APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT
536 N.E.2d 1308, 181 Ill. App. 3d 481, 130 Ill. Dec. 97 1989.IL.467
Appeal from the Circuit Court of Sangamon County; the Hon. Raymond L. Terrell, Judge, presiding.
JUSTICE GREEN delivered the opinion of the court. LUND and KNECHT, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE GREEN
The issue in this appeal arises from the decision in People v. Reddick (1988), 123 Ill. 2d 184, 526 N.E.2d 141, where the supreme court held that, absent mitigating circumstances not present here, the giving of Illinois Pattern Jury Instructions, Criminal No. 7.02 (2d ed. 1981) (IPI Criminal 2d) (murder), IPI Criminal 2d No. 7.04 (voluntary manslaughter -- provocation), and IPI Criminal 2d No. 7.06 (voluntary manslaughter -- intentional -- belief of justification), when used together, constitute "grave error" which is not waived by the failure of the defendant to object to the instruction at trial. Reddick, 123 Ill. 2d at 198, 526 N.E.2d at 147.
In Reddick, error in those instructions in two cases was considered in the line of direct appeals from circuit courts to appellate courts and then to the supreme court. Here, we consider the effect of combining the IPI murder instruction with the IPI instruction on voluntary
Defendant contends her post-conviction petition set forth that she was entitled to have her murder conviction and sentence set aside for improper instruction of the jury as we have described because: (1) under Reddick, the error was of constitutional dimension, depriving her of her right to due process; (2) Reddick should be applied retroactively; and (3) our prior decision on direct appeal that the error in instruction was not reversible is not res judicata as to her present rights under the instant post-conviction petition.
After a jury trial in the circuit court of Sangamon County, defendant was convicted of the offense of murder on May 1, 1984. She was subsequently sentenced to a term of 22 years' imprisonment. Her appeal to this court and our affirmance followed. This court held the giving of the instructions was error for the reasons described in Reddick, which we will explain. However, this court determined the proof of defendant's guilt, including the proof which negated the existence of the elements which would have reduced the culpability of defendant's conduct to that constituting voluntary manslaughter, was very strong. The error was held to be harmless.
The instant proceedings were initiated on December 1, 1987, when defendant filed a pro se post-conviction petition in the circuit court of Sangamon County. Counsel was then appointed, and he stood with the pro se petition, which alleged the jury had been improperly instructed as to murder and voluntary manslaughter. After a hearing without evidence being introduced, the circuit court dismissed the petition. This appeal followed.
The Illinois jury instructions in issue here state:
"To sustain the charge of murder, the State must prove the following propositions:
First : That the defendant performed the acts which caused ...