                         Docket No. 103751.


                               IN THE
                       SUPREME COURT
                                  OF
                 THE STATE OF ILLINOIS




THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
            KENNETH L. MOHR, Appellee.

                   Opinion filed January 25, 2008.



   JUSTICE FITZGERALD delivered the judgment of the court,
with opinion.
   Justices Freeman, Kilbride, Garman, Karmeier, and Burke
concurred in the judgment and opinion.
   Chief Justice Thomas dissented, with opinion.



                               OPINION

     Following a jury trial in the circuit court of Rock Island County,
defendant Kenneth Mohr was convicted of second degree murder and
sentenced to 20 years’ imprisonment. See 720 ILCS 5/9–2(a)(1)
(West 2004). A divided appellate court reversed and remanded. No.
3–04–0816 (unpublished order under Supreme Court Rule 23). The
central issue in this case is whether the trial court erred in instructing
the jury on provocation in a case where the defendant was not charged
with first degree murder. For the reasons that follow, we affirm.
                           BACKGROUND
    On June 2, 2001, Joseph Kyser stopped to visit his wife’s aunt,
Sheila Sutton, on his way to work because family members had not
spoken to her in more than a week. When he arrived at Sutton’s
house, Kyser found her back door and her garage door were both
open, and newspapers were piled in her yard. Kyser entered the house
and found Sutton’s dead body, lying in a pool of blood on her
bedroom floor. An autopsy later revealed that Sutton died from a stab
wound to her neck. She was also stabbed in her shoulder, chest, lower
back, and abdomen. Her face was badly bruised, and the cartilage in
her neck was fractured, indicating that she had been strangled. There
were no signs of defensive wounds on her body, and no signs of
forced entry into her house.
    Police attention soon turned to the defendant, and he was charged
by information with two counts of first degree murder. Before trial,
the defendant filed a motion in limine to bar the State from eliciting
testimony from his friend Scott Reilly. According to the defendant, the
State wanted Reilly to testify regarding an inculpatory statement the
defendant made to him after a hypnosis session. In this statement the
defendant described an altercation with Sutton in her bedroom on the
night she was killed. The trial court denied the defendant’s motion,
finding that Reilly’s testimony fell within the hearsay exception for
statements against penal interest. In light of Reilly’s testimony, the
defendant requested, and received, second degree murder jury
instructions. The defendant was convicted of second degree murder
and sentenced to 20 years’ imprisonment.
    The appellate court reversed and remanded. People v. Mohr, No.
3–02–0447 (2003) (unpublished order under Supreme Court Rule 23).
The appellate court stated that the defendant’s inculpatory statement
to Reilly was the result of hypnosis, not memory, and that, under
People v. Zayas, 131 Ill. 2d 284, 295 (1989), the trial court abused its
discretion in allowing the State to introduce Reilly’s testimony
regarding this statement. The appellate court then held that this error
was not harmless: “While the evidence indicated that Mohr had the
opportunity to kill Sutton by his presence in her home on the night of
the murder, there was no physical evidence linking Mohr to the killing.
Other than the statements made to Reilly, Mohr made no confession.”


                                  -2-
Mohr, No. 3–02–0447 (unpublished order under Supreme Court Rule
23).
     On remand, the defendant was charged by information with two
counts of second degree murder and one count of involuntary
manslaughter. The case proceeded to trial on one count of second
degree murder. At the beginning of jury selection, the judge read the
information:
         “The defendant in this case, Kenneth Mohr, is charged with
         the offense of Second Degree Murder. More specifically, the
         criminal information *** states that on the 25th day of May,
         in the year 2001, at and within the County of Rock Island, in
         the State of Illinois, Kenneth Lester Mohr, committed the
         offense of Second Degree Murder, in that the defendant while
         committing the offense of First Degree Murder in violation of
         720 Illinois Compiled Statutes Article 5 Section 9–1(a)(2) and
         while acting under a sudden and intense passion resulting from
         serious provocation by Shiela [sic] Sutton, stabbed Shiela [sic]
         Sutton with a sharp object and choked Shiela [sic] Sutton
         thereby causing the death of Shiela [sic] Sutton.”
Defense counsel did not object. In his opening statement, the
prosecutor also read the information. The prosecutor stated that he
would “concede the point, mitigating factor, under a sudden and
intense passion resulting from serious provocation by Shiela [sic]
Sutton. We will concede that point.” Again, defense counsel did not
object.
     The evidence presented at the defendant’s trial was similar to that
presented at his first trial. The State called 11 witnesses. Kyser
testified about finding Sutton’s body. Shannon Jump, a bartender at
the Hard Times Tavern in Moline, testified that she saw the defendant
with Sutton on May 24, 2001, the night before she was killed. When
she closed the Hard Times Tavern around 1 a.m. on May 25, Jump
went to another bar, the Little Cowbell in East Moline, with Sutton
and the defendant. According to Jump, as she left less than half an
hour later, Sutton “gave me a hug and she asked me if she would be
all right with [the defendant] and I told her I didn’t see why not ’cause
he had been in the bar with some other friends of mine he worked with
and I told her just stop in and let me know how everything went.”
Jump never saw Sutton again.

                                  -3-
    Dr. Larry Blum, a forensic pathologist, testified about the autopsy
of Sutton’s body and the cause of her death. Rod Scherpe, an Illinois
State Police crime scene investigator, testified about his observations
at Sutton’s house. According to Scherpe, there were no signs of
forced entry. Though most of Sutton’s blood was pooled around her
body on the floor of her bedroom, Scherpe also found trace amounts
on the doorway between the kitchen and the living room, on the floor
of the hallway between Sutton’s bedroom and bathroom, and on the
floor of the bathroom. Investigators also found a foot impression on
the floor of Sutton’s bathroom using a protein stain called amido
black.
    Mary DeVine, a criminalist with the Rock Island police
department, testified that she took an impression of the defendant’s
foot. Eileen Taylor, a forensic scientist at the Illinois State Police
Morton Crime Laboratory, testified that she processed “almost the
entire bathroom” in amido black after blood was found there.
According to Taylor, amido black “is specific for blood proteins.” She
continued:
         “In the process of processing a crime scene for blood evidence
         it is not always apparent when you look at it that it contains
         any kind of blood evidence. You would think that it would
         normally look red. But many times there’s such a small
         amount or impression [is] in the blood plasma which is
         actually the clear part of the blood that you can’t see it with
         the naked eye. So we use a developing stain called amido
         black ***. So it makes the clear impression or the impression
         that you can’t see become a dark blue as you can see in this
         particular piece of linoleum.”
Taylor asserted that the impression on the floor of Sutton’s bathroom
matched the impression of the defendant’s foot, specifically his right
big toe.
    Jennie Hahn, another forensic scientist with the Illinois State
Police, testified that her report indicated there was “no blood
indicated” on the linoleum adjacent to the defendant’s toe print. Hahn
explained that in her report she meant
         “[t]hat the only place that I was able to test on that Exhibit I
         couldn’t just randomly swab the whole linoleum because it


                                  -4-
         was more important to see if there [was] any kind of latent
         print on that exhibit. So I work with a latent print examiner to
         determine, she determines or the analyst determines an area
         where they see a possible print, also now a print in blood, so
         I have to stay close to that area and there was some kind of
         staining. I removed that staining but the reaction to the testing
         I did, did not indicate blood [for] one or two reasons. The
         stain was not blood or there wasn’t enough.”
Hahn stated that she could not test the linoleum for blood because that
would have obliterated the print. According to Hahn, blood was found
at the hilt of a large serrated butcher’s knife in Sutton’s kitchen.
Deborah Minton, another forensic scientist with the Illinois State
Police, testified that the blood on the knife and in the doorway,
hallway, and bathroom came from Sutton.
     Rock Island County sheriff’s department Deputy Mike Clary
testified about the distance between Sutton’s house, the Little
Cowbell, and the Modernistic Motel where the defendant resided. All
three locations were within approximately three miles of each other.
Reilly testified that the defendant was upset after the police questioned
him in connection with Sutton’s death. According to Reilly, the
defendant initially stated, “They just drank at Hard Times, Cow Bell
and then took him home to his place at Modernistic.” A week later,
Reilly testified, the defendant
         “flat out said that he had looked at a house, Sheila Sutton’s
         house. She was offering him an apartment. He had nothing to
         do with anything other than the fact that he went there. He
         looked at it. He basically slept downstairs and woke up, saw
         that she was dead and everything and he blacked out from that
         point, doesn’t remember anything, and he swore up and down
         he had nothing to do with it. He didn’t do it at all.”
     Rock Island County sheriff’s department Lieutenant Jeffrey Boyd
testified about the investigation of Sutton’s death and authenticated
a videotaped custodial interview with the defendant, which the jury
watched. During the interview, the defendant stated that he was at the
Hard Times Tavern with Sutton, and went with her, Jump, and
another man to the Little Cowbell. There, he told Sutton that he was
living in a hotel, and she told him that she would like to rent out her
basement. After 3 a.m., Sutton drove the defendant to her house.

                                   -5-
They drank beer and talked until 4 or 5 a.m. She showed him around
her house, he used the bathroom, and they went downstairs, where
they talked more. Sutton said that she did not want to drive the
defendant home, but that he could sleep in the basement. Sutton then
went upstairs. The defendant stated that he took his shirt off and fell
asleep until around 7 a.m., when he put on his shirt, called for Sutton,
went upstairs, and found her body. The defendant vomited in the
bathroom and fled in a panic back to his motel room, where he woke
up later that afternoon and went to work. He never summoned the
police after he discovered Sutton’s body because he was too scared.
The defendant could not recall an altercation with Sutton, nor could
he recall driving her car away that morning. He insisted that he did not
remove his shoes in Sutton’s house. He consumed 10 to 12 beers and
a few shots of liquor that night.
    After the State’s rested its case, the defendant made a motion for
a directed verdict. The defendant’s main contention was that the State
had injected motive–namely, provocation–into the case without
presenting any evidence on that issue. Defense counsel argued: “[T]he
problem is that the jury has in front of it, and has been told twice now,
once by the court and once by the State, that this occurred while the
defendant was acting under a sudden, intense passion resulting in [sic]
provocation by Sheila Sutton, and there has been no evidence to back
that up.” The trial court denied this motion based on People v. Burks,
189 Ill. App. 3d 782 (1989). The defendant then rested his case.
    At the jury instruction conference, the State offered Illinois Pattern
Jury Instructions, Criminal, Nos. 7.01S and 7.02S, the definition and
issues instructions for second degree murder. See Illinois Pattern
Instructions, Criminal, Nos. 7.01S, 7.02S (4th ed. 2000) (hereinafter
IPI Criminal 4th). The State also offered IPI Criminal 4th No. 7.03,
defining provocation:
              “A mitigating factor exists so as to reduce the offense of
         first degree murder to the lesser offense of second degree
         murder if, at the time of the killing, the defendant acts under
         a sudden and intense passion resulting from serious
         provocation by [(the deceased) (some other person he
         endeavors to kill, but he negligently or accidentally kills the
         deceased)]. Serious provocation is conduct sufficient to excite


                                   -6-
        an intense passion in a reasonable person.” IPI Criminal 4th,
        No. 7.03.
    The defendant objected to these instructions, renewing the
argument he made in support of his directed verdict motion. The State
acknowledged that IPI Criminal 4th No. 7.03
        “is obviously given in a first degree case where second degree
        is a factor. *** I don’t think the jury necessarily needs to be
        instructed because it tracks the language of the statute which
        is already in the information, but it is alleged in the body of the
        information. Therefore probably appropriate that this
        instruction be given even it says no more than what’s already
        in the information.”
The court overruled the defendant’s objections.
    The prosecutor again read the information in his closing argument.
Defense counsel argued in his closing that the State had presented no
evidence to support its charge that the defendant was provoked, and
in rebuttal, the State repeated, “Once again, the provocation, we are
conceding that point. We are conceding that.” The defendant was
convicted of second degree murder and sentenced to 20 years’
imprisonment. He filed a motion for a new trial, contending, in part,
that the trial court erred in using IPI Criminal 4th No. 7.03. According
to the defendant, “By the State ‘conceding’ the mitigation listed in the
information, the jury is hearing and accepting as fact the State’s theory
without any factual evidence. This is reinforced by the jury being given
[IPI Criminal 4th No. 7.03].” The court denied the motion, and the
defendant appealed.
    The appellate court again reversed, holding that the trial court
erred in instructing the jury on provocation. No. 3–04–0816
(unpublished order under Supreme Court Rule 23). According to the
appellate court,
        “Instructing a jury in a case where the defendant denies
        committing the offense that second degree murder involves a
        serious provocation by the deceased and then ‘conceding’ the
        existence of that provocation is, at best, confusing. *** At
        worst, the jury may believe that they are required to accept as
        true that the defendant and Sutton had an argument, despite
        [the] defendant’s claims to the contrary, and the jury might

                                   -7-
        well believe it has little choice but to find the defendant
        guilty.” No. 3–04–0816 (unpublished order under Supreme
        Court Rule 23).
    The appellate court noted that the State offered no evidence of
provocation at the defendant’s second trial. Presenting the issue of
provocation to the jury, then, meant not only that the defendant’s
denials were false, but also that the defendant had a motive, in
addition to an opportunity, to kill Sutton. No. 3–04–0816
(unpublished order under Supreme Court Rule 23). The court
continued:
        “[T]he jury was told that the State conceded the issue,
        implying that there was nothing to decide and that they should
        accept as true that ‘at the time of the killing, the defendant
        act[ed] under sudden and intense passion resulting from
        serious provocation by the deceased’ (IPI 7.03). Under these
        circumstances, it would have been remarkable if the jury had
        not returned a guilty verdict.” (Emphasis in original.) No.
        3–04–0816 (unpublished order under Supreme Court Rule
        23).
    Justice Schmidt dissented. He argued, in part, that the jury
instruction error was harmless in light of the overwhelming evidence
supporting the defendant’s conviction. No. 3–04–0816 (Schmidt, P.J.,
dissenting) (unpublished order under Supreme Court Rule 23).
    We allowed the State’s petition for leave to appeal. 210 Ill. 2d R.
315(a). In his response brief, the defendant requested cross-relief,
arguing that if this court reverses the appellate court, then it should
consider whether his sentence was excessive.

                              ANALYSIS
     The State initially contends that the defendant has forfeited any
review of the trial court’s decision to use IPI Criminal 4th No. 7.03 by
failing to object to the instruction during trial on the same grounds
that he presented after trial and in his appeal. Though the defendant
did object to IPI Criminal 4th No. 7.03 at trial, he argued that the
instruction was improper for the reasons he offered in his directed
verdict motion: once the jurors heard the information alleging that the
defendant was provoked by the victim, the State was required “to

                                  -8-
back that up.” According to the State, the defendant presented a
different argument in his posttrial motion and on appeal: there was no
evidence of provocation, and thus no evidentiary basis to give IPI
Criminal 4th No. 7.03.
     The defendant responds that he sought to preclude, both during
and after trial, the State’s references to provocation. In his repeated
trial objections to the State’s “concession” of provocation, the
defendant argued that the State should have been required to produce
evidence of that provocation. According to the defendant, this
argument is fully consistent with his argument in his posttrial motion
that the trial court erred in giving IPI Criminal 4th No. 7.03 because
no evidence on provocation was introduced at trial. The defendant
asserts that the State’s forfeiture contention elevates form over
substance.
     “Generally, a defendant forfeits review of any putative jury
instruction error if the defendant does not object to the instruction or
offer an alternative instruction at trial and does not raise the
instruction issue in a posttrial motion.” People v. Herron, 215 Ill. 2d
167, 175 (2005). This rule does not state that a defendant must object
to the instruction on identical grounds–only that the defendant must
object during and after trial. The State essentially asks us to tailor the
forfeiture rule, requiring the defendant to assert the same argument at
trial and in his posttrial motion as to why an instruction was improper.
We decline to do so. We need not decide how closely the defendant’s
phrasing of his posttrial argument must match the phrasing of his trial
objection because, here, they are clearly close enough. The
defendant’s posttrial argument that the State had no evidentiary basis
for a jury instruction defining provocation tracks his trial objection
that the State did not back up its charge of provocation with evidence.
The fact that the defendant objected to IPI Criminal 4th No. 7.03 at
trial and again in his posttrial motion is enough to preserve the issue
on appeal. We turn to the merits.
     Instructions convey the legal rules applicable to the evidence
presented at trial and thus guide the jury’s deliberations toward a
proper verdict. People v. Hudson, 222 Ill. 2d 392, 399 (2006). There
must be some evidence in the record to justify an instruction, and it is
within the trial court’s discretion to determine which issues are raised
by the evidence and whether an instruction should be given. See

                                   -9-
Nassar v. County of Cook, 333 Ill. App. 3d 289, 297 (2002).
Instructions which are not supported by either the evidence or the law
should not be given. People v. Simester, 287 Ill. App. 3d 420, 431
(1997). The task of a reviewing court is to determine whether the
instructions, considered together, fully and fairly announce the law
applicable to the theories of the State and the defense. People v.
Pollock, 202 Ill. 2d 189, 210 (2002); People v. Parker, 223 Ill. 2d
494, 501 (2006). The proper standard of review is whether the trial
court abused its discretion. People v. Jones, 219 Ill. 2d 1, 31 (2006).
“A trial court abuses its discretion if jury instructions are not clear
enough to avoid misleading the jury ***.” In re Timothy H., 301 Ill.
App. 3d 1008, 1015 (1998).
     Here, the State charged the defendant with second degree murder.
Second degree murder is a unique offense because it is a lesser
mitigated offense of first degree murder. Parker, 223 Ill. 2d at 504;
People v. Porter, 168 Ill. 2d 201, 213 (1995) (“second degree murder
is first degree murder plus mitigation”). That is, the elements of both
offenses are identical; second degree murder differs from first degree
murder only because of the presence of a mitigating factor, such as
serious provocation. People v. Jeffries, 164 Ill. 2d 104, 122-23
(1995).
     The State may charge second degree murder without also charging
first degree murder. As the appellate court held in Burks, when the
State charges a defendant with only second degree murder, it
essentially alleges that it can prove the elements of first degree
murder, but concedes that mitigating factors are present. Burks, 189
Ill. App. 3d at 785. The defendant bears no burden to prove any
mitigating factors. Burks, 189 Ill. App. 3d at 785. The IPI committee
drafted IPI Criminal 4th Nos. 7.01S and 7.02S to comply with Burks:
“In effect, the State is required to prove the elements of first degree
murder, but if it satisfies the jury it has done so, the only verdict and
judgment to which it is entitled is guilty of second degree murder. This
result follows because the State, in the Burks situation, has conceded
the presence of the mitigating factor that reduces the defendant’s
criminal behavior from first degree murder to second degree murder.”
Illinois Pattern Jury Instructions, Criminal, No. 7.01S, Committee
Note, at 189 (4th ed. 2000). IPI Criminal 4th No. 7.01S directs the
court to give instruction No. 7.02S, and vice versa, but neither

                                  -10-
instruction mentions No. 7.03. This makes sense: if there is no first
degree murder charge against the defendant, there is no need to
instruct the jury on the mitigating factor of provocation.
    The State still argues that it was not improper for the trial court
to use IPI Criminal 4th No. 7.03, which merely and correctly defines
provocation, but does not require the defendant to prove provocation
as a mitigating factor. According to the State, the trial court read the
information against the defendant to the jury, and the defendant did
not object. The State repeated the information, and again the
defendant did not object. Left to wonder about the purported
provocation here and how it related to the charge against the
defendant, the jurors could only speculate and drift toward confusion
about the governing law. IPI Criminal 4th No. 7.03, contends the
State, avoided that confusion by focusing the jury’s attention on the
elements of second degree murder.
    The defendant asserts that the fundamental problem with the
State’s view lies in its assumption that the jury would understand that
IPI Criminal 4th No. 7.03 simply defined provocation. According to
the defendant, the jury did not need to be informed of the legal
reasons why he was charged with second degree murder. Inextricable
from the definition of provocation was the assumption that the
defendant was the person provoked. The instruction did not inform
the jury that at the time of the killing “the person who acted” was
acting under a strong and intense passion. Instead it contextualized
provocation, specifying that it is “the defendant” who acts under a
sudden and intense passion resulting from serious provocation,
presumably from Sutton, his victim. In light of the State’s
“concession,” IPI Criminal 4th No. 7.03 relieved the State of its
burden of proving beyond a reasonable doubt that defendant had an
altercation with Sutton before she was killed.
    The trial court abused its discretion when it used IPI Criminal 4th
No. 7.03 in the absence of any evidence of provocation. IPI Criminal
4th No. 7.03 did not state that provocation had occurred, but, coupled
with the State’s concession, may have helped to create an inference
that it had. To permit the State to concede provocation, and then
instruct the jury that second degree murder involves serious
provocation in a case where the defendant denies that he committed
the offense, posed a legitimate risk that the jury might surmise there

                                 -11-
was unpresented evidence which showed the defendant had an
altercation with Sutton. The jury could have concluded that because
the State admitted provocation occurred–and reduced first degree
murder to second degree murder–the defendant’s denials were false,
and there was a motive for the killing. As the appellate court majority
noted, “[u]nder these circumstances, it would have been remarkable
if the jury had not returned a guilty verdict.” (Emphasis in original.)
No. 3–04–0816 (unpublished order under Supreme Court Rule 23).
     In its brief, the State insists, “Telling jurors the People had to
prove provocation would have been error.” That is correct, but in its
petition, the State insists that it had proved provocation because its
concession on that issue “had the effect of a judicial admission.” That
is not correct. Because the State charged the defendant with only
second degree murder, provocation was not an issue in this case, and
the State could not concede a nonissue, much less place it beyond
doubt. Notably, the State never asked the defendant for a stipulation
on provocation, and the defendant never asked the State for its
concession. Without any evidence of, or reference to, provocation, the
jury would have been forced to deliberate over the narrow, all-or-
nothing question of whether the defendant killed Sutton. The State
shifted the jury’s focus away from this question.
     Because of the structure of our murder statutes and the posture of
this case on remand after the first appeal, the trial court, the State, and
the defendant clearly were in a vexing situation. The proper approach
was implicit in IPI Criminal 4th Nos. 7.01S and 7.02S. The judge did
not have to inform the venire or the jury that defendant was charged
with “acting under a sudden and intense passion.” The judge should
have stated only that the State alleged the defendant committed
second degree murder by stabbing and choking Sutton, knowing that
his acts created a strong probability of death or great bodily harm.
That language precisely tracks the definition and issues instructions
the jury would later receive and states only the elements the jury
would be required to find.
     The State contends that any error was harmless because there was
“clear and convincing” and “overwhelming” evidence against the
defendant. “An error in a jury instruction is harmless if it is
demonstrated that the result of the trial would not have been different
had the jury been properly instructed.” People v. Pomykala, 203 Ill.

                                   -12-
2d 198, 210 (2003), citing People v. Johnson, 146 Ill. 2d 109, 137
(1991). Here, there was some circumstantial evidence of the
defendant’s guilt. The defendant was in Sutton’s house when she was
killed. The defendant stated that he did not remove his shoes and
socks inside Sutton’s house, but his toe print, which may or may not
have appeared in blood plasma invisible to the naked eye, was found
on the bathroom floor near the bedroom where her body was found.
The defendant did not report his discovery of the body, and he gave
inconsistent statements to Reilly about his activities on the night that
Sutton was killed. We cannot say, however, that this evidence was so
overwhelming as to make the jury instruction error harmless beyond
a reasonable doubt.
     Because we must remand this case for a new trial, we do not reach
the sentencing issue raised by the defendant.

                           CONCLUSION
   For the reasons that we have stated, we affirm the appellate
court’s decision to reverse this case and remand for a new trial.

                                                             Affirmed.

     CHIEF JUSTICE THOMAS, dissenting:
     I agree with the conclusion that it was error to give IPI Criminal
4th No. 7.03 in the absence of any evidence of provocation. But I
disagree with the majority’s conclusion that defendant properly
preserved an objection to this trial error. The majority’s erroneous
conclusion that defendant properly preserved the issue leads the
majority down the wrong course of applying a harmless error test that
requires the State to show that the evidence was overwhelming in
order to avoid a remand for a new trial. I believe that because
defendant failed to properly preserve the issue, a plain error standard
is instead applicable, which would place the burden on defendant to
show that the evidence was closely balanced in order to warrant a new
trial. Defendant has not shown that the evidence was closely balanced.
I, therefore, would not reverse the conviction and remand for a new
trial, as the majority does. Accordingly, I respectfully dissent.


                                 -13-
     Defendant was originally charged in this case with the first degree
murder of Sheila Sutton. At the first trial, Scott Reilly, a friend of
defendant, testified that defendant remembered committing the crime
after undergoing hypnosis. Specifically, defendant remembered going
into Sutton’s bedroom. Sutton slapped defendant, a fight ensued, and
defendant punched her and “choked her out.” The jury convicted
defendant of the lesser offense of second degree murder. The appellate
court reversed and remanded for a new trial, ruling that Reilly’s
testimony was inadmissible.
     On remand, defendant was only charged with second degree
murder because the law prohibits retrial for first degree murder in this
situation where defendant had been tried for first degree murder but
convicted of only second degree murder.
     The evidence at the second trial showed that defendant was out
drinking with Sutton at two different bars on the night in question.
Sutton eventually drove defendant back to her house, ostensibly so
that defendant could see a room Sutton had for rent in her basement.
Defendant told police after he was apprehended that he and Sutton
kissed a couple of times, but that he “felt uncomfortable with what
was going on” and that this was “not what he was looking for.”
Sutton did not want to drive defendant home that night because she
had been drinking, and so she told defendant he would have to stay
downstairs in her basement. Defendant had not had a driver’s license
for several years. Defendant claimed that he took off his shirt, but left
his boots on and went to sleep in the basement at 5 a.m. He woke up
around 7 a.m., went upstairs and called for Sutton. He claimed that
when he got no answer, he pushed her bedroom door open and saw
blood everywhere. He did not check for a pulse to see if Sutton was
still alive. Instead, he vomited and then fled the scene without calling
police. He said that he “immediately assumed that [he] did it” because
he had been “the only one in the house.”
     The forensic evidence showed that Sutton had been brutally
stabbed five times, had a large bruise to her face area, and had a
broken larynx from choking. A knife found in the kitchen had been
wiped clean, but still had some of the victim’s blood on it. Traces of
Sutton’s blood were found throughout the bathroom near the
bedroom where her body was found. Defendant’s right toe print was
found on this bathroom’s linoleum floor. No two people in the world,

                                  -14-
not even identical twins, can leave the same toe print. Defendant’s toe
print on the linoleum floor turned a dark blue when forensic scientist
Eileen Taylor applied amido black to it. Amido black is a dye solution
that is specific for blood proteins and will turn a blood-contaminated
print a dark blue color when blood proteins are present.
     There was no sign of any forced entry, and there was no evidence
that anything was missing from inside the victim’s home. Defendant
could not remember how he got home after Sutton was murdered.
Police found Sutton’s car with the keys in the ignition back at the last
bar where defendant and Sutton drank together.
     The information on retrial had alleged that defendant committed
the offense of second degree murder while acting under sudden and
intense provocation. Defendant did not object to the information prior
to trial. During opening statements, the prosecutor read the
information and then told the jury that the State was conceding the
point of the mitigating factor of sudden and intense provocation.
Defendant moved for a directed verdict at the close of the State’s
case, arguing that the information injected motive into the case and
that there was no evidence to back it up. Defendant never argued that
the sudden-and-intense-provocation language should be stricken from
the charging instrument. The trial court found that the State did not
have any burden to prove motive and therefore denied defendant’s
motion for a directed verdict. Thereafter, defendant did not present
any evidence on his own behalf.
     At the jury instruction conference, the State tendered IPI Criminal
4th Nos. 7.01S, 7.02S and 7.03 for second degree murder. IPI
Criminal 4th No. 7.01S is entitled “Definition of Second Degree
Murder When First Degree Murder is Not Charged” and provides that
“[a] person commits the offense of second degree murder when he
kills an individual *** if, in performing the acts which cause the death,
he knows that such acts create a strong probability of death or great
bodily harm to that individual.” IPI Criminal 4th No. 7.01S.
     IPI Criminal 4th No. 7.02S is entitled “Issues in Second Degree
Murder When First Degree Murder is Not Charged” and states as
follows:
             “To sustain the charge of second degree murder, the State
          must prove the following propositions:


                                  -15-
                 First Proposition: That the defendant performed the
             acts which caused the death of [the victim]; and
                 Second Proposition: That when defendant did so,
                                   ***
                 he knew that his acts created a strong probability of
             death or great bodily harm to [the victim].
             If you find from your consideration of all the evidence that
        each one of these 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.”
        IPI Criminal 4th No. 7.02S.
    IPI Criminal 4th No. 7.03 is entitled “Definition of Mitigating
Factor–Second Degree Murder–Provocation” and provides that
             “[a] mitigating factor exists so as to reduce the offense of
        first degree murder to the lesser offense of second degree
        murder if, at the time of the killing, the defendant acts under
        a sudden an intense passion resulting from serious provocation
        by the deceased. Serious provocation is conduct sufficient to
        excite an intense passion in a reasonable person.” IPI Criminal
        4th No. 7.03.
    Defendant objected to all three instructions on the same basis that
he moved for a directed verdict. He simply maintained that all three
instructions were improper because they do not “allege that mitigation
has to be shown.” He did not argue, however, that IPI Criminal 4th
No. 7.03 was improper because there was no evidence to support it
and therefore it should not be given at all.
    My colleagues in the majority claim that defendant did object to
IPI Criminal 4th No. 7.03 at trial, because “he argued that the
instruction was improper for the reasons he offered in his directed
verdict motion.” See slip op. at 8.
    Examination of the record shows that defendant did not make a
sufficient objection at trial to preserve the issue. The majority chides
the State for essentially asking us to tailor the forfeiture rule so as to
require a defendant to assert the exact, identical argument at both trial


                                  -16-
and in a posttrial motion in order to preserve the issue. See slip op. at
9. But this is not what the State is asking. Instead it is asking this
court to hold defendant to the well-established rule that a defendant
must make a specific trial objection in order to raise that same issue
on review, and that a specific objection to a jury instruction waives all
other unspecified grounds. People v. Cuadrado, 214 Ill. 2d 79, 89
(2005), citing People v. O’Neal, 104 Ill. 2d 399, 407 (1984); see also
People v. Edwards, 144 Ill. 2d 108, 133 (1991). A defendant forfeits
a jury instruction error if the defendant does not raise the instruction
issue at trial and does not raise the instruction in a posttrial motion.
People v. Herron, 215 Ill. 2d 167, 175 (2005). “Both a trial objection
and a written post-trial motion raising the issue are required for
alleged errors that could have been raised during trial.” (Emphases in
original.) People v. Enoch, 122 Ill. 2d 176, 186 (1988). There is no
support in our case law for the notion proposed by my colleagues that
a defendant may simply object to an instruction on a nonmeritorious
ground and that such an objection is sufficient to preserve any issue
later raised with respect to the instruction.
    Here, defendant at the close of the State’s case moved for a
directed verdict, arguing that the information alleged sudden and
intense passion resulting in provocation, thereby introducing motive
into the case without any evidence to back it up. Defendant was
essentially arguing that the State had failed to prove its case, and
therefore the court should direct a verdict on his behalf. The trial court
denied the motion to grant a directed verdict for defendant because
defendant’s premise that the State had to prove the mitigating factor
was incorrect. See People v. Burks, 189 Ill. App. 3d 782, 784-85
(1989) (neither the State nor defendant has any burden to prove the
mitigating factor of provocation in this situation where the
provocation element has been conceded). Defendant did not argue
that any language in the information itself was inappropriate.1


     1
      Even if defendant had objected to the language of the charging
instrument at the time of his motion for a directed verdict, which he did
not, defendant’s conviction would not be subject to reversal on that basis
because defendant suffered no prejudice, as the information apprised
defendant of the precise offense charged with sufficient specificity to
prepare his defense and allow pleading a resulting conviction as a bar to

                                  -17-
     Later, at the jury instruction conference, defendant objected to all
three second degree murder instructions (IPI Criminal 4th Nos. 7.01S,
7.02S and 7.03S), by simply arguing that his motion for a directed
verdict should have been granted and that none of the instructions
“allege that the mitigation has to be shown.” This trial objection was
again denied because it wrongly posits that the State has the burden
to prove provocation and that the instructions must say that the State
has this burden. By contrast, in his posttrial motion and on appeal,
defendant made the entirely different contention that IPI Criminal 4th
Nos. 7.01S and 7.02S should have been given, but that IPI Criminal
7.03 should not have been given because the provocation issue should
not have been submitted to the jury at all. Defendant’s specific,
nonmeritorious objection at the jury instruction conference waived his
later posttrial and appellate argument with respect to the instruction,
an argument which was not specified at trial.
     The majority’s ruling to the contrary erodes the bedrock
requirements that both a trial and posttrial objection are required to
preserve a trial error, and that a specific objection at trial waives all
other unspecified grounds that might later be raised with respect to a
jury instruction. In doing so, the majority ignores the purpose for
requiring a specific trial objection. The reason for the waiver rule is
that timely objections to defective instructions permit the court to
correct the defects before the instructions are given, and do not
therefore permit a party failing to object to gain the advantage of
obtaining reversal based on his own failure to act, either intentionally
or inadvertently. People v. Piatkowski, 225 Ill. 2d 551, 564 (2007);
People v. Roberts, 75 Ill. 2d 1, 11 (1979); see also People v. Carlson,
79 Ill. 2d 564, 577 (1980). By the time defendant raised the specific
objection in his posttrial motion that he raised on appeal, IPI Criminal
4th 7.03 had already been given to the jury and the jury had already
found defendant guilty. Had defendant objected to the instruction at
the jury conference on the specific ground he raised on appeal, the
trial court may have decided not to give it, thereby saving the time and
expense of empaneling a new jury for a third trial in this case.


future prosecutions arising out of the same conduct. Cuadrado, 214 Ill.
2d at 86-87 (where a defendant objects to a charging instrument mid-trial
he must show this prejudice).

                                  -18-
     Supreme Court Rule 451(c), however, provides that “ ‘substantial
defects’ in criminal jury instructions ‘are not waived by failure to make
timely objections thereto if the interests of justice require.’ ” Herron,
215 Ill. 2d at 175, quoting 177 Ill. 2d R. 451(c). Rule 451(c) fashions
a limited exception to the general waiver rule in order to correct
“ ‘grave errors’ and errors in cases ‘so factually close that fundamental
fairness requires that the jury be properly instructed.’ ” Herron, 215
Ill. 2d at 175, quoting People v. Hopp, 209 Ill. 2d 1, 7 (2004). Rule
451(c) is coextensive with the plain-error clause of Supreme Court
Rule 615(c), and the two rules are construed identically. Herron, 215
Ill. 2d at 175. Rule 615(a) states the following: “Any error, defect,
irregularity, or variance which does not affect substantial rights shall
be disregarded. Plain errors or defects affecting substantial rights may
be noticed although they were not brought to the attention of the trial
court.” 134 Ill. 2d R. 615(a).
     We recently reiterated that the plain-error doctrine allows a
reviewing court to consider unpreserved error with respect to a jury
instruction only when (1) a clear or obvious error occurs and the
evidence is so closely balanced that the error alone threatened to tip
the scales against the defendant, regardless of the seriousness of the
error, or (2) a clear and obvious error occurs 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 case. People v. Piatkowski, 225 Ill. 2d 551, 565
(2007).
     The error in giving IPI Criminal 4th No. 7.03 was not so serious
that it affected the fairness of defendant’s trial and challenged the
integrity of the judicial process, regardless of the closeness of the case.
Thus, defendant had the burden on appeal in this case to show that the
error was prejudicial–in other words, he must show that the quantum
of evidence presented by the State against defendant rendered the
evidence “closely balanced.” See People v. Piatkowski, 225 Ill. 2d at
566.
     Defendant has not demonstrated that the evidence presented
against him was closely balanced. In fact, it could reasonably be said
that the evidence against him was overwhelming, and this is precisely
what Justice Schmidt found in his appellate court dissent after
reviewing the evidence and concluding that any error was harmless:

                                   -19-
     “Evidence at trial established a brutal murder with
evidence of a struggle. Sutton suffered extensive bruising to
her face. Her nose was fractured in two places and the skin
between her eyes was torn. She suffered a large, bruised area
inside her cheek and lip and one tooth was chipped. A stab
wound to the left side of her neck cut her jugular vein and
struck her sixth vertebrae. Another stab wound near her
collarbone severed the subclavia vein. A third stab wound
penetrated her lower chest. A fourth stab wound passed
through her liver, stomach, pancreas, and left kidney. She
suffered a fifth stab wound to the right side of her back. Two
projections of cartilage on the sides of her larynx were
fractured. All of this took place during the two-hour period
while defendant allegedly slept on the floor below Sutton.
Sutton’s house was of modest size.
     Furthermore, even though defendant denied ever removing
his boots or pants at Sutton’s home, his toe print was found in
Sutton’s bathroom. A butcher knife, which had obviously been
washed or wiped, was found in a butcher block knife holder in
Sutton’s kitchen. It was found to contain traces of Sutton’s
blood. There were no signs of forced entry into the house.
     If defendant did not kill Sutton, then someone else entered
the house during the two hours that defendant claims he was
sleeping, brutally attacked and murdered Sutton, wiped or
washed the knife blade, then returned it to the butcher block
in the kitchen and exited the house without waking defendant.
Somehow defendant’s toe print was transferred to the
bathroom floor through the sole of the boot that he was
wearing. Defendant claims he vomited at the scene and yet
police found no evidence of that in searching the house.
Sutton’s car was also stolen and then later recovered near the
last tavern where defendant and Sutton drank together hours
before the murder.
     Defendant did not call the police when he found Sutton’s
body, but claims he cannot recall how he got home. He was
with his best friend, Scott Reilly, when a news report came on
television about the murder. Defendant said nothing.


                         -20-
            There was no evidence of anyone being in the house at the
        time of the murder except Sutton and defendant. In light of all
        the evidence, and even excluding defendant’s admission of
        guilt to Scott Reilly, no reasonable jury would vote to acquit.”
        No. 3–04–0816 (Schmidt, J, dissenting) (unpublished order
        under Supreme Court Rule 23).
    Under these circumstances, there can be no doubt that defendant
has failed to meet his burden to show that the evidence was closely
balanced. I would therefore reverse the judgment of the appellate
court and would affirm defendant’s conviction and 20-year sentence.




                                 -21-
