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10/18/94 PEOPLE STATE ILLINOIS v. RAYFIELD AUSTIN

October 18, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
RAYFIELD AUSTIN, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. Honorable John A. Wasilewski, Judge Presiding.

Petition for Leave to Appeal Denied February 1, 1995.

McCORMICK, Hartman, Scariano

The opinion of the court was delivered by: Mccormick

JUSTICE McCORMICK delivered the opinion of the court:

A jury found defendant, Rayfield Austin, guilty of first degree murder and the trial court sentenced him to natural life in the Illinois Department of Corrections because he had also been convicted of second degree murder in Michigan. We affirm the conviction because the trial court did not commit plain error by giving jury instructions permitting the jury to return a verdict of guilty of murder without also signing a verdict acquitting defendant of involuntary manslaughter. We reverse and remand for resentencing because a second degree murder conviction in Michigan is not "substantially similar" to a first degree murder conviction in Illinois within the meaning of the list of aggravating factors in section 9-1(b) of the Criminal Code of 1961 (Ill. Rev. Stat. 1991, ch. 38, par. 9-1(b)).

On December 7, 1989, defendant brought his seven-week-old daughter Raechel Austin to the hospital because she had stopped breathing. Raechel resumed breathing before she arrived at the hospital, but she remained in the hospital for four days for evaluation. Because of the marks on Raechel's face nurses called the Department of Children and Family Services to investigate the possibility that Raechel had been abused. The Department approved the discharge of Raechel to her parents' care.

Raechel's mother, Melissa Austin, next left Raechel in defendant's care on December 22, 1989. Again defendant brought Raechel to the hospital because she stopped breathing. This time she did not resume breathing on her own. Raechel died on December 23, 1989. The pathologist determined that her death resulted from shaken baby syndrome, in which the baby's brain is severely damaged by violent shaking. Defendant admitted to police that he shook Raechel on December 7 and on December 22, 1989. The State charged defendant with first degree murder.

At trial the court instructed the jurors, at defendant's request, that they could find defendant guilty of murder, guilty of involuntary manslaughter, or not guilty of murder and involuntary manslaughter. The court, without objection, gave the jurors three verdict forms corresponding to the three possible verdicts. The court instructed the jurors that they should find defendant guilty of murder if they found that defendant's acts caused Raechel's death, and when he performed the fatal acts he knew that his acts created a strong probability of death or great bodily harm. If the jurors found that defendant acted recklessly, and his acts were likely to cause great bodily harm, the court told them to find defendant guilty of involuntary manslaughter. The court explained:

"A person is reckless or acts recklessly when he consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow, and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation."

The prosecutor in closing argument emphasized that, especially because of the prior incident in which Raechel stopped breathing, defendant knew that the severe shaking he gave Raechel on December 22 would result in great bodily harm or death. Defense counsel responded that defendant's acts showed no intention, and because of the favorable result of the first incident he did not even know that shaking the child was likely to cause great bodily harm. Defense counsel conceded that defendant's acts might amount to conscious disregard of a substantial risk, so the jury might find him guilty of involuntary manslaughter.

After nine hours of deliberation the jury found defendant guilty of first degree murder. The State sought the death penalty on the basis of defendant's conviction for second degree murder in Michigan in 1977. The trial court held that a second degree murder conviction in Michigan was substantially similar to a first degree murder conviction in Illinois. The jurors found defendant qualified for a death sentence, but they did not unanimously find "no mitigating factors". The trial Judge indicated that he believed he was without discretion in sentencing, and he sentenced defendant to natural life in the Illinois Department of Corrections.

Defendant argues on appeal first that the court did not adequately instruct the jury because no instruction informed the jurors that by finding him guilty of murder they necessarily found him not guilty of involuntary manslaughter and the verdicts allowed the jury to return the murder verdict without expressly deciding whether he was guilty of involuntary manslaughter. The trial court did not give the final paragraph of Illinois Pattern Jury Instruction, Criminal, No. 26.01Q (3d ed. 1992), which states:

"Under the law, the defendant cannot be guilty of [first degree murder] and [involuntary manslaughter]. Accordingly, if you find the defendant guilty of [first degree murder], that verdict would mean that the defendant is not guilty of [involuntary manslaughter]. Likewise, if you find the defendant guilty of [involuntary manslaughter], that verdict would mean that the defendant is not guilty of [first degree murder]."

Defendant concedes that he did not offer the instruction he now seeks, and in the trial court he raised no objection to the instruction given, but he asks this ...


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