Appeal from the Appellate Court for the Second District; heard
in that court on appeal from the Circuit Court of Kane County,
the Hon. Marvin D. Dunn, Judge, presiding.
JUSTICE MORAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied May 31, 1985.
The defendant, Donald Hoffer, was indicted by the grand jury of Kane County on three counts of murder. (Ill. Rev. Stat. 1981, ch. 38, pars. 9-1(a)(1), 9-1(a)(2).) After a jury trial, defendant was found guilty of murder (Ill. Rev. Stat. 1981, ch. 38, pars. 9-1(a)(1), 9-1(a)(2)), voluntary manslaughter (Ill. Rev. Stat. 1981, ch. 38, par. 9-2(b)), and involuntary manslaughter (Ill. Rev. Stat. 1981, ch. 38, par. 9-3(a)). The court entered judgment on each finding. Defendant then moved to vacate the judgments of conviction entered for murder and voluntary manslaughter, in that the judgments, with respect to these two convictions, were inconsistent. Following post-trial motions, the court vacated the judgments of conviction for voluntary and involuntary manslaughter, entering judgment on the murder conviction and sentencing defendant to a prison term of 20 years. The appellate court set aside the trial court's order vacating the voluntary- and involuntary-manslaughter convictions and reversed all three convictions, remanding the cause for a new trial. (122 Ill. App.3d 13.) We allowed the petitions for leave to appeal of the defendant (No. 59927) and the State (No. 59947) (87 Ill.2d R. 315(a)) and consolidated the causes for purposes of review. James J. Doherty, public defender of Cook County, was allowed to file an amicus curiae brief on behalf of the defendant.
Two issues are presented: (1) whether the three jury verdicts of guilty were legally inconsistent so as to require a new trial; and (2) whether remanding the cause for a new trial would violate principles of collateral estoppel and defendant's right to be free from double jeopardy.
The record reveals the following. Catherine Einsiedel, defendant's sister, testified at trial that she had known the victim, Harold (Ed) Peters, for three years. During that period, she lived with Peters but would periodically move in with the defendant when she and Peters had an argument. Peters was the father of Einsiedel's daughter, Shannon. She and Shannon had moved out of Peters' house and into the defendant's residence approximately three months prior to the time of the homicide. She did occasionally see Peters, however, during this three-month period.
Einsiedel's testimony indicates that on the evening of May 18, 1982, a friend, Tony Charbauski, visited her at the defendant's residence. During the evening, Peters entered the defendant's house through a window and went upstairs, where he confronted Einsiedel and Charbauski in her bedroom. Peters began yelling and attempted to engage Charbauski in a fight. Charbauski told Einsiedel to call the police. She stated that she did so, as she was concerned that someone might get hurt. Although Peters was attempting to kick and otherwise provoke him, Charbauski was able to get down the stairs and safely out of the house. Peters went back into the house, where he asked Einsiedel if their relationship was ended. When she answered affirmatively, Peters took a flashlight he was carrying and broke the dust cover on a nearby stereo. Before Peters left, he gave Einsiedel some money and told her that he would pay for the damage to the stereo. The police arrived minutes later. Einsiedel gave them the names of Peters and Charbauski, but she refused to file charges.
A short time later, the defendant returned home. Einsiedel related the events of the evening to him. According to her testimony, the defendant stated that he was sick of Peters breaking things and also, "he'd be ready for him when he came back after the bars closed." The defendant denied making this statement.
Einsiedel and the defendant then went to their rooms. Einsiedel testified that about an hour later she heard the defendant say that Peters was back and she'd better get downstairs. When she got downstairs, she observed the defendant standing on the porch in his underwear, holding a shotgun. Peters was standing below the defendant, approximately five feet away. After an exchange of words, Peters turned his back on the defendant and threw his arms in the air. According to Einsiedel it was at this point that she yelled, "Don, don't do it; don't do it; don't shoot." Seconds later the gun went off and Peters was fatally wounded.
The defendant testified that when Peters began walking down the porch stairs, it appeared that he had been drinking. The defendant further testified that, in the past, he had observed Peters become more violent when he had been drinking. According to defendant, his gun was then pointing straight up and was resting on his shoulder. He then heard his sister call his name and he began to turn to look at her when he heard her say "Don't shoot." When he looked back, Peters was bringing his hands down and turning around. Defendant stated that he thought Peters was reaching for a gun because he knew that Peters owned and carried guns, was skilled in using them, and had previously threatened him with a gun. The defendant began to lower the gun with one hand, while reaching with his other hand to grab the stock, when the gun went off and Peters was struck. Although the defendant testified that Peters was facing him when the gun discharged, a pathologist testified that the autopsy indicated that Peters was shot in the back. The pathologist also testified that Peters was intoxicated at the time he was shot.
The court instructed the jury that the defendant was charged with the offense of murder, which includes the offenses of voluntary and involuntary manslaughter. (Illinois Pattern Jury Instructions (IPI), Criminal, No. 2.01 (2d ed. 1981).) Definitional and issues instructions were tendered to the jury on murder, voluntary manslaughter (unreasonable belief), and involuntary manslaughter. The issues instruction on voluntary manslaughter required the jury to find that, at the time the defendant performed the acts which caused the death of Peters, defendant believed that circumstances existed which would have justified the killing. In addition, the jury would have to find that this belief was unreasonable. IPI Criminal 2d No. 7.06.
The issues instruction on murder was fashioned after the murder instruction recommended in the 1968 edition of the criminal Illinois Pattern Jury Instructions where the affirmative defense of self-defense is raised (IPI Criminal No. 27.01 (7.02 and 25.05) (1968)). To find the defendant guilty of murder by following this instruction, the jury would have to find that the defendant was not justified in using the force which he used, and that the defendant did not believe that circumstances existed which justified the use of such force. It should be noted that the issue instruction for murder (where self-defense is raised) in the 1981 (2d) edition of IPI Criminal does not require the jury to make a finding regarding the absence of a belief by the defendant that justifiable circumstances existed. IPI Criminal 2d No. 27.01 (7.02 and 24-25.06A).
Further, the issues instructions on murder and voluntary manslaughter, on the other hand, required that the State prove the defendant performed the acts which caused the death of the victim and that defendant did so either intending to kill or do great bodily harm, or knowing that his acts would cause or create a strong probability of death or great bodily harm.
Finally, the jury was given the definitional and issues instructions on involuntary manslaughter. The definitional instruction made it clear that involuntary manslaughter is caused unintentionally, although without lawful justification, by acts which are performed recklessly and are likely to cause death or great bodily harm. (IPI Criminal 2d No. 7.07.) The issues instruction on involuntary manslaughter required the State to prove that the defendant performed the acts which caused the death of the victim and that he performed those acts ...