The opinion of the court was delivered by: Justice Rakowski
Appeal from the Circuit Court of Cook County. Honorable Gerald T. Rohrer Judge Presiding
Following a jury trial, defendant Beth Kauffman was convicted of second degree murder and sentenced to a five-year term of probation. Defendant now appeals, contending that the trial Judge erred (1) in instructing the jury on second degree murder over her objection; (2) in failing to instruct the jury in conformity with the Illinois Pattern Jury Instructions; (3) in denying her request to instruct the jury on defense of dwelling; and (4) in denying her motion to admit into evidence certain information pertaining to the victim's propensity for violence. For the reasons that follow, we conclude that the trial Judge did not err in instructing the jury on second degree murder. However, we remand this cause for a new trial because the jury instructions and verdict forms did not conform to the Illinois Pattern Jury Instructions for first and second degree murder. As it is likely to recur in a new trial, we also address defendant's third issue and conclude that the trial Judge did not err in denying defendant's request to instruct the jury on defense of dwelling. However, we find it unnecessary to address defendant's final contention.
I. Second Degree Murder Instruction.
Defendant was charged only with first degree murder and at trial argued she acted in self-defense. At the State's request and over defendant's objection, the trial Judge instructed the jury on second degree murder, and the jury found defendant guilty of that offense. Defendant now appeals, contending that she was entitled to pursue an all-or-nothing defense requiring the jury to choose between convicting her of first degree murder or finding her not guilty. According to defendant, the trial court erred in instructing the jury on second degree murder because it provided the jury with a third option resulting in a compromise verdict. Defendant premises her argument on the statutory language of section 9-2(c) of the Criminal Code of 1961 (720 ILCS 5/9-2(c) (West 1998)) and case law from the area of lesser included offenses.
A. Section 9-2(c) of the Criminal Code of 1961
Defendant bases her argument on the following excerpt of section 9- 2(c):
"In a jury trial for first degree murder in which evidence of [a statutory mitigating factor] *** has been presented and the defendant has requested that the jury be given the option of finding the defendant guilty of second degree murder, the jury must be instructed ***." (Emphasis added.) 720 ILCS 5/9-2(c) (West 1998).
She argues this provision should be interpreted to mean that a second degree murder instruction may be given only where there is evidence of mitigation and the defendant requests such an instruction be given.
A primary rule of statutory construction is to ascertain and give effect to the intent of the legislature, and "[t]o accomplish this goal, a court will seek to determine the objective the legislature sought to accomplish and the evils it desired to remedy." People v. Jeffries, 164 Ill. 2d 104, 110 (1995). Through the enactment of Public Act 84-1450 (Pub. Act. 84-1450, eff. July 1, 1987) (1986 Ill. Laws 4222)), of which section 9-2(c) was a part, the legislature intended to "remedy the confusion and inconsistency that had developed in regard to the murder and voluntary manslaughter statutes." Jeffries, 164 Ill. 2d at 111.
Under the previous statutory scheme, murder and voluntary manslaughter were defined as two distinct offenses, although they had common elements. To be guilty of either offense, a defendant had to have intentionally or knowingly caused the death of the victim. The distinction between murder and voluntary manslaughter was that a defendant who acted either "under a sudden and intense passion resulting from serious provocation" or under an unreasonable but honest belief that deadly force was justified to prevent the defendant's own imminent death or great bodily harm was guilty of voluntary manslaughter. Compare Ill. Rev. Stat. 1985, ch. 38, par. 9-1 and Ill. Rev. Stat. 1985, ch. 38, par. 9-2. Serious flaws in this statutory scheme and the attendant jury instructions became apparent, compelling the legislature to amend the statute. *fn1
First, to convict a defendant of voluntary manslaughter, the State was required to prove every element of murder plus the existence of mitigating circumstances. However, where a defendant was on trial for murder, the State would direct its efforts toward convicting a defendant of that offense. It was very unlikely to offer evidence of mitigating circumstances that would reduce the offense from murder to voluntary manslaughter. Even if the defendant presented overwhelming evidence that she acted with an unreasonable belief in self-defense and was therefore guilty of voluntary manslaughter, a jury that carefully and literally followed its instructions would be unable to render such a verdict because then-current instructions directed the jury to return a verdict of guilty of voluntary manslaughter only if the State proved defendant's unreasonable belief of justification beyond a reasonable doubt. See People v. Reddick, 123 Ill. 2d 184, 194-95 (1988).
Moreover, whenever the jury returned a voluntary manslaughter verdict, it necessarily found that the State had proved each of the elements to convict the accused of murder. Thus, a jury following the relevant instructions could return a guilty verdict on both murder and voluntary manslaughter based upon a single homicide. In those cases where the jury returned multiple verdicts, the trial Judge was left with the dilemma of determining which offense to impose sentence on. See, e.g., People v. Flowers, 138 Ill. 2d 218, 228-33 (1990); People v. Washington, 127 Ill. App. 3d 365 (1984).
Finally, murder was defined without reference to the absence of the mitigating circumstances distinguishing it from voluntary manslaughter. Thus, it was possible for the State to prove murder without actually disproving that the defendant subjectively believed she was acting in self-defense or that her actions were the result of serious provocation. In order to return a murder verdict, the jury was required to find that the defendant was not completely justified in the use of deadly force. However, the jury was not told that if it found that the defendant "had acted with some lesser level of justification it could not convict her of murder." Falconer v. Lane, 905 F.2d 1129, 1133-37 (7th Cir. 1990) (holding Illinois instructions violated due process). This problem was exacerbated by the structure of the instructions, which encouraged the jury to first consider the requirements of murder and to consider voluntary manslaughter only if the murder requirements had not been met. Falconer, 905 F.2d at 1136; see also Martin v. Ohio, 480 U.S. 228, 233- 34, 94 L.Ed.2d 267, 273, 107 S.Ct. 1098, 1101-02 (1987) (stating in dicta that a due process violation would occur if the jury was instructed that evidence of self-defense "must be put aside for all purposes unless it satisfied the preponderance standard").
Through section 9-2(c), the legislature sought to remedy the above problems. See 84th Ill. Gen. Assem., House Proceedings, June 23, 1986, at 71-73 (statements of Representatives Homer and Cullerton). Signaling a departure from the previous statutory scheme, the offense of murder was changed to first degree murder, and voluntary manslaughter was abolished and replaced with second degree murder. In its entirety section 9-2(c) provides:
"(c) When a defendant is on trial for first degree murder and evidence of either of the mitigating factors defined in subsection (a) of this Section has been presented [unreasonable belief in necessity of self- defense or passion-provocation], the burden of proof is on the defendant to prove either mitigating factor by a preponderance of the evidence before the defendant can be found guilty of second degree murder. However, the burden of proof remains on the State to prove beyond a reasonable doubt each of the elements of first degree murder and, when appropriately raised, the absence of circumstances at the time of the killing that would justify or exonerate the killing under the principles stated in Article 7 of this Code. In a jury trial for first degree murder in which evidence of either of the mitigating factors defined in subsection (a) of this Section has been presented and the defendant has requested that the jury be given the option of finding the defendant guilty of second degree murder, the jury must be instructed that it may not consider whether the defendant has met his burden of proof with regard to second degree murder until and unless it has first determined that the State has proven beyond a reasonable doubt each of the elements of first degree murder." 720 ILCS 5/9-2(c) (West 1998).
We are not persuaded that this provision should be interpreted to provide that a second degree murder instruction may only be given where there is mitigating evidence "and the defendant has requested" that the jury be instructed on that offense. The language of section 9-2(c) is designed to remedy those problems that developed under the murder- voluntary manslaughter statutory scheme. In contrast to the situation under that scheme, section 9-2(c) specifies that the defendant, rather than the State, bears the burden of proving the mitigating factors necessary to reduce the offense from first degree murder to second degree murder. It also requires the State to prove the absence of circumstances that would justify or exonerate the killing. Jeffries, 164 Ill. 2d at 114. If the State fails to prove that the defendant was not justified in her use of force, "then the jury must find the defendant not guilty of first degree murder and its deliberations end. If the State, however, has successfully ...