Appeal from the Appellate Court for the Third District; heard
in that court on appeal from the Circuit Court of Peoria County,
the Hon. Stephen Covey, Judge, presiding.
CHIEF JUSTICE CLARK DELIVERED THE OPINION OF THE COURT:
The defendant, Henry Spears, Jr., was charged by information in the circuit court of Peoria County with attempted murder (Ill. Rev. Stat. 1983, ch. 38, par. 8-4(a)) in the shooting of his estranged wife, Barbara Spears, and two counts of armed violence (Ill. Rev. Stat. 1983, ch. 38, par. 33A-2) in her shooting and that of Annette Keys. Following a jury trial, guilty verdicts were returned on all charged counts, as well as two uncharged counts of reckless conduct (Ill. Rev. Stat. 1983, ch. 38, par. 12-5(a)), which, at the defendant's request, the jury was instructed to consider as a lesser included offense of the two armed-violence counts. The trial court entered judgment only on the attempted-murder count and one armed-violence count, and defendant was sentenced to a 20-year term of imprisonment. The appellate court, with one justice dissenting, reversed all five convictions and remanded the cause for a new trial, finding that the verdicts were legally inconsistent (130 Ill. App.3d 1006). We allowed the State's petition for leave to appeal (94 Ill.2d R. 315(a)).
The State adduced the following evidence at trial. On July 9, 1983, the defendant was visiting the apartment of his estranged wife, Barbara Spears. The first of two confrontations between the defendant and Barbara occurred at approximately 3 p.m. Barbara was seated at a card table in the middle of the sun porch with Annette Keys, Elizabeth Williams, and one other woman when the defendant called her into the bathroom. There, he told her not to embarrass him or make him look bad in front of the other women. When Barbara tried to leave the bathroom, the defendant pushed her up against the wall and began to choke her; he stopped choking her only when Elizabeth came to the door and asked what was happening. Barbara told the defendant that she would call the police if he did not leave. The defendant agreed to leave and telephoned Chester Adkins for a ride.
At approximately 8 p.m., Barbara was playing cards with the women on the sun porch. The defendant, who was still waiting for Adkins to arrive, came out onto the porch and asked Barbara to come in and talk with him. Barbara refused. About five minutes later Adkins arrived. Adkins wanted to leave, but the defendant told him to "wait a minute." A few minutes later, Barbara excused herself to answer a knock at the front door. On Barbara's way back to the card game, she walked past the defendant, who was leaning in the doorway to the porch. Barbara testified that as she did, the defendant grabbed her right wrist.
Barbara stated that when she told the defendant to leave her alone he punched her in the face, knocking her to the floor. The defendant then pulled back his suit coat, drew a gun from a shoulder holster, and aimed it at Barbara as she tried to scramble to a side wall of the porch next to Annette Keys. The defendant fired a shot which struck Barbara before she reached the wall. Adkins grabbed the defendant from behind, but was unable to prevent him from firing a second shot, which hit both Barbara and Annette. Barbara fell to the floor. As she lay there, the defendant aimed the gun at her head. Sonny Coleman, another guest who had just arrived, rushed onto the porch and pushed the defendant's arm, causing the third shot to strike the floor near Barbara's head.
Barbara testified that the defendant had fired the shots "pretty quickly." She sustained bullet wounds to her chest and right arm. The second bullet grazed Keys' left arm.
The defendant testified that earlier in the evening Barbara had openly chastised him for answering her telephone. Shortly afterwards, he and Barbara had an argument in the bathroom about their treatment of one another in the presence of company. The argument ended without incident when Elizabeth knocked on the door to use the bathroom. He then arranged for a ride from Adkins. The defendant stated that when Adkins arrived he did not want to leave with him before mending things with Barbara. The defendant testified that, as Barbara walked past him after answering the front door, she pushed him. He stumbled, and the other woman jumped up and knocked over the card table. The defendant stated that someone suddenly grabbed him from behind, and that he panicked and pulled his gun from the holster. Defendant further testified that during the struggle with this unknown assailant the gun accidentally discharged, though he was unsure exactly how many shots were fired. The defendant maintained that he did not intend to harm or kill anyone, and that he unintentionally pulled the trigger of the gun while struggling with Adkins.
To allow the jury to consider the defense theory that the shootings were unintended, pattern jury definitional and issues instructions were tendered for reckless conduct, along with those for armed violence (based on the great-bodily-harm form of aggravated battery) and attempted murder. The jury was further instructed to consider reckless conduct as a lesser included offense of the two armed-violence counts. Five verdict forms were provided: one for the attempted murder of Barbara, two for armed violence as to Barbara and Annette Keys, and two for reckless conduct as to Barbara and Annette. During the deliberations, the jury sent out a note asking, "Do we need to sign all five papers to the extent of guilty or not guilty, or by signing the more severe charges do we eliminate the need to sign the form for the lesser charge[?]" The trial judge instructed: "Sign a `guilty' or `not guilty' form of verdict as to each offense charged." After further deliberation, the jury found the defendant guilty on all counts.
The State initially contends that the defendant has waived any claim of legally inconsistent verdicts because he did not object to the trial court's instruction that the jury sign all five verdict forms guilty or not guilty, or allege inconsistent verdicts in his post-trial motion. We note that the State did not advance this argument in the appellate court. Nor did the State raise any waiver argument in its petition for leave to appeal asking us to hear and decide the merits of the inconsistent-verdict issue. This court has recognized that an argument or issue not advanced in the State's brief in the appellate court is waived (87 Ill.2d R. 341(e)(7)), and the State is, with the exception of jurisdictional matters, therefore precluded from later raising that ground for our consideration. (People v. Fink (1982), 91 Ill.2d 237, 241; People v. Caldwell (1968), 39 Ill.2d 346, 354.) Accordingly, we find that the State has waived this argument.
The question now before us is whether our recent decision in People v. Hoffer (1985), 106 Ill.2d 186, is dispositive of the inconsistent-verdict issue in this case. In Hoffer, a jury convicted the defendant of murder, voluntary manslaughter, and involuntary manslaughter. At trial, the State presented evidence that the defendant had shot his sister's former boyfriend after a heated exchange of words outside the defendant's home. The defendant testified that he thought the former boyfriend, who often carried a handgun and allegedly had threatened the defendant at gunpoint once previously, was reaching for a gun at the time of the shooting. According to the defendant, the shotgun discharged as he lowered it with one hand and reached with the other to grab the gunstock. The jury received pattern jury instructions on murder, voluntary manslaughter, and involuntary manslaughter.
The issues instructions for murder and voluntary manslaughter required the State to prove that the defendant acted intending to kill or do great bodily harm, or knowing that his acts created a strong probability of death or great bodily harm. The issues instructions for involuntary manslaughter required the State to prove that the defendant acted recklessly in performing the acts which caused the victim's death. By returning guilty verdicts for murder and voluntary manslaughter, the jury necessarily found that the defendant acted knowingly and intentionally, while it also found that the defendant acted recklessly but unintentionally by its guilty verdict for involuntary manslaughter. Because a finding that a defendant acted recklessly but unintentionally contradicts a finding that a defendant concommitantly acted intentionally or knowingly, this court concluded: "The mental states involved in each of these offenses are mutually inconsistent. Where a determination is made that one exists, the others, to be legally consistent, must be found not to exist." 106 Ill.2d 186, 195.
The State argues that the rationale of Hoffer is inapplicable here where the jury could have rationally viewed the three shots fired by the defendant as separable acts, each accompanied by a different mental state, thereby supporting guilty verdicts on all counts. On its face, this proposition concedes logically inconsistent verdicts. Its premise places the State in the unenviably awkward, if not impossible, position of arguing that the jury could have rationally accepted in two verdicts the defense theory that the defendant acted recklessly but unintentionally, and then have rationally rejected the same theory in three other verdicts. Notwithstanding the apparent logical inconsistency of the verdicts, the State advances a new "explanation" of the facts presented at trial, which it argues could support the defendant's convictions on all charges.
In its brief the State explains that the defendant acted recklessly in drawing his gun and firing the first shot, which hit Barbara Spears. Thus, contrary to its position at trial, the State now asserts that the first shot is the basis for defendant's conviction for reckless conduct as to Barbara. The second shot, which defendant fired while struggling with Adkins, struck Barbara and Annette Keys. Without a comment or explanation of how or why defendant's culpable mental state, now urged to be that of recklessness, would suddenly change after the first shot, the State asserts that the second shot supports defendant's armed-violence conviction as to each complainant. Similarly, without explanation or comment, the State submits that the third shot, which missed ...