The opinion of the court was delivered by: Justice Thomas
Docket No. 93511-Agenda 7-January 2003.
The State charged defendant, Esmon Vinci Jones, with three counts of aggravated battery (720 ILCS 5/12-4(a), (b)(8), (b)(10) (West 2000)), one count of robbery (720 ILCS 5/18-1 (West 2000)), and one count of mob action (720 ILCS 5/25-1(a)(1) (West 2000)). A jury acquitted him of aggravated battery, convicted him of mob action, and could not reach a verdict on robbery. The circuit court of Macon County vacated the mob action conviction as inconsistent with the aggravated battery acquittals and set the case for retrial on the mob action and robbery counts. The case was assigned to a different trial judge, and defendant moved to bar further prosecution on collateral estoppel grounds. The circuit court denied defendant's motion and ruled that the previous judge had erred in setting aside the mob action conviction because the verdicts were not inconsistent. Defendant appealed, and the appellate court affirmed. No. 4-01-0078 (unpublished order under Supreme Court Rule 23). We allowed defendant's petition for leave to appeal. 177 Ill. 2d R. 315.
Sixty-four-year-old Patricia Wheeler-Ward testified that, on May 21, 2000, she was walking home from a pub where she had been socializing. She was walking north on Van Dyke street when she noticed three men walking towards her. One of them, who was wearing a grey sweatshirt, separated from the group and said to her, "Know what we want?" Wheeler-Ward responded, "Go on and leave me alone. I'm going home." The man who had spoken to her asked for her purse and tried to take it from her. Wheeler-Ward identified defendant as the person who had tried to take her purse.
Wheeler-Ward began to run away, and someone pushed her from behind. She fell forward on her face and hurt her knee. The man in the gray sweatshirt and one of the others tried to take her purse. The third one went through her pockets and then said, "Shut up bitch!" and hit her in the mouth. The men made off with her purse, and she later recovered it at the police station.
The defense did not deny that defendant was present when Wheeler-Ward was attacked, but denied that he was criminally responsible for the attack. Defendant's attorney impeached Wheeler-Ward with contradictory statements that she gave the police on the night of the attack. Additionally, defendant testified to his version of the incident in question. According to defendant, he was walking down Van Dyke Street with Demetrius Reed and Anthony Johnson, a/k/a/ Knock-out. The three had met up earlier at an apartment complex. When they were on Van Dyke Street, defendant was on his way home, while the other two were going to a girl's house. At some point, defendant noticed an elderly woman walking towards them on the other side of the street. Reed and Knock-out crossed the street and got behind her. They did not tell defendant what they were doing.
Knock-out told the woman that they wanted her purse. She began to run, and Knock-out shoved her in the back. Defendant claimed that he never touched her. He could see Knock-out taking the purse away from her. When defendant saw what Reed and Knock-out were doing, he tried to run away. Reed ran after him and tackled him to the ground. Reed had the victim's purse with him. Reed threw items out of the purse until he found the victim's wallet. Knock-out caught up with defendant and Reed, and Reed and Knock-out made defendant take some of the victim's money. Defendant did not take the money willingly. Reed and Knock-out did not want defendant to tell what happened, so they threatened him with an " a-whipping" if he did not take some of the money. Defendant interpreted "a-whipping" as meaning that he would be beaten if he did not take some of the money. Defendant acknowledged that he was wearing a gray sweatshirt on the night in question. He explained that he ran from the police because he did not want to "go down" for something he did not do.
The jury convicted defendant of mob action and acquitted him on all three counts of aggravated battery. The jurors could not reach a verdict on the robbery charge. A few days later, following an oral motion by defendant, the trial court set aside the mob action conviction as inconsistent with the aggravated battery acquittals. The court entered an order stating that the cause was "realloted for pre-trial" on the mob action and robbery counts.
Defendant moved to bar reprosecution, arguing that the State was collaterally estopped from relitigating the issue of whether defendant had used force against the victim. Defendant pointed out that the mob action and aggravated battery counts both alleged that he pushed and struck the victim. The robbery count alleged that he took the victim's purse by the use of force. Defendant argued that, because he was acquitted of pushing and striking the victim, the State was estopped from prosecuting him on the mob action count as it was also based on his pushing and striking the victim. Similarly, the State could not prosecute him for robbery predicated on the use of force because a jury had found that he did not push or strike the victim.
This motion was considered by a different trial judge, who ultimately ruled that the previous judge had erred in vacating the mob action conviction. The second judge found that the verdicts were not inconsistent. Mob action does not require the infliction of injury, and the allegations of infliction of injury in the mob action charge were surplusage. The jury was properly instructed on the essential elements of mob action. The court specifically found that "the verdicts were not legally inconsistent as the jury was instructed and would not have been legally inconsistent if the jury had been instructed with all elements in the information." Accordingly, the court ruled that collateral estoppel did not bar retrial.
Defendant appealed pursuant to Supreme Court Rule 604(f) (188 Ill. 2d R. 604(f)), and the appellate court affirmed. The appellate court agreed with the trial court that the mob action conviction was not inconsistent with the aggravated battery acquittals. The court held that the essential elements of mob action and aggravated battery were different and that it was not inconsistent for the jury to acquit on one and convict on the other. According to the appellate court, the State would not have to prove on retrial that defendant pushed and struck Wheeler-Ward to obtain a mob action conviction. Although the court found that the first trial judge had erred in vacating the mob action conviction, the court found that it had no authority to reinstate the conviction because the appeal was from the grant of defendant's motion to bar retrial.
As to the robbery charge, the court noted that the elements of robbery and aggravated battery are different. To obtain a conviction on the robbery charge, the State would have to prove that defendant took property from Wheeler-Ward by the use of force. It would not be necessary for the State to relitigate the issue of whether defendant pushed or struck Wheeler-Ward. The testimony showed that Wheeler-Ward's purse was pulled from her by the use of force, and a robbery conviction could stand based on this use of force. Accordingly, collateral estoppel did not bar retrial on the robbery count either.
Defendant argues that the appellate court erred in holding that he could be retried on the mob action and the robbery counts. Defendant broadly asserts that the jury's acquittal on the aggravated battery counts shows that the jurors believed that he was not involved in the incident at all. More specifically, defendant contends that the mob action conviction was inconsistent with the aggravated battery acquittals because the aggravated battery and mob action counts all included allegations that defendant pushed and struck Wheeler-Ward. Considering the evidence before the jurors, their acquittal on the aggravated battery counts could have been based only on their belief that defendant did not push or strike Wheeler-Ward, and likewise he was not accountable for the actions of whoever did do so. Similarly, defendant contends that the jury's finding in this regard should prevent a retrial on the robbery charge, which would require the jury to find that defendant took property from Wheeler-Ward by the use of force.
The State responds that the mob action conviction was not inconsistent with the aggravated battery acquittals. Alternatively, the State contends that this court should overrule People v. Klingenberg, 172 Ill. 2d 270 (1996), in which this court reaffirmed its view that inconsistent verdicts are unreliable and declined to follow the United States Supreme Court's decision in United States v. Powell, 469 U.S. 57, 83 L. Ed. 2d 461, 105 S. Ct. 471 (1984). The State argues that Powell supplies the better rule and that this court should follow the approach taken by the Supreme Court. As to the robbery count, the State contends that collateral estoppel does not bar retrial because the jury would not be asked to resolve an issue decided by the previous jury.
We agree with the State that we erred in Klingenberg when we declined to follow Powell. We thus do not need to reach the issue of whether the mob action conviction was inconsistent with the aggravated battery acquittal because, either way, the mob action conviction did not need to be vacated. If the verdicts were consistent, then obviously there was no problem. If they were inconsistent, we still believe the mob action conviction could stand under the rule announced by the Supreme Court in Powell.
In Powell, a jury acquitted the defendant of possessing cocaine with the intent to distribute it and conspiring to possess with intent to distribute cocaine. However, the same jury convicted the defendant of using a telephone to commit those same felonies. The defendant appealed, arguing that the verdicts were inconsistent: if she did not commit the underlying felonies, she could not have been guilty of using a telephone to commit those same felonies. The United States Court of Appeals for the Ninth Circuit agreed and reversed the defendant's convictions. The Court of Appeals acknowledged that the Supreme Court had held in Dunn v. United States, 284 U.S. 390, 76 L. Ed. 356, 52 S. Ct. 189 (1932), that inconsistent verdicts need not be set aside, but held that there should be an exception for situations in which a jury convicts a defendant of a compound offense while acquitting him of the predicate offense.
The Supreme Court reversed the Ninth Circuit and held that there was no such exception to the Dunn rule. The Court reiterated that consistency in the verdicts is not required as a matter of constitutional law and that inconsistent verdicts can often be explained as a product of juror lenity:
" ` "The most that can be said in such cases is that the verdict shows that either in the acquittal or the conviction the jury did not speak their real conclusions, but that does not show that they were not convinced of the defendant's guilt. We interpret the acquittal as no more than their assumption of a power which they had no right to exercise, but to which they were disposed through lenity." ' " Powell, 469 U.S. at 63, 83 L. Ed. 2d at 467, 105 S. Ct. at 475, quoting Dunn, 284 U.S. at 393, 76 L. Ed. at 359, 52 S. Ct. at 190, quoting Steckler v. United States, 7 F.2d 59, 60 (2d Cir. 1925).
The Court gave three additional reasons for refusing to allow defendants to challenge convictions on the basis of inconsistency. First, when a jury enters inconsistent verdicts, no one knows who the error benefits. Or, as the court put it, "it is unclear whose ox has been gored." Powell, 469 U.S. at 65, 83 L. Ed. 2d at 469, 105 S. Ct. at 477. All that a reviewing court knows is that either in the conviction or the acquittal the jury did not follow the instructions. Second, the court was concerned with fashioning a rule that would allow only the defendant to challenge an inconsistent verdict. Even though the inconsistency could harm either side, the government is precluded from challenging an acquittal on inconsistency grounds. Powell, 469 U.S. at 65, 83 L. Ed. 2d at 469, 105 S. Ct. at 477. Finally, a defendant is still protected from jury irrationality because the defendant can always challenge his or her conviction on sufficiency of the evidence grounds. Powell, 469 U.S. at 67, 83 L. Ed. 2d at 470, 105 S. Ct. at 478.
The Powell Court noted that it was not grounding its decision in the Constitution. Rather, the issue was addressed under the court's supervisory power over the federal criminal process, and the decision is thus not binding on state courts. Powell, 469 U.S. at 65, 83 L. Ed. 2d at 469, 105 S. Ct. at 477. Although the states are not required to apply the Powell rule, most have chosen to do so. See 5 W. LaFave, J. Israel & N. King, Criminal Procedure §24.10(b), at 616 (2d ed. 1999).
In Klingenberg, this court expressly declined to join the federal courts and the majority of state courts in following Powell. In that case, we agreed with the appellate court that the defendant's conviction of official misconduct was legally inconsistent with a verdict acquitting him of theft when the charge of official misconduct was based on the same theft. Klingenberg, 172 Ill. 2d at 276-77. The State relied on Powell in arguing that the defendant's official misconduct conviction did not have to be reversed.
Klingenberg conceded that this court's previous rationale for vacating inconsistent verdicts was incorrect. This court had held previously that inconsistent verdicts rendered in the same proceeding had to be vacated on collateral estoppel grounds. People v. Frias, 99 Ill. 2d 193 (1983). In Klingenberg, this court acknowledged that this rationale was incorrect and that the purpose of the collateral estoppel doctrine is "to protect an accused from the unfairness of being required to relitigate an issue which has once been determined in his favor by a verdict of acquittal in a second proceeding." (Emphases in original.) Klingenberg, 172 Ill. 2d at 281.
Although this court acknowledged that its previous rationale for vacating inconsistent verdicts was incorrect, this court nevertheless declined to adopt the United States Supreme Court's approach to inconsistent verdicts for three new reasons. First, this court stated that jury verdicts can be explained away as a showing of jury lenity only in those cases in which the jury convicts on the predicate offense but acquits on a compound offense. Klingenberg, 172 Ill. 2d at 278. Second, the court acknowledged Powell's concern that the defendant but not the State would be able to challenge an inconsistent verdict, but stated that we were not "persuaded that the framers of the double jeopardy clause intended to achieve the symmetry between defendants and the prosecution that the Powell decision creates." Klingenberg, 172 Ill. 2d at 279. Finally, this court said that it did not want to permit legally inconsistent verdicts as a means of achieving "folk justice," and that the defendant should not be required to bear the burden of the trial court's error in accepting the verdicts. Klingenberg, 172 Ill. 2d at 279.
Klingenberg was not unanimous. Two justices dissented and urged this court to stop adhering to "an outmoded and unnecessary state rule" and to follow Powell. Klingenberg, 172 Ill. 2d at 285-89 (Miller, J., dissenting, joined by Freeman, J.). These justices argued that the Powell rule was preferable and asserted that the majority's reasons for failing to follow it were not persuasive. First, the dissent argued that the majority was mistaken in contending that juror lenity could be assumed only in those cases in which the jury convicts on the predicate offense and acquits on a compound offense. The dissent contended that the majority erred in looking for a rational explanation for juror lenity because lenity does not necessarily operate in a rational manner. Klingenberg, 172 Ill. 2d at 287 (Miller, J., dissenting, joined by Freeman, J.). Second, the dissent argued that the majority too easily dismissed the Supreme Court's concern that the defendant could challenge an inconsistent verdict while the State could not. The dissenting justices argued that the Powell Court's concern was not necessarily a desire to see perfect symmetry, as the majority contended, but rather was based on the reality that there is no reason to assume that the acquittal is the "correct" verdict. Klingenberg, 172 Ill. 2d at 287-88 (Miller, J., dissenting, joined by Freeman, J.). Third, the dissent argued that the majority ignored the fact that a defendant always remains free to challenge his conviction on sufficiency of the evidence grounds. Klingenberg, 172 Ill. 2d at 288 (Miller, J., dissenting, joined by Freeman, J.). Finally, the dissenting justices argued that the majority's assertion that the defendant should not bear the burden of the trial court's inaction in accepting a legally inconsistent verdict rested on the faulty assumption that the acquittal was the jury's true verdict. According to the dissent, in these situations it is just as likely that the acquittal is a boon given to the defendant by a jury convinced of his guilt. Klingenberg, 172 Ill. 2d at 288 (Miller, J., dissenting, joined by Freeman, J.).
We have concluded that the views expressed by Justices Miller and Freeman in their Klingenberg dissent were correct and should have been followed. We are further persuaded by the reasons set forth in Powell as to why inconsistent verdicts in criminal cases should not be vacated, and we now overrule Klingenberg. This will bring Illinois in line with the majority of states that have concluded that the Powell decision is correct and should be followed. Thus, defendants in Illinois can no longer challenge convictions on the sole basis that they are legally inconsistent with acquittals on other charges.
We recognize that we are departing from stare decisis in changing our approach to inconsistent verdicts. Normally, we will adhere to established precedent, even if certain members of this court disagree with it. Stare decisis, however, "is not an inexorable command; rather, it `is a principle of policy and not a mechanical formula of adherence to the latest decision.' "Payne v. Tennessee, 501 U.S. 808, 828, 115 L. Ed. 2d 720, 737, 111 S. Ct. 2597, 2609-10 (1991), quoting Helvering v. Hallock, 309 U.S. 106, 119, 84 L. Ed. 604, 612, 60 S. Ct. 444, 451 (1940). In Payne, the Supreme Court further explained that:
"Adhering to precedent `is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than it be settled right.' " [Citation.] Nevertheless, when governing decisions are unworkable or are badly reasoned, `this Court has never felt constrained to follow precedent.'[Citation.]" Payne, 501 U.S. at 827, 115 L. Ed. 2d at 737, 111 S. Ct. at 2609.
Upon reexamining our decision in Klingenberg, we have determined that one of the reasons we gave for rejecting Powell was based on a fundamental misstatement of the law. Because we have determined that this particular reason for rejecting Powell was not valid, we have reevaluated the arguments for and against the Powell and Klingenberg approaches.
As stated, this court's original objection to inconsistent verdicts was based on collateral estoppel grounds. Once we determined that we had erred in applying collateral estoppel to verdicts rendered in a single proceeding, we decided to reject Powell for three new reasons. One of the reasons this court rejected the Powell approach was because this court believed that it forced defendants to bear the burden of a trial judge's error:
"The Powell decision requires the defendant to bear the consequences of an error properly attributed to the trial court. Where a jury returns legally inconsistent verdicts, it is the trial court's duty to refuse the verdicts and to require the jury to deliberate further. People v. Almo, 108 Ill. 2d 54 (1985). In this case, however, the trial court entered the inconsistent verdicts, presumably because it failed to recognize the inconsistency. We do not believe that the defendant should suffer the consequences of the trial court's error, particularly where an unlawful conviction may have resulted from that error." Klingenberg, 172 Ill. 2d at 279.
This assertion by the Klingenberg court confused two different lines of cases. The rule that a trial judge has a duty to refuse inconsistent verdicts and should order the jury to keep deliberating is the rule for cases in which the jury returns inconsistent guilty verdicts. For instance, this is the situation that would arise when the defendant is found guilty of two crimes, but the jury found that the defendant acted with two different mental states. In Almo, the case cited by Klingenberg, this court held that a trial judge acted properly in sending a jury back to deliberate further after it found the defendant guilty of both murder and voluntary manslaughter. This court held that the trial judge had a duty to refuse the verdicts and to send the jury back to deliberate because the judge would not know which of the two verdicts to enter. The judge could not usurp the jury's function by second guessing what the jury really meant. People v. Almo, 108 Ill. 2d 54, 64 (1985). See also People v. Fornear, 176 Ill. 2d 523, 534 (1997); People v. Porter, 168 Ill. 2d 201, 214 (1995); People v. Flowers, 138 Ill. 2d 218, 229-31 (1990); People v. Spears, 112 Ill. 2d 396, 409-10 (1986) (all holding that a trial court has a duty to refuse inconsistent guilty verdicts and to instruct the jury to resolve the inconsistency).
The inconsistencies at issue in Powell and Klingenberg are different. Those cases involve situations in which a jury's conviction of the defendant on one count is inconsistent with its acquittal of him on another count because the jury found that the same essential element both did and did not exist. This court has never held that a trial judge has a duty in these situations to send the jury back for further deliberations. We have asked only that the trial courts ask jurors to reconcile inconsistent guilty verdicts. Indeed, requiring trial judges to order jurors to reconsider verdicts of acquittal would raise questions of due process and double jeopardy that this court has not yet addressed. Thus, contrary to Klingenberg's assertion, Powell in no way requires defendants to bear the consequences of a trial court error.
Because one of the principal reasons given by the Klingenberg court for rejecting Powell was based on a fundamental misstatement of the law, we have reexamined whether Klingenberg still supplies the better approach or whether we should join the majority of jurisdictions in following Powell. As stated previously, our reexamination of the issue leads us to conclude that the reasons given by Powell and by the Klingenberg dissent were correct and should have been followed.
Having determined that the trial court erred in vacating defendant's mob action conviction, we must now consider the appropriate remedy. The State asks that we reinstate the conviction. Although the appellate court believed that the trial court had erred in vacating the mob action conviction, it concluded that it had no authority to reinstate the conviction because it arose in the context of an interlocutory appeal from the denial of defendant's motion to bar reprosecution. This is not correct.
Upon determining that the first trial judge erred in vacating defendant's mob action conviction and setting the case for retrial, both the subsequent trial judge and the appellate court had the authority to reinstate the conviction. The first judge's order vacating the conviction and setting the cause for a retrial was an interlocutory order. See People v. Mink, 141 Ill. 2d 163, 171 (1990). A court in a criminal case has the inherent power to reconsider and correct its rulings, and this power extends to interlocutory rulings as well as to final judgments. Mink, 141 Ill. 2d at 171. Here, after the matter was set for retrial, the circuit court retained jurisdiction over the cause and thus had the authority to reconsider any order that had previously been entered. See Mink, 141 Ill. 2d at 171 (second trial judge had the authority to vacate first trial judge's order, which ...