally inconsistent guilty verdicts are returned, it may be inappropriate where the inconsistent verdicts consist of an acquittal and a conviction. Indeed, requiring a jury to reconsider a verdict of acquittal would implicate double jeopardy concerns that are not present if the jury is reconsidering inconsistent guilty verdicts. The majority asserts that where inconsistent verdicts consist of an acquittal and a conviction, a trial judge has no duty to send the jury back for further deliberations. According to the majority, Klingenberg’s assertion that there is such a duty was a misstatement of the law. Therefore, the majority contends, Klingenberg must be overruled.
The main difficulty with the majority’s explanation for overturning Klingenberg is that it fails to address Klingenberg’s other reasons for rejecting Powell. Even if Klingenberg were incorrect in assuming that a trial judge faced with inconsistent acquittals and convictions should require the jury to deliberate further, this does nothing to weaken the force of Klingenberg’s other objections to Powell’s reasoning. Nor does it invalidate Klingenberg’s rationale in support of the rule that legally inconsistent verdicts cannot stand. Klingenberg’s objections to Powell’s “jury lenity” and “fairness to the State” arguments remain unaffected, as does its assertion that legally inconsistent verdicts cannot stand because they are unreliable. Further, Klingenberg’s argument that the arbitrariness evidenced by such verdicts “undermines confidence in the quality of the jury’s conclusion” (Klingenberg, 172 Ill. 2d at 281) is no less valid in light of the alleged defect in Klingenberg’s reasoning identified by the majority. Regardless of this single alleged defect, Klingenberg’s rejection of Powell and its reaffirmation of the rule requiring the reversal of inconsistent convictions rest on a rationale that is independent of its further-deliberations argument.
Significantly, an argument identical to the majority’s “single-defect” contention was rejected by the Supreme Court in Powell. As noted, in Powell the Court reaffirmed the inconsistent-verdicts rule set forth in Dunn v. United States, 284 U.S. 390, 76 L. Ed. 356, 52 S. Ct. 189 (1932). In explaining this decision, the Court in Powell acknowledged that there was a defect in Dunn’s rationale. Powell conceded that a statement about res judicata made by Dunn in support of its holding that verdicts need not be consistent “can no longer be accepted.” Powell, 469 U.S. at 64, 83 L. Ed. 2d at 468, 105 S. Ct. at 476. However, this did not prevent the Court from reaffirming Dunn. As the Court in Powell stated:
“We believe that the Dunn rule rests on a sound rationale that is independent of its theories of res judicata, and that it therefore survives an attack based upon its presently erroneous reliance on such theories.” Powell, 469 U.S. at 64, 83 L. Ed. 2d at 468, 105 S. Ct. at 476.
By contrast, in the case at bar the majority points to a defect in Klingenberg’s rationale and concludes, unlike the Court in Powell, that Klingenberg cannot be reaffirmed but instead must be overruled. This position is taken even though, as stated previously, Klingenberg’s other objections to Powell’s reasoning remain viable, as does Klingenberg’s rationale in support of the rule it reaffirms. Thus the majority in the case at bar does the opposite of what the Court in Powell did under the same circumstances. Ironically, the majority does this in the name of adopting Powell.
In sum, the majority concludes that Klingenberg cannot survive an attack based on the alleged single defect that the majority identifies in Klingenberg’s reasoning. The majority fails to explain how this alleged defect weakens or invalidates Klingenberg’s remaining objections to Powell, or how it undermines Klingenberg’s rationale in support of the rule that legally inconsistent verdicts cannot stand. Moreover, the majority’s explanation for departing from stare decisis is premised upon an argument that, as noted, has been rejected by the Supreme Court in Powell, the very decision that the majority purports to adopt. The majority’s justification for overruling Klingenberg falls far short of constituting the “good cause” (Heimgaertner, 6 Ill. 2d at 167), “ ‘special justification’ ” (Chicago Bar Ass’n v. Illinois State Board of Elections, 161 Ill. 2d 502, 510 (1994), quoting Arizona v. Rumsey, 467 U.S. 203, 212, 81 L. Ed. 2d 164, 172, 104 S. Ct. 2305, 2311 (1984)), or “compelling reason[ ]” (Robinson, 187 Ill. 2d at 463-64) that has been held necessary to justify such a departure from stare decisis.
B. The Special Concurrence
Perhaps recognizing the weakness of the majority’s reasoning, Justice Fitzgerald offers an additional justification — again, one that was not advanced by the State— for departing from stare decisis. This explanation also is insufficient to justify overruling Klingenberg.
The special concurrence correctly notes that in People v. Novak, 163 Ill. 2d 93 (1994), we expressed a preference for the charging instrument approach in determining whether a particular offense is a lesser-included offense of another. In expressing this preference, we disapproved of the other two approaches that had been in use: the abstract elements approach, which focuses on the text of the statutes defining the offenses, and the inherent relationship approach, which examines the facts adduced at trial on the offense charged. The charging instrument approach, by contrast, looks to the facts alleged in the indictment or information in order to determine whether a particular offense is a lesser-included offense of another. If the lesser offense is described by the instrument charging the greater, this lesser offense is considered a lesser-included offense of the greater. Novak, 163 Ill. 2d at 107. Under this approach, the indictment or information need not expressly allege all the elements of the lesser offense so long as those elements may be inferred from the charging instrument. People v. Baldwin, 199 Ill. 2d 1, 8 (2002).
The special concurrence notes further that, compared to the abstract elements approach, the charging instrument approach “has opened the door to the possibility of a greater number of lesser-included offenses.” 207 Ill. 2d at 143 (Fitzgerald, J., specially concurring). This, the special concurrence asserts, has resulted in a corresponding increase in the number of possible inconsistent verdicts. This correspondence between lesser-included offenses and inconsistent verdicts exists, according to the special concurrence, because inconsistent verdicts, “by definition,” involve a conviction on a compound offense and an acquittal on the predicate offense. 207 Ill. 2d at 144 (Fitzgerald, J., specially concurring). “In order to ascertain the existence of a predicate and compound offense,” the special concurrence continues, “courts must evaluate the existence of a lesser-included offense using the appropriate lesser-included analysis.” 207 Ill. 2d at 144 (Fitzgerald, J., specially concurring). According to this view, such an inconsistent-verdicts analysis necessarily involves a determination as to whether the purported predicate offense is also a lesser-included offense of the compound offense. The special concurrence concludes that, because lesser-included-offense determinations are inherent in inconsistent-verdicts analysis, the greater number of possible lesser-included offenses created by the shift to the charging instrument approach has resulted in a correspondingly “greater number of verdict challenges based upon a purported legal inconsistency.” 207 Ill. 2d at 145 (Fitzgerald, J., specially concurring).
According to the special concurrence, this result was insufficiently appreciated by the majority in Klingenberg, which was decided only two years after Novak. In the view of the special concurrence, if the full impact of the shift to the charging instrument approach had been realized, the majority in Klingenberg might not have rejected Powell, which simply dispenses with all inconsistent-verdicts review. The special concurrence therefore asserts that, because the decision in Klingenberg was based on “incomplete information,” Klingenberg must now be revisited and overruled. 207 Ill. 2d at 145 (Fitzgerald, J., specially concurring).
The flaw in the special concurrence’s reasoning is the emphasis it places on the charging instrument in an inconsistent-verdicts analysis. By definition, an inconsistent-verdicts analysis must focus on the findings of the jury. The charging instrument, however, is rarely, if ever, dispositive as to these findings. Indeed, in most cases, the jury does not even see the charging instrument. In the case at bar, for example, there is no indication that the jurors ever saw the information or that it was ever read to them. In this case involving inconsistent verdicts, the only logically relevant documents for a reviewing court are the jury instructions and the verdict forms.
Notwithstanding the foregoing, the special concurrence points to Klingenberg in support of its argument that lesser-included-offense determinations, which necessarily involve an examination of the charging instrument, are inherent in inconsistent-verdicts analysis. This is incorrect.
The defendant in Klingenberg was charged by indictment with two counts of official misconduct predicated on theft (counts II and III) and one count of the predicate offense of theft over $300 (count I). The jury found the defendant guilty of one count of official misconduct (count III) and not guilty of the other two counts, including the charge of theft (count I). The trial court attempted to reconcile the verdicts by finding that the theft that was charged in count I was not the predicate offense for the official misconduct charged in count III. The trial court reasoned that the theft count required the jury to find that the defendant committed a theft of property valued in excess of $300, while the official misconduct count could have been based on theft of less than $300.
Klingenberg rejected this reasoning. The issues instruction for official misconduct stated: “ ‘To sustain the charge of Official Misconduct as to count III, regarding the amount of $1,015.00 ***.’ (Emphasis added.)” Klingenberg, 172 Ill. 2d at 276. Similarly, the verdict for official misconduct noted: “ ‘Official Misconduct, count III — $1015.00.’ ” Klingenberg, 172 Ill. 2d at 276.
Thus the jury could have convicted the defendant of official misconduct as charged in count III only if it believed that he had committed a theft of property worth more than $300. The theft of property valued at more than $300 was therefore the predicate offense of the official misconduct for which the defendant was convicted. Accordingly, the defendant’s acquittal of theft was legally inconsistent with his conviction for official misconduct predicated on theft. Klingenberg, 172 Ill. 2d at 277.
The court in Klingenberg did discuss the indictment in its inconsistent-verdicts analysis. Klingenberg, 172 Ill. 2d at 276. The special concurrence seizes upon this fact as evidence that Klingenberg relied on the indictment in making a lesser-included-offense determination as a first step in its inconsistent-verdicts analysis. There are two problems with this assumption. First, the majority opinion in Klingenberg makes no mention of lesser-included offenses. Second, a careful reading of Klingenberg shows that the examination of the indictment came in response to the trial court’s finding that “the theft charged in count I was not the predicate offense for the official misconduct charged in count III.” Klingenberg, 172 Ill. 2d at 275. It was the trial court’s finding that brought the indictment into the picture, and the majority in Klingenberg was simply responding to this finding. Klingenberg’s holding that the verdicts were legally inconsistent did not rest on the indictment. As is clear in the opinion, this holding could only have been based on an examination of the jury instructions and the verdict forms.
In sum, the special concurrence argues that Klingenberg must be overturned because of the previously unappreciated impact that the charging instrument approach to defining lesser-included offenses has on inconsistent-verdicts analysis. I disagree with this contention. As noted, the charging instrument is rarely, if ever, conclusive in determining whether a jury’s verdicts are inconsistent. The special concurrence fails to explain why a document that the jury usually never sees is dispositive as to what the jury found. As was the case with the majority’s justification for overruling Klingenberg, the explanation offered by the special concurrence does not constitute the “good cause” (Heimgaertner, 6 Ill. 2d at 167), “ ‘special justification’ ” (Chicago Bar Ass’n, 161 Ill. 2d at 510, quoting Arizona v. Rumsey, 467 U.S. 203, 212, 81 L. Ed. 2d 164, 172, 104 S. Ct. 2305, 2311 (1984)), or “compelling reason[ ]” (Robinson, 187 Ill. 2d at 463-64) that is needed to justify departing from prior precedent.
III. HARMLESS ERROR REVIEW
Accepting that a majority of this court has concluded that Klingenberg must be revisited, I note that there is a less drastic alternative to overruling this decision which the majority chooses not to address: namely, the application of harmless error review to inconsistent verdicts. Under such review, if the inconsistency between a conviction and an acquittal could be shown to be harmless, the conviction could be affirmed. This option would allow the majority to step back from Klingenberg without taking the extraordinary step of overruling Klingenberg.
Legally inconsistent verdicts unquestionably constitute error. Powell, 469 U.S. at 65, 83 L. Ed. 2d at 468-69, 105 S. Ct. at 477 (“Inconsistent verdicts *** present a situation where ‘error,’ in the sense that the jury has not followed the court’s instructions, most certainly has occurred”). Where trial error has occurred, harmless error review is a well-established method for determining whether the conviction must be reversed. Ill Harv. L. Rev. at 822. “It is a commonplace of appellate practice that when a defendant is able to show that an error has infected the proceedings in the trial court, the appellate court must reverse the conviction unless the error was harmless.” Ill Harv. L. Rev. at 822.
In the inconsistent-verdicts context, the question to be answered by such review is whether it is the defendant or the State that has been harmed by the inconsistent verdicts, i.e., whether it is the conviction or the acquittal that is in error. This question is answered by determining the strength of the State’s case against the defendant. Ill Harv. L. Rev. at 825. If the evidence in support of the defendant’s guilt is so overwhelming as to leave beyond a reasonable doubt that his conviction would have been the same absent the error, the reviewing court can be reasonably certain that the defendant was not likely the one harmed by the inconsistent verdicts. In other words, it was the acquittal, not the conviction, that was in error. In such a case, the inconsistent conviction may be affirmed.
I recognize that the application of harmless error review in these circumstances constitutes a departure from Klingenberg’s conclusion that “Illegally inconsistent verdicts cannot stand.” Klingenberg, 172 Ill. 2d at 281. However, it is not nearly so severe a departure as the course advocated by the majority: the overruling of Klingenberg and the adoption of Powell. In view of my colleagues’ apparent dissatisfaction with Klingenberg, I submit that this proposal provides a more measured response than the path chosen by the majority. It would permit the majority to step away from Klingenberg without taking the extreme position that a reviewing court should do nothing in the face of legally inconsistent verdicts, regardless of how egregious or troubling the inconsistency might be.
IV CONCLUSION
The majority today overrules Klingenberg for reasons that do not withstand scrutiny. No argument is made that Klingenberg has become unworkable, nor is any other compelling reason given for overturning at least two decades of prior precedent. Given these circumstances, the unavoidable conclusion is that the reason for overruling Klingenberg lies elsewhere. Unfortunately, it appears that a majority of the justices of this court have simply concluded that, were Klingenberg being argued for the first time today, they would decide the case differently. This is not a principled reason for overruling a prior decision. See People v. Robinson, 187 Ill. 2d 461, 463-64 (1999).
Finally, I note that the majority’s decision in this case is one of several opinions in recent months in which this court has departed from controlling precedent for reasons that have been called into question. In People v. Tisdel, 201 Ill. 2d 210 (2002), we explicitly overruled People v. Hayes, 139 Ill. 2d 89 (1990), and overruled, sub silentio, People v. Jones, 153 Ill. 2d 155 (1992). As in the case at bar, inadequate justification was provided for this departure from stare decisis. See Tisdel, 201 Ill. 2d at 221 (McMorrow, J., dissenting, joined by Freeman and Kilbride, JJ.). In People v. Boclair, 202 Ill. 2d 89 (2002), this court implicitly overturned People v. Collins, 202 Ill. 2d 59 (2002).1 See Boclair, 202 Ill. 2d at 127 (McMorrow, J., specially concurring, joined by Freeman, J.). Earlier, in Collins, the continued viability of People v. Williams, 47 Ill. 2d 1 (1970), was called into question. See Collins, 202 Ill. 2d at 75 (McMorrow, J., dissenting, joined by Freeman and Kilbride, JJ.) (“The majority has offered no reason to depart from [the] settled holding [of Williams]”); Collins, 202 Ill. 2d at 86 (McMorrow, J., dissenting upon denial of rehearing, joined by Freeman, J.). Most recently, in In re James E., 207 Ill. 2d 105 (2003), we created a “narrow exception” (207 Ill. 2d at 114) to the rule in In re Hays, 102 Ill. 2d 314 (1984), regarding involuntary commitment of a voluntarily admitted patient of a mental health facility. This exception effectively swallowed the rule, resulting in our implicitly overruling Hays.2 See James E., 207 Ill. 2d at 117 (Thomas, J., specially concurring); James E., 207 Ill. 2d at 118 (McMorrow, C.J., dissenting, joined by Freeman, J.).
Stare decisis is not an inexorable command (Wakulich, 203 Ill. 2d at 230), and I do not suggest that departure from previous case law is always unacceptable. I merely emphasize that any departure from stare decisis must be supported by good cause. Heimgaertner, 6 Ill. 2d at 166-67. I would remind my colleagues that if the law were to change each time a decision is revisited or “with each change in the makeup of the court, then the concept that ours is a government of law and not of men would be nothing more than a pious cliche.” People v. Lewis, 88 Ill. 2d 129, 167 (1981) (Ryan, J., concurring). I respectfully dissent.
JUSTICE FREEMAN joins in parts I, II and IV of this dissent.
JUSTICE KILBRIDE joins in parts I and II of this dissent.
Although two justices wrote separately stating that Boclair did not overrule Collins, the majority opinion did not speak to this issue.
One member of the court, Justice Rarick, did not participate in the decision in James E. Accordingly, there is no majority holding in James E. as to whether Hays has been overruled.