Explaining Inconsistent Verdicts and Lesser Included Offenses
Although most trials end in guilty or not-guilty verdicts on all counts, there are times when the juries return split verdicts or verdicts on lesser included charges. Verdict issues arise when the jury’s findings appear to be in conflict or inconsistent with each other. Generally, inconsistent verdicts are permitted. People v. Jones, 207 Ill.2d 122, 797 N.E.2d 640, 278 Ill.Dec. 45 (2003); United States v. Powell, 469 U.S. 57, 83 L.Ed.2d 461, 105 S.Ct. 471 (1984). However, inconsistent verdicts are not permitted when the jury returns a guilty verdict on charges that have different mental states. People v. Washington, 2019 IL App (1st) 161742, ¶35.
Washington is illustrative of the problems that arise when juries return verdicts on counts that have different mental states. Specifically, it is a cautionary case for both prosecutors and the defense because it illustrates the risks taken when lesser-included charges are argued and the need for the jury instructions to be carefully delineated for each charge and its respective lesser-included charge.
To aid in better understanding the issues in Washington, the following paragraphs summarize Illinois caselaw on mental states, lesser included offenses, and the offenses that are commonly charged in which mental states and lesser included offenses will be litigated.
In regard to mental states, most charges in Illinois require that a defendant’s actions were done knowingly. However, there are charges in which the mental state of recklessness is an element, such as involuntary manslaughter, reckless conduct, or reckless discharge of a firearm. Issues with lesser included offenses and mental states can arise in trials involving a combination of first-degree murder, attempted first-degree murder, second-degree murder, involuntary manslaughter, aggravated battery with a firearm, aggravated discharge of a firearm, and self-defense claims.
Knowledge and recklessness are separate mental states. People v. Fornear, 176 Ill.2d 523, 680 N.E.2d 1383, 1387, 224 Ill.Dec. 12 (1997), citing People v. Spears, 112 Ill.2d 396, 493 N.E.2d 1030, 98 Ill.Dec. 9 (1986). A defendant is entitled to an instruction for a lesser included offense if there is merely some evidence that, if believed by the jury, would reduce the charge to a lesser included one. People v. McDonald, 2016 IL 118882, ¶25, 77 N.E.3d 26, 412 Ill.Dec. 858.
A quick overview of these related charges is as follows. Aggravated battery with a firearm is a lesser included offense of attempted first-degree murder. People v. Temple, 2014 IL App (1st) 111653, ¶93, 14 N.E.3d 622, 383 Ill.Dec. 339. However, second-degree murder is not a lesser included offense of first-degree murder. People v. Wilmington, 2013 IL 112938, ¶48, 983 N.E.2d 1015, 368 Ill.Dec. 211. Reckless conduct is a lesser included offense of aggravated discharge of a firearm. People v. Williams, 293 Ill.App.3d 276, 688 N.E.2d 320, 324, 227 Ill.Dec. 839 (2d Dist. 1997). Reckless conduct can also be a lesser included offense of attempted first-degree murder. People v. Smith, 402 Ill.App.3d 538, 931 N.E.2d 864, 341 Ill.Dec. 967 (1st Dist. 2010). A guilty finding on a lesser included offense operates as an acquittal on the greater offense. Washington, supra, 2019 IL App (1st) 161742 at ¶40, citing Price v. State of Georgia, 398 U.S. 323, 26 L.Ed.2d 300, 90 S.Ct. 1757 (1970), and Green v. United States, 355 U.S. 184, 2 L.Ed.2d 199, 78 S.Ct. 221 (1957).
Ironically, a defendant can be found guilty of first-degree murder when the victim died from gunshot wounds even if the jury found him or her not guilty of the firearm enhancements that are commonly charged in shooting-related homicides. People v. Alexander, 2017 IL App (1st) 142170, ¶¶38, 40, 82 N.E.3d 96, 415 Ill.Dec. 151.
Although a defendant can be found guilty of a lesser included offense that has a recklessness mental state, he or she cannot be found guilty of charges that have mental states of knowingly and recklessly when the charges result from the same course of conduct. Washington, supra, 2019 IL App (1st) 161742.
In Washington, the First District Appellate Court reversed the defendant’s convictions for aggravated battery with a firearm and reckless conduct because the verdicts were legally inconsistent as the defendant could not have acted both knowingly and recklessly for the same conduct. 2019 IL App (1st) 161742 at ¶¶1, 39. The defendant was indicted for attempted first-degree murder and aggravated battery with a firearm (both of which have the mental state of knowingly). 2019 IL App (1st) 161742 at ¶3. The defendant was accused of shooting his friend in the neck. The victim suffered a spinal injury and was paralyzed. 2019 IL App (1st) 161742 at ¶¶7, 11. Witnesses for both the prosecution and the defense, including the defendant himself, testified about their versions of what occurred.
The jury was given instructions on the attempted murder and aggravated battery charges in addition to receiving instructions on the lesser included offenses of reckless conduct for both attempted murder and aggravated battery. 2019 IL App (1st) 161742 at ¶21. The jury was instructed that they could not find the defendant guilty of both attempt murder and reckless conduct and could not find him guilty of both aggravated battery and reckless conduct. 2019 IL App (1st) 161742 at ¶¶22 – 23.
The jury returned guilty verdicts for aggravated battery with a firearm and reckless conduct (as a lesser included offense of attempted murder). 2019 IL App (1st) 161742 at ¶24. The appellate court reversed the convictions for being legally inconsistent. The appellate court noted that the shooting was the result of a single act performed by the defendant, namely, shooting the victim in the neck with a firearm. 2019 IL App (1st) 161742 at ¶28. Therefore, the question at trial was whether his actions were performed knowingly or recklessly. 2019 IL App (1st) 161742 at ¶28.
The court discussed what constituted lesser included offenses in the matter and the errors contained in the jury instructions. First, the court stated that although aggravated battery with a firearm is a lesser included offense of attempted first-degree murder, the jury was never told this. 2019 IL App (1st) 161742 at ¶29. The court also took issue with the original guilty verdict form for reckless conduct because it never specified whether it was for the attempted murder or the aggravated battery charge (the jury later wrote on the instructions that it was for the attempted murder charge after the trial court asked them to clarify). 2019 IL App (1st) 161742 at ¶31.
The court then criticized the jury instructions because the parties submitted Illinois Pattern Jury Instructions — Criminal (I.P.I. — Criminal) 2.01R and 26.01R as opposed to I.P.I. — Criminal 2.01Q and 26.01Q. 2019 IL App (1st) 161742 at ¶33.
To better understand the Washington court’s discussion of I.P.I. — Criminal 2.01Q and 26.01Q versus I.P.I. — Criminal 2.01R and 26.01R, those instructions are as follows. I.P.I. — Criminal 2.01Q and 26.01Q must be used when a jury is only going to be given instructions on a charge and its lesser-included charge. On the other hand, I.P.I. — Criminal 2.01R and 26.01R must be used when the jury will be instructed on some other charge apart from the charge that will have a lesser included offense.
The court said that the instructions and verdict forms were erroneous and confusing because the evidence showed that both reckless conduct and aggravated battery were lesser included offenses of attempted murder. Therefore, since the jury was not instructed that aggravated battery with a firearm was a lesser included offense of attempted murder, they were allowed to incorrectly consider the attempted murder count and the aggravated battery count as separate offenses that were performed with different mental states. 2019 IL App (1st) 161742 at ¶32.
The court said that the instructions for I.P.I. — Criminal 2.01Q and 26.01Q should have been given instead of I.P.I. — Criminal 2.01R and 26.01R (instructions on other charges besides the charges that have lesser-includedoffenses).2019 IL App (1st) 161742at ¶¶33, 29. If I.P.I. — Criminal 2.01Q and 26.01Q had been given, the jury would have been told that the defendant could have been convicted of attempted first-degree murder or aggravated battery or reckless conduct. 2019 IL App (1st) 161742 at ¶33.
The court noted that the defendant could not have acted both recklessly and knowingly when he shot the victim when there was a single course of conduct and one act by the defendant. 2019 IL App (1st) 161742 at ¶34. The court made it clear that the jury could have found the defendant guilty of acting either knowingly or recklessly based on the same conduct — but not both. 2019 IL App (1st) 161742 at ¶39. The court then remanded for a new trial only on the aggravated battery charge because the reckless conduct conviction that operated as a lesser included offense of the first-degree murder charge meant there was an acquittal on the greater offense of first-degree murder. 2019 IL App (1st) 161742 at ¶40.
Several lessons can be gleaned from Washington. First, the prosecution should never proceed to trial when a defendant is charged with offenses that have different mental states for the same course of conduct. Although this did not occur in Washington, such scenarios could arise when a defendant is charged with both misdemeanor battery (knowingly) and reckless conduct or both aggravated discharge of a firearm and reckless discharge of a firearm. As for the defense, the defense should make clear for what charge it is seeking a lesser-included offense for and ensure that the verdict forms reflect this request. All parties should also ensure that the jury is properly instructed under either the I.P.I. — Criminal 2.01Q/26.01Q or I.P.I. — Criminal 2.01R/26.01R series.
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