stating that, “ [o]nce a lesser included offense is identified , the question remains whether the jury should be instructed on the lesser offense” (emphases added)
How later courts described this case
- stating that, “ [o]nce a lesser included offense is identified , the question remains whether the jury should be instructed on the lesser offense” (emphases added)
- testimony not admissible as lay opinion was admissible as expert opinion where witnesses, though not tendered as experts, were qualified
- "`[t]he lesser offense must have a broad foundation in the instrument charging the greater,' or at least `set out the main outline of the lesser offense'"
- "an accused may be convicted of an offense not expressly included in the charging instrument if that offense is a `lesser included offense' of the offense expressly charged"
Written by the judges who cited it.
Later courts went against this
Abrogated on other grounds by People v. Kolton, 219 Ill. 2d 353 (2006)
163 Ill. 2d at 102-03 , abrogated on other grounds by People v. Kolton, 219 Ill. 2d 353
The opinion
JUSTICE HEIPLE, dissenting:
The majority’s decision to sua sponte declare that the lay witnesses who inappropriately testified to their opinions at trial were expert witnesses is, quite simply, wrong. The State did not seek to have these men declared experts, did not argue to this court that they were de facto experts and, in fact, offered their testimony as lay witness opinion testimony. In this closely balanced case with diametrically conflicting evidence, the very damaging testimony of these witnesses may well have been the deciding factor in the jury’s ultimate decision to convict. I therefore respectfully dissent.
The State called, as rebuttal witnesses, Thomas Milanovich and Michael Lenti for the purpose of expressing their opinions as to whether defendant’s methods of training young athletes was a sound and correct method of training baseball players. Defendant objected, arguing that the men were not qualified to testify as experts.
The State responded to this objection by affirmatively stating that "we are not calling these people as witnesses with an expert background. We are calling them simply as people who have familiarity in the field of strength training and exercise.” The trial court asked, for clarification, "Specifically not coming in as experts?” The State responded, "Correct.”
Despite the State’s concession that these men were not being called as experts, they were allowed to: state their training techniques; review the documents that defendant testified he had relied upon; give their opinions that defendant’s theories of developing the arms of young baseball players were not sound; and give the reasons for their opinions.
The majority appropriately holds that these testimonies were inadmissible as lay witness opinion testimony. Under Federal Rule of Evidence 701, adopted by this court in Freeding-Skokie Roll-Off Service, Inc. v. Hamilton (1985), 108 Ill. 2d 217, 222 , a lay witness’ opinion testimony is limited to opinions or inferences that are rationally based on his perceptions and which are helpful to the trier’s understanding of the testimony or its determination of a fact in issue. The witnesses at issue did not base their disputes with defendant’s techniques from their first-hand impressions of his approaches, but rather on their readings of the literature offered by defendant and through the prosecutor’s hypothetical questions on the subject of strength training. These methods of offering opinions are expressly reserved for experts, and the majority properly rules that the testimonies could not be admitted in any other way.
The majority’s reasoning is that "[tjhrough education, training, experience, or a combination of each, these witnesses possessed knowledge that is not common to the average citizen. Further, this knowledge aided the jury in reaching its conclusion.” (163 Ill. 2d at 104.) In other words, the majority restates the necessary elements to demonstrate an expert’s qualification and then declares them met.
In the instant case, the State, for whatever reason, chose not to undertake the burden of demonstrating its witnesses’ qualifications as experts. One reason may have been that it would have been unable to do so, given the only marginal knowledge either witness had of baseball training. Because the witnesses were not offered as experts, defendant did not have the opportunity to cross-examine the witnesses for the purpose of challenging their certification as experts.
Finally, it cannot be said that defendant did not suffer prejudice. There was no physical evidence in this case, and the jury had substantial difficulty in reaching a verdict. Almost four hours after it retired to deliberate, it sent a note to the judge stating that it was hung. Two hours after that it sent another note stating that it was still hung. Still another 21/z hours elapsed, at which time the jury again sent a third note stating that it was hopelessly hung. The judge was discussing sequestration of the jury with counsel at the time the third note was sent and, before he could respond, the jury reached its verdict.
Because there was no physical evidence, the jury’s verdict was based solely on the credibility of the witnesses. The State’s so-called experts were the final two witnesses to testify in the trial, their testimonies were detailed and lengthy, and they served to discredit the defendant’s evidence. The prejudice of these improper testimonies is manifest and should compel this court to reverse defendant’s conviction.
As a second point of departure, I disagree with the majority that there was no error in refusing an instruction on aggravated criminal sexual abuse. I therefore join Justice Nickels’ dissent, where he persuasively demonstrates that this was an abuse of discretion.
I respectfully dissent.