Appeal from the Appellate Court for the Fourth District; heard
in that court on appeals from the Circuit Court of Logan County,
the Hon. Samuel Harrod, III, Judge, presiding, and from the
Circuit Court of Jersey County, the Hon. Gordon D. Seator, Judge,
MR. JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied March 30, 1979.
These consolidated cases again present the problem of attempted-murder instructions which we considered recently in People v. Harris (1978), 72 Ill.2d 16, People v. Trinkle (1977), 68 Ill.2d 198, and People v. Muir (1977), 67 Ill.2d 86. Both defendants here, Arthur R. Roberts and Chester L. Grizzle, were convicted at jury trials of attempted murder in violation of section 8-4 of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 8-4). The appellate court consolidated these appeals Roberts' on direct appeal from a conviction entered by the Logan County circuit court, Grizzle's on appeal from a denial of a petition under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1977, ch. 38, par. 122-1 et seq.) in the Jersey County circuit court. The appellate court reversed the trial courts> and remanded for new trials, holding that the trial judges erred in their attempted-murder instructions. (56 Ill. App.3d 667.) Both the majority and the concurring opinions in our recent Harris case support the appellate court's finding of error in the instructions given. We granted the People leave to appeal and now reverse the appellate court. The issue before us is whether a criminal defendant can raise on direct appeal, or on appeal from the dismissal of a petition for a post-conviction hearing, alleged error in jury instructions when that error was not objected to at trial and not preserved in the post-trial motions.
A jury in Logan County found Arthur Roberts guilty of attempted murder. At his trial, the complaining witness, a truck driver, testified that he had been driving on the interstate highway near Lincoln on the night of the incident. Late that night his truck had jockeyed for highway position for a considerable length of time with a car driven by Roberts, a car in which Carla Rackers rode as a passenger. About 2 a.m., the truck came alongside the driver's side of the car in an attempt to pass. Suddenly the truck driver heard an extremely loud crashing sound against the passenger door of his truck, and the car then accelerated rapidly away from the truck. Both the driver of the car and his passenger were seen to be in the car's front seat. Moments later at a truck stop, the complaining witness found a large bullet hole in the truck's door directly in line with his body. He called the police. State patrol officers arrested Roberts shortly thereafter, searched his car and found, among other guns, a 357 Magnum Colt revolver a powerful handgun. At trial, the prosecution proved that the bullet which pierced the truck door's outer panel, and severely dented the inner panel, had been fired from that revolver.
Defendant Roberts, and his 17-year-old passenger, Carla Rackers, also testified at trial. Both admitted the gun was fired from the car, but both said Carla Rackers fired from the rear seat, where she had been taking a nap when she was disturbed by the truck. She had not been charged with attempt. The State contended that she handed the gun to Roberts and was thus tried only for conspiracy.
The court's instructions to the jury included the following mandatory instructions on the offense of attempted murder:
"To sustain the charge of attempt, the State must prove the following propositions:
First: That the defendant performed an act which constituted a substantial step toward the commission of the crime of murder; and
Second: That the defendant did so with intent to commit the crime of murder.
If you find from your consideration of all the evidence that each of these propositions has been proved beyond a reasonable doubt, then you should find the defendant guilty.
If, on the other hand, you find from your consideration of all the evidence that any of these propositions has not been proved beyond a reasonable doubt, then you should find the defendant not guilty."
The court also gave the following instruction defining murder:
"A person commits the crime of murder who kills an individual if, in performing the acts which cause the death,
(1) he intends to kill or do great bodily harm to that individual; or
(2) he knows that such acts create a strong probability of death or great bodily harm to that individual."
As we held in Harris, it was error to give this instruction defining murder. Since attempted murder requires a specific intent to commit the offense of murder, which necessarily involves a killing, it is obvious that the offense of attempted murder cannot be construed as incorporating the alternative definitions of murder contained in section 9-1(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 9-1(a)), which incorporates a state of mind other than an intent to kill. (People v. Harris (1978), 72 Ill.2d 16, 24.) Roberts did not object to the giving of this instruction and did not raise that issue in his post-trial motion.
An incident of shooting also resulted in Grizzle's conviction of attempted murder in Jersey County. Witnesses testified at his trial that Grizzle had experienced a great deal of trouble with a car recently purchased from the complaining witness. On the day of the shooting a heated conversation occurred between the two men regarding that car. Late that evening 10 to 12 shots were fired into the complaining witness' house, many of those shots narrowly missing the witness, his wife, and his small child as they moved around the house seeking safer locations.
The jury instructions given in Grizzle's case were quite similar to the instructions given in Roberts' case, and contained the same error. Grizzle's trial also occurred before this court's series of attempted-murder decisions. As in Roberts' case, the defendant did not object to the instructions at the trial and did not preserve the objection in a post-trial motion. On direct appeal from his conviction, Grizzle did not raise the point and his conviction was affirmed. In a subsequent petition for a post-conviction hearing, Grizzle's counsel again did not raise the issue and relief was denied. However, on appeal from this denial, new counsel for Grizzle raised the issue of the instructions, and the appellate court considered this issue. On this appeal, we are not concerned with the correctness of the appellate court's action in doing so. See Ill. Rev. Stat. 1977, ch. 38, par. 122-3.
In People v. Goerger (1972), 52 Ill.2d 403, this court was faced with an issue similar to that raised in Grizzle's appeal. In that case the defendant had not objected to the giving of an instruction at trial and there had been no direct appeal. The error in the giving of the instruction was raised in a petition under the Post-Conviction Hearing Act. This court noted that the error was one that could have been raised on direct appeal and that the defendant's failure to raise the issue on direct appeal constituted a waiver. Also, the court noted that the giving of a defective instruction did not effect the substantial denial of constitutional rights cognizable under the Post-Conviction Hearing Act. This court also held in People v. Johndrow (1968), 40 Ill.2d 288, that the failure to give a tendered instruction did not constitute a denial of a constitutional right or present a question which would justify relief under the Post-Conviction Hearing Act.
Merely alleging that the trial error, or the error in the giving of an instruction, constituted a constitutional violation does not elevate these errors to constitutional status, qualifying them for review under the Post-Conviction Hearing Act. We will reserve for discussion below the question of whether the failure to object to the instruction at trial waived the defendant's right to raise as error on review the giving of the defective instruction. We need not consider that issue in connection with Grizzle's post-conviction petition. His failure to raise the question on direct appeal prevents him from raising it in the post-conviction petition. The affirmance on direct appeal is res judicata as to all issues that were raised or that could have been raised on appeal. (People v. Rose (1969), 43 Ill.2d 273, 279; People v. Ashley (1966), 34 Ill.2d 402, 408; ABA Standards, Post-Conviction Remedies sec. 6.1 and Commentary, at 88-89 (1968).) Also, the giving of this defective instruction did not constitute the denial of a constitutional right cognizable under the Post-Conviction Hearing Act.
The concept of waiver presents the primary question for resolution in Roberts' case. A fundamental concept of our adversary system is that counsel must object at trial to errors. Thus, we must necessarily recognize that counsel may "waive" the right to raise certain errors in later proceedings by failure to object to those errors at trial. People v. Coles (1979), 74 Ill.2d 393; People v. Precup (1978), 73 Ill.2d 7, 16-17; People v. Pickett (1973), 54 Ill.2d ...