                                  Illinois Official Reports

                                          Appellate Court



                              People v. Getter, 2015 IL App (1st) 121307



Appellate Court              THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                      QUINCY GETTER, Defendant-Appellant.


District & No.               First District, Fourth Division
                             Docket No. 1-12-1307


Filed                        January 6, 2015
Rehearing denied             February 19, 2015


Held                         In a prosecution for first-degree murder, attempted murder,
(Note: This syllabus         aggravated battery with a firearm and aggravated discharge of a
constitutes no part of the   firearm where defendant raised a claim of self-defense and was only
opinion of the court but     convicted of aggravated discharge of a firearm, the only charge on
has been prepared by the     which the jury was not instructed that the State had to prove beyond a
Reporter of Decisions        reasonable doubt that defendant was not justified in using force to
for the convenience of       defend himself, the conviction for aggravated discharge of a firearm
the reader.)                 was reversed and the cause was remanded for a new trial, since the
                             failure to provide the jury with a self-defense instruction on the
                             aggravated discharge of a firearm count was plain error and
                             defendant’s counsel was ineffective in acquiescing to the erroneous
                             instructions.



Decision Under               Appeal from the Circuit Court of Cook County, No. 10-CR-14203; the
Review                       Hon. Vincent Gaughan, Judge, presiding.




Judgment                     Reversed and remanded.
     Counsel on                  Michael J. Pelletier, Alan D. Goldberg, and David M. Berger, all of
     Appeal                      State Appellate Defender’s Office, of Chicago, for appellant.

                                 Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
                                 Joan F. Frazier, and Sheilah O’Grady-Krajniak, Assistant State’s
                                 Attorneys, of counsel), for the People.


     Panel                       JUSTICE ELLIS delivered the judgment of the court, with opinion.*
                                 Presiding Justice Fitzgerald Smith and Justice Epstein concurred in
                                 the judgment and opinion.




                                                    OPINION

¶1         During an altercation on February 2, 2010, defendant Quincy Getter shot and killed Eric
       Stephens and wounded Stephens’ cousin, Ronald Funches. Teneshia Hooper, Stephens’
       mother, was present when defendant shot Stephens and Funches. The State charged
       defendant with first-degree murder with respect to Stephens, attempted murder and
       aggravated battery with a firearm with respect to Funches, and aggravated discharge of a
       firearm with respect to Hooper.
¶2         At trial, defendant never denied firing the weapon and relied exclusively on a
       self-defense theory. In the issues instructions for three of the four offenses
       charged–first-degree murder, attempted murder, and aggravated battery–the jury was
       instructed that the State was required to prove beyond a reasonable doubt that defendant was
       not justified in using force to defend himself. In the fourth issues instruction, for aggravated
       discharge of a firearm, the jury received no such instruction. The jury acquitted defendant on
       the three charges for which it received a self-defense instruction and convicted him on the
       one count for which it did not receive that instruction.
¶3         This appeal revolves around this missing self-defense instruction on the aggravated
       discharge count, couched both as an evidentiary error and as an ineffective-assistance-
       of-counsel argument, because defense counsel below failed to tender that instruction or
       object to its absence. We hold both that the failure to provide the jury with a self-defense
       instruction on the aggravated discharge count was plain error and that counsel was
       ineffective for acquiescing to the erroneous instructions. We reverse defendant’s conviction
       for aggravated discharge of a firearm and remand for a new trial.

¶4                                       I. BACKGROUND
¶5                                      A. Evidence at Trial
¶6        Teneshia Hooper testified that, shortly after noon on February 2, 2010, she received a
       phone call from her son, Eric Stephens, asking her to pick him up from his friend’s house at

             *
             This case was recently reassigned to Justice Ellis.

                                                       -2-
       8353 South Hermitage Avenue in Chicago. Hooper drove to the house and exited the car so
       that she could wipe snow off the back window. A few minutes later, Stephens and his cousin,
       Ronald Funches, came out of the house. Funches got in the backseat of the car. As Stephens
       was getting in the car, defendant approached him and said, “[C]heck it out.” Stephens then
       went to talk with the defendant.
¶7          Hooper testified that, while Stephens spoke with defendant, she continued wiping snow
       off the back window of the car. She heard them raise their voices and say something about
       walkie-talkies. Hooper testified that she never heard Stephens threaten defendant, she did not
       see him touch defendant, and she did not see him pull out a weapon.
¶8          As Stephens started toward the car, Hooper heard Funches say, “Frankie, watch out.”
       Hooper testified that she saw defendant pull a gun out of his pocket and shoot Stephens twice
       in the back. Stephens ran to the car and got in the front passenger’s seat. Hooper testified that
       defendant then started shooting at her. Hooper jumped into the car and drove away as
       defendant continued firing. Hooper said that one of his shots went through the rear
       passenger’s side window and struck Funches in the back.
¶9          Funches testified that, around noon on February 2, 2010, Hooper arrived to pick him and
       Stephens up from 8353 South Hermitage. When Funches and Stephens left the house,
       defendant was outside. Funches had seen defendant two or three times before, but had never
       spoken with him. Funches testified that, prior to February 2, 2010, he had never been
       involved in any altercations or fights with defendant.
¶ 10        Funches said that defendant approached Stephens as Stephens walked to Hooper’s car.
       Funches got in the rear passenger’s seat of the car and rolled down the window so that he
       could hear their conversation. He heard defendant ask Stephens whether Stephens was the
       one “that broke in one of their guy’s house [sic].” Stephens said he was not and defendant
       asked, “Why you break in, why did you break in folks’ crib, man?” Stephens replied that he
       did not have anything to do with the break-in. Funches testified that he did not see Stephens
       with a gun. He also did not see Stephens threaten defendant in any way or move toward him.
¶ 11        After the conversation, Stephens turned toward Hooper’s car. Funches testified that he
       saw defendant draw a .32-caliber revolver from his right jacket pocket and shoot Stephens in
       the back. Stephens fell into the front passenger’s seat of the car. Defendant then aimed and
       fired toward the back of the car, where Funches was sitting. He shot out the back window
       and hit Funches in the back of his shoulder. He also aimed and fired at Hooper, who was still
       standing outside of the car. Hooper got in the car and drove away.
¶ 12        The State’s final occurrence witness, Lawrence Kennedy, testified that he resided at 8353
       South Hermitage. On February 2, 2010, Stephens and Funches were at his house visiting his
       fiancée’s nephew. Stephens and Funches left at around 1 p.m. About 10 seconds after they
       left, Kennedy walked to the front door, because he also planned to leave. Through the glass
       window of his front door, he saw Hooper’s car. Hooper, Stephens, and defendant were
       standing nearby, and Funches was sitting in the car.
¶ 13        Kennedy testified that he saw Stephens have a brief conversation with defendant and then
       attempt to enter the car. While Stephens had his back turned, defendant pulled a gun out of
       his jacket pocket and fired at Stephens. Kennedy testified that defendant also fired at Hooper,
       who was still outside the car, and at Funches, who was in the backseat of the car. The car
       drove away, and Kennedy saw defendant flee on foot. In total, Kennedy heard defendant fire


                                                   -3-
       five or six shots. Kennedy said that he did not see Stephens physically attack defendant and
       did not see anyone pull a gun on defendant.
¶ 14       Officer James Nichols of the Chicago police department testified that, at 1 p.m. on
       February 2, 2010, he responded to a call that a man had been shot. Nichols arrived at 7900
       South Hermitage Avenue, where he saw Stephens in Hooper’s car, unresponsive. Funches,
       who had also been shot, stood outside the car. Both Stephens and Funches were taken to the
       hospital, where Stephens was pronounced dead.
¶ 15       Defendant took the stand in his own defense. He testified that, in January 2010, someone
       broke into his cousin’s house. Various items were stolen, including some walkie-talkies.
       Defendant viewed security camera footage of the thief exiting the house and recognized the
       thief as Stephens.
¶ 16       Defendant stated that, about a week after the burglary, Stephens and Funches attacked
       him as he left a store. Stephens asked defendant why defendant had accused him of
       burglarizing defendant’s cousin’s house. Defendant replied that he had seen Stephens on the
       surveillance footage. Stephens said, “You and your cousin going [sic] to get fucked up if you
       keep sayin’ [sic] my name.” Defendant testified that Stephens punched him in the face.
       Funches grabbed defendant from behind and slammed him to the ground, dislocating his
       shoulder.
¶ 17       After the fight, defendant went home. He testified that he waited until the next morning
       to go to the hospital because he thought that Stephens and Funches might still be outside.
       When defendant returned from the hospital, two friends told him that Stephens and Funches
       had driven by earlier that day looking for him. His friends said that Stephens had a pistol in
       his lap. After hearing this, defendant borrowed a pistol from a friend for protection.
¶ 18       Defendant testified that, on February 1, 2010, he was on the porch of the house at 8353
       South Hermitage when Stephens and Funches pulled up in a car. Stephens lowered his
       window and said, “I know you ain’t scared.” Defendant, fearing that they would start
       shooting, went inside.
¶ 19       The next day, February 2, 2010, defendant was on the sidewalk outside 8353 South
       Hermitage when he saw Stephens and Hooper get out of a nearby parked car. Defendant
       testified that Stephens walked toward him and said, “Y’all [sic] bitch ass, steady putting my
       name *** out there, putting my name and shit. What you all gonna [sic] do?” Stephens had
       his hands in his pockets but defendant could see the handle of a gun in Stephens’ hand.
¶ 20       Defendant testified that he drew his own gun and began firing because he was afraid that
       Stephens would shoot him. Because his arm was dislocated, he could not lift and aim the
       gun, so he was “shooting wild.” Defendant asserted that he “wasn’t aiming at [Stephens]” as
       he fired. Defendant testified, “I was trying to get him up off of me so I could, you know what
       I’m sayin’ [sic], run away.” As defendant fired, Stephens ducked, turned, and tried to run
       behind the car. Defendant continued firing while backing away. When defendant reached the
       corner, he ran. At the time, defendant did not think he had shot anyone.
¶ 21       Defendant testified that, as he fled, he saw his friend Cal in a car. Defendant jumped in
       Cal’s car and Cal brought defendant to his house in De Kalb County. Defendant explained
       that he did not call the police after the incident because he was on parole and was not allowed
       to have a gun. He also did not think that the police would believe his account of events.
       Defendant asserted that he did not go to De Kalb County to evade the police; he left to get


                                                  -4-
       away from Stephens and Funches because he thought they would come back for him.

¶ 22                    B. Jury Instructions, Closing Arguments, and Deliberations
¶ 23        At the close of defendant’s case, the State tendered, and the trial court accepted, a jury
       instruction defining self-defense, Illinois Pattern Jury Instructions, Criminal, No. 24-25.06
       (4th ed. 2000) (hereinafter, IPI Criminal 4th No. 24-25.06): “A person is justified in the use
       of force when and to the extent that he reasonably believes that such conduct is necessary to
       defend [himself] against the imminent use of unlawful force.”
¶ 24        In addition to the general definition of self-defense, the State’s issues instructions for
       first-degree murder, attempted first-degree murder, and aggravated battery with a firearm
       each included an instruction that, along with proving the elements of the offense, “the State
       must prove the following proposition[ ]: *** That the defendant was not justified in using the
       force which he used.”
¶ 25        The State’s issues instruction for aggravated discharge of a firearm, however, did not
       include any specific instruction or reference to self-defense. On the aggravated discharge
       count, the jury was merely instructed:
                    “To sustain the charge of aggravated discharge of a firearm, the State must prove
                the following propositions:
                    First: that the defendant knowingly discharged a firearm; and
                    Second: that the defendant discharged a firearm in the direction of another person.
                    If you find from your consideration of all the evidence that each one of those
                propositions has been proved beyond a reasonable doubt, you should find the
                defendant guilty.
                    If you find from your consideration of all the evidence that any one of these
                propositions has not been proved beyond a reasonable doubt, you should find the
                defendant not guilty.”
¶ 26        Defendant did not proffer a self-defense instruction for the aggravated discharge count
       and did not object to the State’s instructions. The trial court accepted these instructions.
¶ 27        In closing argument, the assistant State’s Attorney proceeded sequentially through the
       four offenses charged. In his discussion of each of the first three offenses–first-degree
       murder, attempted first-degree murder, and aggravated battery with a firearm–he tracked the
       jury instructions and discussed the State’s burden of proving that defendant was not justified
       in his use of force.
¶ 28        With regard to the charge of aggravated discharge of a firearm, the prosecutor, again
       tracking the jury instructions, made no mention of self-defense, much less the State’s burden
       to prove the lack thereof: “We must prove two propositions[:] that the defendant knowingly
       discharged a firearm; and second that he discharged a firearm in the direction of another
       person. Ladies and gentlemen, all that means is a person shooting at another person in
       another person’s direction. *** He knowingly discharged, fired that gun in her direction. He
       is guilty of aggravated discharge of a firearm as well.”
¶ 29        Defense counsel exclusively focused on self-defense and defendant’s reasonable belief
       that his life was in danger. She did not walk the jury through the instructions or discuss the
       elements of the crimes charged. She concluded by mentioning that the jury would be
       receiving an instruction “about when someone is justified in the use of force,” then argued

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       that defendant “was absolutely justified. It was reasonable. It was rational and he had no
       other option.” Counsel concluded by asking that defendant be found “not guilty as to all
       charges.”
¶ 30       During deliberations, the jury sent the following note to the trial court: “For the charge of
       aggravated discharge of a firearm, must we find that the defendant discharged the firearm in
       the direction of Teneshia Hooper, or can we find (is it sufficient to find) that the defendant
       fired in the direction of Ronald Funches and/or Eric Stephens?” Without objection from
       defense counsel, the trial court replied, “The charge of aggravated discharge of a firearm
       pertains only to Teneshia Hooper and no one else. Please continue to deliberate.”
¶ 31       The jury found defendant guilty of aggravated discharge of a firearm but acquitted him of
       the first-degree murder of Stephens and the attempted murder and aggravated battery of
       Funches. Defendant appeals his conviction for aggravated discharge of a firearm.

¶ 32                                          II. ANALYSIS
¶ 33        Defendant asserts that the trial court erred in failing to instruct the jury that, to establish
       the offense of aggravated discharge of a firearm, the State was required to prove, beyond a
       reasonable doubt, that defendant did not act in self-defense. Defendant concedes that he has
       forfeited this argument because he did not tender the instruction to the trial court or object to
       its absence in the State’s proffered instructions. Illinois Supreme Court Rule 366(b)(2)(i) (eff.
       Feb. 1, 1994) provides that “[n]o party may raise on appeal the failure to give an instruction
       unless the party shall have tendered it.”
¶ 34        Nevertheless, defendant asks this Court to review this issue under Illinois Supreme Court
       Rule 451(c) (eff. July 1, 2006). Rule 451(c) provides an exception to forfeiture where the
       jury instructions in a criminal case suffer from “substantial defects.” Id. This exception “is
       coextensive with the plain-error clause of Supreme Court Rule 615(a).” People v. Sargent,
       239 Ill. 2d 166, 189 (2010); People v. Anderson, 2012 IL App (1st) 103288, ¶ 43. Before
       determining whether an alleged error rises to the level of a “substantial defect” or “plain
       error,” we must first decide whether any error occurred at all. Sargent, 239 Ill. 2d at 189.

¶ 35                             A. Whether the Court Committed Error
¶ 36       We review de novo the question of whether the jury instructions accurately stated the
       applicable law to the jury. People v. Parker, 223 Ill. 2d 494, 501 (2006). We begin with the
       observation, not contested by the State, that self-defense is a proper affirmative defense to the
       crime of aggravated discharge of a firearm. See People v. Kasp, 352 Ill. App. 3d 180, 191
       (2004) (interpreting the aggravated discharge of a firearm statute to apply only to firing a
       firearm “without lawful authority,” thereby excluding the firing of a weapon in self-defense
       (internal quotation marks omitted)). In this case, the justification for defendant’s use of force
       toward Stephens would transfer to Hooper, the unintended victim of the aggravated discharge
       of a firearm. Under the doctrine of “transferred intent,” the “specific intent to kill one person
       in self-defense [may] be transferred to third parties ultimately affected by the acts of
       self-defense.” People v. Smith, 94 Ill. App. 3d 969, 973 (1981); see also People v. Conley,
       306 Ill. App. 3d 1, 7 (1999) (“[D]efendant can be exonerated of attempted murder if he
       shoots an assailant in self-defense but injures another; defendant’s intent to shoot his
       assailant in self-defense is transferred to the unintended victim.”).


                                                    -6-
¶ 37        Nor can there be any question here that defendant laid a sufficient evidentiary foundation
       for self-defense. The State conceded as much when it tendered self-defense instructions for
       the other three offenses, which the trial court accepted. That same evidence supported a
       self-defense instruction for the remaining count, aggravated discharge of a firearm related to
       Hooper. Defendant need only present “some evidence” to support that defense (see People v.
       Lee, 213 Ill. 2d 218, 224 (2004)) and defendant easily met that burden.
¶ 38        Once the defense properly raises the affirmative defense of self-defense, the State bears
       the burden of proving beyond a reasonable doubt that the defendant did not act in
       self-defense, in addition to proving the elements of the charged offense. Id. The jury, then,
       must be instructed as to this defense and the State’s corresponding burden of proof. See
       People v. Green, 225 Ill. 2d 612, 622 (2007) (“[T]o ensure a fair trial, the trial court must
       instruct the jury on such basic matters as the elements of the offense, the presumption of
       innocence, and the burden of proof.”). “It is of the essence of a fair trial that ‘the jury not be
       permitted to deliberate a defendant’s guilt or innocence of the crime charged without being
       told the essential characteristics of that crime.’ ” People v. Ogunsola, 87 Ill. 2d 216, 222
       (1981) (quoting People v. Lewis, 112 Ill. App. 2d 1, 11 (1969)).
¶ 39        Illinois Supreme Court Rule 451(a) (eff. July 1, 2006) requires that the trial court use the
       Illinois Pattern Jury Instructions, Criminal, related to a subject when “the court determines
       that the jury should be instructed on the subject.” IPI Criminal 4th No. 24-25.06 provides the
       general definition of self-defense, which the trial court properly gave in this case. But the
       Committee Note to that instruction directs the trial court to also “[g]ive Instruction
       24-25.06A” when instructing the jury regarding self-defense. IPI Criminal 4th No. 24-25.06,
       Committee Note. That instruction, Illinois Pattern Jury Instructions, Criminal, No. 24-25.06A
       (4th ed. 2000) (hereinafter, IPI Criminal 4th No. 24-25.06A), is to be given “as the final
       proposition in the issues instruction for the offense charged” (IPI Criminal 4th No.
       24-25.06A, Committee Note) and states, “____ Proposition: That the defendant was not
       justified in using the force which he used.”
¶ 40        Thus, beyond giving a general definition of self-defense and a general instruction on the
       State’s burden of proof, the trial court should include an issues instruction for each applicable
       offense that the State bears the burden of proving, beyond a reasonable doubt, that defendant
       lacked justification in using the force he used. People v. Bigham, 226 Ill. App. 3d 1041, 1046
       (1992).
¶ 41        We hold that the failure to include this self-defense instruction in the issues instruction
       for aggravated discharge of a firearm was error. Where three of the four charged offenses
       included a self-defense instruction, but the remaining aggravated discharge instructions did
       not, a rational juror employing elementary rules of logic could–in fact, should–find that
       omission to be meaningful. By far the most logical and coherent interpretation of these jury
       instructions, as a whole, would be a legally incorrect one: that self-defense was not an
       affirmative defense to the aggravated discharge count. This error was of particular
       significance given that self-defense was the central disputed issue at trial. See Ogunsola, 87
       Ill. 2d at 223 (omission of instruction that State must prove intent to defraud, in prosecution
       for deceptive practices, was grave error where “[t]he principal contested issue *** was
       whether [defendant] had the intent to defraud. We think that fundamental fairness required
       that the jury be instructed on this issue.”).



                                                   -7-
¶ 42        We find support principally in three decisions. In the case with the facts and reasoning
       most squarely on point, People v. Wells, 110 Ill. App. 3d 700, 701 (1982), defendant was
       convicted of involuntary manslaughter and armed violence but acquitted of murder. The jury
       received a self-defense instruction for the murder charge but not for the involuntary
       manslaughter or armed violence counts. Id. at 707. The court reversed the convictions,
       finding the absence of a self-defense instruction in the counts for which defendant was
       convicted, compared to its presence in the murder count of which he was acquitted,
       incorrectly signaled to a diligent juror that the State was not required to prove lack of
       self-defense for involuntary manslaughter or armed violence. Id.
¶ 43        In People v. Thurman, 104 Ill. 2d 326, 328 (1984), defendant was charged with murder,
       voluntary manslaughter, involuntary manslaughter, and armed violence stemming from a
       shooting outside a tavern. Defendant claimed self-defense at trial. Id. The issues instructions
       for murder, voluntary manslaughter, and armed violence predicated on voluntary
       manslaughter informed the jury that the State bore the burden of proving that defendant acted
       without lawful justification. Id. at 328-29. The issues instructions for involuntary
       manslaughter and armed violence predicated on involuntary manslaughter, however, did not.
       Id. at 329. Defendant was acquitted of all counts for which he received a self-defense
       instruction and convicted of those for which no self-defense instruction was given. Id. The
       Illinois Supreme Court found error in the instructions and reversed defendant’s convictions.
       Id. at 331-32. Despite the fact that the definition of involuntary manslaughter, itself, included
       the language “without lawful justification,” the court nevertheless reasoned that “unless
       similar language appears in the issues instruction for that offense[,] a prudent juror could
       easily conclude that the absence of self-defense need not be found before returning a guilty
       verdict.” (Internal quotation marks omitted.) Id. at 331.
¶ 44        Finally, in People v. Berry, 99 Ill. 2d 499, 500-02 (1984), the defendant argued
       self-defense at a trial in which he was convicted of murder and armed violence. The jury
       instructions included general instructions on burden of proof and the elements of the crimes
       charged, but the jury was not given the instruction that the State bore the burden of proving
       lack of self-defense beyond a reasonable doubt. Id. at 502-03. Moreover, neither defense
       counsel nor the prosecutor, in closing arguments, explained this principle of law. Id. at
       505-06. The Illinois Supreme Court reversed defendant’s convictions, finding the failure to
       instruct the jury on self-defense in the issues instructions to be a “critical error which
       severely threatened the fundamental fairness of the defendant’s trial.” (Internal quotation
       marks omitted.) Id. at 507.
¶ 45        We reject the State’s arguments that no error occurred here. The State claims, among
       other things, that defense counsel’s closing argument cured any confusion. But as described
       above, defense counsel did not delve into the minutiae of the instructions or the elements of
       any of the charged offenses. She argued in support of defendant’s justification for his use of
       force and did, of course, ask that her client be found not guilty “of all charges.” The
       prosecutor, on the other hand, carefully analyzed the elements of each offense, as noted
       above, specifically discussing the self-defense argument for the other three offenses and
       omitting any reference to it in his discussion of the aggravated discharge count. The defense
       attorney’s final, generalized plea for an acquittal on all counts did not offset the prosecutor’s
       detailed review of the misleading jury instructions, much less the erroneous instructions
       themselves. It is worth noting that in Wells, the defense attorney discussed the State’s burden
       of proving the lack of self-defense on the involuntary manslaughter and armed violence
                                                   -8-
       charges in far more detail than did defense counsel here, but the court was not persuaded that
       it overcame the faulty jury instructions. Wells, 110 Ill. App. 3d at 707.
¶ 46        The State further argues that the jury instructions “as a whole” were sufficient to instruct
       the jury on the law, due to the presence of the general definition of self-defense, IPI Criminal
       4th No. 24-25.06, coupled with the instruction assigning the burden of proof to the State at
       all times. These instructions, the State claims, properly instructed the jury that the State bore
       the burden to prove the lack of justification for the shooting. The error, however, is not that
       the jury misconstrued the meaning of “self-defense” or reassigned the burden of proof. The
       error is that the jury had no way of knowing that the defense of self-defense applied to the
       aggravated discharge claim, because the most reasonable reading of the instructions, “as a
       whole”–incorporating a self-defense instruction into three counts but omitting it from the
       aggravated discharge count–told them that it did not apply.
¶ 47        It is true that, in People v. Huckstead, 91 Ill. 2d 536, 545 (1982), the supreme court
       affirmed defendant’s conviction for murder, despite the absence of a self-defense instruction,
       because of the curative effect of the general self-defense instruction and the instruction on the
       State’s burden of proof, and because of the arguments of counsel in closing argument that
       correctly stated the law. The critical difference, however, is that the defendant in Huckstead
       was not charged with multiple offenses, some of which contained a self-defense instruction
       and some of which did not. The jury in Huckstead received an issue instruction for
       murder–albeit one not referencing self-defense–then a definition of self-defense and an
       instruction on the State’s burden of proof. Id. No other instructions contradicted those
       instructions. Self-defense obviously applied to the murder charge because it was the only
       charge before the jury. In the present case, in contrast, the absence of a self-defense
       instruction on the aggravated discharge count was conspicuous because the other three
       charged offenses contained that instruction. Accord Wells, 110 Ill. App. 3d at 707
       (distinguishing Huckstead on the same basis).
¶ 48        Additionally, in Huckstead, both the prosecution and defense counsel “repeatedly and
       specifically” argued to the jury that the State bore the burden to prove the lack of self-defense
       on the murder charge (Huckstead, 91 Ill. 2d at 545) whereas here, the prosecution
       compounded the error caused by the faulty jury instruction, and defense counsel did not
       speak to the matter in any meaningful way. See Berry, 99 Ill. 2d at 505-06 (distinguishing
       Huckstead on this point). Simply put, the jury in Huckstead received no mixed signals,
       whereas in this matter, the jury received mixed signals at best, if not entirely wrong
       directions. Huckstead does not compel a contrary result.
¶ 49        The cases cited by the State do not advance its cause. In People v. Berry, 244 Ill. App. 3d
       14, 16 (1991), the defendant challenged the issues instruction for robbery given at his trial.
       That instruction stated that “ ‘the State must prove the following propositions’ ” and listed
       the two elements of robbery. Id. at 28. The concluding paragraph stated, “ ‘If you find from
       your consideration of all the evidence that this proposition has been proved beyond a
       reasonable doubt, you should find the defendant guilty.’ ” (Emphasis in original.) Id. The
       defendant argued that the phrase “this proposition” was erroneous because it implied that he
       could be convicted if the State proved either element of robbery, not both. Id. The court
       rejected this argument because the instruction began by using the plural “propositions” and it
       correctly “set[ ] forth the two elements which must be proven.” Id. at 30. Moreover, the



                                                   -9-
       evidence against defendant was “not closely balanced” and thus, the court was convinced that
       the result would have been no different with a proper instruction. Id.
¶ 50       Similarly, in People v. Boose, 256 Ill. App. 3d 598, 601 (1994), the issues instruction for
       the offense of possession of a controlled substance weighing less than 15 grams stated, “ ‘If
       you find from your consideration of all the evidence that these propositions have not been
       proved beyond a reasonable doubt, you should find the defendant not guilty.’ ” (Emphasis in
       original.) While noting that the instruction should have made it clear that the jury should
       acquit if it found that any one of these propositions was not proved beyond a reasonable
       doubt, the court held that the error was not unduly prejudicial because there was only one
       disputed issue in the case–whether defendant possessed the cocaine, not the weight of the
       cocaine recovered. Id. at 601-03.
¶ 51       The error in this case differs fundamentally from those in the cases the State cites. The
       instruction in Berry was incorrect in one place but correct in the other, and the evidence
       against defendant, in any event, was strong. The instructional error in Boose did not prejudice
       defendant because there was only one central issue. Thus, in each of those cases, the court
       concluded that the defendant would have been convicted in any event. The error here, in
       contrast, failed to instruct the jury on the only contested issue in the case, self-defense. The
       jury had no reason to know that self-defense was a defense to aggravated discharge of a
       firearm and, in fact, had every reason to believe it was not. Nor could it be possibly argued
       here, as was the case in Berry, that the evidence strongly favored the State, given that
       defendant in this case was acquitted on every count for which a self-defense instruction was
       given.
¶ 52       Finally, the State relies on Sargent, 239 Ill. 2d at 188, 192, where defendant argued that
       his convictions for predatory criminal sexual assault and aggravated sexual abuse should be
       reversed because the trial court failed to tender to the jury Illinois Pattern Jury Instructions,
       Criminal, No. 11.66 (4th ed. 2000), an instruction governing hearsay evidence from a minor
       victim of sexual abuse. Instead, the court tendered Illinois Pattern Jury Instructions, Criminal,
       No. 1.02 (4th ed. 2000), a similar, more general instruction on judging witness credibility.
       Sargent, 239 Ill. 2d at 192. While our supreme court found the failure to submit this
       instruction was error, it held that this error did not rise to the level of plain error because the
       instruction given, while not identical to the proper instruction, “convey[ed] similar principles
       regarding the jury’s role in assessing witness credibility.” Id.
¶ 53       We find Sargent distinguishable because the jury instructions in the instant case
       completely omitted the central disputed issue and left the jury with the clear and almost
       unavoidable impression that the State was not required to prove the absence of self-defense
       in order to convict defendant of aggravated discharge. In Sargent, the jury received an
       admittedly imperfect instruction, but not a wholly insufficient one, and more importantly not
       one that impacted the jury’s consideration of the elements of the offense or the State’s burden
       to prove those elements. “Jury instructions that incorrectly define the offense cause prejudice
       to a criminal defendant far more serious than instructions that do not include a definition of a
       term [citation], or that omit an instruction on a collateral issue [citation].” Ogunsola, 87 Ill.
       2d at 223.
¶ 54       Accordingly, we hold that the trial court committed error in omitting IPI Criminal 4th
       No. 24-25.06A from the issues instruction for aggravated discharge of a firearm, while


                                                   - 10 -
       simultaneously including that instruction in the other three charged offenses.

¶ 55                                 B. Whether Plain Error Occurred
¶ 56       Having found that the trial court erred in omitting IPI Criminal 4th No. 24-25.06A, we
       must still consider whether that error constituted a “substantial defect” under Rule 451(c),
       warranting an exception to defendant’s forfeiture of the issue. We noted previously that this
       analysis is coextensive with the plain-error doctrine (Sargent, 239 Ill. 2d at 189) and thus we
       will use that terminology.
¶ 57       Plain error occurs in two scenarios: (1) where “ ‘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) where “ ‘a clear or
       obvious error occurred and that 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. Thompson, 238 Ill. 2d 598, 613 (2010) (quoting
       People v. Piatkowski, 225 Ill. 2d 551, 565 (2007)). While there is some quarrel between the
       parties as to which prong defendant asserts as a basis for plain error in this case, the
       substance of his argument falls under the second prong, which does not consider the
       closeness of the evidence but focuses on the severity of the error and its threat to the fairness
       and integrity of the trial.
¶ 58       As a preliminary matter, we address the State’s position that the error in this case is “not
       reviewable” under the second prong of plain error. The State claims that the Illinois Supreme
       Court has limited second-prong plain errors to “structural errors” requiring automatic
       reversal, and likewise has limited the class of potential structural errors to the six examples
       identified by the United States Supreme Court: “[T]he complete denial of counsel, trial
       before a biased judge, racial discrimination in the selection of a grand jury, denial of the right
       of self-representation at trial, denial of a public trial, and defective reasonable doubt
       instructions.” People v. Washington, 2012 IL 110283, ¶ 59 (citing Neder v. United States,
       527 U.S. 1, 8-9 (1999)). Because the omission of a jury instruction on self-defense is not one
       of those six errors, the State claims that the error raised here by defendant cannot, as a matter
       of law, constitute plain error under the second prong.
¶ 59       This court rejected this argument in People v. Clark, 2014 IL App (1st) 123494, ¶¶ 36-40,
       where we explained that, while it is true that the Illinois Supreme Court has analogized
       second-prong plain error to structural error, it has never limited second-prong plain error to
       those six types of errors, and in fact has found that errors other than those six qualified as
       second-prong plain error. See In re Samantha V., 234 Ill. 2d 359, 378-79 (2009)
       (second-prong plain error resulted from violation of one-act, one-crime rule); People v.
       Walker, 232 Ill. 2d 113, 131 (2009) (failure to grant continuance to defense counsel was
       second-prong plain error). See also Thompson, 238 Ill. 2d at 610-15 (analogizing structural
       error to second-prong plain error, but independently analyzing alleged error under each
       doctrine).
¶ 60       The State’s argument is also contradicted by the principal case it cites on the issue of
       second-prong plain error, People v. Sargent, 239 Ill. 2d 166. In Sargent, the asserted error
       concerned the trial court’s failure to give a jury instruction on hearsay statements made by a
       child sex-abuse victim. Id. at 188. The supreme court wrote that the omission of a jury
       instruction rises to the level of second-prong plain error “when the omission creates a serious

                                                   - 11 -
       risk that the jurors incorrectly convicted the defendant because they did not understand the
       applicable law, so as to severely threaten the fairness of the trial.” Id. at 190-91. That test
       would be unnecessary if, as the State urges, the only question on second-prong plain error
       was whether the alleged error in jury instructions fell within one of the six
       previously-specified categories of structural error. The supreme court could have answered
       that question in one sentence and rejected the defendant’s second-prong argument on that
       basis alone. Instead, the Court conducted a lengthy analysis of each of the two prongs of
       plain error, ultimately rejecting them on the merits. Id. at 190-93.
¶ 61        What is troubling about the State’s position is not only that this court has previously
       rejected it, but the magnitude of what the State is suggesting here: It would close the door,
       without any substantive analysis, to appellate review of the vast majority of second-prong
       plain errors relating to jury instructions. As we understand the State’s argument, for any
       asserted second-prong plain error brought under Rule 451(c), the State would have us do
       nothing more than check a defendant’s argument against the list of six enumerated
       “structural” errors, and if we do not find a match, the defendant is stopped in his or her
       tracks. Moreover, given that Rule 451(c) only governs jury instructions, and given that only
       one of the six enumerated structural errors even remotely concerns jury instructions–the last
       one, a defective reasonable-doubt instruction–in effect a second-prong plain error analysis
       under Rule 451(c) would now be reduced down to one and only one error. If the alleged plain
       error was a defective reasonable-doubt instruction, the conviction is automatically reversed;
       any other error in jury instructions, no matter how egregious, no matter how flagrant the
       violation of defendant’s rights, is automatically rejected. Aside from constituting a dramatic
       restriction of Rule 451(c), that result would effectively overrule a slew of supreme and
       appellate court plain-error decisions on defective jury instructions, only a handful of which
       we have cited in this opinion. See, e.g., Thurman, 104 Ill. 2d 326; Berry, 99 Ill. 2d 499;
       Wells, 110 Ill. App. 3d 700; Ogunsola, 87 Ill. 2d at 222-23 (failure to instruct jury on element
       of intent to defraud, in prosecution for deceptive practices, was plain error).
¶ 62        Having rejected the State’s attempt to eliminate our review of this issue, we next consider
       whether the error committed below rises to the level of plain error. As we noted above, in
       order to show second-prong plain error resulting from the omission of a jury instruction
       under Rule 451(c), defendant must establish that there was a “serious risk that the jurors
       incorrectly convicted the defendant because they did not understand the applicable law.”
       Sargent, 239 Ill. 2d at 191. Defendant need not “prove beyond doubt that [his] trial was
       unfair because the omitted instruction misled the jury to convict [him].” People v. Hopp, 209
       Ill. 2d 1, 12 (2004). Rather, defendant must show that the omitted instruction created a
       “severe threat to the fairness of [his] trial.” (Emphasis omitted.) Id.
¶ 63        The cases we reviewed above, in reaching our conclusion that the trial court erred in
       failing to include a self-defense instruction in the issues instruction for aggravated discharge,
       likewise support a finding of second-prong plain error in this case. See Wells, 110 Ill. App.
       3d at 708 (omission of self-defense instruction for involuntary manslaughter and armed
       violence counts, coupled with presence of that instruction in murder charge, constituted plain
       error under second prong); Berry, 99 Ill. 2d at 505-06 (lack of self-defense instruction on
       murder and armed violence counts was second-prong plain error); Thurman, 104 Ill. 2d at
       330-31 (finding of plain error appeared to rely on second prong, given court’s focus on
       gravity of error and not closeness of evidence). See also People v. Hale, 2012 IL App (4th)


                                                  - 12 -
       100949, ¶ 25 (omission of instruction on element of offense for threatening public official
       was second-prong plain error).
¶ 64        We agree with these decisions and hold that second-prong plain error occurred here. The
       inclusion of a self-defense instruction for the other three offenses, but its omission in the sole
       count of which defendant was convicted, created a serious risk that the jury convicted
       defendant because it did not understand that self-defense was a defense to the aggravated
       discharge count.
¶ 65        As did the courts in Wells and Berry, we further find that this error would constitute
       first-prong plain error, because the evidence at defendant’s trial was closely balanced. See
       Wells, 110 Ill. App. 3d at 708; Berry, 99 Ill. 2d at 506. Defendant’s trial constituted a
       credibility contest between him and the State’s occurrence witnesses. See People v. Naylor,
       229 Ill. 2d 584, 606-07 (2008) (evidence at trial was closely balanced where “the trial court’s
       finding of guilty necessarily involved the court’s assessment of the credibility of *** two
       [police] officers against that of defendant”); People v. Miller, 2013 IL App (1st) 110879,
       ¶¶ 56, 58 (evidence at trial was closely balanced where “the trial court’s determination of
       guilt was dependent on which witnesses were most credible” and “[d]efendant’s explanation
       [was] a reasonable one”). In the instant case, Hooper, Funches, and Kennedy testified that
       defendant shot Stephens and that they did not see Stephens brandish a gun or threaten
       defendant. Defendant, however, testified that Stephens had his hand on a gun in his pocket
       and that he fired at Stephens to protect himself. Defendant’s testimony was not wholly
       implausible or unreasonable. None of the physical evidence refuted defendant’s testimony.
       Importantly, the jury’s verdicts as to the murder, attempted murder, and aggravated battery
       with a firearm charges suggest that it is likely that the jury either credited portions of
       defendant’s account or disbelieved portions of the State’s witnesses’ testimony. Given the
       closeness of the evidence at defendant’s trial, the erroneous omission of IPI Criminal 4th No.
       24-25.06A could well have been the thumb that “tip[ped] the scales of justice against the
       defendant.” (Internal quotation marks omitted.) Thompson, 238 Ill. 2d at 613.
¶ 66        The State argues that, even if we were to find error in this case, we should not find plain
       error. The State reasons that it is not clear that defendant’s acquittals on the murder,
       attempted murder and aggravated battery counts were based on defendant’s self-defense
       argument, and thus defendant cannot show that he would have been acquitted on the
       aggravated discharge count had he received a self-defense instruction. It is possible, the State
       claims, that the jury exonerated defendant of the greater charges but convicted him of
       aggravated discharge because it believed that defendant fired the gun but lacked the intent to
       kill.
¶ 67        The possibility that the jury reached that conclusion is remote at best. The State’s
       argument overlooks the fact that the jury did not have to find intent to kill to convict this
       defendant of murder. The jury was instructed that all it had to find was that defendant knew
       “that [his] acts create[d] a strong probability of death or great bodily harm to” Stephens. See
       720 ILCS 5/9-1(a)(2) (West 2010). Given defendant’s admission that he fired the gun–that he
       was “shooting wild” in the direction of three people–defendant would have been
       hard-pressed to claim that he did not know there was a strong probability of death or great
       bodily harm resulting from those shots. Indeed, he did not make that claim in his testimony,
       nor did his defense counsel press that issue in closing arguments. The only truly contested
       issue standing between defendant and a first-degree murder conviction was his self-defense

                                                   - 13 -
       argument. It seems highly unlikely that the jury acquitted defendant of first-degree murder
       not because it accepted his self-defense story, but rather because it believed that defendant
       both (a) did not intend to kill Stephens and (b) was unaware that pulling the trigger several
       times created a strong probability of death or great bodily harm to Stephens.
¶ 68       The State further speculates that the jury’s verdict may have been the product of “lenity.”
       Citing People v. Jones, 207 Ill. 2d 122, 134 (2003), the State claims that legally inconsistent
       verdicts may be the product of juror lenity, but they cannot be the basis for appellate reversal.
       This case, however, does not involve inconsistent verdicts. The jury’s verdicts may be
       consistently read as a misinterpretation of the law of self-defense brought about by the
       erroneous omission of IPI Criminal 4th No. 24-25.06A from the issues instruction for
       aggravated discharge of a firearm.
¶ 69       The State may throw out all the speculation it wishes–that the jury thought intent was not
       proven; that the jury engaged in some kind of inconsistent, compromise verdict–but the vital
       point is that defendant is not required to prove beyond any doubt that he would have been
       acquitted with a proper jury instruction. Hopp, 209 Ill. 2d at 12. Rather, defendant must
       establish that there was a “serious risk that the jurors incorrectly convicted the defendant
       because they did not understand the applicable law.” Sargent, 239 Ill. 2d at 191. Because the
       jury acquitted defendant of the three offenses for which a self-defense instruction was given
       and convicted him only on the count in which the self-defense instruction was erroneously
       absent, we find that defendant has easily demonstrated that serious risk in this case.

¶ 70                               C. Whether Counsel Was Ineffective
¶ 71       Even if we were to conclude that the omission of the self-defense instruction was not
       plain error, defendant would still be entitled to a new trial because his attorney was
       ineffective in failing to ensure that the jury was properly instructed. At trial, defendant’s
       attorney pursued a self-defense theory. Yet counsel failed to submit the self-defense
       instruction in the issues instruction for aggravated discharge of a firearm. As a result, the jury
       was not fully instructed as to the defense counsel elected to pursue. Defendant was
       undoubtedly prejudiced by that failure: he was convicted of the one offense with an
       incomplete instruction.
¶ 72       To establish a claim of ineffective assistance of trial counsel, defendant must show that
       his attorney’s performance was deficient and that he suffered prejudice as a result. Strickland
       v. Washington, 466 U.S. 668, 687, 694 (1984). To establish deficient performance, defendant
       must show that his attorney’s performance “fell below an objective standard of
       reasonableness,” measured “under prevailing professional norms.” Id. at 688. Defendant
       must also overcome the presumption that his attorney’s decisions were an exercise of
       reasonable trial strategy. Id. at 689. To establish prejudice, defendant must show that there
       was a reasonable probability that, but for counsel’s deficient performance, the result of the
       proceedings would have been different. Id. at 694. “A reasonable probability is a probability
       sufficient to undermine confidence in the outcome.” Id.
¶ 73       By failing to submit instructions that fully apprised the jury of her client’s defense, or to
       object to the State’s faulty instructions, trial counsel performed deficiently. During closing
       argument, defense counsel argued that defendant was justified in using force. She pursued no
       other theory and submitted no alternative argument. In fact, she went so far as to tell the jury
       it would be receiving an instruction “about when someone is justified in the use of force.”

                                                   - 14 -
       Yet, when the time came to instruct the jury on that defense, counsel acquiesced to the
       State’s proposed issues instruction for aggravated discharge of a firearm, which erroneously
       excluded the proposition that the State must prove the absence of self-defense beyond a
       reasonable doubt. “This court has held that ‘[w]here defense counsel argues a theory of
       defense but then fails to offer an instruction on that theory of defense, the failure cannot be
       called trial strategy and is evidence of ineffective assistance of counsel.’ ” People v. White,
       2011 IL App (1st) 092852, ¶ 65 (quoting People v. Serrano, 286 Ill. App. 3d 485, 492
       (1997)). Thus, counsel’s performance was objectively unreasonable.
¶ 74        In People v. Gonzalez, 385 Ill. App. 3d 15 (2008), this court held that a nearly identical
       error was ineffective assistance of counsel requiring a new trial. There, the defendant had
       been charged with aggravated criminal sexual abuse, and defense counsel requested a jury
       instruction for the defense that the defendant reasonably believed that the victim was over 17.
       Id. at 16-17. However, defense counsel did not submit any proposed instructions, stating that
       he “did not go through all of them.” (Internal quotation marks omitted.) Id. at 17. The trial
       court gave a general instruction on the defense, but did not include the following language in
       the issues instruction for the offense: “ ‘Fourth Proposition: That the defendant did not
       reasonably believe [the victim] to be [17] years of age or older.’ ” Id. at 20-21 (quoting
       Illinois Pattern Jury Instructions, Criminal, No. 11.62A (4th ed. 2000)). This court found that
       the omission of that proposition constituted “serious error” because it deprived the jury of the
       “necessary tools to analyze the evidence and to reach a verdict based on those facts.”
       (Internal quotation marks omitted.) Id. at 21. This court rejected the notion that the omission
       could be considered a reasonable strategy because counsel failed to properly instruct the jury
       on his own chosen defense. Id. This court further held that this failure resulted in prejudice
       because the absence of the proposition “removed from the jury’s consideration a disputed
       issue essential to the determination of defendant’s guilt or innocence,” and that the State’s
       evidence was not overwhelming. (Internal quotation marks omitted.) Id. at 22.
¶ 75        Counsel’s error in this case was even more unreasonable than counsel’s error in
       Gonzalez. Whereas counsel in Gonzalez seemed unaware of the necessary instructions to
       support his defense, counsel in this case had the benefit of the correct issues instructions for
       murder, attempted murder, and aggravated battery with a firearm. Seeing those instructions,
       it was plain that something was missing from the aggravated discharge of a firearm issues
       instruction. Yet counsel did nothing to ensure that instruction was complete. Either counsel
       believed that self-defense did not apply to aggravated discharge of a firearm, which is
       inaccurate, or counsel did not adequately review the instructions. In either case, counsel did
       not attempt to provide the jury with the necessary tools to evaluate her client’s defense.
¶ 76        Moreover, the prejudice to defendant in this case is far greater than the prejudice to the
       defendant in Gonzalez. Not only was the jury deprived of the necessary instructions to decide
       this case, but the record strongly suggests that the jury would have acquitted defendant
       entirely if it had those instructions. As we explained above, the inclusion of the self-defense
       instruction in all but one issues instruction signaled to the jury–incorrectly–that self-defense
       was not a defense to aggravated discharge of a firearm. The jury then convicted defendant of
       the sole offense with an improper issues instruction. Given the probable effect of counsel’s
       error, we have no confidence in the outcome of defendant’s trial. Defendant is entitled to a
       new trial based upon his attorney’s ineffectiveness.



                                                  - 15 -
¶ 77                                      III. CONCLUSION
¶ 78       For the reasons stated above, we hold that the trial court committed plain error in
       omitting IPI Criminal 4th No. 24-25.06A from the issues instruction for aggravated discharge
       of a firearm while simultaneously including it in the issues instructions for the other charges
       against defendant. We also hold that defendant’s trial attorney was ineffective for failing to
       object to the deficient instructions or to tender proper instructions. We reverse defendant’s
       conviction for aggravated discharge of a firearm and remand for a new trial on that offense.
       As the evidence against defendant, if believed, was sufficient to convict him of aggravated
       discharge of a firearm with respect to Hooper, double jeopardy does not bar his retrial for
       that offense. People v. Ward, 2011 IL 108690, ¶ 50.

¶ 79      Reversed and remanded.




                                                 - 16 -
