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April 18, 1997


Appeal from the Circuit Court of Hamilton County. No. 94-CF-10. Honorable David L. Underwood, Judge, presiding.

Presiding Justice Kuehn delivered the opinion of the court. Hopkins, J., and Maag, J., concur.

The opinion of the court was delivered by: Kuehn

PRESIDING JUSTICE KUEHN delivered the opinion of the court:

This case features charges of murder in the first degree and aggravated discharge of a firearm. The accused entered a plea of not guilty. He then stood trial by jury. The jury deliberated on the evidence presented at trial and returned guilty verdicts on both charges. The defendant was sentenced to 50 years in prison for the offense of first-degree murder. The defendant appeals his conviction.

At first blush, the case appears rather unremarkable, tracking a path to verdict common to most cases. Both verdicts are clearly supported by the evidence. However, the verdicts do not reflect a jury determination of what was ultimately placed at issue by defendant's not-guilty plea. The crime of involuntary manslaughter, one of the potential offenses placed at issue, was submitted without a mechanism for the jury to decide guilt or innocence. The jury decided guilt without instruction that allowed it to acquit.

We are thus asked, in the face of overwhelming evidence favoring conviction, to grant defendant a new trial. The request tests a core value of the process by which we judge our fellow man. It questions a verdict of guilt reached by a jury that was not empowered to find innocence.

We must decide whether the failure to provide a jury with the option to acquit, no matter how unlikely the possibility, invalidates a guilty verdict. Since the decision on guilt or innocence is the essence of trial by jury, we grant defendant a new trial. No matter how obvious a defendant's guilt, no matter how overwhelming the evidence, no matter what his lawyer thinks or tells the jury, the constitution entitles him to a jury verdict that decides guilt or innocence. Sullivan v. Louisiana, 508 U.S. 275, 277-78, 124 L. Ed. 2d 182, 188, 113 S. Ct. 2078, 2080-81 (1993).

There is no real dispute over what happened. The defendant spent most of March 30, 1994, playing pocket pool. He was also drinking beer and whiskey. He was with an old friend named George Feuquay. At one point, Feuquay and defendant had a disagreement over a playing partner for one of the pool games. Feuquay insulted defendant by assigning him a partner that he did not like.

Later that day, defendant left the tavern and went home. He loaded his shotgun and walked down the street to visit his old friend. He entered Feuquay's trailer, sat down on the living room couch, and declared their friendship a thing of the past. Feuquay, who was sitting in a chair facing defendant, started to get up. The defendant then shot and killed him.

The defendant stood trial. Despite testimony that attempted to posture fear as the impetus for the killing, despite defendant's effort to implicate an imperfect self-defense second-degree murder instruction, no second-degree murder instruction was tendered. Rather, defense counsel sought and received instruction on the offense of involuntary manslaughter. This lesser-included offense was thus placed in issue for the jury's consideration. The concluding instruction for homicide cases implicating second-degree murder, as well as involuntary manslaughter, was used as the form for instructing the jury. Pattern instruction number 26.01J (Illinois Pattern Jury Instruction, Criminal, No. 26.01J (3d ed. 1992)) was altered to instruct on first-degree murder and involuntary manslaughter. It was fashioned to read:

"The defendant is charged with the offense of first degree murder. Under the law, a person charged with first degree murder may be found (1) not guilty; or (2) guilty of first degree murder; or (3) guilty of involuntary manslaughter.

Accordingly, you will be provided three verdict forms; 'not guilty of first degree murder', 'guilty of first degree murder', and 'guilty of involuntary manslaughter.'"

The jury was not provided with a general not-guilty verdict or an involuntary manslaughter not-guilty verdict. Thus, the jury could only decide whether the State had failed to establish first-degree murder beyond a reasonable doubt. It was afforded no mechanism to decide whether the State had failed to prove defendant's guilt beyond a reasonable doubt.

It is undisputed that the trial court departed from pattern instruction number 26.01J. This departure was accompanied by the tender of verdict forms inconsistent with those contemplated by the instruction. The contemplated ...

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