APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION
537 N.E.2d 912, 182 Ill. App. 3d 13, 130 Ill. Dec. 583 1989.IL.458
Appeal from the Circuit Court of Cook County; the Hon. Jack Stein, Judge, presiding.
PRESIDING JUSTICE MURRAY delivered the opinion of the court. LORENZ and COCCIA, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MURRAY
Initially, defendant Jozsef Fercsi appealed his jury conviction of murder on the ground that he was improperly sentenced to 30 years' imprisonment when the trial court allegedly considered evidence establishing his intent to kill as a sentencing factor. While the appeal was pending, the Illinois Supreme Court filed an opinion in People v. Reddick (1988), 123 Ill. 2d 184, after which both defendant and the State filed supplemental briefs. Relying on Reddick, defendant now argues that he is entitled to a new trial because the trial court erroneously instructed the jury as to the burden of proof related to voluntary manslaughter.
The facts underlying this case need only be mentioned briefly. In September 1985, defendant, Robert Flowers, and Tiberiu Paretei, all of whom lived in the same rooming house, were drinking together in Flowers' room. After Flowers displayed a photograph of his daughter, Tiberiu made sexually orientated remarks about the daughter. Defendant insisted that Tiberiu apologize. After about a half-hour of argument in English and Hungarian between defendant and Tiberiu, Tiberiu eventually apologized. Flowers then left the room and returned to find defendant standing over Tiberiu, who was lying on the floor; defendant was hitting him in the head with a hammer. Defendant claimed that he went to his own room after Flowers left the room. Tiberiu followed him and kicked in his door, whereupon defendant hit the victim with a pipe and then got a hammer and hit him several more times. Investigating officers stated that defendant's door showed no signs of damage, but that there was blood in the hallway leading to Flowers' room, where the victim was found. Defendant also stated that he had seen Tiberiu "cut" another man prior to these events and that Tiberiu had pulled a knife on defendant about a year earlier.
In addition to a murder instruction and at defendant's request, the jury was also instructed on voluntary manslaughter based on an unreasonable belief that defendant's actions were justified. After receiving the Illinois Pattern Jury Instructions on these crimes, the jury found defendant guilty of murder.
We must reverse and remand for a new trial.
In People v. Reddick (1988), 123 Ill. 2d 184, the court held that it was grave error to give IPI Criminal, No. 7.02 (2d ed. 1981) (hereinafter IPI Criminal 2d) (murder) in tandem with IPI Criminal 2d No. 7.04
The State concedes that the present law is as enunciated by Reddick but that it is inapplicable to our case because (1) defendant waived or is estopped from now raising the instructions issue since he tendered the voluntary manslaughter instruction, and (2) the Reddick decision should not be applied retroactively. We disagree as to both arguments.
There are several reasons for dismissing the State's first argument. The Reddick opinion involved two consolidated appeals. The defendant in one of them did not challenge the instructions, even on appeal; however, the court considered the issue, even though not raised, because of the gravity of the error involved, i.e., denial of a fair trial. We also note that defendant in the present case was convicted approximately 1 1/2 years before Reddick was decided (June 20, 1988). Therefore, at the time he proffered the IPI voluntary manslaughter instruction, there was no way he could know that 18 months later the supreme court would find the instruction improper when given with the IPI murder instruction. The very basis of waiver in American jurisprudence is the giving up of a known right. (People v. Johnson (1979), 75 Ill. 2d 180.) Defendant did not know of the right and, thus, could not waive it.
We must also dismiss the State's contention that Reddick should not be applied retroactively. It argues that retroactive application conflicts with decisions in Patterson v. New York (1977), 432 U.S. 197, 53 L. Ed. 2d 281, 97 S. Ct. 2319 (burden of proof regarding murder and manslaughter is matter of statutory interpretation, not constitutional law), and Engle v. Isaac (1982), 456 U.S. 107, 71 L. Ed. 2d 783, 102 S. Ct. 1558 (constitutional for defendant to bear burden of proof regarding mitigation needed to reduce murder to manslaughter). The State also points out that in Engle, it was held that changes in State case law relating to the burden of proof in murder cases need not be applied retroactively, at least when a defendant failed to raise the issue at the trial level.
However, we note that Patterson merely held that a State legislature may choose to require a defendant to establish the required mitigating circumstances in order to reduce murder to manslaughter. (Engle was in accord with Patterson on this issue.) The Illinois legislature has subsequently placed the burden of proof for mitigating mental states on the defendant, but only in cases involving homicides occurring after December 31, 1986. (Ill. Rev. Stat. 1987, ch. 38, par. 9-2.) But at the time defendant was convicted, the burden of proof was on the State. (See Reddick, 123 Ill. 2d at 195-97; Ill. Rev. Stat. 1985, ch. 38, par. 3-2.) Therefore, under the law in existence then, the State was required to prove the absence of an unreasonable belief of justification by defendant, in addition to proving ...