                                     2016 IL 118882



                                       IN THE
                              SUPREME COURT
                                           OF
                         THE STATE OF ILLINOIS



                                  (Docket No. 118882)

                  PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
                        STANLEY McDONALD, Appellant.



                            Opinion filed December 15, 2016.



        JUSTICE GARMAN delivered the judgment of the court, with opinion.

        Chief Justice Karmeier and Justices Thomas and Theis concurred in the
     judgment and opinion.

        Justice Burke dissented, with opinion, joined by Justices Freeman and Kilbride.



                                        OPINION

¶1       Defendant, Stanley McDonald, was convicted in the circuit court of Cook
     County of the first degree murder of his boyfriend, Lawrence Gladney. The
     incident took place in May 2004 during a physical altercation between defendant
     and Gladney, who lived together in an apartment on West 111th Street in Chicago.
     Defendant was initially tried in 2007 and was convicted of first degree murder.
     That conviction was overturned on appeal due to an erroneous jury instruction and
     the cause remanded for a new trial. People v. McDonald, 401 Ill. App. 3d 54
     (2010). In February 2012, defendant was tried for first degree murder a second time
     and convicted. The trial court instructed the jury on second degree murder,
     unreasonable belief in self-defense, but declined to give instructions on second
     degree murder due to serious provocation or involuntary manslaughter. The trial
     court sentenced defendant to 27 years’ imprisonment. The appellate court affirmed,
     finding that the trial court did not abuse its discretion in refusing the tendered
     instructions. 2014 IL App (1st) 121009-U. This court granted defendant’s petition
     for leave to appeal. Ill. S. Ct. R. 315 (eff. Mar. 15, 2016).


¶2                                    BACKGROUND

¶3       At defendant’s trial, paramedic Luis Ponce de Leon testified that on the evening
     of May 16, 2004, he and his partner responded to an emergency at 337 West 111th
     Street in Chicago. There, he observed the victim, identified as Lawrence Gladney,
     lying on the ground in the backyard of the residence. His face was covered in blood,
     and there was a very large laceration to the right side of his face. The paramedics
     could smell alcohol on Gladney’s breath, and they observed needle track marks
     indicating drug use. Gladney was bleeding profusely and was very combative as the
     paramedics attempted to treat him. By the time they arrived at the hospital, Gladney
     had lost approximately half his blood volume.

¶4       The testimony of Dr. Gerald Lemole, a neurosurgeon, was presented by
     stipulation. He testified that two days after admission to the hospital, Gladney had a
     massive stroke. The stroke occurred as a result of the stab wound to Gladney’s right
     cheek, which had damaged the carotid artery and caused a blood clot to form. Dr.
     Lemole performed surgery to remove some bone from Gladney’s skull to relieve
     the swelling of his brain. However, the pressure in his brain continued to increase.

¶5       Dr. Nancy Jones, Cook County chief medical examiner, performed an autopsy
     on Gladney. She found three stab wounds on his body. There was a stab wound on
     the right side of his face that was about two inches long. Another stab wound was
     located on the left side of Gladney’s chest, and that one was about one inch in



                                             -2-
     length. The third stab wound was to his left upper arm and also measured one inch
     in length. The wounds to the chest and arm were superficial in that they did not go
     into the body cavity but were confined to tissue and muscle under the skin. The
     wounds to the face and chest were both downward wounds, indicating that the knife
     came down from above Gladney’s body. Gladney also had abrasions on his left arm
     and both legs. With respect to the facial wound, Dr. Jones testified that for the
     carotid artery to be involved, the knife would have to go through facial bones, down
     and toward the center of the body. Gladney died of multiple stab wounds, and the
     manner of death was homicide. Dr. Jones further testified that if someone were
     aiming to cut the carotid artery, he would aim for the neck, rather than the face.

¶6       Charlotte Davis, defendant’s cousin, testified that on May 16, 2004, she lived in
     the basement of the house on West 111th Street. The basement was divided into
     two sections. She and her boyfriend, Calvin Holliday, lived in one section, and
     defendant and Gladney lived in the other section. When she saw defendant on that
     day, he was upset and angry because Gladney had been gone all day. He said he
     was going to “get” Gladney when he got home. He also said he was going to kill
     Gladney. When he said these things, defendant had a knife in his hand. Defendant
     thought Gladney was having an affair.

¶7       At around 10:00 that evening, Gladney came home. Davis was standing by the
     back door in the main part of the house when she heard Gladney and defendant
     arguing in the backyard. Gladney had his bicycle, and he and defendant were
     arguing over it. Davis went outside to see what was happening. She observed both
     men standing at the top of the stairs leading to the basement. She did not see what
     happened at the beginning of the argument. She saw defendant try to pull the
     bicycle downstairs and Gladney standing further up and pulling the bicycle in the
     opposite direction. She heard Gladney say, “ugh” and put his hand to his right eye.
     Blood was running down his face. Davis’s mother called the police.

¶8       Davis testified that she did not see Gladney hit defendant. She acknowledged
     testifying before the grand jury and during defendant’s previous trial, where she
     testified that Gladney hit or may have hit defendant during the struggle over the
     bicycle. Davis identified the knife that defendant had in his hand on the day of the
     incident. Davis testified to a previous incident between defendant and Gladney on




                                             -3-
       New Year’s Eve in 2003, when defendant cut Gladney on the head with a knife
       during an argument.

¶9         Calvin Holliday testified that around 9:00 a.m. on the day of the incident, he
       drank a few beers with defendant, who was upset due to an argument between him
       and Gladney. Defendant had a knife, and he told Holliday that he was going to kill
       Gladney. Later, Holliday went to a liquor store. He saw Gladney, and they shared
       some wine. They both went back to the house. Defendant was there, and he and
       Gladney talked. On direct examination, Holliday acknowledged that he testified
       before the grand jury that when Gladney came home the first time, defendant still
       had the knife and that he pointed it at Gladney, saying he was going to kill Gladney
       that day. On cross-examination, Holliday testified that when Gladney came home
       the first time, defendant and Gladney talked, and there was no fighting at that time.

¶ 10       Holliday testified that Gladney left and came home again in the evening around
       10:00. Holliday was on the phone with his sister. Davis came into the house yelling.
       Holliday went outside and saw Gladney lying on the ground with defendant on top
       of him, saying “please don’t die.” Defendant had a knife in his hand. Holliday
       acknowledged that during his grand jury testimony, he said that Gladney was
       “bloody everywhere” and that defendant asked him to help Gladney.

¶ 11       Officer Carroll Conry of the Chicago police department testified that she was
       on beat patrol with her partner when they received a call to respond to the West
       111th Street residence. When they arrived, Conry saw defendant leaning over
       Gladney. Defendant’s clothes were covered with blood. A large carving knife was
       lying on the ground.

¶ 12       Officer Reginald Arrington testified that he and his partner also responded to
       the scene. When they arrived, Arrington observed Gladney lying on the ground
       bleeding from the right side of his face, and he appeared to be trying to shove
       defendant away. Arrington saw a butcher knife on the ground about two feet from
       Gladney. Arrington took defendant into custody and took him to Roseland
       Hospital. Arrington observed a laceration to defendant’s lip and scrapes on his
       knees.

¶ 13      Dr. Carrie Wilson testified that she treated defendant in the emergency room.
       Defendant had a superficial laceration to the upper lip and a sore throat. He also had




                                               -4-
       abrasions to both his knees. An X-ray of defendant’s neck did not show any bone
       damage.

¶ 14       Detective Todd Pierce of the Chicago police department testified that at the
       time of the incident, he was a domestic violence detective. A trail of blood led from
       the area where Gladney had been lying to the rear basement door. Pierce found
       blood spatter marks on the sides of the door frame and some drops of blood on the
       stairs to the basement. There was blood inside the entryway between the door and
       the rest of the apartment. It appeared the fight started in that entryway at the bottom
       of the stairs.

¶ 15       The parties stipulated to the testimony of Dr. James Doherty, a trauma surgeon
       who treated Gladney. Doherty performed surgery to repair Gladney’s carotid artery
       and remove the blood clot. However, Gladney’s condition continued to worsen,
       and he was referred to a neurosurgeon. Gladney was very combative when first
       brought into the emergency room. He attacked the nurses and the emergency
       medical technician. He removed the IV from his arm. Gladney’s blood alcohol
       level was 0.19, and he had cocaine in his system. Doherty observed no defensive
       wounds on Gladney’s body.

¶ 16      Over defendant’s objection, Officer Conry testified in rebuttal for the State that
       when she arrived at the scene, she approached defendant and asked what had
       happened. Defendant said that “somebody” stabbed Gladney.

¶ 17       At the jury instruction conference, the State objected to defendant’s tendering
       of instructions on (1) second degree murder based on serious provocation and on
       unreasonable belief in self-defense, (2) involuntary manslaughter, and (3)
       self-defense. The trial court stated its intention to give instructions on self-defense
       and on second degree murder, unreasonable belief in self-defense. However, the
       court declined to give a second degree murder, serious provocation, instruction.
       The court noted that the evidence was uncontradicted that defendant was walking
       around on the day of the incident with a knife in his hand talking about killing
       Gladney. The fight was not a spontaneous action on defendant’s part. He had been
       looking to confront Gladney for hours before the event occurred. In addition, the
       evidence was clear that Gladney did not have a weapon of any kind. The trial court
       also found the evidence of provocation to be “very, very, very sketchy. I don’t
       know if it rises to a scintilla.” The court referred to Davis’s uncertain trial testimony



                                                 -5-
       concerning whether Gladney had punched defendant. The testimony did not
       indicate when, where, or under what circumstances this occurred, only that
       Gladney and defendant were engaged in a “tussle” over the bicycle when Davis
       observed them.

¶ 18       The jury convicted defendant of first degree murder. Defendant filed a posttrial
       motion that did not claim error in the trial court’s refusal to give an instruction on
       involuntary manslaughter. The trial court denied the posttrial motion and,
       following a hearing, sentenced defendant to 27 years in prison.

¶ 19        Defendant filed a notice of appeal. The appellate court affirmed his conviction.
       The court rejected defendant’s argument that the applicable standard of review for
       a refusal to give requested jury instructions is de novo. The appellate court found
       that the proper standard is abuse of discretion, and the court determined that the
       trial court did not abuse its discretion in this case. The appellate court also found
       that the trial court erred in allowing the State to call Officer Conry in rebuttal,
       concluding that the State should have elicited her rebuttal testimony in its
       case-in-chief. However, the appellate court found that the error was harmless. As
       stated, this court granted defendant leave to appeal.


¶ 20                                       ANALYSIS

¶ 21                                             I

¶ 22       Defendant argues that the proper standard of review on the issue of the trial
       court’s refusal to give a requested jury instruction is de novo. The State argues that
       the appropriate standard is abuse of discretion.

¶ 23       First, we determine the quantum of evidence that is required for a trial court to
       give a jury instruction on a lesser-included offense. We agree with the dissent that
       this court has at times been less than clear about the standard to be used in
       determining whether sufficient evidence exists to warrant the giving of a jury
       instruction (infra ¶ 72 (Burke, J., dissenting, joined by Freeman and Kilbride, JJ.)).
       We have sometimes stated that an instruction is justified if some credible evidence
       exists in the record that would reduce the charged offense to a lesser offense. See,
       e.g., People v. DiVincenzo, 183 Ill. 2d 239, 249 (1998); People v. Jones, 219 Ill. 2d




                                               -6-
       1, 31 (2006). In other cases, we have stated that an instruction on a lesser offense
       should be given where the record contains some evidence to support the giving of
       the instruction. See, e.g., People v. Foster, 119 Ill. 2d 69, 87 (1987); People v.
       Jones, 175 Ill. 2d 126, 131-32 (1997); People v. Mohr, 228 Ill. 2d 53, 65 (2008). As
       noted by the appellate court in People v. Willett, 2015 IL App (4th) 130702, ¶ 71,
       this has led to confusion.

¶ 24       The phrase “credible evidence” appears to have originated in this court’s
       decision in People v. Ward, 101 Ill. 2d 443, 451 (1984). However, the two cases
       cited by Ward in support of the credible evidence standard did not use that standard.
       See People v. Joyner, 50 Ill. 2d 302, 306 (1972); People v. Canada, 26 Ill. 2d 491,
       491-92 (1962). DiVincenzo, 183 Ill. 2d at 249, further confused the issue by using
       both some evidence and credible evidence in the same paragraph. DiVincenzo cited
       Ward in support but also cited Foster, 119 Ill. 2d at 87, in which this court stated
       that where there is evidence in the record that, if believed by the jury, would reduce
       a crime to a lesser offense, an instruction on that offense should be given. Foster,
       therefore, does not support DiVincenzo’s statement that some credible evidence is
       required.

¶ 25       We hold that the appropriate standard for determining whether a defendant is
       entitled to a jury instruction on a lesser-included offense is whether there is some
       evidence in the record that, if believed by the jury, will reduce the crime charged to
       a lesser offense, not whether there is some credible evidence. It is not the province
       of the trial court to weigh the evidence when deciding whether a jury instruction is
       justified. Lockett, 82 Ill. 2d at 552-53; Jones, 175 Ill. 2d at 132. Requiring that
       credible evidence exist in the record risks the trial court invading the function of the
       jury and substituting its own credibility determination for that of the jury. Willett,
       2015 IL App (4th) 130702, ¶ 88.

¶ 26      We now turn to the parties’ arguments on the standard of review.

¶ 27       Defendant relies on decisions of this court, namely, People v. Washington,
       2012 IL 110283, People v. Everette, 141 Ill. 2d 147 (1990), and People v. Lockett,
       82 Ill. 2d 546 (1980), and an appellate court decision, People v. Viramontes, 2014
       IL App (1st) 130075. In Washington, the defendant was convicted of first degree
       murder. The trial court gave the defendant’s requested jury instruction on
       self-defense, but refused to give an instruction on second degree murder,



                                                -7-
       concluding that a question must exist as to whether the defendant’s subjective
       belief in the need for the use of force was reasonable and that there was no evidence
       that the defendant had an unreasonable belief. The issue before this court was
       whether the trial court was required to give an instruction for second degree murder
       due to an unreasonable belief in self-defense once it had determined that sufficient
       evidence existed to give an instruction on self-defense. This court held that:

          “when the evidence supports the giving of a jury instruction on self-defense, an
          instruction on second degree murder must be given as a mandatory counterpart.
          A failure to do so deprives the jury of the ability to make a factual determination
          as to whether the defendant had a subjective belief in the necessity for the use of
          force in self-defense but that belief was unreasonable. Our holding applies only
          in cases, such as Lockett and the instant case, where the trial court has
          determined that the giving of an instruction on self-defense is warranted and the
          defendant requests the giving of a second degree murder instruction.”
          Washington, 2012 IL 110283, ¶ 56.

¶ 28       In describing the standard of review, we stated that “[t]he 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. Washington relied on this
       court’s 1980 decision in Lockett. There, the defendant and his friends, who were in
       the defendant’s car, engaged in an argument with a man pulling a cart filled with
       glass bottles. The man came up to the passenger side and pulled a smoking pipe out
       of his back pocket. The defendant and his friends laughed. The man then said he
       had something in his cart that would make the defendant and his friends move. He
       reached into the cart and pulled something brown out of it. One of the defendant’s
       friends told him to watch out, and the friend ducked. The defendant pulled out a gun
       and shot the man. Police found no gun on the man but did find an empty brown
       whiskey bottle lying near the man’s body. The trial court gave the jury an
       instruction on justifiable use of force but refused to give one on voluntary
       manslaughter (now second degree murder). The defendant was convicted of
       murder (now known as first degree murder). The State argued before this court that
       the defendant was not entitled to a voluntary manslaughter instruction based on an
       unreasonable belief in self-defense where the trial court had determined that the
       jury could find from the evidence that the defendant had a reasonable belief in
       self-defense. This court rejected that argument, finding that such an instruction was




                                                -8-
       not precluded. This court found that when the evidence supports giving an
       instruction on justifiable use of force, a tendered instruction on voluntary
       manslaughter should be given. The question of whether the defendant’s subjective
       belief was reasonable or unreasonable is for the jury to decide. This court further
       stated:

          “We can conceive of no circumstance when a judge could determine, as a
          matter of law, that a jury could find the defendant had a reasonable subjective
          belief the killing was justified, but that the jury could not find the defendant’s
          subjective belief was unreasonable.” Lockett, 82 Ill. 2d at 553.

¶ 29       In stating the standard of review in Washington, this court cited its 1990
       decision in Everette. In that case, the defendant was charged with murder. He
       claimed that he killed the victim accidentally. The trial court refused a tendered
       jury instruction on self-defense. This court found error and cited its holding in
       Lockett. The court held that a homicide defendant is entitled to an instruction on
       self-defense where there is some evidence in the record that, if believed by a jury,
       would support the defense, even where the defendant testifies that he accidentally
       killed the victim. Everette, 141 Ill. 2d at 156-57. The court then turned to the facts
       of the case to determine whether the defendant was entitled to an instruction on
       self-defense. The court noted that, “[i]t is a matter of law whether the defendant has
       met the evidentiary minimum entitling him to instructions on an affirmative
       defense.” Id. at 157.

¶ 30       Defendant here argues that de novo is the correct standard of review for a
       refusal to give a requested jury instruction. In addition to his reliance on Lockett,
       Everette, and Washington, he relies on an appellate court decision, People v.
       Viramontes, 2014 IL App (1st) 130075. That case involved the trial court’s refusal
       to give the defendant’s requested jury instructions on second degree murder based
       on provocation and involuntary manslaughter. The appellate court stated the
       standard of review as follows:

          “As a reviewing court, we determine whether the instructions fully and fairly
          set out the law applicable to the theories of the State and the defense. [Citation.]
          Whether to give a certain jury instruction falls within the sound discretion of the
          trial court, and we will reverse its judgment only on an abuse of discretion.
          [Citation.] The question of the sufficiency of evidence in the record to support a



                                               -9-
           jury instruction, however, is a legal question reviewed de novo. [Citation.]” Id.
           ¶ 36.

¶ 31       Defendant argues that Viramontes illustrates that a trial court generally has
       discretion to determine the appropriate jury instructions, but in the limited situation
       of ruling on lesser offense instructions requested by the defense, the trial court
       always abuses that discretion by refusing to give the instructions if they are
       supported by slight evidence. Although he uses the language of abuse of discretion,
       defendant seems to be arguing that the standard is really de novo in lesser offense
       instruction cases. As an example, he cites this court’s decision in People v. Jones,
       219 Ill. 2d 1 (2006), and attempts to distinguish it from the appellate court decision
       in this case. In Jones, the defendant was convicted of first degree murder. The trial
       court refused to give a jury instruction on involuntary manslaughter, finding no
       indication in the evidence that the defendant had acted recklessly. This court noted
       that the giving of jury instructions lies within the sound discretion of the trial court.
       An instruction on a lesser offense is justified when there is some “credible
       evidence” to support the giving of the instruction. Id. at 31. Where there is
       evidentiary support for an involuntary manslaughter instruction, the failure to give
       the instruction constitutes an abuse of discretion. This court then briefly reviewed
       the evidence and found a complete absence of any evidence to support an
       involuntary manslaughter instruction. This court thus held that the trial court did
       not abuse its discretion in refusing to give the instruction. Id. at 31-32.

¶ 32       Defendant’s reading of Jones is incorrect. Common sense dictates that, for a
       reviewing court to determine whether the trial court abused its discretion, it must
       undertake a review of the relevant evidence. This is necessary because an abuse of
       discretion occurs where the trial court’s decision is arbitrary, fanciful, or
       unreasonable to the degree that no reasonable person would agree with it. People v.
       Rivera, 2013 IL 112467, ¶ 37. The question is not whether the reviewing court
       would have made the same decision if it were acting as the lower tribunal. United
       States Steel Corp. v. Illinois Pollution Control Board, 384 Ill. App. 3d 457, 461
       (2008). In contrast, de novo review does not require the reviewing court to defer to
       the trial court’s judgment or reasoning; it is completely independent of the trial
       court’s decision. Under the de novo standard, the reviewing court performs the
       same analysis that the trial court would perform. Nationwide Advantage Mortgage




                                                - 10 -
       Co. v. Ortiz, 2012 IL App (1st) 112755, ¶ 20. The question is thus whether the trial
       court’s decision was correct as a matter of law.

¶ 33       In Jones, this court did not substitute its judgment for that of the trial court.
       Rather, we found the trial court had not abused its discretion when it determined
       that there was no evidence of recklessness. Jones, 219 Ill. 2d at 32. That this court
       did not detail the factual findings of the trial court supporting its refusal to give the
       instruction does not transform our decision into one utilizing de novo review. We
       explicitly stated the standard of review as abuse of discretion. Thus, defendant’s
       effort to contrast Jones with the appellate court’s decision in this case fails. In both
       cases, the reviewing courts utilized an abuse of discretion standard of review. As
       noted above, we reject the “credible evidence” standard utilized in Jones. However,
       this does not impact our analysis on the standard of review.

¶ 34       The appellate court’s decision in Viramontes, cited by defendant above,
       erroneously relied on Washington when it stated that the question of sufficiency of
       the evidence to support a jury instruction is a legal question reviewed de novo. As
       we note further in this opinion, Washington addressed only a question of law and
       did not consider whether the trial court had abused its discretion in any way. Thus,
       we reject defendant’s reliance on Viramontes.

¶ 35       Defendant confuses the issue by arguing that in People v. Hari, 218 Ill. 2d 275
       (2006), this court “explicitly applied a de novo standard of review in holding that
       the trial court necessarily abused its discretion in denying instructions on an
       affirmative defense.” This is an inherently contradictory statement. Contrary to
       defendant’s claim, this is not what happened in Hari. There, the defendant was
       charged with first degree murder and attempted first degree murder. He requested a
       jury instruction on the affirmative defense of involuntary intoxication due to
       alleged side effects of medication. The trial court found that the evidence did raise
       the issue of involuntary intoxication, but the court denied the requested instruction
       on the ground that existing case law required that the involuntary intoxication must
       be due to “trick, artifice, or force.” Id. at 289.

¶ 36       The question before this court in Hari was whether the defendant’s requested
       instruction was permitted under the language of section 6-3 of the Criminal Code of
       1961 (720 ILCS 5/6-3 (West 2014)). As to the standard of review, this court stated
       that “[o]n the law issues before us, our review proceeds de novo.” Hari, 218 Ill. 2d



                                                - 11 -
       at 291. We interpreted the statute and found that the drugged condition alleged by
       the defendant was involuntarily produced within the meaning of the statute. The
       court then proceeded to determine whether the defendant had produced “some
       evidence” that his drugged condition was involuntarily produced and deprived him
       of the capacity to appreciate the wrongfulness of his conduct or to conform his
       conduct to the requirements of the law. In doing so, this court reviewed the
       evidence at trial on the issue of the side effects of the medication defendant was
       taking at the time of the incident. The court thus found that the trial court had erred
       in refusing to give the instruction. Id. at 295-96.

¶ 37        Although defendant claims this court applied an “explicitly” de novo standard
       of review in Hari, this was true only as to the issue of law regarding whether the
       language of the statute included the intoxicating effects of medication. As to the
       trial court’s failure to give the jury an instruction on the defendant’s affirmative
       defense, we set forth the familiar standard of abuse of discretion where the trial
       court refuses to instruct the jury on an affirmative defense and we further stated that
       this standard applies even if the evidence is conflicting. Id. at 296. Accordingly,
       defendant’s reading of Hari is inaccurate, and we reject his claim that Hari applied
       a de novo standard of review to the question of evidentiary support for the
       requested instruction.

¶ 38       The State points out that, historically, this court has deferred to the trial court’s
       decision as to whether sufficient evidence supports a particular jury instruction. See
       Jones, 219 Ill. 2d at 31; People v. Kite, 153 Ill. 2d 40, 46 (1992) (“It is well settled
       that on issues of credibility of witnesses, this court will, necessarily, defer to
       findings of the trial court. [Citations.] Furthermore, a reviewing court will not
       reweigh the evidence in determining whether an instruction was proper on a certain
       theory.” (Internal quotation marks omitted.)); People v. Crane, 145 Ill. 2d 520, 526
       (1991) (“A defendant is entitled to an instruction on his theory of the case if there is
       some foundation for the instruction in the evidence [citation], and if there is such
       evidence, it is an abuse of discretion for the trial court to refuse to so instruct the
       jury.”).

¶ 39       The State argues, and we agree, that Lockett, Everette, and Washington did not
       apply a de novo standard of review to the question of whether the trial court erred in
       finding sufficient evidence to justify giving an instruction. In each case, the trial




                                                - 12 -
       court found sufficient evidence to warrant the instruction but found that the
       instruction could not be given as a matter of law. In Lockett, the trial court’s reason
       for refusing the voluntary manslaughter instruction was not because the evidence
       failed to support such an instruction. The court gave an instruction on self-defense.
       The question was whether the evidence on self-defense would also support an
       instruction on voluntary manslaughter. Rather than relying on the evidence, the
       trial court based its decision on legal principles. This court held that, as a matter of
       law, the trial court was incorrect and that if the record contains evidence of a
       defendant’s subjective belief, both instructions should be given. Lockett, 82 Ill. 2d
       at 553-54.

¶ 40        In Everette, the defendant testified that he shot the victim by accident. He
       requested jury instructions on both self-defense and involuntary manslaughter. The
       trial court ruled that the defendant must rely on one defense or the other but could
       not have the jury instructed on both, because the two defenses were, by definition,
       inconsistent with each other. The trial court concluded that the evidence supported
       only an accident defense, and it thus instructed the jury on involuntary
       manslaughter but not self-defense. This court reviewed the issue as one of law and
       held that a homicide defendant is entitled to an instruction on self-defense where
       there is some evidence in the record that, if believed by a jury, would support the
       defense, even where the defendant testifies that he accidentally killed the victim.
       Everette, 141 Ill. 2d at 156-57. This court went on to review the evidence to
       determine whether sufficient evidence existed. In doing so, the court agreed with
       the trial court’s finding that the defendant was not the aggressor, noted that the trial
       court correctly examined the record for evidence of any physical contact between
       the defendant and the victim prior to the defendant’s use of force, and found that the
       trial court properly considered the evidence of the defendant’s motive in its
       determination that the evidence did not support an instruction on self-defense. Id. at
       159-61.

¶ 41       Washington reviewed a question of law: whether a second degree murder
       instruction must be given as a mandatory counterpart to an instruction on
       self-defense. Hence, this court utilized a de novo standard of review. Relying on
       Lockett, this court held that when the trial court determines that sufficient evidence
       exists in the record to support an instruction on self-defense, an instruction on
       second degree murder must be given if requested by the defendant. Washington,




                                                - 13 -
       2012 IL 110283, ¶ 56. While we acknowledge that the choice of wording in
       explaining the de novo standard in Washington was less than clear, we emphasize
       that this court did not utilize a de novo standard to review the trial court’s decision
       to refuse to give a second degree murder instruction. The trial court’s decision in
       Washington involved a legal question not amenable to an abuse of discretion
       standard of review.

¶ 42       Thus, we reject defendant’s argument that this court did not defer to the trial
       court’s findings in these three cases but rather independently reviewed the facts
       contained in the record in each case. We hold that when the trial court, after
       reviewing all the evidence, determines that there is insufficient evidence to justify
       the giving of a jury instruction, the proper standard of review of that decision is
       abuse of discretion.


¶ 43                                             II

¶ 44       We now turn to defendant’s argument that the trial court erred in refusing to
       instruct the jury on involuntary manslaughter and second degree murder due to
       serious provocation.

¶ 45       The State argues that defendant has forfeited review of his jury instruction
       argument with respect to the refusal of the trial court to instruct the jury on
       involuntary manslaughter because, although he raised the issues before the trial
       court, his trial counsel failed to include it in defendant’s posttrial motion.
       Generally, to preserve a claimed error, a defendant must both object at trial and
       include the issue in his posttrial motion. People v. Enoch, 122 Ill. 2d 176, 186
       (1988). This court has recognized three exceptions to this requirement. Reviewing
       courts will review (1) constitutional issues properly preserved at trial that may be
       raised later in a postconviction petition, (2) challenges to the sufficiency of the
       evidence, and (3) plain errors. People v. Cregan, 2014 IL 113600, ¶ 16 (citing
       Enoch, 122 Ill. 2d at 190).

¶ 46       Defendant relies on the first exception, arguing that the trial court’s refusal to
       instruct the jury on involuntary manslaughter deprived him of due process and his
       right to a fair jury trial. The State counters that this exception does not apply,
       relying on Enoch, where this court found the defendant’s jury instruction argument




                                               - 14 -
       forfeited. However, the State mischaracterizes the holding in Enoch. This court
       held the jury instruction error forfeited and not subject to the constitutional claim
       exception because the defendant there failed to request the jury instruction and
       failed to file a posttrial motion. Here, defendant did request jury instructions for
       involuntary manslaughter and second degree murder, which were refused. He did
       not include the claimed error as to involuntary manslaughter in his posttrial motion.

¶ 47       Regardless, we need not decide whether defendant’s alleged jury instruction
       error in this case is subject to the constitutional claim exception to the forfeiture
       doctrine, as the result we reach would be the same under that exception and under
       plain error review. We therefore review defendant’s claim for plain error.

¶ 48       The plain error doctrine permits a reviewing court to consider unpreserved error
       when (1) a clear or obvious error occurred and the evidence is so closely balanced
       that the error alone threatened to tip the scales of justice against the defendant,
       regardless of the seriousness of the error, or (2) a clear or obvious error occurred
       and the error is so serious that it affected the fairness of the defendant’s trial and
       challenged the integrity of the judicial process, regardless of the closeness of the
       evidence. People v. Piatkowski, 225 Ill. 2d 551, 565 (2007). The first step in a plain
       error analysis is to determine whether error occurred. People v. Cosby, 231 Ill. 2d
       262, 273 (2008). Absent reversible error, there can be no plain error. People v.
       Williams, 193 Ill. 2d 306, 349 (2000). The defendant has the burden of persuasion
       on both the threshold question of plain error and the question whether the defendant
       is entitled to relief as a result of the error. In re M.W., 232 Ill. 2d 408, 431 (2009).

¶ 49       Defendant argues that the trial court erred in refusing to instruct the jury on
       involuntary manslaughter. He maintains that there was some evidence at trial that
       he acted recklessly in stabbing Gladney.

¶ 50      Involuntary manslaughter is defined as follows:

          “A person who unintentionally kills an individual without lawful justification
          commits involuntary manslaughter if his acts whether lawful or unlawful which
          cause the death are such as are likely to cause death or great bodily harm to
          some individual, and he performs them recklessly ***.” 720 ILCS 5/9-3(a)
          (West 2014).




                                                - 15 -
       Recklessness is defined as follows:

          “A person is reckless or acts recklessly when that person consciously disregards
          a substantial and unjustifiable risk that circumstances exist or that a result will
          follow, described by the statute defining the offense, and that disregard
          constitutes a gross deviation from the standard of care that a reasonable person
          would exercise in the situation.” 720 ILCS 5/4-6 (West 2014).

¶ 51       The difference between first degree murder and involuntary manslaughter lies
       in the defendant’s mental state. People v. DiVincenzo, 183 Ill. 2d 239, 249 (1998).
       Defendant was charged with two counts of first degree murder. The first count
       alleged that he intentionally or knowingly stabbed and killed Gladney with a knife.
       The second count alleged that defendant stabbed and killed Gladney with a knife,
       knowing that such stabbing created a strong probability of death or great bodily
       harm to Gladney. “Knowledge” is a conscious awareness that one’s conduct is
       practically certain to cause a particular result. 720 ILCS 5/4-5 (West 2014).

¶ 52       Certain factors, while not dispositive, may be considered in deciding whether
       an involuntary manslaughter jury instruction is warranted: (1) the disparity of size
       and strength between the defendant and the victim, (2) the duration of the
       altercation and the severity of the victim’s injuries, (3) whether the defendant used
       a weapon, (4) whether the defendant inflicted multiple wounds, and (5) whether the
       victim was defenseless. DiVincenzo, 183 Ill. 2d at 250-51.

¶ 53       Defendant notes that the appellate court found some evidence that defendant
       did not intend to kill Gladney, relying on the fact that both men were of similar size,
       that two of the three stab wounds were superficial, and that the fatal stab wound to
       Gladney’s face was some evidence that defendant did not aim for Gladney’s neck.
       Defendant argues that these findings should have resulted in reversal and remand
       for a new trial, but the appellate court instead found defendant’s case to be similar
       to People v. Luna, 409 Ill. App. 3d 45 (2011). There, the defendant was convicted
       of murder. He argued that the jury should have been instructed on involuntary
       manslaughter. He alleged that, rather than intentionally stabbing the victim, he
       swung the knife recklessly in the victim’s direction. The defendant’s testimony that
       he intended only to scare the victim away was the only evidence on that point. The
       appellate court held that the trial court did not abuse its discretion in refusing to
       instruct the jury on involuntary manslaughter. The court phrased the primary



                                               - 16 -
       question as whether there was any credible evidence that the defendant did not
       intentionally stab the victim but instead swung the knife recklessly in the victim’s
       direction. Utilizing this now-rejected standard, the court concluded that the
       defendant intentionally swung the knife in the victim’s direction and this is all that
       is required to preclude an involuntary manslaughter instruction. The appellate court
       discounted the defendant’s testimony as to his subjective intent, as it was not
       supported by any other evidence. Id. at 49-50.

¶ 54       Defendant claims that Luna is contrary to this court’s decision in People v.
       Whiters, 146 Ill. 2d 437 (1992). In that case, the defendant stabbed her boyfriend
       during an argument. She testified that he pushed her, ripped the phone off the wall,
       and threatened to “kick her ass.” The defendant grabbed a kitchen knife and pointed
       it at the victim. When the victim moved toward her, she stabbed him in the
       abdomen. Immediately, the defendant screamed that she did not mean it, and she
       called for an ambulance. The trial court denied the defendant’s request to instruct
       the jury on involuntary manslaughter. This court affirmed the appellate court,
       which found that the record contained evidence of acts by the defendant that, if
       believed by the jury, could reasonably be determined to be reckless conduct. That
       question was one of fact for the jury, and the trial court erred in refusing to give an
       instruction on involuntary manslaughter. Id. at 441.

¶ 55       Defendant compares his situation to that of the defendant in Whiters. He notes
       that he was upset because he believed Gladney was having an affair. He and
       Gladney were intoxicated, they argued, and after the stabbing, defendant called for
       help and said to Gladney, “Please don’t die.” Defendant further asserts that no one
       witnessed the beginning of the argument and there was some evidence that Gladney
       instigated the argument by punching defendant. Defendant points to the testimony
       of his cousin, Charlotte Davis. She testified at defendant’s second trial that she did
       not see Gladney hit defendant. She then testified that Gladney “probably” hit
       defendant but she only “took notice” when Gladney cried out and was holding his
       eye. At defendant’s second trial, Davis was confronted with her prior testimony at
       the first trial and before the grand jury. At those times, she testified variously that
       she saw defendant and Gladney hitting each other and that Gladney “may” have hit
       defendant, which “may have started the whole thing with the knife and everything.”
       Davis also testified that defendant had the knife in his hand when he and Gladney
       were struggling over the bicycle.




                                               - 17 -
¶ 56       As further support for his argument that his actions were reckless, defendant
       points to the testimony of the medical examiner, who stated that a person who
       intends to cut the carotid artery would likely aim for the neck, not the face.
       However, weighing against these factors is the evidence that defendant had cut
       Gladney with a knife during an argument several months before the fatal stabbing.
       In addition, on the day of the fatal incident, defendant, while holding a knife,
       expressed his belief that Gladney was having an affair and threatened to kill
       Gladney. We also note the evidence that defendant was armed with a knife during
       the argument, while Gladney was unarmed. The testimony of Charlotte Davis as to
       who started the fight was equivocal at best. While she testified that Gladney
       “probably” hit defendant, her testimony indicated that she was not paying attention
       to defendant and Gladney until she heard Gladney cry out and saw him holding his
       hand over his eye. We also note that defendant stabbed Gladney not once but three
       times.

¶ 57       This case is distinguishable from Whiters. There, the victim ripped a phone off
       the wall during an argument and threatened to beat the defendant. The victim
       moved toward the defendant as she held a knife at her waist. She stabbed him once,
       then immediately screamed that she did not mean to hurt him and called for help.
       Here, defendant was trying to prevent Gladney from leaving by keeping him from
       taking his bicycle. As they struggled over the bicycle, defendant swung the knife at
       Gladney, stabbing him three times. There is no evidence that Gladney threatened
       defendant. The stab wound to Gladney’s cheek was deep enough to strike the
       carotid artery. Defendant was not merely swinging the knife recklessly in
       Gladney’s direction. Given the dearth of evidence of recklessness, we conclude that
       the trial court did not abuse its discretion in refusing to give a jury instruction on
       involuntary manslaughter. Since no error occurred, we reject defendant’s plain
       error argument.

¶ 58       Defendant next argues that the trial court erred in refusing to give a jury
       instruction on second degree murder based upon serious provocation. He asserts
       that he and Gladney were engaged in mutual combat when the stabbing occurred.

¶ 59      A person commits second degree murder when he or she commits first degree
       murder and either of two mitigating factors exists. The first factor involves an
       unreasonable belief in self-defense. The trial court gave a jury instruction on this




                                               - 18 -
       factor. The second mitigating factor is that at the time of the killing, the offender
       was acting under a “sudden and intense passion resulting from serious provocation
       by the individual killed or another whom the offender endeavors to kill, but he or
       she negligently or accidentally causes the death of the individual killed.” 720 ILCS
       5/9-2(a)(1) (West 2014). The statute defines “[s]erious provocation” as “conduct
       sufficient to excite an intense passion in a reasonable person.” 720 ILCS 5/9-2(b)
       (West 2014). The only categories recognized by this court to constitute serious
       provocation are substantial physical injury or substantial physical assault, mutual
       quarrel or combat, illegal arrest, and adultery with the offender’s spouse. People v.
       Garcia, 165 Ill. 2d 409, 429 (1995). Mutual combat is a fight or struggle that both
       parties enter willingly or where two persons, upon a sudden quarrel and in hot
       blood, mutually fight upon equal terms and where death results from the combat.
       People v. Austin, 133 Ill. 2d 118, 125 (1989).

¶ 60       In Austin, the defendant was convicted of murdering a bus driver. She had
       attempted to use a student bus pass on a school holiday, which the driver told her
       she could not do. The defendant asked to remain on the bus. The driver told the
       defendant to either pay full fare or leave the bus. Failing that, she would be
       removed. Other passengers testified that as the driver reached for the nearby
       telephone, the defendant struck her in the face. The driver rose from her seat and
       she and the defendant began to exchange blows. The defendant pulled a gun from
       her waistband and as the two struggled over the gun, the defendant fired a shot into
       the floor of the bus. The fight continued outside the bus, where the defendant shot
       the driver and fled. The defendant testified that she asked for a transfer ticket and
       the driver told her to get off the bus. The defendant attempted to take a transfer
       ticket and the driver prevented her from doing so by striking the defendant’s hand
       with a CTA transfer punch. The defendant testified that she struck the driver and
       they fought. The defendant said she thought brandishing the gun would frighten the
       driver into stopping the fight and that she fired the gun at the floor of the bus for this
       purpose. The defendant maintained that she did not know how the gun went off the
       second time and that she did not intend to shoot the driver. Id. at 122-23.

¶ 61       The defendant requested a jury instruction on voluntary manslaughter based
       upon serious provocation. The trial court refused to give the instruction because the
       defendant had initiated the altercation and the parties had not fought on equal
       terms, since the defendant used a gun. The appellate court reversed and remanded




                                                 - 19 -
       for a new trial, finding the instruction should have been given. The court found the
       differing testimony as to who was the aggressor, the similar size of the defendant
       and the driver, and the injuries suffered by the defendant during the fight to be
       sufficient evidence of serious provocation to require the giving of the defendant’s
       requested instruction. Id. at 123.

¶ 62       This court reversed the appellate court, finding no evidence of mutual combat.
       The bus driver did not enter the fight willingly, nor was the fight between the
       defendant and the driver on equal terms. This court noted that one who instigates
       combat cannot rely on the victim’s response as evidence of mutual combat
       sufficient to mitigate a killing from murder to manslaughter. The defendant
       admitted that she wrongfully boarded the bus and attempted to wrongfully take a
       transfer ticket. The driver attempted to prevent this by hitting the defendant on the
       hand. It was the defendant who initiated the events that led to the shooting, and the
       driver’s response to this cannot be used by the defendant to show that there was
       mutual combat. This court also noted that the fight was not on equal terms. The
       emphasis on the relative physical size of the parties is misplaced. Rather, the
       provocation must be proportionate to the manner in which the accused retaliated.
       The defendant shot and killed an unarmed woman whose provocation was to speak
       gruffly to the defendant and strike her on the hand with a transfer punch. Shooting
       the driver was an act completely out of proportion to the provocation. Thus, this
       court found there was no mutual combat. Id. at 125-27.

¶ 63       Noting the appellate court’s reliance on Austin in this case, defendant argues
       that his case is more like the situation in People v. Leonard, 83 Ill. 2d 411 (1980).
       There, the defendant was associated with a nightclub that leased space in a
       building. The club was evicted for nonpayment of rent. The defendant appeared at
       the building late one evening to collect items. The victim, a security guard, called
       the manager and said the defendant had a gun. Witnesses testified that they saw the
       defendant and the victim emerge from the building struggling over a gun that the
       defendant was holding by the handle. The victim’s hand was on the gun’s barrel.
       The witnesses heard a shot and saw the victim fall back and cough up blood. The
       victim continued to fight with the defendant until he was no longer able to do so. At
       that point, the defendant pushed the victim over a banister, and the victim fell about
       six feet to the ground. The defendant then leaned over the banister and screamed at
       the victim. The defendant suffered a lacerated lip that required sutures. The victim




                                               - 20 -
       suffered lacerations to his head and his right hand. The trial court declined the
       defendant’s request to give the jury a voluntary manslaughter instruction. The
       defendant was convicted of murder. The appellate court reversed and remanded for
       a new trial, finding error in the admission of the victim’s statement to the manager
       about defendant having a gun and in the refusal to give a jury instruction on
       voluntary manslaughter. Id. at 414-17, 419-20.

¶ 64       This court concluded that there was evidence of mutual combat. The court
       noted that it was unknown how the physical injuries to the defendant and the victim
       occurred. The witnesses testified only to the struggle over the gun. The statements
       made to the victim after the struggle ended are evidence that the defendant was
       acting under an intense passion. While the intent to kill may have been formulated
       prior to the incident, it is equally true that the intent could have arisen during the
       altercation. The trial court also wrongly excluded evidence of the defendant’s
       physical condition two days after the occurrence. That evidence would have shown
       that the defendant had a swollen lip, scratches on his face, and bluish discoloration
       around his eyes. Id. at 421.

¶ 65        Defendant’s attempt to compare his situation to that in Leonard fails. Here,
       while no one witnessed the beginning of the altercation between defendant and
       Gladney, there was testimony that on the day of the incident, defendant was
       walking around holding a knife and threatening to kill Gladney based on his belief
       that Gladney was having an affair. Thus, defendant was spoiling for a fight before
       Gladney arrived at the house that evening. Defendant was armed with a knife
       during the altercation, and Gladney was unarmed. There was no evidence that
       Gladney attempted to take the knife from defendant. The only injuries suffered by
       defendant were a superficial laceration on his lip and scrapes on his knees.
       Gladney, on the other hand, suffered three knife wounds, one of them fatal. He also
       had abrasions on his left arm and both legs. He had no defensive wounds. Even if,
       as defendant contends, Gladney did hit him, defendant’s response was completely
       out of proportion to the provocation. We also note the evidence that this was not the
       first time defendant had stabbed Gladney; some months prior to the incident in
       question, defendant had stabbed Gladney in the head with a knife during an
       argument.




                                               - 21 -
¶ 66       Defendant also cites People v. Robinson, 189 Ill. App. 3d 323 (1989), and
       People v. Phillips, 159 Ill. App. 3d 142 (1987). In Robinson, there was evidence of
       a violent, heated argument between the defendant and the victim. Two knives were
       recovered from the scene. One knife was found underneath the victim’s body, from
       which the appellate court concluded that a jury could find that both parties were
       armed. There was evidence that the victim may have provoked the argument. The
       appellate court concluded that it was for the jury to determine whether the presence
       of two weapons plus the other evidence was sufficient to make the homicide
       voluntary manslaughter rather than murder. Robinson, 189 Ill. App. 3d at 350-51.

¶ 67       In Phillips, the defendant was convicted of murder for stabbing a supervisor at
       his place of employment. The defendant testified that he had a knife and went into
       the supervisor’s office with the intent to scare him into stopping harassment
       defendant claimed he had been subjected to. He stated that the supervisor grabbed
       the knife and attacked him. The two struggled over the knife before the defendant
       stabbed the supervisor. The appellate court held that the trial court should have
       given an instruction on the serious provocation theory of voluntary manslaughter.
       Phillips, 159 Ill. 2d at 148. These two cases are distinguishable from the case at bar.
       Here, defendant was the only participant in possession of a weapon. There was no
       evidence of a struggle over the knife. Defendant suffered far less serious injuries
       than did Gladney. In addition, the fact that defendant tried to keep Gladney from
       taking the bicycle suggests that Gladney wanted to leave, while defendant
       continued the fight by preventing him from doing so. We agree with the trial and
       appellate courts that there was insufficient evidence of serious provocation to
       warrant the requested jury instruction. We therefore conclude that the trial court did
       not abuse its discretion in refusing to instruct the jury on second degree murder
       based upon serious provocation.


¶ 68                                      CONCLUSION

¶ 69       We hold that the proper standard of review of a trial court’s refusal to give a
       requested jury instruction is abuse of discretion. Because defendant failed to
       preserve his claim that the trial court erred in refusing to give a jury instruction on
       involuntary manslaughter, we review the claim for plain error. Having done so, we
       hold that the trial court did not abuse its discretion in refusing to give defendant’s




                                               - 22 -
       tendered instructions on involuntary manslaughter. Thus, because there was no
       error, we reject defendant’s plain error argument. In addition, we hold that the trial
       court did not abuse its discretion in refusing to give defendant’s tendered
       instruction on second degree murder based upon serious provocation.


¶ 70      Appellate court judgment affirmed.


¶ 71      JUSTICE BURKE, dissenting:

¶ 72       At various times, this court has held that a trial court’s decision as to whether
       there is sufficient evidence to support the giving of a lesser-included offense or
       affirmative defense jury instruction is a question of law subject to de novo review.
       See People v. Washington, 2012 IL 110283, ¶ 19 (the question of whether
       sufficient evidence exists in the record to support the giving of a second degree
       murder jury instruction based on an unreasonable belief in self-defense is a
       question of law subject to de novo review); People v. Everette, 141 Ill. 2d 147, 157
       (1990) (it is a matter of law whether a defendant has met the evidentiary minimum
       entitling him to instructions on an affirmative defense); People v. Lockett, 82 Ill. 2d
       546 (1980) (trial court erred in failing to give voluntary manslaughter—now,
       second degree murder—instruction). At other times, we have said that where there
       is sufficient evidence to support the giving of such an instruction, the trial court’s
       refusal to give the instruction constitutes an abuse of discretion. See People v. Hari,
       218 Ill. 2d 275, 296 (2006) (“where there is some evidence to support an
       affirmative defense instruction, the trial court’s refusal to instruct the jury
       constitutes an abuse of discretion even if the evidence is conflicting”); People v.
       Davis, 213 Ill. 2d 459, 475-76 (2004) (where some evidence supports the
       lesser-included [involuntary manslaughter] instruction, the circuit court’s failure to
       give the instruction constitutes an abuse of discretion); People v. Jones, 175 Ill. 2d
       126, 131-32 (1997) (“A defendant is entitled to an instruction on his theory of the
       case if there is some foundation for the instruction in the evidence, and if there is
       such evidence, it is an abuse of discretion for the trial court to refuse to so instruct
       the jury.”). These irreconcilable and inconsistent statements have created confusion
       regarding the appropriate analysis and standard of review in cases where the trial
       court has denied proffered instructions on lesser-included offenses,




                                                - 23 -
       lesser-mitigated offenses, theories of the case, and affirmative defenses. People v.
       Willett, 2015 IL App (4th) 130702.

¶ 73       In this appeal, defendant, Stanley McDonald, asks us to reconcile the
       conflicting case law and clarify the proper standard when reviewing a trial court’s
       decision to deny a defendant’s requested jury instruction on a lesser-included
       offense. The State argues, and the appellate court held, that a trial court’s decision
       regarding the giving of such an instruction is reviewed for an abuse of discretion.
       2014 IL App (1st) 121009-U. Defendant contends, however, that in situations such
       as this, the proper standard of review is “de novo.” He asks us to apply that standard
       and find that the trial court erred when it refused to instruct the jury at his trial on
       the lesser-included offenses of second degree murder predicated on serious
       provocation and involuntary murder.

¶ 74       The majority begins its analysis by acknowledging that “this court has at times
       been less than clear about the standard to be used in determining whether sufficient
       evidence exists to warrant the giving of a jury instruction.” Supra ¶ 23. After
       reviewing case law, the majority first concludes that “the appropriate standard for
       determining whether a defendant is entitled to a jury instruction on a
       lesser-included offense is whether there is some evidence in the record that, if
       believed by the jury, will reduce the crime charged to a lesser offense, not whether
       there is some credible evidence.” (Emphases in original.) Supra ¶ 25. The majority
       further concludes:

          “It is not the province of the trial court to weigh the evidence when deciding
          whether a jury instruction is justified. Lockett, 82 Ill. 2d at 552-53; Jones, 175
          Ill. 2d at 132. Requiring that credible evidence exists in the record risks the trial
          court invading the function of the jury and substituting its own credibility
          determination for that of the jury. Willett, 2015 IL App (4th) 130702, ¶ 88.”
          Supra ¶ 25.

¶ 75       Despite this holding, and without offering any explanation for giving deference
       to the trial court’s assessment of the evidence, the majority rejects defendant’s
       contention that the standard of review is de novo and affirms the appellate court’s
       judgment, holding that the standard for reviewing a trial court’s refusal to instruct
       the jury on a lesser-included offense is “abuse of discretion.” Supra ¶ 42. The
       majority then affirms defendant’s conviction for first degree murder, finding that



                                                - 24 -
       the trial court did not abuse its discretion when it refused to instruct the jury on
       second degree murder (provocation) and involuntary manslaughter. Supra ¶¶ 57,
       67. I disagree, and accordingly, I respectfully dissent.

¶ 76       It has long been the position of this court—and the majority agrees—that a
       defendant is entitled to a jury instruction on a lesser-included offense if “there is
       some evidence in the record that, if believed by the jury, will reduce the crime
       charged to a lesser offense.” (Emphasis in original.) Supra ¶ 25. See People v.
       Wilmington, 2013 IL 112938, ¶ 47; People v. Kolton, 219 Ill. 2d 353, 360 (2006);
       People v. Medina, 221 Ill. 2d 394 (2006); People v. Hamilton, 179 Ill. 2d 319
       (1997); People v. Landwer, 166 Ill. 2d 475, 486 (1995); People v. Novak, 163 Ill. 2d
       93, 108 (1994). Thus, when deciding whether to give the jury a proffered
       lesser-included offense instruction, the trial court’s sole duty is to determine
       whether there is some evidence in the record to support the giving of that
       instruction. The quantum of evidence necessary to warrant the giving of an
       instruction is low. As we said in Hari, even “[v]ery slight evidence upon a given
       theory of a case will justify the giving of an instruction.” 218 Ill. 2d at 296.

¶ 77      Moreover, the trial court may not assess the credibility of the evidence. As the
       appellate court in Willett held:

          “If the trial court’s own credibility determination were allowed to stand in the
          way of the jury’s being instructed on a lesser-included offense, the court would
          be usurping the jury’s most basic function. Indeed, at the core of the right to a
          trial by jury is the understanding that lay jurors might weigh evidence and
          assess credibility differently than trial judges. However, the ‘credible evidence’
          standard—or any standard, for that matter, which purports to give the court
          ‘discretion’ to decide what the evidence does or does not show—invites the
          court to substitute its own credibility determination for that of the jury. In so
          doing, the court short-circuits the defendant’s right to have his guilt or
          innocence on all applicable charges determined by a jury of his peers.”
          (Emphasis in original.) 2015 IL App (4th) 130702, ¶ 88.

¶ 78       Although the majority agrees that a trial court may not assess the credibility of
       the evidence, it holds that the standard when reviewing a trial court’s decision to
       deny a proffered lesser-included offense jury instruction is abuse of discretion. The
       majority finds this standard appropriate because, “historically, this court has



                                              - 25 -
       deferred to the trial court’s decision as to whether sufficient evidence supports a
       particular jury instruction.” Supra ¶ 38. However, the majority then cites People v.
       Jones, 219 Ill. 2d 1, 31 (2006), and People v. Kite, 153 Ill. 2d 40, 46 (1992), for the
       proposition that “[i]t is well settled that on issues of credibility of witnesses, this
       court will, necessarily, defer to findings of the trial court.” Supra ¶ 38. If, as the
       majority holds, “[i]t is not the province of the trial court to weigh the evidence
       when deciding whether a jury instruction is justified” (supra ¶ 25), what
       justification is there for the majority’s holding that abuse of discretion is the proper
       standard of review? I can find none.

¶ 79       When reviewing a trial court’s denial of a proffered lesser-included offense
       instruction, the question is the correctness of the trial court’s determination that
       defendant has not presented any evidence that would entitle him to the instruction.
       See United States v. Lomax, 816 F.3d 468, 475-77 (7th Cir. 2016). In answering
       this question, the reviewing court must independently examine the evidence of
       record and decide whether it contains any evidence that, if believed by the jury,
       would support a finding of guilt on the lesser included offense. Because the trial
       court does not assess the credibility of the evidence, there is no reason for a
       reviewing court to give deference to the trial court’s determination. Thus, a de novo
       standard governs the review of the trial court’s determination.

¶ 80       Turning now to the evidence presented in this case, it shows that in May 2004,
       defendant stabbed Gladney, his paramour, during a physical altercation between
       the two men. Gladney later died from complications resulting from his stab
       wounds. Defendant was tried on charges of first degree murder. Count one alleged
       that defendant intentionally and knowingly stabbed and killed Gladney. Count two
       alleged that defendant stabbed Gladney, knowing that his actions created a strong
       probability of death or great bodily harm. At trial, the court found there was some
       evidence that warranted instructing the jury on self-defense and second degree
       murder predicated on an unreasonable belief in self-defense but refused
       defendant’s proffered instructions on second degree murder predicated on serious
       provocation and involuntary manslaughter. Defendant argues that this was error
       because there was some evidence in the record from which the jury could have
       found him guilty of these lesser offenses. Specifically, defendant argues that an
       involuntary manslaughter instruction should have been given because the evidence
       showed that the stabbing took place during an altercation between two men of




                                                - 26 -
       similar size, two of the stab wounds were superficial, and the fatal stab wound to
       Gladney’s face was unusual and not indicative of an attempt to kill. Furthermore,
       defendant pointed out that the evidence showed that he was upset with Gladney
       because he believed Gladney was having an affair, that both he and Gladney were
       intoxicated, and that immediately after Gladney was stabbed, defendant called for
       help and implored Gladney to “please don’t die.” Thus, defendant argues that there
       was some evidence from which the jury could have found that he did not
       intentionally kill Gladney.

¶ 81       The majority acknowledges this evidence but states,

           “weighing against these factors is the evidence that defendant had cut Gladney
           with a knife during an argument several months before the fatal stabbing. In
           addition, on the day of the fatal incident, defendant, while holding a knife,
           expressed his belief that Gladney was having an affair and threatened to kill
           Gladney. We also note the evidence that defendant was armed with a knife
           during the argument, while Gladney was unarmed. The testimony of Charlotte
           Davis as to who started the fight was equivocal at best. While she testified that
           Gladney ‘probably’ hit defendant, her testimony indicated that she was not
           paying attention to defendant and Gladney until she heard Gladney cry out and
           saw him holding his hand over his eye. We also note that defendant stabbed
           Gladney not once but three times.” Supra ¶ 56.

¶ 82        It seems that the majority concedes that there is some evidence that the stabbing
       was not done with an intent to kill. However, it then does exactly what it held the
       trial court could not do—it weighs the evidence against other evidence of record.
       The majority fails to apply the standard that it holds is the appropriate standard for
       determining whether a defendant is entitled to a jury instruction on a
       lesser-included offense—whether there is some evidence in the record that, if
       believed by the jury, will reduce the crime charged to a lesser offense. 1



           1
            Arguably, the majority is not even applying its own standard of review, since it holds
       that a defendant is entitled to an instruction on his theory of the case if there is some
       foundation for the instruction in the evidence and, if there is such evidence, it is an abuse of
       discretion for the trial court to refuse to so instruct the jury. Supra ¶ 38.




                                                   - 27 -
¶ 83        I would find error in the trial court’s refusal to instruct on involuntary
       manslaughter. As the majority explains, the difference between first degree murder
       and involuntary manslaughter lies in the defendant’s mental state. To prove
       murder, the State is required to prove that defendant acted intentionally, knowing
       that there was a strong possibility that his conduct would cause death or great
       bodily harm. Involuntary manslaughter, on the other hand, is an unintentional
       killing where the conduct that caused death was performed recklessly, that is, with a
       conscious disregard of a substantial and unjustifiable risk that the actions would
       cause death. 720 ILCS 5/9-3(a), 4-6 (West 2014).

¶ 84       It is clear to me that defendant presented some evidence from which the jury
       could find that he did not intentionally kill Gladney. Evidence presented at trial
       indicated that defendant was upset with Gladney because he believed Gladney was
       having sex with other people. Gladney returned to the apartment he shared with
       defendant around 4 p.m., and the two men spoke without incident. However,
       Gladney left and did not return to the apartment until about 10 p.m., when an
       argument ensued. Defendant did not want Gladney to be able to leave again, so he
       grabbed Gladney’s bike to prevent that from happening. The two men then engaged
       in a struggle over Gladney’s bike. There was some evidence that Gladney struck
       defendant in an effort to get him to release the bike and that defendant then lashed
       out at Gladney, trying to prevent Gladney from getting the bike. There was also
       evidence that defendant was devastated when he discovered that Gladney was
       severely injured. Defendant cried out for help and begged Gladney not to die.

¶ 85       Defendant argues that “[t]he jury was asked to choose between two competing
       theories which were supported by the evidence. The failure to provide the jury with
       the [involuntary manslaughter] instruction deprived defendant of a fair trial.” I
       agree and, for that reason, would find that the trial court erred when it refused to
       instruct the jury on involuntary manslaughter.

¶ 86       The other instruction that the trial court refused to give was second degree
       murder based on provocation. To decide whether the trial court erred in refusing to
       give this instruction requires a review of the record to determine whether there is
       any evidence of provocation. The only recognized categories of serious
       provocation are physical injury/assault, mutual quarrel or combat, illegal arrest, or
       adultery with the offender’s spouse.




                                              - 28 -
¶ 87       In this case, defendant claimed provocation based on mutual quarrel. Thus, to
       warrant an instruction on provocation, the defendant had to present some evidence
       that he and the victim engaged in “mutual quarrel” or combat as defined by law.
       Mutual combat has been defined as “a fight or struggle which both parties enter
       willingly or where two persons, upon a sudden quarrel and in hot blood, mutually
       fight upon equal terms and where death results.” People v. Austin, 133 Ill. 2d 118,
       125 (1989).

¶ 88       Here the evidence showed that, on the day of the stabbing, defendant had been
       upset with Gladney much of the day. Defendant’s cousin, Charlotte Davis, testified
       that defendant was upset because he believed Gladney was having “an affair” with
       someone else. As noted earlier, there was also evidence that, on the evening of the
       stabbing, Gladney returned home at about 4 o’clock, at which time Gladney talked
       with defendant and then left again on his bike. At around 10 p.m., Gladney returned
       home again. Both defendant and Gladney had been drinking that day, and Gladney
       was also under the influence of cocaine. Upon Gladney’s return, the two men
       engaged in a heated argument and scuffle, instigated by the fact that defendant was
       trying to bring Gladney’s bike into the basement apartment to prevent Gladney
       from leaving again. Although no one saw how the fight began, Davis heard the two
       men struggling over the bike on the stairs leading to their basement apartment.
       There was testimony that Gladney was angry with defendant and told him not to
       “mess” with his bike. Also, there was evidence that, after the struggle and
       defendant was taken into custody, he was taken to the hospital, where he received
       medical treatment for a split lip and other abrasions. These injuries were some
       evidence that Gladney hit defendant, which supports defendant’s claim of mutual
       combat. Importantly, the trial court believed this evidence was sufficient to support
       giving the instruction on self-defense and unreasonable belief in self-defense.

¶ 89       As the two men fought over the bike, Gladney was stabbed by defendant. Two
       of the three stab wounds suffered by Gladney were superficial. Although the third
       was not, the medical examiner testified that the third wound, which eventually
       caused Gladney’s death, was unusual in that the wound was to Gladney’s face and
       the knife struck the carotid artery—something that one would not have expected to
       occur with a facial wound. There was no testimony about the manner in which the
       wound was inflicted, and there was no evidence to show that, at the time of the
       stabbing, defendant was intentionally trying to harm Gladney. From the evidence




                                              - 29 -
       presented, the jury could have found that the stab wounds occurred accidentally in
       the course of the struggle over the bike.

¶ 90       I note, too, that when the trial court refused to give the instruction on second
       degree murder/provocation, the court said the evidence of provocation was “very,
       very, very sketchy. I don’t know if it arises to a scintilla.” Also, the appellate court,
       after reviewing all of the evidence regarding provocation stated:

           “[W]hile a different judge or even we ourselves may have reached a different
           ruling, we cannot say that the trial court abused its discretion in declining to
           instruct the jury on mitigation due to mutual combat.” 2014 IL App (1st)
           121009-U, ¶ 58.

¶ 91       From the comments quoted above, it appears that both the trial court and the
       appellate court found “some evidence” of provocation had been presented at trial.
       After all, the trial court found sufficient evidence of mutual combat to warrant
       instructing the jury on self-defense and unreasonable belief in self-defense. Thus, I
       would find that some evidence was presented to warrant an instruction on second
       degree murder (provocation) and, therefore, the trial court erred when it refused to
       instruct the jury on that offense.

¶ 92       The majority, when considering whether a second degree murder/provocation
       instruction should have been given, merely distinguishes the cases cited by
       defendant. It only discusses the evidence as it related to these other cases. The
       majority then concludes that the trial court did not abuse its discretion because
       “there was insufficient evidence of serious provocation to warrant the requested
       jury instruction.” The majority, however, does not apply the standard it earlier
       found to be appropriate—the majority never considers whether there is some
       evidence, even if very slight, from which the jury could have found defendant
       guilty of the lesser offense.

¶ 93       In sum, I cannot join the majority’s determination that abuse of discretion is the
       proper standard for reviewing a trial court’s decision to refuse a lesser-included
       offense instruction. The majority agrees that, when deciding whether there is some
       evidence in the record to support the giving of a lesser-included offense instruction,
       the trial court may not assess the credibility of the evidence. That being so, why
       should the trial court’s determination be given any deference? The majority offers




                                                - 30 -
       no explanation. I also do not agree with the majority’s finding that the instructions
       proffered by defendant were not warranted by the evidence. The majority, rather
       than apply the proper standard and determine whether there was some evidence to
       support the giving of the instruction, does exactly what it said the trial court is not
       supposed to do—it weighs the evidence. In this way, the majority usurps the
       function of the jury and, thereby, demonstrates a lack of confidence in the jury’s
       ability to fulfill its role. Accordingly, I dissent.

¶ 94      JUSTICES FREEMAN and KILBRIDE join in this dissent.




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