Appeal from the Circuit Court of Cook County. No. 05 CR 26029 The Honorable John P. Kirby, Judge Presiding.
The opinion of the court was delivered by: Justice Garcia
JUSTICE GARCIA delivered the judgment of the court, with opinion Justices Hall and Rochford concurred in the judgment and opinion.
¶ 1 In a supervisory order, our supreme court directed that we vacate our opinion and reconsider in light of People v. Washington, 2012 IL 110283. See People v. Billups, No. 111280
(Ill. Mar. 28, 2012) (order). In our original decision, we rejected defendant Lavelle Billups' contention that the trial court erred when it did not instruct the jury on second degree murder, even though it instructed on self-defense. People v. Billups, 404 Ill. App. 3d 1 (2008). Washington held the rule in People v. Lockett, 82 Ill. 2d 546 (1980), that when the jury is instructed on self-defense, it should also be instructed on second degree murder, stands without exception. We granted leave to the defendant to file a copy of his petition with the supreme court for leave to appeal and to the State to file a supplemental brief on the only remaining issue of harmless error. Because the defendant's testimony presented a clear case of self-defense, the error in not instructing the jury on second degree murder was not harmless. We reverse for a new trial.
¶ 3 In our original decision, we followed the analysis in People v. Anderson, 266 Ill. App. 3d 947 (1994), to conclude that "the 'subjective belief' of the defendant [was] not at issue before the jury precluding an instruction on second degree murder even though the jury [was] instructed on self-defense." Billups, 404 Ill. App. 3d at 6. We found the trial evidence only afforded the jury two choices: either the defendant was not guilty of murder by reason of self-defense, or he was guilty of first degree murder. The trial evidence did not permit the intermediate ground of guilty of second degree murder, or as it is often referred " 'imperfect self-defense.' " Id. at 8 (quoting People v. Jeffries, 164 Ill. 2d 104, 113 (1995)). Consequently, we affirmed the defendant's conviction against his claim that Illinois law required that the jury be instructed on second degree murder when it is instructed on self-defense. Billups, 404 Ill. App. 3d at 14.
¶ 4 We take the following facts from our original decision. Similar to the defendant's testimony in Anderson, Billups contended he disarmed the deceased during an attempted armed robbery and shot the deceased with his own gun. The State's chief witness, the defendant's brother, testified that the defendant admitted that the gun he used to shoot the deceased was on his person the entire night. (Earlier that night, the police had conducted a pat-down of the defendant without discovering the gun.) According to the brother's testimony, the deceased was never armed with a handgun and never attempted to rob them. Based on the conflicting evidence, we determined the jury could have found the deceased engaged in an attempted armed robbery, consistent with the defendant's version of events, which, if believed, should have resulted in a finding of not guilty by reason of self-defense, or the jury could have found no attempted armed robbery occurred as the defendant's brother's testified, which would mean the claimed justification for the use of force did not exist and the defendant was guilty of first degree murder, as the jury found. In other words, the "diametrically opposed" evidence did not give rise to a subjective belief on the part of the defendant that he was a victim of an attempted armed robbery. Id. at 12. In this sense, we characterized the defendant's claim of self-defense as "perfect." Id. If the jury believed that the events transpired as he testified, then the defendant acted in self-defense. However, the jury was free to believe the defendant's brother's testimony, which would mean that no facts existed that might support a claim of unreasonable belief in the need for the use of force. Stated differently, the salient facts as presented by the prosecution and the defense did not overlap, except that the deceased was shot to death by the defendant. Without any evidence that the defendant acted on an "unreasonable subjective belief" that the decedent was armed, we upheld the trial judge's ruling that the jury should not be instructed on second degree murder.
¶ 6 The parties agree that in light of Washington, the trial court below erred in not instructing the jury on second degree murder. The only remaining issue is whether the error was harmless, which the State bears the burden of proving. People v. Thurow, 203 Ill.2d 352, 363 (2003) (to establish harmless error, the State must prove that the jury verdict would have been the same absent the error).
¶ 7 The trial proceedings in this case mirror the proceedings in Washington. The trial judge "instructed the jury on the justifiable use of force in self-defense (720 ILCS 5/7-1 (West 2002))." Washington, 2012 IL 110283, ¶ 1. "The [trial] court rejected defense counsel's request to also instruct the jury on second degree murder (720 ILCS 5/9-2(a)(2) (West 2002)) ***." Id. "The question of whether sufficient evidence exists in the record to support the giving of a jury instruction is a question of law subject to de novo review." Id. ¶ 19. The Washington court also addressed the State's contention that the overwhelming nature of the evidence rendered the instruction error harmless, which triggers our in-depth review of Washington.
¶ 8 To address the State's contention that supreme court precedents "did not mandate the giving of a second degree murder instruction whenever a self-defense instruction is given," the court reviewed its earlier decisions on the issue. Id. ¶ 26-30. Of particular importance to our review of this case, the court discussed its decision in People v. O'Neal, 104 Ill. 2d 399 (1984), which addressed the issue of harmless error in the context of failing to instruct on the lesser offense of voluntary manslaughter after instructing on self-defense:
"The O'Neal court concluded, after reviewing the record, that it agreed with the trial court that there was sufficient evidence to submit a self-defense instruction to the jury. Consequently, the court stated, the tendered instruction on voluntary manslaughter should have also been given. The court further held that the error was not harmless, noting that the finding by the trial court of sufficient evidence in the record of the defendant's subjective belief in the necessity for the use of force to warrant a self-defense instruction foreclosed any finding that the evidence of murder was overwhelming." Washington, 2012 IL 110283, ¶ 30.
¶ 9 As the Washington court explained the O'Neal decision, there is a direct link between the trial court's conclusion that sufficient evidence exists in the record to mandate a self-defense instruction and whether the error in not instructing on the lesser offense of voluntary manslaughter can be ruled harmless. The O'Neal court noted that when the trial court instructs the jury on self-defense, it determines that the record evidence raises a question of fact of whether force was justified. That factual question to be resolved by the jury, effectively forecloses the State's contention of harmless error. O'Neal, 104 Ill. 2d at 409 (the finding by the trial court that sufficient evidence of the defendant's subjective belief existed, "forecloses any ...