People v. Wilmington

ILLINOIS OFFICIAL REPORTS

Supreme Court

People v. Wilmington, 2013 IL 112938

Caption in Supreme THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. LAMAR

Court: WILMINGTON, Appellant.

Docket No. 112938

Filed February 7, 2013

Held A defendant’s right to decide whether to submit a lesser-included-offense

(Note: This syllabus instruction did not apply to the mitigated offense of second degree

constitutes no part of murder; and failure to fully question prospective jurors as required by

the opinion of the court rule, though error, did not call for reversal where plain error was claimed

but has been prepared only for evidentiary closeness and the burden of showing that was not

by the Reporter of met.

Decisions for the

convenience of the

reader.)

Decision Under Appeal from the Appellate Court for the First District; heard in that court

Review on appeal from the Circuit Court of Cook County, the Hon. Thomas V.

Gainer, Jr., Judge, presiding.

Judgment Affirmed.

Counsel on Michael J. Pelletier, State Appellate Defender, Alan D. Goldberg, Deputy

Appeal Defender, and Brian E. Koch, Assistant Appellate Defender, of the Office

of the State Appellate Defender, of Chicago, for appellant.

Lisa Madigan, Attorney General, of Springfield, and Anita Alvarez,

State’s Attorney, of Chicago (Alan J. Spellberg, Michelle Katz, Annette

Collins and Jessica R. Ball, Assistant State’s Attorneys, of counsel), for

the People.

Justices JUSTICE KARMEIER delivered the judgment of the court, with opinion.

Chief Justice Kilbride and Justices Thomas, Garman, and Theis

concurred in the judgment and opinion.

Justice Burke dissented, with opinion, joined by Justice Freeman.

OPINION

¶1 Following a jury trial in the circuit court of Cook County, defendant, Lamar Wilmington,

was convicted of first degree murder and concealment of a homicidal death. He was

sentenced to consecutive prison terms of 50 and 5 years, respectively. Defendant appealed,

arguing that he was denied a fair trial insofar as: (1) the circuit court did not ascertain that

he consented to his counsel’s tender of a jury instruction on second degree murder; and (2)

the circuit court did not fully comply with the voir dire requirements of Illinois Supreme

Court Rule 431(b) (Ill. S. Ct. R. 431(b) (eff. May 1, 2007)). The appellate court rejected

defendant’s first argument, concluding that the trial court was not required to ascertain

whether defendant agreed to his counsel’s tender of the pertinent instruction; however, the

appellate court found that the circuit court’s questioning of potential jurors did not fully

comply with Rule 431(b), and that error necessitated reversal and remand for a new trial. 394

Ill. App. 3d 567. This court subsequently issued a supervisory order directing the appellate

court to vacate its judgment and reconsider in light of our decision in People v. Thompson,

238 Ill. 2d 598 (2010) (holding, given the facts there extant, that the trial court’s omissions

in Rule 431(b) questioning did not qualify as structural, second-prong plain error, which

would require automatic reversal). On remand, the appellate court determined that the trial

court’s Rule 431(b) omissions did not warrant reversal under either prong of plain-error

analysis—as the evidence was not closely balanced and there was no evidence that defendant

was tried by a biased jury. With respect to defendant's instructional issue, the appellate panel

on remand took a position different from that of the original appellate panel, holding that the

trial court erred when it failed to inquire whether defendant consented to the tender of a

second degree murder instruction, but the error did not rise to the level of plain error. 2011

IL App (1st) 072518-B. We allowed the defendant’s petition for leave to appeal (Ill. S. Ct.

R. 315 (eff. Feb. 26, 2010)), and now affirm the judgment of the appellate court, though we

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do not accept its reasoning in toto.

¶2 BACKGROUND

¶3 The core facts that follow are taken from the transcript of defendant’s trial. Additional

facts pertinent to the issues will be set forth, as necessary, in the analysis of each issue. We

note, prior to trial, a motion to quash defendant’s arrest and suppress evidence—including

his confession—was denied by the circuit court.

¶4 On March 4, 2004, the body of Guan McWilliams was found in a garbage can at 7446

South Eberhart in Chicago. An autopsy revealed that McWilliams had been shot twice in the

top of the head.

¶5 Approximately one week later, defendant appeared at the Third District police station and

stated he had information concerning a person who had been killed in the vicinity of 74th

Street and Eberhart. Defendant told detectives he had been at a party and had overheard a

man identified as “Dollar” say that he had killed a “gay” man and had thrown him in the

garbage. Acting upon that information, police interviewed Dollar and eliminated him as a

suspect.

¶6 On June 14, 2004, defendant again appeared at the police station and, on that occasion,

reported that his head had been grazed by a bullet. After investigating defendant’s complaint,

Detective Gerald Hamilton advised defendant of his Miranda rights, and informed defendant

that he had questioned Dollar and had ruled him out as a suspect. According to Hamilton,

defendant appeared visibly shaken and then admitted he had lied about Dollar.

¶7 Detective Robert Myers testified that he and other officers spoke with defendant on June

15 after advising him of his Miranda rights. Thereafter, they went with defendant to look for

two witnesses named Ram and Stennis. Unable to locate those individuals, they proceeded

to defendant’s home at 7318 South Eberhart. Earlier that morning, defendant had consented

to a search of his residence. Defendant showed the detectives his bedroom in the basement

of the residence, where McWilliams had allegedly been shot. Defendant told the officers that

the condition of the room had changed since the night of the murder. Drywall had been put

in, a rug was put down on the concrete floor, and some additional furniture had been placed

inside.

¶8 Detective Myers testified that defendant was returned to the Area 2 station after the

search, where he remained for the next two days, except for two trips to a police facility at

1819 West Pershing. During that time, the detectives continued the investigation, looking for

other witnesses.

¶9 Assistant State’s Attorney George Canellis took defendant’s handwritten statement on

June 17, with Detective Myers present. In the statement, defendant said that he met

McWilliams at the Jeffery Pub’s “gay night” in January 2003. He and McWilliams had oral

and anal sex three or four times over the next year. Defendant said no one knew he had “gay

sex,” including members of his gang, the Black Disciples, who did not like homosexuals.

Defendant stated, on March 3, 2004, McWilliams called him and asked for $200. Defendant

told McWilliams he did not have $200, but he encouraged McWilliams to come over

anyway. When McWilliams arrived, no one else was at defendant’s residence. Defendant

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admitted to Canellis that he and the victim engaged in consensual sex acts, but he did not

elaborate any further on this subject in his statement.

¶ 10 After the sexual activity, McWilliams asked for $200 and told defendant he would be

charging for sex. Defendant and McWilliams argued, and McWilliams threatened to tell the

police that defendant had raped him. McWilliams also told defendant that he had AIDS.

Defendant stated that McWilliams then produced a dark automatic gun, but defendant was

able to get the gun away from McWilliams because defendant was bigger and stronger. The

argument continued, defendant calling McWilliams a “little bitch.” McWilliams threatened

to tell people in the neighborhood that they were having sex. Defendant told Canellis he did

not want people in the neighborhood to know he had sex with McWilliams. Defendant

stated, while he held the gun, McWilliams, whom defendant described as naked and

unarmed, ran at him. Defendant believed that he fired about four shots, striking McWilliams

in the top of the head. Defendant said McWilliams fell to the floor, bleeding, and he appeared

to be dead.

¶ 11 Defendant stated he then put underwear and a shirt on McWilliams, hid the gun, and

dragged McWilliams’ body outside onto the sidewalk. Defendant went to get help from a

fellow gang member named Ramsey. Defendant told Ramsey he killed McWilliams when

a drug deal went bad. Defendant stated that Ramsey came back to the house with him and

told him to put the body in a garbage can. Defendant got a garbage can nearby, picked up

McWilliams’ body, and threw it into the can. He and Ramsey then wheeled the can about a

block away and left it there. Defendant said he used bleach to clean the floor, and he threw

out the shell casings and the rest of McWilliams’ clothes. He gave the gun to another fellow

gang member.

¶ 12 Defendant told Canellis he had initially implicated Dollar because he and Dollar had

fought over a girl. He told Canellis when he went to the police station on June 14, to report

the incident in which a bullet had grazed his head, he also talked to the police about

McWilliams’ murder. Defendant said he initially implicated Ramsey in the killing because

he was frightened. Defendant told Canellis, at the time of his statement, that he was telling

the truth because he wanted to clear his conscience.

¶ 13 After Canellis took down the statement, he and defendant began to review it. They read

through the Miranda warnings on the first page, and Canellis then asked defendant to sign

underneath the warnings. Defendant refused to sign any part of the statement, but he did

agree to sign a Polaroid photograph of himself taken by Canellis at the time of the interview.

¶ 14 Stipulations were entered of record indicating, in essence, that no inculpatory evidence

was obtained from defendant’s residence, and no fingerprints suitable for comparison were

obtained from the garbage can in which McWilliams’ body was found. Further, the garbage

can in which the body was discovered had been assigned to a vacant building which shared

a common alley with defendant’s residence. Finally, the articles of clothing found on

McWilliams’ body included a T-shirt, boxer shorts, a shirt, a sweatshirt, jeans, socks, and a

nylon cap known as a “do-rag.”

¶ 15 Dr. Nancy Jones, the medical examiner, testified to the angles by which two bullets

entered and traveled through McWilliams’ skull. Jones said she found no evidence of close-

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range firing, i.e., discharge of the weapon between 18 to 24 inches from the body. She did

not take any rectal or oral swabs and did not see any apparent semen. Dr. Jones indicated she

found blunt trauma injuries on McWilliams’ body consisting of large abrasions or scratches

and some bruising on the back that occurred around the time of death. Some of the abrasions

were consistent with McWilliams’ body having been dragged on the sidewalk after he was

shot; the bruises were consistent with the body having been dropped on the sidewalk after

the shooting. Jones testified that McWilliams’ blood-alcohol level was twice the legal limit.

¶ 16 Dr. Robert Hanlon, a clinical neuropsychologist, testified on behalf of defendant. Hanlon

placed defendant’s mental functioning in the range of mild mental retardation. He stated that

an intelligence quotient (IQ) below 70 is indicative of mental retardation, and he

acknowledged that defendant, with a full-scale IQ of 67, is “really on the high end of being

mildly mentally retarded.” Hanlon opined that defendant reads at a first-grade level. Hanlon

also testified, based on defendant’s medical records, that defendant has a seizure disorder,

which, Hanlon suggested, would have made it unlikely that he could have committed the

crime without suffering a seizure. Hanlon, however, admitted that the State’s version of

events was “certainly possible.” Moreover, Hanlon admitted that defendant’s history of

seizures was largely “self-reported.”

¶ 17 In rebuttal, the State called Alesia Hines, a paramedic with Cermak Health Services.

Hines testified that she questioned defendant about the date of his last seizure, and he told

her that his last seizure had been in 1995. The State also called Dr. Dawna Gutzmann, a staff

psychiatrist with Forensic Clinical Services, who had interviewed defendant several times.

Defendant told her that he had a seizure in 2002, and he then starting having seizures

frequently in the year leading up to his arrest. Gutzmann concluded that there was some

evidence of malingering. Defendant had reported to another doctor that he was having

seizures in the courtroom, that he would sometimes have none for a month, but then would

have three or four in a day. Gutzmann stated her opinion that defendant had no mental or

physical disorder that would have affected his ability to commit the alleged offense.

¶ 18 On July 27, 2007, as the parties anticipated closing argument and instructions to the jury,

the trial judge addressed the prosecutor, acknowledging receipt of a set of jury instructions

prepared by the State, and inquiring whether a set had been given to the defense. The

prosecutor responded affirmatively. The court then stated: “I understand they [referring to

the defense] have asked you to prepare a second degree instruction?” The prosecutor again

responded affirmatively, and indicated that would be done.

¶ 19 When court reconvened on July 30, 2007, the trial judge, addressing defense counsel,

stated, “you also requested that I give second-degree.” Defense counsel indicated he had. The

court then announced: “I have considered the status of the evidence in this case, and I believe

it appropriate to give the second-degree murder instruction.” The instructions to be given

were reviewed in defendant’s presence and for his benefit. It is not clear, however, whether

defendant understood the import of those instructions, as the record does not indicate they

were explained to him.

¶ 20 In his closing argument, defense counsel questioned the reliability of defendant’s alleged

statement to the police, pointing up the circumstances under which it was given and the

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dearth of physical evidence that would link defendant to the murder. Counsel briefly

referenced the second degree murder instruction the jury would receive: “[I]t’s not because

we’re asking you to do that. It’s because the facts indicate if it’s anything, that’s what it is.

*** [I]f it’s anything, it’s second-degree murder.”

¶ 21 In conjunction with the first degree murder instruction given the jury, jurors were told

the State, in order to prove defendant guilty of first degree murder, had to establish, inter

alia, that the defendant was not justified in using the force which he used. In that regard, the

jury was instructed pursuant to Illinois Pattern Jury Instructions, Criminal, No. 24-25.06 (4th

ed. 2000) (hereinafter IPI Criminal 4th): “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,” and “a person is justified in the use of force

which is intended or likely to cause death or great bodily harm only if he reasonably believes

that such force is necessary to prevent imminent death or great bodily harm to himself.” As

part of the first degree murder instruction, after the stated propositions to be proved by the

State, the jury was cautioned it could “not consider whether the defendant [was] guilty of the

lesser offense of second degree murder until and unless you have first determined that the

State has proved beyond a reasonable doubt each of the previously stated propositions.” IPI

Criminal 4th No. 7.04. In that event, the jurors were told they could then consider whether

defendant acted under an unreasonable belief that the circumstances justified the use of

deadly force, such that a verdict of second degree murder would be warranted. IPI Criminal

4th No. 7.04.

¶ 22 During deliberations, the jury sent three notes pertaining to exhibits or evidentiary

matters. The final note was sent out approximately 2 hours and 40 minutes after the start of

deliberations. The jury ultimately found defendant guilty of first degree murder and

concealment of a homicidal death. As indicated, defendant was sentenced to prison terms of

50 and 5 years, respectively, for those crimes.

¶ 23 The issues raised in the ensuing appeal, and the appellate court’s resolution of those

issues, were matters outlined at the outset of this opinion, and our disposition does not

require further elaboration at this juncture.

¶ 24 ANALYSIS

¶ 25 Before this court, defendant argues that his convictions should be reversed, and the cause

remanded for a new trial, because: (1) the trial judge failed to question prospective jurors

about their understanding and acceptance of defendant’s right not to testify, and failed to

question them about the three other principles enumerated in Rule 431(b); and (2) the trial

court agreed to give an instruction on second degree murder, but never asked defendant if he

agreed with the tender of the instruction and understood its consequences.

¶ 26 We first determine whether the trial court violated Supreme Court Rule 431(b), and if it

did, what consequences should flow from noncompliance with this court’s rule. Our review

of these questions is de novo. See People v. Thompson, 238 Ill. 2d 598, 606-07 (2010).

¶ 27 The version of Rule 431(b) in effect when defendant was tried provided:

“(b) The court shall ask each potential juror, individually or in a group, whether

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that juror understands and accepts the following principles: (1) that the defendant is

presumed innocent of the charge(s) against him or her; (2) that before a defendant can

be convicted the State must prove the defendant guilty beyond a reasonable doubt;

(3) that the defendant is not required to offer any evidence on his or her own behalf;

and (4) that the defendant’s failure to testify cannot be held against him or her;

however, no inquiry of a prospective juror shall be made into the defendant’s failure

to testify when the defendant objects.

The court’s method of inquiry shall provide each juror an opportunity to respond

to specific questions concerning the principles set out in this section.” Ill. S. Ct. R.

431(b) (eff. May 1, 2007).

¶ 28 In this case, prior to the voir dire of individual panel members, the trial judge

admonished the entire group of potential jurors about each of the principles set forth in the

rule:

“Mr. Wilmington[,] as with other persons charged with crimes[,] is presumed to be

innocent of the charges that bring him before you. *** It is absolutely essential as we

select this jury that each of you understand and embrace these fundamental

principles; that is, that all persons charged with a crime are presumed to be innocent

and that it is the burden of the state who has brought the charges to prove the

defendant’s guilt beyond a reasonable doubt.

What this means is that the defendant has no obligation to testify in his own

behalf or to call any witnesses in his defense. He may simply sit here and rely upon

what he and his attorneys perceive to be the inability of the state to present sufficient

evidence to meet their burden. Should this happen, you will decide this case on the

basis of the evidence presented by the prosecution. The fact that *** the defendant

chooses not to testify must not be considered by you in any way in arriving at your

verdict.”

Later, in the course of admonitions, the trial court again addressed Rule 431(b) principles:

“I spoke to you earlier about some fundamental principles of law. I want to ask you

as a group one more time about these fundamental principles. ***

I have spoke[n] about the fact the defendant is presumed to be innocent of the

charges against him and that this presumption stays with the defendant throughout

the trial and is not overcome unless and until the jury determines the defendant is

guilty beyond a reasonable doubt.

Is there anyone in the courtroom here in the jury box amongst you who disagrees

with this fundamental principle of law? If so, please raise your hand.”

The court noted that no hands were raised. The court then inquired:

“I also spoke about the fact the State has the burden of proving the defendant guilty

beyond a reasonable doubt. Is there anyone among you *** who disagrees with this

fundamental principle of law? If so, please raise your hand.”

The circuit court continued:

“Because the defendant is presumed to be innocent, he does not have to present any

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evidence at all in this case. He can simply rely on the presumption of innocence. Is

there anyone among you *** who disagrees with this fundamental principle of law?

If so, please raise your hand.”

After asking each question to each group of jurors, the circuit court noted: “The record

should reflect no hands are raised.”

¶ 29 After closing arguments, the instructions the jurors were given, and sworn to follow,

reiterated the four Rule 431(b) principles.

¶ 30 Defendant now contends that the trial judge violated Rule 431(b) in that he did not ask

prospective jurors whether they understood and accepted the principle that they could not

hold it against defendant if he exercised his right not to testify, and the judge also erred by

asking only whether the prospective jurors accepted the other three principles enumerated

in the rule, but not asking whether they also understood those three principles.

¶ 31 Defendant did not object to the court’s questioning during voir dire, and he did not raise

this issue in a posttrial motion; therefore, any claimed error must be the subject of plain-error

analysis. See People v. Herron, 215 Ill. 2d 167, 181-82 (2005). The plain-error doctrine

allows errors not previously challenged to be considered on appeal if either: (1) the evidence

is so closely balanced that the error alone threatened to tip the scales of justice against the

defendant; or (2) the error was so fundamental and of such magnitude that it affected the

fairness of the trial and challenged the integrity of the judicial process, regardless of the

closeness of the evidence. People v. Piatkowski, 225 Ill. 2d 551, 565 (2007). We first

consider whether error occurred.

¶ 32 As this court stated in Thompson, Rule 431(b) requires that the trial court ask potential

jurors whether they understand and accept the enumerated principles, mandating “a specific

question and response process.” Thompson, 238 Ill. 2d at 607. While it may be arguable that

the court’s asking for disagreement, and getting none, is equivalent to juror acceptance of

the principles, the trial court’s failure to ask jurors if they understood the four Rule 431(b)

principles is error in and of itself. Moreover, the trial court did not even inquire regarding the

jury’s understanding and acceptance of the principle that defendant’s failure to testify could

not be held against him. Thus, error clearly occurred.

¶ 33 The next question is whether the error necessitates reversal and remand for a new trial

pursuant to application of plain-error review. In that regard, defendant addresses our recent

decision in Thompson, and so will we. In Thompson, defendant argued only the second prong

of plain error, i.e., that “the violation of Rule 431(b) infringed his right to an impartial jury,

thus affecting the fairness of his trial and challenging the integrity of the judicial process.”

Thompson, 238 Ill. 2d at 613. The prospective jurors in this case, as in Thompson (see

Thompson, 238 Ill. 2d at 615), received some, but not all, of the required Rule 431(b)

questioning, and the venire was also admonished and instructed on Rule 431(b) principles.

As in Thompson (see Thompson, 238 Ill. 2d at 615), defendant has not established that the

trial court’s violation of Rule 431(b) resulted in a biased jury. As in Thompson (see

Thompson, 238 Ill. 2d at 615), the second prong of plain-error review does not provide a

basis for excusing defendant’s procedural default.

¶ 34 Defendant does not argue otherwise. Instead, defendant contends that reversal is

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indicated by application of the first prong of plain error, i.e., that the evidence is so closely

balanced that the error alone threatened to tip the scales of justice against him. Like the

appellate court (2011 IL App (1st) 072518-B, ¶ 38), we conclude that the evidence was not

closely balanced and thus the first prong of plain-error analysis is unavailing.

¶ 35 First, although the jury sent notes to the judge during the deliberative process, there is no

indication in the record that the jury at any time had reached an impasse or that the jurors

themselves considered this a close case. The record does not disclose the length of

deliberations. Careful consideration of the evidence adduced and exhibits admitted is what

we expect of jurors in any trial. We have no reason to believe that deliberations here were

in any way extraordinary.

¶ 36 Second, testimony of expert witnesses for the State and the defense does not render this

case closely balanced. Dr. Gutzmann testified that she did not believe defendant had any

mental or physical disorder that would have rendered him incapable of committing the crime.

She noted that defendant gave different stories regarding the frequency of his alleged

seizures, and there was some evidence of malingering on his part. While defendant’s expert,

Dr. Hanlon, testified that defendant’s mild mental retardation and his seizure disorder would

have made it difficult for him to commit the crime, he conceded it was “certainly possible”

that defendant had committed the offense. Hanlon also admitted that defendant’s history of

seizures, upon which Hanlon based his opinions, was largely “self-reported.”

¶ 37 Third, there was unrebutted evidence in this case that defendant gave an inculpatory

statement, and there was some physical evidence corroborating that statement.

¶ 38 Initially, we note, it is undisputed that defendant interjected himself into the investigation

of McWilliam’s murder by appearing, unsolicited, at the police station and falsely apprising

investigators that he had information that “Dollar” had killed McWilliams. When defendant

later returned, voluntarily, to the station to report a separate alleged crime, he was confronted

with the results of the police investigation to that date, ruling out Dollar as a suspect. He then

admitted he had lied about Dollar, an admission which no doubt focused the investigation

on defendant himself. Thereafter, defendant provided the police with additional names and

attendant information—leads that were pursued and came to nothing, but which prolonged

the investigation and the period of time in which defendant was in the company of officers.

In the course of the investigation, defendant consented to a search of his residence and

accompanied the police there. While at that location, he told them that significant changes

had been made to the room since the time of McWilliams’ murder.

¶ 39 There is uncontradicted evidence that defendant gave a statement wherein he admitted

he shot and killed McWilliams and he described how he disposed of the body. Certain known

forensic details corroborate information provided by defendant in his statement. Defendant

stated that he shot the shorter McWilliams in the top of the head as McWilliams was

hunched over and charging at him; consistent with that description of events, the medical

examiner testified that McWilliams suffered two bullet wounds to the top of the head, in

each case the bullets taking a downward path through the skull. Defendant stated that he

dragged McWilliams’ body outside after the shooting and left it on the sidewalk; the medical

examiner testified that the body bore scratches and bruises consistent with the body having

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been dragged and dropped on the sidewalk. Defendant testified that he placed McWilliams’

body in a neighbor’s garbage can, and he and Ramsey wheeled it about a block away;

McWilliams’ body was found in a garbage can located about a block away from defendant’s

residence, and that garbage can was registered to a location across the alley from defendant’s

residence.

¶ 40 The absence of some forensic evidence one might expect is easily explained. Though the

medical examiner did not see evidence of semen in or about McWilliams’ body, that fact

alone does not exculpate defendant, as defendant did not indicate to Canellis whether the

men had engaged in protected sexual activity, which, of course, would explain the absence

of such physical evidence. Although no evidence of import was recovered from defendant’s

bedroom, where the murder is said to have occurred, i.e., no bullet holes or indicia of blood,

defendant, in his statement, indicated that he had cleaned the floor with bleach and that

drywall had been installed in the interior of the room after the shooting.

¶ 41 While one might question why defendant subsequently “changed his mind,” and declined

to sign his statement, his refusal to sign could have been attributable to any number of

reasons, not the least of which was his reluctance to be associated with admissions that he

had engaged in “gay sex.” We note there is nothing of record that would indicate defendant’s

statement to Assistant State’s Attorney Canellis was untrue or coerced. Defendant in fact

acknowledged to Canellis, outside the presence of the police officers, that he had been

“treated pretty good since he had been at the police station,” and that “he was giving the

statement freely, voluntarily, no threats or promises made to him in order to get him to give

the statement.”

¶ 42 The only inconsistency of any significance between defendant’s statement and the

physical evidence in this case is defendant’s assertion that he dressed McWilliams’ naked

body in boxer shorts and a T-shirt before he placed the body in a garbage can. The body was

actually found clad in a T-shirt, boxer shorts, a shirt, a sweatshirt, jeans, socks, and a nylon

cap known as a “do-rag.” We do not consider that lone inconsistency sufficient to render the

evidence in this case closely balanced for purposes of first-prong plain error.

¶ 43 The defendant bears the burden of persuasion under both prongs of plain-error analysis.

People v. Lewis, 234 Ill. 2d 32, 43 (2009). He has not met that burden with respect to this

issue.

¶ 44 We next address defendant’s contention that the trial court erred when it granted defense

counsel’s request for an instruction on second degree murder, but never asked defendant if

he agreed with the tender of the instruction and understood its consequences. We

acknowledge, in passing, the State’s contention that the trial court, “on its own volition,”

directed the State to prepare the second degree murder instruction, and the State’s citation

to authority holding that a lesser-included offense instruction may be given at the insistence

of the State, or by the trial judge sua sponte, even over defendant’s objection. See generally

People v. Medina, 221 Ill. 2d 394, 405 (2006) (citing People v. Knaff, 196 Ill. 2d 460, 473

(2001)). We reaffirm the principle espoused in the decisions cited by the State; however, the

record in this case does not unequivocally support the State’s assertion that the trial court

gave the second degree murder instruction of its own accord, absent a request by the defense.

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Consequently, the question of whether our holdings in Medina and People v. Brocksmith,

162 Ill. 2d 224 (1994), apply in this context are squarely before this court. In that regard,

defendant insists that a defense request for a second degree murder instruction should be

governed by the same legal principles that apply to requests for any lesser-included offense

instruction. We disagree.

¶ 45 In People v. Ramey, 152 Ill. 2d 41, 54 (1992), this court acknowledged four decisions that

ultimately belong to a defendant after consultation with his attorney: (1) what plea to enter;

(2) whether to waive a jury trial; (3) whether defendant will testify on his own behalf; and

(4) whether to appeal.

¶ 46 In Brocksmith, this court added another right to those enumerated in Ramey, holding that

a defendant also has the right to decide whether to submit an instruction on a lesser-included

offense at the conclusion of the evidence. Brocksmith, 162 Ill. 2d at 229. The court found the

decision to tender a lesser-included offense instruction “analogous to the decision of what

plea to enter,” and determined that “the two decisions should be treated the same.”

Brocksmith, 162 Ill. 2d at 229.

¶ 47 In Medina, we reiterated the rationale for the Brocksmith rule, we addressed some of the

practical considerations that bear upon its implementation, and we proposed a procedure to

ensure that defendant’s right is safeguarded:

“Where a lesser-included offense instruction is tendered, a defendant is exposing

himself to potential criminal liability, which he otherwise might avoid, and is in

essence stipulating that the evidence is such that a jury could rationally convict him

of the lesser-included offense. Consequently, when a lesser-included offense

instruction is tendered, we believe the trial court should conduct an inquiry of

defense counsel, in defendant’s presence, to determine whether counsel has advised

defendant of the potential penalties associated with the lesser-included offense, and

the court should thereafter ask defendant whether he agrees with the tender.” Medina,

221 Ill. 2d at 409.

We noted that the defendant in that case would not have been entitled to a lesser-included

offense instruction, even if he had tendered one, because, in order for a defendant to be

entitled to a lesser-included offense instruction, “the evidence must be such that a jury could

rationally find the defendant guilty of the lesser offense, yet acquit him of the greater.”

Medina, 221 Ill. 2d at 410. It was not so in that case.

¶ 48 It is not so in this case. Second degree murder is not a lesser-included offense of first

degree murder; rather, it is more accurately described as a lesser-mitigated offense of first

degree murder. People v. Jeffries, 164 Ill. 2d 104, 122 (1995); People v. Toney, 2011 IL App

(1st) 090933, ¶ 47. While a defendant who tenders a lesser-included offense instruction

exposes himself to “potential criminal liability, which he otherwise might avoid if neither the

trial judge nor the prosecutor seeks the pertinent instruction” (see Medina, 221 Ill. 2d at 405),

that is not the case with the tender of a second degree murder instruction, as a defendant can

only be found guilty of second degree murder if the State has first proven all the elements of

first degree murder. Clearly, he is not exposing himself to “potential criminal liability which

he might otherwise avoid.” Thus, the rationale underpinning the decisions in Brocksmith and

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Medina does not apply here.

¶ 49 Absent some indication to the contrary, we must presume that jurors follow the law as

set forth in the instructions given them. Richardson v. Marsh, 481 U.S. 200, 206 (1987);

People v. Taylor, 166 Ill. 2d 414, 438 (1995); People v. Chromik, 408 Ill. App. 3d 1028,

1046 (2011). Given that presumption, the jury here had two primary decisional options: find

that the State had failed to prove defendant guilty of first degree murder, or find that the State

had in fact proven him guilty of first degree murder. Only in the latter instance could the

jurors then consider whether this mildly retarded defendant acted under an unreasonable

belief that the circumstances justified the use of deadly force, such that a verdict on the

lesser-mitigated offense of second degree murder would be warranted, an option that they,

in any event, rejected.

¶ 50 Though defendant argues that defense counsel’s request for a second degree murder

instruction undermined counsel’s strategy of challenging the reliability of defendant’s alleged

confession, and opened the way for the prosecutor to argue that defendant was proceeding

on inconsistent theories, defendant, notably, does not argue that counsel rendered ineffective

assistance. We observe that counsel, initially, sought suppression of defendant’s confession.

When that strategy of first resort proved unsuccessful, counsel tried, at trial, to convince the

jury, through expert testimony, that defendant could not have committed the crime because

of a seizure disorder. Counsel used the same testimony to apprise the jury of defendant’s

mental retardation and to lay the groundwork for his argument that defendant’s alleged

confession was the product of suggestion and overbearing behavior on the part of the police.

Defense counsel was able to elicit some forensic evidence that was inconsistent with

defendant’s alleged statement to support that theory, a theory that was, with one brief

exception, the sole basis of counsel’s closing argument. However, in the event that strategy

failed, and the jury found defendant had committed the murder, counsel had the jury

instructed on second degree murder, without really arguing for it. Thus, the jury was at least

given the option, if it believed the mentally retarded defendant had shot the victim, of finding

that he unreasonably believed he was justified in defending himself.

¶ 51 We are not asked to rule upon the issue of trial counsel’s effectiveness. In light of our

holding, it was defense counsel’s decision to pursue a strategy of questioning the reliability

of the confession, but offering the jurors the option of second degree murder if that strategy

failed and they found that defendant did in fact confess to the murder.

¶ 52 For the foregoing reasons, we affirm the judgment of the appellate court, finding,

however, that the circuit court did not err when it failed to inquire whether defendant

consented to the tender of a second degree murder instruction. See People v. Burnett, 237 Ill.

2d 381, 391 (2010) (this court is “in no way constrained by the appellate court’s reasoning

and may affirm on any basis supported by the record”).

¶ 53 Affirmed.

¶ 54 JUSTICE BURKE, dissenting:

¶ 55 I respectfully dissent from the majority’s opinion for the reasons set forth in my dissent

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in People v. Thompson, 238 Ill. 2d 598 (2010), and People v. Glasper, 234 Ill. 2d 173 (2009).

The questions required by Rule 431(b) are “ ‘vital to the selection of a fair and impartial

jury’ ” (Thompson, 238 Ill. 2d at 619 (Burke, J., dissenting, joined by Freeman, J.) (quoting

People v. Zehr, 103 Ill. 2d 472, 477 (1984)), and the circuit court’s failure to ask them in this

case necessarily amounts to plain error. Accordingly, I would reverse defendant’s convictions

and remand this cause for a new trial.

¶ 56 JUSTICE FREEMAN joins in this dissent.

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