Petition for Writ of Certiorari — Hoffer v. Illinois

Supreme Court brief1985

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85-128

No JUL 19 1985

‘| /{ Office-Supreme Court, Us.

FILED

In THE

Supreme Court of the Anited States

OcroserR TERM, 1985

DONALD S. HOFFER,

Petitioner,

Vs.

PEOPLE OF THE STATE OF ILLINOIS,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF ILLINOIS

RALPH RUEBNER, ESQ.

Associate Professor of Law,

The John Marshall Law School

315 South Plymouth Court

Chicago, Illinois 60604

(312) 427-2737 Ext. 568

Counsel of Record for Petitioner

Of Counsel:

RANDY K. JOHNSON, ESQ.

Aums & Mrier, Lr.

257 East Main Street, Suite 301

Barrington, Illinois 60010

(312) 381-3550

(Licensed to Practice before

the Supreme Court of Illinois)

Midwest Law Printing Co., Chicago 60611, (312) 321-6220

QUESTION PRESENTED FOR REVIEW

Do the principles of implied acquittal and collateral

estoppel, which are embodied in the double jeopardy

clause of the Fifth Amendment, prohibit the retrial of a

defendant for murder where (1) a jury had previously

found him guilty of involuntary manslaughter and volun-

tary mansiaughter (which are lesser-included offenses of

murder) and murder; (2) the state supreme court found

that the jury verdicts on the lesser-included offenses were

logically and legally inconsistent with the verdict on the

greater offense; and (8) there is abundant evidence in the

record to support the jury’s verdict finding the defendant

guilty of the least culpable lesser-included offense?

TABLE OF CONTENTS

PAGE(S)

QUESTION PRESENTED FOR REVIEW ... i

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TABLE OF AUTHORITIES ................. iii

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STATEMENT OF JURISDICTION ..........

CONSTITUTIONAL PROVISIONS

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STATEMENT OF THE CASE ...............

THE MANNER IN WHICH THE

FEDERAL CONSTITUTIONAL CLAIMS

po eer ere oe 7

REASONS FOR GRANTING CERTIORARI ..

CAPIUUASUEE os cnc venncnsbuabacseneeaealaas 16

APPENDIX

A—Opinion of the Illinois Appellate Court ..... Al- Al7

B—Opinion of the Illinois Supreme Court .. B1l- B13

C—Order of the Illinois Supreme Court, May

31, 1985, Denying Rehearing, and Stay

Order, Gene TE, TE x acs av iccdcaveicans C1-C3

D—Jury Instructions and Verdicts ......... D1 - D12

TABLE OF AUTHORITIES

Cases PAGE(S)

Ashe v. Swenson, 397 U.S. 486 (1970) ..... 11, 14, 15

Green v. United States, 355 U.S. 184 (1957) ... 18, 14, 16

Ohio v. Johnson, ___. U.S. ____, 81 L.Ed. 2d 425

Ee othe Ssh eae ewe tea buh a epee 6 16

People v. Hairston, 46 Ill. 2d 348, 263 N.E. 2d 840

EE oe ss eee eee eee eee 15

People v. Hoffer, 122 Ill. App. 3d 18, 460 N.E. 2d

eye wk kb eo 6N8S 8% 88 08 2,15

People v. Hoffer, 106 Ill. 2d 186, 478 N.E. 2d 335

eens bec 6 ness 00 008 65s 2, 10, 11, 12

Price v. Georgia, 398 U.S. 323 (1970) ...... 12, 18, 14

State v. Akers, 278 Mo. 368, 213 S.W. 424 (1919) . 15

United States v. Powell, ___. U.S. ____ , 105 S.Ct.

CE CGR G ACER EN S24 N 645 cb Seb aceancie's 8,9

Constitutional Provisions

Ee oc cca ca nces asus 3, 8, 9, 12, 18, 14, 15, 16

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V aa

In THE

Supreme Court of the Gnited States

Octoser TERM, 1985

DONALD S. HOFFER,

Petitioner,

Vs.

PEOPLE OF THE STATE OF ILLINOIS,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF ILLINOIS

INTRODUCTION

To the Chief Justice of the United States and to the

Associate Justices of the Supreme Court of the United

States:

May It Please The Court:

Donald S. Hoffer, Petitioner, respectfully prays that a

Writ of Certiorari issue to review the decision and judg-

ment of the Illinois Supreme Court.

snillicin

OPINIONS BELOW

Donald Hoffer was convicted by a jury of murder, volun-

tary manslaughter, and involuntary manslaughter in the

Circuit Court of Kane County, Illinois. Following post-trial

motions, the trial court vacated the judgments of convic-

tion of voluntary and involuntary manslaughter and sen-

tenced Hoffer to a twenty year prison term. On appeal,

the Illinois Appellate Court, Second District, reversed all

three convictions and remanded the cause for a new trial

finding that the verdicts on the two lesser-included offenses

(voluntary manslaughter and involuntary manslaughter)

were legally and logically inconsistent with the verdict on

the greater offense (murder). See People v. Hoffer, 122

Ill. App. 3d 18, 460 N.E.2d 824 (1984), attached as Ap-

pendix A. Hoffer and the People appealed to the Illinois

Supreme Court. The Illinois Supreme Court concluded

that the jury verdicts were legally and logically inconsis-

tent, and affirmed the Appellate Court by reversing the

murder conviction and remanding the cause for a new

trial. See People v. Hoffer, 106 Ill. 2d 186, 478 N.E.2d

235 (1985). See opinion attached as Appendix B.

The Illinois Supreme Court denied Hoffer’s petition for

rehearing on May 31, 1985, without further opinion. See

Appendix C.

alii

STATEMENT OF JURISDICTION

The judgment of the Illinois Supreme Court was entered

on March 29, 1985. A Petition for Rehearing was filed

timely and was denied without further opinion on May

31, 1985. This Petition is filed within sixty (60) days of

the Illinois Supreme Court’s order denying rehearing.

The jurisdiction of this Court is invoked under 28 U.S.C.

Sec. 1257(8).

CONSTITUTIONAL PROVISIONS INVOLVED

United States Constitution

Amendment V

No person shall be held to answer to a capital, or other-

wise infamous crime, unless on a presentment or indict-

ment of a Grand Jury, except in cases arising in the land

or naval forces, or in the Militia, when in actual service

in time of War or public danger; nor shall any person be

subject for the same offence to be twice put in jeopardy

for life or limb; nor shall be compelled in any criminal

case to be a witness against himself, nor be deprived of

life, liberty, or property, without due process of law; nor

shall private property be taken for public use, without

just compensation.

Amendment XIV

Section 1. All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are citi-

zens of the United States and of the State wherein they

aifien

reside. No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person of

life, liberty, or property, without due process of law; nor

deny to any person within its jurisdiction the equal pro-

tection of the laws.

STATEMENT OF THE CASF

Donald Hoffer was charged by indictment with three

counts of murder. (Ill. Rev. Stat., ch. 38, sees. 9-1(aX1),

9-1(aX2)) After a jury trial, the jury returned signed guilty

verdicts for murder (Ill. Rev. Stat., ch. 38, sees. 9-1(aX1),

9-1(aX2) (1981)); voluntary manslaughter (Ill. Rev. Stat.,

ch. 38, sec. 9-2(b) (1981)); and involuntary manslaughter

(Ill. Rev. Stat., ch. 38, sec. 9-3(a) (1981)). (Vol. I, C.

159-161) The trial court entered judgment on each ver-

dict. (Vol. I, C. 177) Defense counsel filed post-trial mo-

tions in which he argued that the three verdicts were

legally and logically inconsistent requesting that the

judgments entered by the trial judge on murder and

voluntary manslaughter be vacated and thereby allowing

the judgment of conviction for involuntary manslaughter

to remain intact. (Vol. I, C. 181-183; 195-199) After hear-

ing the post-trial motions, the trial court vacated the

judgments of conviction of voluntary manslaughter and

involuntary manslaughter, entered judgment on the murder

verdict, and sentenced Donald Hoffer to a prison term

of twenty years.

On May 18-19, 1982, Catherine Einsiedel, Donald Hoffer’s

sister, was living with him and her daughter, Shannon.

(R. 208-210) Harold (Ed) Peters, the deceased, was the

—

father of Shannon. Einsiedel and Peters lived together for

three years, (R. 208-210) but she moved into Donald

Hoffer’s home whenever she and Peters fought. (R. 379)

On the evening of May 18, 1982, Tony Charbauski visited

Einsiedel. (R. 212, 213) While Charbauski and Einsiedel

were upstairs in her bedroom, Peters came into the house

by removing a window. (R. 213, 237) Peters went upstairs

and discovered the two. He became angry and tried to

get Charbauski to fight. (R. 488) As Charbauski left the

house, Peters threatened and attempted to kick him. (R.

438, 440) Peters came back into the house when Einsiedel

informed him that she wanted to end their relationship.

(R. 215) Peters broke the dust cover of Donald Hoffer’s

stereo, told Einsiedel he would pay the damage, gave her

some money, and left. (R. 216)

Donald Hoffer arrived home approximately one-half hour

later. (R. 217) Hoffer and Peters were friends and Hoffer

was aware of his sister’s relationship with Peters. (R. 390)

Hoffer also knew that Peters possessed guns and was

skilled in the use of firearms. Peters had previously

threatened or spoken of threatening people, including

Donald Hoffer, with guns. (R. 393, 394, 407, 423-425) He

also knew that Peters became much more violent when

he had been drinking. (R. 398) When Hoffer arrived home

that night, Einsiedel told him of the incident with Peters.

(R. 403, 384) Hoffer told her he was tired of Ed’s con-

duct. (R. 390) Peters had been calling or coming to the

house two or three times per week, usually in an intoxi-

cated state, in the middle of the night. (R. 391)

Hoffer went to bed and had begun to doze off when

he heard Peters’ truck pull up. (R. 391) Hoffer got up.

Feeling that he should be prepared if Peters had a weapon,

he told Einsiedel that Peters was there. (R. 392, 393)

Donald Hoffer testified that at this time he was afraid

for himself, Einsiedel, and Shannon. He got his shotgun

and went downstairs. (R. 392-394, 426, 430, 432) Hoffer

opened the house door and saw Peters leaning against the

porch rail. (R. 395) Peters was wearing a tucked in T-

shirt and jeans, standing about five feet from Hoffer. (R.

222) They had a brief conversation about the dust cover

and then Peters asked to talk to Einsiedel. (R. 396) Ein-

siedel indicated that she did not want to speak with him,

and Hoffer told him to leave. (R. 397) Hoffer thought

Peters was intoxicated. Peters became angry, turned

around, started walking down the steps, put his hands

up in the air, and made a remark about Hoffer shooting

him. (R. 397-399) As Peters turned around, Einsiedel

called Hoffer’s name and said “Don’t shoot.” (R. 399) [t

is unclear from the record whether Einsiedel was direct-

ing this remark to Hoffer or to Peters. According to Ein-

siedel, Hoffer’s gun was in the “aim” position when he

shot Peters. (R. 227) She testified that before the shoot-

ing Peters had a cigarette in his hand and his arms were

raised in the air. (R. 223) On cross-examination, Einsiedel

said she could not see Peters for a few seconds, just prior

to the shooting, because she was looking at her brother

and at the gun. (R. 250, 262) For a n.onth preceding the

shooting, Peters carried a pocket knife in a holster on his

belt. (R. 263)

Hoffer testified that he had turned toward his sister’s

voice as Peters walked down the steps. (R. 399) Hoffer

then turned and looked back at Peters. He saw him lower

his hands and begin to turn around, a movement which

made Hoffer think that Peters was going to get a gun.

(R. 399) At that time, Hoffer’s shotgun was leaning against

his shoulder and was pointing straight up into the air.

(R. 398) When he saw Peters’ movement, Hoffer lowered

the shotgun and began to pull it to his shoulder. At that

point the gun discharged. (R. 399) Hoffer testified that

he did not aim the gun. (R. 418) He also said that before

the gun went off Peters was facing him. (R. 400)

An aucopsy was performed by Dr. James Habegger of

Aurora, Illinois. It revealed that Peters had been shot

once in the side of the back. (R. 345, 346, 357) On cross-

examination, Dr. Habegger agreed that variables other

than the position of the body affect the trajectory of a

bullet. (R. 360) It was the physician’s opinion that Peters

was shot from a lower level or that he was bending down

when the bullet struck him. (R. 348) Hoffer also testified

that Peters “had dropped down like he was going for

something.” (R. 400) Peters’ blood alcohol leve! at the time

- of his death was .197 and his urine alcohol level was .231.

(R. 362)

The jury was ins ructed on murder, voluntary man-

slaughter, and involuntary manslaughter. (R. 597-693) See

Appendix D.

THE MANNER IN WHICH THE FEDERAL

CONSTITUTIONAL CLAIMS WERE RAISED

The fifth amendment double jeopardy claim was first

raised in the trial court in Donald Hoffer’s post-trial mo-

tions. This was Petitioner’s first opportunity to raise his

claim. He next presented it to the Illinois Appellate Court,

Second District, and lastly to the Illinois Supreme Court.

At no time has Hoffer requested a new trial. His request

for relief has been consistent throughout the proceedings

below. Rather than seeking a new trial on murder and

on the lesser-included offenses of voluntary manslaughter

and involuntary manslaughter, he has asserted that the

double jeopardy clause protects the jury verdict finding

him guilty of involuntary manslaughter. He has main-

tained that he is entitled to an enforcement of that ver-

dict without a new trial. That can be accomplished by

remanding the case to the trial court for imposition of

sentence on the involuntary manslaughter verdict and

judgment.

REASONS FOR GRANTING CERTIORARI

This petition raises a question of first impression for

this Court to consider. The opinion of this Court in United

States v. Powell, __. U.S. ___., 105 S.Ct. 471 (1984),

reserved this precise question for future consideration. We

ask this Court to determine whether principles of implied

acquittal and collateral estoppel and the fifth amendment

double jeopardy clause prohibit the retrial of a defendant

for murder, where a jury had previously found him guilty

of involuntary manslaughter and voluntary manslaughter,

both lesser-included offenses of murder under state law,

and murder; the state supreme court found that the jury

verdicts on the lesser-included offenses were logically and

legally inconsistent with the murder verdict; and there

is abundant evidence in the record to support the jury’s

verdict finding the defendant guilty of the least culpable

lesser-included offense, namely, involuntary manslaughter.

Justice Rehnquist, who delivered the opinion of the

Court in United States v. Powell, stated:

ailline

“Nothing in this opinion is intended to decide the

proper resolution of a situation where a defendant

is convicted of two crimes, where a guilty verdict on

one count logically excludes a finding of guilt on the

other.” (Citations omitted)

United States v. Powell, 105 S.Ct. at 479, fn. 8. This is

precisely the situation here. Powell simply held that when

a jury acquitted the defendant of conspiracy to possess

cocaine and possession of cocaine but found her guilty of

using the telephone to facilitate those offenses, ‘‘there is

no reason to vacate [defendant’s] conviction merely be-

cause the verdicts cannot rationally be reconciled.” Jd. at

479. Powell did not address the proper resolution of in-

consistent guilty verdicts in a situation where a convic-

tion on a lesser-included offense logically and legally ex-

cludes a conviction on the greater offense. Here, the in-

voluntary manslaughter verdict is legally and logically in-

consistent with both the murder verdict and the volun-

tary manslaughter verdict. It logically and legally excludes

a finding of guilt on the two greater offenses. The evi-

dence abundantly supports the jury verdict finding Hoffer

guilty of involuntary manslaughter. That verdict must be

given constitutional respect, and the remand order for a

new trial for murder violates double jeopardy principles.

Under Illinois law, correctly stated by the Illinois Su-

preme Court in the case at bar, voluntary manslaughter

is a lesser-included offense of murder, and involuntary

manslaughter is a lesser-included offense of murder and

of voluntary manslaughter. The Illinois Supreme Court

also found that the offenses here are distinguished only

by the diminishing degree of mental culpability necessary

to sustain each, and that these mental states are mutually

inconsistent.

An “included offense” is defined in Illinois as an

offense which ‘i]s established by proof of the same

or less than all of the facts or a less culpable mental

state (or both), than that which is required to estab-

lish the commission of the offense charged * * *.”

(Ill. Rev. Stat. 1981, ch. 38, par. 2-9(a).) The offenses

of murder, voluntary manslaughter and involuntary

manslaughter are distinguished only by the diminish-

ing degree of mental culpability necessary to sustain

each. While murder and voluntary manslaughter (un-

reasonable belief) both require proof of intent or

knowledge (Ill. Rev. Stat. 1981, ch. 38, pars. 9-1(aX1),

9-1(aX2), 9-2(b)), the offense of voluntary manslaughter

is committed only when the defendant acts with an

unreasonable belief that the killing was justified. This

mental state is considered less culpable, and, as such,

voluntary manslaughter is considered an included of-

fense of murder. Similarly, involuntary manslaughter

is considered an included offense of voluntary man-

slaughter and murder because it involves an uninten-

tional killing of a human being without lawful justifi-

cation while recklessly performing acts which are like-

ly to cause death or great bodily harm. Ill. Rev. Stat.

1981, ch. 38, par. 9-3(a).

The mental states involved in each of these offenses

are mutually inconsistent. Where a determination is

made that one exists, the others, to be legally con-

sistent, must be found not to exist. This is made

especially clear in the instant case, where the jury

received an issue instruction on murder which re-

quired the State to prove that the defendant did not

believe that circumstances existed which justified the

use of force. (IPI Criminal No. 27.01 (7.02 and 25.05)

(1968).) By finding the defendant guilty of murder,

therefore, the jury specifically found that defendant

did not believe his conduct was justified. At the same

time, by finding him guilty of voluntary manslaughter,

the jury determined that he did believe, although

unreasonably, that his conduct was justified. Addi-

tionally, the jury concluded that the defendant killed

another, intentionally or knowingly (murder, volun-

tary manslaughter) while simultaneously finding that

defendant recklessly but unintentionally caused the

death of the victim (involuntary manslaughter). (Em-

phasis in original).

People v. Hoffer, 106 Ill. 2d 186, 194-195 (1985).

While Hoffer agrees with the foregoing analysis, he dis-

agrees with the Illinois Supreme Court’s new trial order

and the rejection of his implied acquittal and collateral

estoppel claims. The Illinois Supreme Court stated its con-

clusions this way:

1. IMPLIED ACQUITTAL

To apply this rationale [of implied acquittal] to the

facts of the instant case is to ignore the jury’s ex-

press findings of guilt as to the offenses of murder

and voluntary manslaughter. We agree with the ap-

pellate court, therefore, that, under the circumstances

of this case, application of the doctrine of implied ac-

quittal would be fictional.

People v. Hoffer, 106 Ill. 2d at 198.

2. COLLATERAL ESTOPPEL

Defendant further argues that the principle of col-

lateral estoppel, which is embodied in the double

jeopardy clause (Ashe v. Swenson (1970), 397 U.S.

436, 25 L.Ed. 2d 469, 90 S.Ct. 1189), bars defendant’s

retrial for murder and voluntary manslaughter. The

court in Ashe stated that the principle of collateral

estoppel “means simply that when an issue of

ultimate fact has once been determined by a valid

and final judgment, that issue cannot again be liti-

gated between the same parties in any future law-

suit.” (897 U.S. 436, 448, 25 L.Ed. 2d 469, 475, 90

S.Ct. 1189, 1194.) Defendant maintains that in find-

ing him guilty of involuntary manslaughter, the jury

found that he had acted unintentionally and reck-

lessly. Thus, defendant concludes, this factual find-

ing negates the accusa‘ion that he acted with intent

or knowledge and estops the State from relitigating

those mental states anew.

The jury, in the instant case, had to make a fac-

tual determination as to the mental state of the

defendant at the time of the homicide. By finding

defendant guilty of the charged offense as well as

the two included offenses, the jury necessarily found

that the defendant possessed three distinct and

mutually inconsistent mental states at the time of the

offense. As such, we found the verdicts legally in-

consistent. Implicit in the rule of law which requires

a new trial when multiple guilty verdicts are legally

inconsistent is the invalidity of the underlying fac-

tual findings upon which the verdicts were made. In

the instant case, there has been no valid and final

judgment and thus no ultimate factual determination

upon which to rely for purposes of collateral estoppel.

People v. Hoffer, 106 Ill. 2d at 198-199.

The Illinois Supreme Court’s implied acquittal analysis

is fuulty for the following reasons. The ultimate finding

by the trier of fact in this case, Donald Hoffer’s jury,

based on the evidence marshalled by the prosecutor and

the defense, is that Hoffer had acted recklessly and un-

intentionally, and therefore, is guilty of involuntary man-

slaughter. Inasmuch as the ultimate finding by the jury

is that the defendant had acted recklessly and uninten-

tionally, the guilty verdict for involuntary manslaughter

logically and legally excludes guilt on the greater offenses

of voluntary manslaughter and murder. This verdict there-

by operates as an implied acquittal of murder and volun-

tary. manslaughter. The double jeopardy clause protects

the integvity and validity of that verdict and the reprose-

cution of Donald Hoffer for murder violates that basic

right. Price v. Georgia, 398 U.S. 323, 328-329 (1970) The

= Ss

Illinois Supreme Court’s determination that the ‘implied

acquittal” doctrine is inapplicable where a jury returns

a verdict of guilty on a greater offense in addition to find-

ing the defendant guilty of lesser-included offenses is con-

stitutionally wrong because “{t]he Double Jeopardy Clause

. Is cast in terms of the risk or hazard of trial and

conviction, not of the ultimate legal consequences of the

verdict.” Price v. Georgia, 398 U.S. at 331.

It is Donald Hoffer’s position that whether or not the

jury was “silent” on the greater offenses is totally irrele-

vant to the double jeopardy analysis required in this case.

The legally significant factor is the ultimate finding by

the jury that Hoffer acted recklessly and unintentionally,

and this factual finding conclusively negates and excludes

statutory elements necessary to sustain a conviction on

the greater offenses. This comports with the teaching of

this Court in Price v. Georgia, 398 U.S. 323 (1970). In

Price, the defendant was tried for murder but found guilty

of voluntary manslaughter. Following reversal of that con-

viction on appeal, he was retried for murder. Once again

he was found guilty of voluntary manslaughter. He ap-

pealed his conviction on double jeopardy grounds, alleg-

ing that he had suffered prejudice by being retried for

murder, notwithstanding the fact that his jury was

“silent” on the murder verdict form. In discussing the

“implicit acquittal’ rule of Green v. United States, 355

U.S. 184 (1957), the Price Court noted:

First, the [Green] Court considered the first jury’s

verdict of guilty on the second-degree murder charge

to be an “implicit acquittal” on the charge of first-

degree murder. Second, and more broadly, the Court

reasoned that petitioner’s jeopardy on the greater

charge had ended when the first jury “was given a

full opportunity to return a verdict” on that charge

and instead reached a verdict on the lesser charge.

(citation omitted) Under either of these premises, the

om we

holding in the Kepner case—that there could be no

appeal from an acquittal because such a verdict ended

an accused’s jeopardy—was applicable.

Price v. Georgia, 398 U.S. at 328-329. (Burger, C.J.) (em-

phasis added).

Under either premise, the jury verdict finding Donald

Hoffer guilty of involuntary manslaughter must be pro-

tected without any qualification as to whether or not the

jury remained “silent” on the greater offenses of murder

or voluntary manslaughter. The double jeopardy clause

must be read broadly and liberally. “The right not to be

placed in jeopardy more than once for the same offense

is a vital safeguard in our society, one that was dearly

won and one that should continue to be highly valued.

If such great constitutional protections are given a nar-

row, grudging application they are deprived of much of

their significance.” Green v. United States, 355 U.S. at

198.

The Illinois Supreme Court is also wrong in rejecting

Donald Hoffer’s collateral estoppel argument. The finding

of guilty by the jury of involuntary manslaughter negates

and excludes the charge that Hoffer had acted with in-

tent or knowledge, which are necessary elements of mur-

der and voluntary manslaughter, respectively. It also

estops the State of Illinois from litigating those mental

states anew. Ashe v. Swenson, 397 U.S. 486, 443 (1970).

In Ashe, this Court recognized that the double jeopardy

clause embodies the principle of collateral estoppel. “It

means simply that when an issue of ultimate fact has once

been determined by a valid and final judgment, that issue

cannot again be litigated between the same parties in any

future lawsuit.” This Court warned that “({tJhe rule of col-

lateral estoppel in criminal cases is not to be applied with

the hypertechnical and archaic approach of a 19th century

pleading book, but with realism and rationality.” Ashe v.

Swenson, 397 U.S. at 444. In deciding whether to apply

principles of collateral estoppel, the reviewing court must

“examine the record . . . and conclude whether a rational

jury could have grounded its verdict upon an issue other

than that which the defendant seeks to foreclose from con-

sideration.”’ Ashe v. Swenson, 397 U.S. at 444 (emphasis

added). It is abundantly clear that there is an adequate

factual basis in this record for the jury’s verdict finding

Donald Hoffer guilty of involuntary manslaughter. The IlIli-

nois Appellate Court determined that there is a factual

basis in this record to support the jury’s involuntary man-

slaughter verdict. See People v. Hoffer, 122 Ill. App. 3d

13, 460 N.E. 2d 824, 825 (1984). Hoffer’s testimony also

supports the jury’s verdict:

“When I saw him turn around and reach like he

was reaching up for a gun, I then lowered the shot-

gun down, reaching up with my other hand to grab

the stock and bringing it down. I went down kind

of lower and pulled back to my shoulder, which in

pe the gun went off.” (R. 399) “I didn’t aim.” (R.

418

Under these circumstances, collateral estoppel should be

applied to prevent the retrial of Donald Hoffer.

Finally, the Illinois Supreme Court’s rationale for re-

jecting the collateral estoppel claim is archaic and con-

stitutionally wrong because it rests upon a faulty “mutu-

ality” of verdicts theory. The court cited its own prece-

dent first stated in People v. Hairston, 46 Ill. 2d 348, 263

N.E. 2d 840, 849 (1970), citing State v. Akers, 278 Mo.

368, 213 S.W. 424, 425 (1919). The application of a “‘mu-

tuality” analysis is totally at odds with modern double

jeopardy jurisprudence and was put to rest by this Court

in Ashe v. Swenson, 397 U.S. at 448. Clearly, the prin-

ciples of collatera’ estoppel as embodied in the double

jeopardy clause forbid the retrial of Donald Hoffer.

=~" a

CONCLUSION

This Court has stated that a prosecutor should be al-

lowed one full and fair opportunity to marshall all the evi-

dence he has on the greater and lesser-included offenses

for the factfinder to consider and to render judgment.

Ohio v. Johnson, __. U.S. ___, 81 L.Ed. 2d 425, 435

(1984). Here, the State of Illinois was indeed allowed that

opportunity and its interests were fully satisfied. To now

allow the State of Illinois to once again force Donald Hof-

fer to run the gauntlet on a murder charge would violate

the “letter and spirit” of the double jeopardy clause.

Green v. United States, 355 U.S. at 198.

For the reasons stated herein, Donald S. Hoffer respect-

fully prays that a Writ of Certiorari issue to the Supreme

Court of Illinois.

Respectfully submitted,

RALPH RUEBNER, ESQ.

Associate Professor of Law,

The John Marshall Law School

315 South Plymouth Court

Chicago, Illinois 60604

(312) 427-2737 Ext. 568

Counsel of Record for Petitioner

Of Counsel:

RANDY K. JOHNSON, ESQ.

Atms & MILLER, LTD.

257 East Main Street, Suite 301

Barrington, Illinois 60010

(312) 381-3550

(Licensed to Practice before

the Supreme Court of Illinois)

APPENDIX A

THE PEOPLE OF THE STATE OF ILLINOIS,

Plaintiff-Appellee,

DONALD HOFFER,

Defendant-Appellant.

Second District No. 82-888

Reversed and remanded.

Opinion filed February 22, 1984.

* * *

JUSTICE HOPF delivered the opinion of the court:

Following a jury trial in the circuit court of Kane Coun-

ty verdicts were returned finding defendant guilty of

murder (Ill. Rev. Stat. 1981, ch. 38, par. 9-1(aX1)), volun-

tary manslaughter (unreasonable belief) (Ill. Rev. Stat.

1981, ch. 38, par. 9-2(b)), and involuntary manslaughter

(Ill. Rev. Stat. 1981, ch. 38, par. 9-3(a)), all in conneccion

with the shooting death of Harold E. Peters. The trial

court entered judgment on each of the verdicts, and defen-

dant thereafter filed his timely post-trial motion assert-

ing that the verdicts were inconsistent because of the dif-

ferent mental states involved in each offense. The trial

court subsequently denied the motion, vacated the con-

victions for voluntary manslaughter and involuntary man-

slaughter, and retained the judgment for the conviction

of murder, sentencing defendant to 20 years’ imprison-

ment.

Defendant appeals, contending that his constitutional

rights to be free of double jeopardy (U.S. Const., amend.

V; Ill. Const. 1970, art. I, sec. 10) were violated when

the court entered a judgment and sentenced him upon a

charge of which he was impliedly acquitted. On this basis,

he seeks to have the murder conviction vacated and the

involuntary manslaughter conviction reinstated. We will

consider this issue as well as a related one which we per-

ceive to be even more troublesome; 1.e., whether the jury

verdicts were inconsistent so as to require reduction of

defendant’s offense or reversal of his conviction.

Harold Peters, referred to at trial as “Ed,” had been

romantically involved with defendant’s sister, Catherine

Einsiedel, and was the father of Einsiedel’s daughter,

Shannon. Einsiedel had lived with Peters intermittently

over the course of their three-year relationship, remov-

ing herself to defendant’s home when she and Peters

fought. At the time of the homicide, Einsiedel had left

Peters, and she and Shannon had been staying with defen-

dant for three or four months. However, Einsiedel con-

tinued to maintain some relationship with Peters.

On the evening of May 18, 1982, Einsiedel received a

visit from Tony Charbauski. While Charbauski and Ein-

siedel were upstairs in her bedroom, Peters came into the

house, admitting himself through a window. Peters went

upstairs, and upon finding Einsiedel and Charbauski, be-

came agitated and tried to get Charbauski to fight. As

Charbauski was leaving the house, Peters threatened and

attempted to kick him. When Peters came back inside the

house, Einsiedel informed him that she wanted to end

their relationship. As Peters left, he broke the dust cover

of defendant’s stereo, told Einsiedel he would pay for the

damage, and gave her some money.

Defendant returned home approximately one-half hour

later. Defendant and Peters were close friends, and defen-

dant was aware of the relationship and problems between

SE NN A

Einsiedel and Peters. Defendant knew Peters possessed

guns, was skilled in the use of firearms, and previously

threatened or spoke of threatening people, including defen-

dant, with guns. Defendant testified that Peters was much

more violent when he had been drinking. When defendant

arrived home on the night in question, Einsiedel told him

of the incident with Peters. Defendant indicated that he

was sick of such behavior by Peters. Peters had been call-

ing or coming to the house two or three times per week,

usually in an intoxicated state, in the middle of the night.

Defendant testified that he went to bed and had started

to fall asleep when he heard Peters’ truck pull up. Defen-

dant got up, feeling that he should be prepared if Peters

attempted to break in, and told Einsiedel that Peters was

there. Defendant, who testified that he was afraid for him-

self, Einsiedel, and Shannon, got his shotgun and went

downstairs. When he opened the door, defendarit found

Peters outside, leaning against the porch rail. Peters was

wearing only a tucked-in T-shirt and jeans, and was stand-

ing about five feet from defendant. After a brief conver-

sation with defendant about the dust cover, Peters asked

to talk to Einsiedel. According to defendant, Einsiedel,

who had followed defendant downstairs, indicated that she

did not want to speak with Peters, and defendant told

Peters to leave. Peters, who defendant thought was intoxi-

cated, became angry. Peters turned around and started

walking down the steps, putting his hands up in the air,

and making some remark about defendant shooting him.

What occurred next is in conflict.

Einsiedel testified that as Peters turned around, she

yelled at her brother not to shoot, the shotgun then went

off and Peters fell to the ground. When asked what was

the position of the gun as defendant shot Peters, the wit-

ness indicated it was in an “aim” position. According to

Einsiedel, Peters had only a cigarette in his hand at the

time, and his arms were raised up in the air. She testi-

fied that Peters fell about five feet from where he was

originally standing on the proch. Einsiedel ran over to

Peters; she did not see any weapons on or near him.

Peters was pronounced dead by paramedics who arrived

on the scene shortly thereafter. On cross-examination, Ein-

siedel stated she could not see Peters for a few seconds

just prior to the shooting because she was looking at her

brother and the gun. She stated for the month preceding

the shooting Peters had carried a pocket knife in a holster

on his belt.

Defendant testified that as Peters began walking down

the porch steps, defendant got worried and removed the

safety device from the shotgun. Immediately before the

shot was fired, defendant heard his sister say, ‘Don.’

Defendant started to turn towards her and she said,

“Don’t shoot!” Defendant turned and looked back at

Peters and saw him lower his hands and begin to turn

around, a movement which made defendant think that

Peters was going to get a gun. Defendant testified that

at that time the shotgun was leaning against his shoulder

and was pointing straight up into the air. Upon seeing

Peters’ movement, defendant lowered the shotgun and

began to pull it to his shoulder, at which time the gun

discharged. Defendant stated he did uot aim the gun. He

stated that before the gun went off, Peters was facing

him. An autopsy revealed that Peters had been shot once

in the back.

The jury was instructed on murder, voluntary man-

slaughter, and involuntary manslaughter. The issues in-

structions on voluntary manslaughter required the jury

to find that defendant believed, albeit unreasonably, that

~ circumstances existed which justified his use of force.

(Illinois Pattern Jury Instruction (IPI), Criminal, No. 27.01

(2d ed. 1981).) The issue of defendant’s belief was also sub-

mitted as part of the issues instruction for murder and

required the jury to find that defendant did not believe

justifying circumstances existed. (IPI Criminal No. 27.01

(1968).) Finally, the jury was instructed that by defini-

tion the offense of involuntary manslaughter was an un-

intentional one, although a lack of intent was not included

as an issue in the issues instruction on that offense. (IPI

Criminal Nos. 7.07, 7.08 (2d ed. 1981); Ill. Rev. Stat. 1981,

ch. 38, par. 9-3(a).) Guilty verdicts were returned on each

of these charges, and defendant was sentenced only upon

the greater offense of murder. The convictions for volun-

tary manslaughter and involuntary manslaughter were

vacated.

Because of the constitutional ban against double jeop-

ardy (U.S. Const., amends. V, XIV; Ill. Const. 1970, art.

I, sec. 10), multiple prosecutions or punishments for the

same offense are barred. (Ill. Rev. Stat. 1981, ch. 38, par.

3-4(a); Illinois v. Vitale (1980), 447 U.S. 410, 65 L. Ed.

2c 228, 100 S. Ct. 2260.) As a corollary to this principle,

the Criminal Code of 1961 provides that “[a] conviction of

an included offense is an acquittal of the offense charged.”

(Ill. Rev. Stat. 1981, ch. 38, par. 3-4(a).) It is well estab-

lished that voluntary manslaughter and involuntary man-

slaughter are lesser included offenses of murder (People

v. Fausz (1983), 95 Ill. 2d 5385, 449 N.E.2d 78; People v.

Arndt (1972), 50 Ill. 2d 390, 280 N.E.2d 230; People v.

Ellis (1982), 107 Ill. App. 3d 603, 487 N.E.2d 409; People

v. Cowen (1979), 68 Ill. App. 3d 487, 386 N.E.2d 435), and

involuntary manslaughter is a lesser included offense of

voluntary manslaughter. (People v. Towers (1974), 17 II.

App. 3d 467, 308 N.E.2d 223.) Defendant therefore con-

tends that his conviction of involuntary manslaughter

operated as an acowittal of the charges of murder and

voluntary manslaughter and that convicting and sentenc-

ing defendant for murder violated his constitutional right

to be free from double jeopardy. We disagree.

This identical argument was considered and rejected by

the court in People v. Kettler (1983), 112 Tll. App. 3d 1061,

1067, 446 N.E.2d 550. Noting that a jury may, and fre-

quently does, return guilty verdicts upon both the charged

offense and its lesser included offense (see People ex rel.

Carey v. Scotillo (1981), 84 Ill. 2d 170, 417 N.E.2d 1356;

People v. Bone (1982), 103 Ill. App. 3d 1066, 432 N.E.2d

329; People v. Burnette (1981), 97 Ill. App. 3d 1015, 423

N.E.2d 1193), the court concluded that section 3-4(a) of the

Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 3-4

(a)) applies only to those instances where the jury returns

a verdict upon the lesser offense and is silent as to the

charged offense. (People v. Kettler (1983), 112 Ill. App.

3d 1061, 1067, 446 N.E.2d 550; see also People v. Keith

(1978), 66 Ill. App. 3d 93, 383 N.E.2d 655; People v.

Roberts (1976), 36 Ill. App. 3d 811, 345 N.E.2d 132.) In

this situation, the jury’s silence on the greater offense

will be deemed an “implied acquittal” of that offense.

Green v. United States (1957), 355 U.S. 184, 2 L. Ed. 2d

199, 78 S. Ct. 221.

We agree with the reasoning of the Kettler decision and

accordingly find no “implied acquittal’ of either murder

or voluntary manslaughter in the instant case. Here, the

jury was not silent on either of these offenses but, to the

contrary, returned a specific finding of guilt on each of

them. Under these circumstances, “‘the dovtrine of ‘im-

plied acquittal’ would be literally fictional.” People v.

Kettler (1983), 112 Ill. App. 3d 1061, 1067, 446 N.E.2d 550;

see also People v. Krogul (1983), 115 Ill. App. 3d 734, 737,

450 N.E.2d 20.

We reach this conclusion mindful of several recent cases

which at first glance appear to support defendant’s posi-

tion that the “implied acquittal’ doctrine applies here. We

find those cases distinguishable. In People v. Stuller

(1979), 71 Ill. App. 3d 118, 389 N.E.2d 593, the jury was

instructed on both murder and unreasonable belief volun-

tary manslaughter. The issues instruction for voluntary

manslaughter required the jury to find that defendant be-

lieved circumstances existed which justified his actions.

The issues instruction for murder, however, omitted the

element required under these circumstances, that defen-

dant did not believe justifying circumstances existed.

(Stuller; see also People v. Vega (1982), 107 Ill. App. 3d

289, 4837 N.E.2d 919.) The jury returned verdicts of guilty

on both the murder and voluntary manslaughter charges.

The trial judge vacated the voluntary manslaughter ver-

dict and entered judgment on the murder conviction. On

appeal, the murder conviction was reversed and the cause

remanded to the circuit court with instructions to enter

a finding of guilty of voluntary manslaughter and to im-

pose an appropriate sentence. The appe!!ate court rea-

soned that the specific finding on the voluntary man-

slaughter count that defendant believed justifying circum-

stances existed, which finding was supported by sufficient

evidence, negated the requisite intent :or murder. We

view the Stuller decision as limited to its facts and do

not believe it stands for the broad proposition now ad-

vanced that conviction of a lesser included offense auto-

matically negates the requisite intent for the greater in-

clusive offense. Rather, we consider the Stuller rationale

to apply in those instances where the jury has made a

specific factual finding, supported by the evidence, on an

issue in the lesser included offense which was not con-

sidered by the jury in its deliberations on the greater in-

clusive offense, and where the specific finding has the ef-

fect of negating a requisite element of the greater offense.

People v. Fox (1983), 114 Ill. App. 3d 598, 449 N.E.2d

261, also relied upon by defendant, offers little guidance

on the double jeopardy question presented here and does

not contradict our interpretation of Stuller. (People v.

Stuller (1979), 71 Ill. App. 3d 118, 389 N.E.2d 593.) In

Fox the jury returned guilty verdicts on both murder and

voluntary manslaughter. The trial court sentenced defen-

dant only on the murder charges. Relying upon Stuller,

the appellate court vacated the murder conviction, af-

firmed the voluntary manslaughter conviction, and

remanded the cause for imposition of an appropriate

sentence. In so doing, the court stated that the jury’s

specific finding of provocation negated the requisite in-

tent for murder and thus the conviction of voluntary

manslaughter had the effect of an implied acquittal of the

graver charge of murder. (People v. Fox (1983), 114 Ill.

App. 3d 598, 595, 449 N.E.2d 261.) In reaching this con-

clusion, however, the court did not discuss the issues in-

struction given to the jury for murder and whether the

jury was specifically requested to find that defendant did

not act under provocation in order to sustain the charge.

We therefore find the Fox case to be not uninstructive

here.

In the case at bar the jury was instructed on murder,

voluntary manslaughter and involuntary manslaughter.

The issues instruction for involuntary manslaughter re-

quired the jury to find the mental state of recklessness

in order to prove defendant guilty of that charge. (IPI

Criminal No. 7.08 (2d ed. 1981); Ill. Rev. Stat. 1981, ch.

38, par. 9-3(a).) ‘““Recklessness” is defined as a “(conscious

disregard of] a substantial and unjustifiable risk that cir-

cumstances exist or that a result will follow, * * * and

such disregard constitutes a gross deviation from the stand-

ard of care which a reasonable person would exercise in

the situation.” (Ill. Rev. Stat. i981, ch. 38, par. 4-6.) Thus,

a person charged with involuntary manslaughter is charged

with consciously disregarding an unjustified risk that

death or great bodily harm to another will result. In

returning a guilty verdict on involuntary manslaughter,

the jury specifically found that the mental state of reck-

lessness existed here. This finding finds support in the

record, since defendant testified to an accidental discharge

of the gun. However, the jury also returned guilty ver-

dicts on murder and voluntary manslaughter and thus also

specifically found that defendant possessed the requisite

mental state of either intent or knowledge. (Ill. Rev. Stat.

1981, ch. 38, pars. 9-1(aX1), (2), 9-2(b).) Such a finding also

finds ample support in the record.

Defendant argues that the guilty verdict on the involun-

tary manslaughter charge necessarily resulted in a find-

ing that defendant’s act was unintentional (see People

v. Wolski (1980), 83 Ill. App. 3d 17, 403 N.E.2d 528), and

that this finding negates the requisite intent for vol-

untary manslaughter and murder. While it is true that

by definition the offense of involuntary manslaughter oc-

curs when one unintentionally kills another (Ill. Rev. Stat.

1981, ch. 38, par. 9-3(a)), it does not necessarily follow that

a lack of intent is a necessary element of the offense. (See

People v. Bolden (1978), 59 Ill. App. 3d 441, 447 n.2, 375

N.E.2d 898, stating in dictum that absence of intent is

not an element of the offense; but contra, People v. Bonzi

(1978), 65 Ill. App. 3d 927, 933, 382 N.E.2d 1300, sug-

gesting that absence of intent is an element of the of-

fense.) The only mental state required to sustain a con-

viction of involuntary manslaughter is that of recklessness

(People v. Cates (1982), 111 Ill. App. 3d 681, 689, 444

N.E.2d 548), and a finding of recklessness does not, in

our opinion, necessarily negate a finding of knowledge or

Al0

intent. (See People v. Better (1975), 33 Ill. App. 3d 58,

66-67, 337 N.E.2d 272.) ‘““Mental states of knowledge and

recklessness are not susceptible to clear distinction.” (Peo-

ple v. Gross (1977), 52 Ill. App. 3d 765, 771, 367 N.E.2d

1028.) Nevertheless, because the jury is presumed to have

considered the instructions as a whole (People v. Vega

(1982), 107 Ill. App. 3d 289, 294, 487 N.E.2d 919), and

because of defendant’s testimony on this issue, we agree

that the verdict of guilty on this charge implies a finding

of a lack of intent. Even so, it is clear that the jury was

not silent on the intent issue when it returned the guilty

verdicts on murder and voluntary manslaughter and, in

fact, specifically found that the requisite intent for those

crimes existed. Under these circumstances, we find little

support for defendant’s position in the Stuller and Fox

cases and accordingly find that the conviction of involun-

tary manslaughter did not amount to an implied acquittal

of the murder and voluntary manslaughter offenses.

While we conclude that the doctrine of “implied acquit-

tal” is not applicable here, we nevertheless must consider

what effect, if any, the apparent inconsistency in the ver-

dicts has on defendant’s conviction.

Traditionally, Illinois law provided that verdicts were

not required to be logically consistent so long as they

were legally consistent. (People v. Hairston (1970), 46 IIl.

2d 348, 263 N.E.2d 840, cert. denied (1971), 402 U.S. 972,

29 L. Ed. 2d 136, 91 S. Ct. 1658; People v. Taylor (1976),

36 Ill. App. 3d 898, 344 N.E.2d 742.) Verdicts are legally

inconsistent where they necessarily involve the conclusion

that the same essential elements of each offense were

found both to exist and not to exist. (People v. O’Malley

(1982), 108 Ill. App. 3d 823, 439 N.E.2d 998; People v.

Murray (1975), 34 ill. App. 3d 521, 340 N.E.2d 186.)

Logical inconsistency is present where the verdicts demon-

All

strate both the acceptance and rejection of one party’s

theory of the case. 34 Ill. App. 3d 521, 340 N.E.2d 186.

For some period of time legal thinking abounded that

the supreme court in its ruling in People v. Dawson (1975),

60 Ill. 2d 278, 326 N.E.2d 755, cert. denied (1975), 423 U.S.

835, 46 L. Ed. 2d 54, 96 S. Ct. 61, had effectively over-

ruled Hairston as to the invalidity of legally inconsistent

verdicts. (People v. Hairston (1970), 46 Ill. 2d 348, 263

N.E.2d 840, cert. denied (1971), 402 U.S. 972, 29 L. Ed.

2d 136, 91 S. Ct. 1658.) This reasoning was followed in

certain appellate court decisions. (See People v. Harris

(1982), 104 Ill. App. 3d 833, 483 N.E.2d 343; People v.

Jimerson (1979), 69 Ill. App. 3d 403, 388 N.E.2d 10; Peo-

ple v. Murray (1975), 34 Ill. App. 3d 521, 340 N.E.2d 186;

People v. O’Malley (1982), 108 Ill. App. 3d 823, 489 N.E.2d

998.) The supreme court in the recent case of People v.

Frias (1983), 99 Ill. 2d 193, 198-99, 47 N.E.2d 1233, total-

ly laid this legal theory to rest by spezifically ruling that

it had not in its Dawson decision overruled Hairston.

There is a further distinguishing feature between the

case before us and Dawson and the cases that applied

its rationale, that being in Dawson there was a convic-

tion on one charge and an acquittal on others. (People v.

Dawson (1975), 60 Ill. 2d 278, 326 N.E.2d 755, cert. denied

(1975), 423 U.S. 835, 46 L. Ed. 2d 54, 96 S. Ct. 61.) Here,

the defendant was convicted of every offense upon which

the jury was instructed, obviously negating any theory

of lenity, and in our opinion would have required rever-

sal regardless of the interpretation of Dawson. However,

the supreme court in Frias noted the circumstances of

inconsistent verdicts where the defendant was found guilty

of all charges, and stated:

“In People v. Hairston (1970), 46 Ill. 2d 348, 361,

this court, while recognizing that legally inconsistent

Al2

verdicts could not stand, held that where inconsis-

tent verdicts of guilty are returned, a reversal and

new trial on all counts must follow.” People v. Frias

(1983), 99 Ill. 2d 198, 208, 457 N.E.2d 1233.

In a situation such as this one, we believe inconsistency

in the verdicts implies confusion on the part of the trier

of fact. In the present case, both types of inconsistency

are suggested by the verdicts, as is evidenced by the ele-

ments of the offenses and the instructions to the jury.

The elements of the offense of murder are the killing

of an individual without lawful justification, combined with

the intent to kill or do great bodily harm or the knowl-

edge that there is a strong probability of that result. (Ill.

Rev. Stat. 1981, ch. 38, par. 9-1(a).) Because self-defense

may justify the use of force (Ill. Rev. Stat. 1981, ch. 38,

par, 7-1), self-defense is an affirmative defense to the

charge of murder and, where raised by the defendant,

must be disproved by the State to establish the offense.

(People v. Pappas (1978), 66 Ill. App. 3d 360, 383 N.E.2d

1190, cert. denied (1979), 444 U.S. 848, 62 L. Ed. 2d 55,

100 S. Ct. 85; People v. Ortiz (1978), 65 Ill. App. 3d 525,

382 N.E.2d 303.) Where the defendant has intentionally

or knowingly killed an individual, but acts with an unrea-

sonable belief that the killing was justified, e.g., as self-

defense, the offense committed is voluntary manslaughter,

rather than murder. (Ill. Rev. Stat. 1981, ch. 38, par.

9-2(b); People v. Ellis (1982), 107 Ill. App. 3d 608, 437

N.E.2d 409; see People v. Fausz (1983), 95 Ill. 2d 535,

449 N.E.2d 78.) The jury was so instructed. Additionally,

the jury was instructed that, to establish guilt of murder,

the State was required to prove that defendant did not

believe that circumstances existed which justified the use

of force. This instructional element, formerly part of the

Al3

standard instructions in cases where a self-defense claim

was raised in a murder prosecution (IPI Criminal No.

27.01 (1968)), has been deleted from the form instructions

for such cases. (IPI Criminal No. 27.01 (2d ed. 1981).)

However, this instruction represents a correct statement

of the law (People v. Vega (1982), 107 Ill. App. 3d 289,

437 N.E.2d 919), which is designed to make the jury

aware of the distinction between the crimes of murder

and voluntary manslaughter. People v. Stuller (1979), 71

Ill. App. 3d 118, 389 N.E.2d 593.

The jury’s verdict finding defendant guilty of voluntary

manslaughter necessarily implies that the jury concluded

that defendant believed, although unreasonably, that cir-

cumstances existed which justified his action. (People v.

Goodwin (1981), 98 Ill. App. 3d 726, 424 N.E.2d 425; Peo-

ple v. Stuller (1979), 71 Ill. App. 3d 118, 389 N.E.2d 593;

see People v. Fox (1983), 114 Ill. App. 3d 598, 449 N.E.2d

261 (voluntary manslaughter verdict implied finding of

provocation).) This finding is both logically and legally in-

consistent with the verdict that defendant was guilty of

murder, which involved the determination, especially in

light of the instructions given in the murder charge, that

defendant did not believe that his conduct was justified.

There was evidence in support of voluntary manslaugh-

ter. Defendant knew Peters possessed guns, was skilled

in the use of firearms, and previously threatened or spoke

of threatening people, including defendant, with guns.

Peters was intoxicated and had been belligerent toward

others earlier that evening. Immediately before the shot

was fired, defendant testified that he saw Peters lower

his hands and begin to turn around, a movement which

made defendant think that Peters was going to get a gun.

Defendant had been afraid that Peters might try to harm

him, Einsiedel, or Shannon. The unreasonableness of any

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belief by defendant that self-defense was necessary is

demonstrated by the fact that Peters was unarmed, his

mode of dress, a T-shirt and jeans, would have revealed

any weapon that was present, Peters and defendant were

separated by a distance of several feet, there had been

no physical fight between them, and Peters had not

threatened to get a weapon.

On the other hand, there was also ample evidence to

establish an intentional killing without a belief that the

homicide was justifiable. This was the trial court’s ration-

ale for vacating the voluntary manslaughter and involun-

tary manslaughter convictions and allowing the murder

conviction to stand. Although defendant denied the state-

ment, his own sister testified that defendant stated that

he was going to be ready for Peters when he returned,

and told Peters that “I should blow you away.” Einsiedel

testified that defendant had the shotgun in an aimed posi-

tion. Peters was unarmed, which should have been ap-

parent to defendant, as he had a full view of Peters’ body

during their conversation and Peters was dressed in only

a T-shirt and jeans. Peters was shot in the back, at a time

when he was several feet from defendant and walking

away from defendant. Just prior to being shot Peters had

his back toward defendant and his arms in the air. The

two men had not engaged in any physical fight. The safety

device on defendant’s shotgun was off when police recov-

ered the weapon. Defendant had taken the safety device

off of the shotgun, which was loaded, when Peters began

walking down the porch stairs. The gun was in proper

working order. Thus, the evidence could be viewed as

negating any claim that defendant believed he was acting

in self-defense (see People v. Pappas (1978), 66 Ill. App.

3d 360, 383 N.E.2d 1190, cert. denied (1979), 444 U.S. 843,

62 L. Ed. 2d 55, 100 S. Ct. 85) or that the shooting was

unintentional.

Ald

Another inconsistency is presented due to the verdict

finding defendant guilty of involuntary manslaughter. As

previously stated, involuntary manslaughter is committed

when a person unintentionally kills an individual without

lawful justification while recklessly performing acts which

are likely to cause death or great bodily harm. (Ill. Rev.

Stat. 1981, ch. 38, par. 9-3.) The jury was instructed as

to the intent requirements of murder and voluntary man-

slaughter and advised that the definition of involuntary

manslaughter involved an unintentional act, although a

lack of intent was not included as an issue in the issues

instruction.

The distinction between these mental states suggests

that the verdict finding defendant guilty of involuntary

manslaughter is at least logically inconsistent with the

guilty verdicts on the murder and voluntary manslaughter

charges. While we believe, as previously stated, that a

finding of recklessness does not necessarily negate a find-

ing of knowledge (see People v. Better (1975), 33 Ill. App.

3d 58, 66-67, 337 N.E.2d 272), the jury’s apparent simul-

taneous finding of intent and lack of intent is inherently

irreconcilable, especially since defendant fired only one

shot directed at a single victim and therefore cannot be

found to have had more than one mental state. See Peo-

ple v. Harris (1982), 104 Ill. App. 3d 833, 483 N.E.2d 343;

People v. Roman (1981), 98 Ill. App. 3d 703, 424 N.E.2d

794; People v. Norris (1969), 118 Ill. App. 2d 406, 254

N.E.2d 304.

The three guilty verdicts returned here thus demon-

strate that the jury determined that defendant did (volun-

tary manslaughter) and did not (murder) believe that his

conduct was justified, and determined that defendant’s ac-

tions were intentional or knowing (murder, voluntary man-

slaughter) and unintentional (involuntary manslaughter).

Al6

(See Ill. Rev. Stat. 1981, ch. 38, pars. 9-1(a), 9-2(b), 9-3;

People v. Cowen (1979), 68 Ill. App. 3d 437, 386 N.E.2d

435.) In our opinion, this confusion on the part of the trier

of fact, as evidenced by legally and logically inconsistent

verdicts, requires reversal and remandment to the trial

court for a new trial. (People v. Frias (1983), 99 Ill. 2d

198, 203, 457 N.E.2d 1233.) Defendant notably has not

challenged the sufficiency of the evidence against him.

We note that the inconsistent verdicts in this case may

have stemmed, in part, from the statutory definitions of

murder and involuntary manslaughter and from the rec-

ommended forms of verdict in Illinois Pattern Jury In-

structions, Criminal (2d ed. 1981) on these two offenses.

This problem is extensively discussed in two recent law

review articles. (See Haddad, Allocation of Burdens in

Murder-Voluntary Manslaughter Cases: An Affirmative

Defense Approach, 59 Chi.-Kent L. Rev. 23 (1982); O’Neill,

“With Malice Toward None”: A Solution to an Illinois

Homicide Quandary, 32 De Paul L. Rev. 107 (1982).) To

avoid the result of inconsistent guilty verdicts being re-

turned by a jury in murder-manslaughter cases some trial

judges have utilized the number of verdict forms contained

in the original edition of Illinois Pattern Jury Instructions,

Crimu.al (1968), which recommends only three forms of

verdict in a murder-manslaughter case, i.e. guilty of

murder, guilty of voluntary manslaughter, and not guilty,

and the jury is further instructed to select and sign only

the one form reflecting their verdict. (See IPI Criminal

No. 27.01, Sample Set of Instructions (1968).) In the case

at bar, however, the trial judge gave six forms of ver-

dicts to the jury, three guilty and three not guilty ver-

dicts, as recommended in IPI Crirainal No. 27.01, Sample

Set of Instructions (2d ed. 1981). This approach may have

contributed to the inconsistent verdicts obtained here.

Se see we ee

Al7

For the foregoing reasons, the order vacating the con-

victions for voluntary manslaughter and involuntary man-

slaughter is set aside. The convictions for murder, vol-

untary manslaughter, and involuntary manslaughter are

reversed and the cause remanded for a new trial.

Reversed and remanded.

REINHARD and VAN DEUSEN, JJ., concur.

ee eae —

APPENDIX B

(Nos. 59927, 59947 cons.—Judgment affirmed.)

THE PEOPLE OF THE STATE OF ILLINOIS,

Appellee and Appellant,

DONALD HOFFER,

Appellant and Appellee.

Opinion filed March 29, 1985.—Rehearing

denied May 31, 1985.

x * *

JUSTICE MORAN delivered the opinion of the court:

The defendant, Donald Hoffer, was indicted by the

grand jury of Kane County on three counts of murder.

(Ill. Rev. Stat. 1981, ch. 38, pars. 9-1(aX1), 9-1(aX2).) After

a jury trial, defendant was founa guilty of murder (Ill.

Rev. Stat. 1981, ch. 38, pars. 9-1(aX1), 9-1(aX2)), voluntary

manslaughter (Ill. Rev. Stat. 1981, ch. 38, par. 9-2(b)), and

involuntary manslaughter (Ill. Rev. Stat. 1981, ch. 38, par.

9-3(a)). The court entered judgment on each finding. De-

fendant then moved to vacate the judgments of conviction

entered for murder and voluntary manslaughter, in that

the judgments, with respect to these two convictions,

were inconsistent. Following post-trial motions, the court

vacated the judgments of conviction for voluntary and in-

voluntary manslaughter, entering judgment on the murder

conviction and sentencing defendant to a prison term of

20 years. The appellate court set aside the trial court’s

order vacating the voluntary- and involuntary-manslaughter

convictions and reversed all three convictions, remanding

the cause for a new trial. (122 Ill. App. 3d 13.) We allowed

the petitions for leave to appeal of the defendant (No.

59927) and the State (No. 55947) (87 Ill. zd R. 315(a)) and

consolidated the causes for purposes of review. James J.

Doherty, public defender of Cook County, was allowed to

file an amicus curiae brief on behalf of the defendant.

Two issues are presented: (1) whether the three jury

verdicts of guilty were legally inconsistent so as to require

a new trial; and (2) whether remanding the cause for a

new trial would violate principles of collateral estoppel and

defendani’s right to be free from double jeopardy.

The record reveals the following. Catherine Einsiedel,

defendant’s sister, testified at trial that she had known

the victim, Harold (Ed) Peters, for three years. During

that period, she lived with Peters but would periodically

move in with the defendant when she and Peters had an

argument. Peters was the father of Einsiedel’s daughter,

Shannon. She and Shannon had moved out of Peters’

house and into the defendant’s residence approximately

three months prior to the time of the homicide. She did

occasionally see Peters, however, during this three-month

period.

Einsiedel’s testimony indicates that on the evening of

May 18, 1982, a friend, Tony Charbauski, visited her at

the defendant’s residence. During the evening, Peters

entered the defendant’s house through a window and went

upstairs, where he confronted Einsiedel and Charbauski

in her bedroom. Peters began yelling and attempted to

engage Charbauski in a fight. Charbauski told Einsiedel

to call the police. She stated that she did so, as she was

concerned that someone might get hurt. Although Peters

was attempting to kick and otherwise provoke him, Char-

bauski was able to get down the stairs and safely out of

the house. Peters went back into the house, where he

asked Einsiedel if their relationship was ended. When she

answered affirmatively, Peters took a flashlight he was

Ad Ae CE NCS LN oS ee a? ay

carrying and broke the dust cover on a nearby stereo.

Before Peters left, he gave Einsiedel some money and

told her that he would pay for the damage to the stereo.

The police arrived minutes later. Einsiedel gave them the

names of Peters and Charbauski, but she refused to file

charges.

A short time later, the defendant returned home. Ein-

siedel related the events of the evening to him. According

to her testimony, the defendant stated that he was sick

of Peters breaking things and also, “he’d be ready for

him when he came back after the bars closed.’”’ The de-

fendant denied making this statement.

Einsiedel and the defendant then went to their rooms.

Einsiedel testified that about an hour later she heard the

defendant say that Peters was back and she’d better get

downstairs. When she got downstairs, she observed the

defendant standing on the porch in his underwear, holding

a shotgun. Peters was standing below the defendant, ap-

proximately five feet away. After an exchange of words,

Peters turned his back on the defendant and threw his

arms in the air. According to Einsiedel it was at this point

that she yelled, “Don, don’t do it; don’t do it; don’t

shoot.” Seconds later the gun went off and Peters was

fatally wounded.

The defendant testified that when Peters began walk-

ing down the porch stairs, it appeared that he had been

drinking. The defendant further testified that, in the past,

he had observed Peters become more violent when he had

been drinking. According to defendant, his gun was then

pointing straight up and was resting on his shoulder. He

then heard his sister call his name and he began to turn

to look at her when he heard her say “Don’t shoot.”

When he looked back, Peters was bringing his hands down

and turning around. Defendant stated that he thought

Peters was reaching for a gun because he knew that

Peters owned and carried guns, was skilled in using them,

and had previously threatened him with a gun. The de-

fendant began to lower the gun with one hand, while

reaching with his other hand to grab the stock, when the

gun went off and Peters was struck. Although the defen-

dant testified that Peters was facing him when the gun

discharged, a pathologist testified that the autopsy in-

dicated that Peters was shot in the back. The pathologist

also testified that Peters was intoxicated at the time he

was shot.

The court instructed the jury that the defendant was

charged with the offense of murder, which includes the

offenses of voluntary and involuntary manslaughter. (Illi-

nois Pattern Jury Instructions (IPI), Criminal, No. 2.01

(2d ed. 1981).) Definitional and issues instructions were

tendered to the jury on murder, voluntary manslaughter

(unreasonable belief), and involuntary manslaughter. The

issues instruction on voluntary manslaughter required the

jury to find that, at the time the defendant performed

the acts which caused the death of Peters, defendant be-

lieved that circumstances existed which would have justified

the killing. In addition, the jury would have to find that

this belief was unreasonable. IPI Criminal 2d No. 7.06.

The issues instruction on murder was fashioned after

the murder instruction recommended in the 1968 edition

of the criminal Illinois Pattern Jury Instructions where

the affirmative defense of self-defense is raised (IPI

Criminal No. 27.01 (7.02 and 25.05) (1968)). To find the

defendant guilty of murder by following this instruction,

the jury would have to find that the defendant was not

justified in using the force which he used, and that the

defendant did not believe that circumstances existed which

justified the use of such force. It should be noted that the

issue instruction for murder (where self-defense is raised)

in the 1981 (2d) edition of IPI Criminal does not require

the jury to make a finding regarding the absence of a

belief by the defendant that justifiable circumstances ex-

isted. IPI Criminal 2d No. 27.01 (7.02 and 24-25.06A).

Further, the issues instructions on murder and volun-

tary manslaughter, on the other hand, required that the

State prove the defendant performed the acts which

caused the death of the victim and that defendant did so

either intending to kill or do great bodily harm, or know-

ing that his acts would cause or create: a strong probabil-

ity of death or great bodily harm.

Finally, the jury was given the definitional and issues

instructions on involuntary manslaughter. The definitional

instruction made it clear that involuntary manslaught «+

is caused unintentionally, although without lawful justifice

tion, by acts which are performed recklessly and are likely

to cause death or great bodily harm. (IPI Criminal 2d No.

7.07.) The issues instruction on involuntary manslaughter

required the State to prove that the defendant performed

the acts which caused the death of the victim and that

he performed those acts recklessly. In addition the State

would have to prove that those acts were likely to cause

death or great bodily harm. IPI Criminal 2d No. 7.08.

The State maintains that the appellate court erred in

remanding the cause for a new trial. In its brief before

this Court, the State argues that the conviction for mur-

der was legally consistent with the guilty verdicts for

voluntary and involuntary manslaughter. The jury was in-

structed that “[tJhe defendant is charged with the offense

of murder, which includes the offenses of voluntary man-

slaughter and involuntary manslaughter.” (IPI Criminal 2d

No. 2.01.) Further, the jurors were given verdict forms

(six) of guilty and not guilty of murder, voluntary man-

slaughter and involuntary manslaughter but were not in-

formed that they could return a guilty verdict on only

one of the offenses. (IPI Criminal 2d Nos. 26.01, 26.02,

26.05.) Based on the above, the State, therefore, concludes

that the jury was not confused when it returned guilty

verdicts for murder and each of the lesser included of-

fenses of voluntary and involuntary manslaughter. These

verdicts, reasons the State, “were the jury’s clear expres-

sion that Hoffer was to be held responsible for homicide

and this necessarily included each of its progressive de-

grees.”

This rationale suggests that because voluntary man-

slaughter is a lesser included offense of murder (People

v. Fausz (1983), 95 Ill. 2d 535, 539; People v. Pierce (1972),

52 Ill. 2d 7, 11), and involuntary manslaughter is a lesser

included offense of both voluntary manslaughter and

murder (People v. Taylor (1973), 54 Ill. 2d 558, 560; People

v. Arndt (1972), 50 Ill. 2d 390, 394), the mental state re-

quired for murder “subsumed the lesser mental states re-

quired for voluntary manslaughter and involuntary man-

slaughter.” Thus, concludes the State, the guilty verdicts

were only logically inconsistent and under People v. Hair-

ston (1970), 46 Ill. 2d 348, 362-63, and People v. Frias

(1983), 99 Ill. 2d 193, 203, reversal and a new trial are

not proper.

We would agree with the State that the three guilty

verdicts reached by the jury may have been a predictable

outcome, considering the tendering of the lesser included

offense instruction in conjunction with the six verdict

forms. Nevertheless, we do not agree with the State that

the three jury verdicts were legally consistent.

An “included offense” is defined in Illinois as an offense

which “i]s established by proof of the same or less than

ae ee et ry ee: AO At ae en

all of the facts or a less culpable mental state (or both),

than that which is required to establish the commission

of the offense charged * * *.” (Ill. Rev. Stat. 1981, ch.

38, par. 2-9(a).) The offenses of murder, voluntary man-

slaughter and involuntary manslaughter are distinguished

only by the diminishing degree of mentai culpability nec-

essary to sustain each. While murder and voluntary man-

slaughter (unreasonable belief) both require proof of in-

tent or knowledge (Ill. Rev. Stat. 1981, ch. 38, pars. 9-1

(aX1), 9-1(aX2), 9-2(b)), the offense of voluntary manslaugh-

ter is committed only when the defendant acts with an

unreasonable belief that the killing was justified. This

mental state is considered less culpable, and, as such,

voluntary manslaughter is considered an included offense

of murder. Similarly, involuntary manslaughter is con-

sidered an included offense of voluntary manslaughter and

murder because it involves an unintentional killing of a

human being without lawful justification while recklessly

performing acts which are likely to cause death or great

bodily harm. Ill. Rev. Stat. 1981, ch. 38, par. 9-3(a).

The mental states involved in each of these offenses are

mutually inconsistent. Where a determination is made that

one exists, the others, to be legally consistent, must be

found not to exist. This is made especially clear in the

instant case, where the jury received an issue instruction

on murder which required the State to prove that the

defendant did not believe that circumstances existed which

justified the use of force. (IPI Criminal No. 27.01 (7.02

and 25.05) (1968).) By finding the defendant guilty of

murder, therefore, the jury specifically found that defen-

dant did not believe his conduct was justified. At the same

time, by finding him guilty of voluntary manslaughter, the

jury determined that he did believe, although unreason-

ably, that his conduct was justified. Additionally, the jury

concluded that the defendant killed another, intentionally

or knowingly (murder, voluntary manslaughter) while

simultaneously finding that defendant recklessly but

unintentionally caused the death of the victim (involun-

tary manslaughter).

This court adheres to the view that “where inconsis-

tent verdicts of guilty are returned, a reversal and new

trial on all counts must follow.” (People v. Frias (1983),

99 Ill. 2d 193, 203; People v. Hairston (1970), 46 Ill. 2d

348, 361.) Because we conclude that the verdicts rendered

by the jury were legally and logically inconsistent, we find

that reversal and a new trial are required.

In what appears to be an alternative argument, the

State maintains that, while the mental states for murder

and voluntary manslaughter may be inconsistent, the con-

viction for murder should be upheld because instructions

for voluntary manslaughter were not warranted on the

facts of this case. In addition, the State contends that the

mental states for murder and involuntary manslaughter

are not inconsistent since lack of intent is not a necessary

element of involuntary manslaughter. We do not agree.

This court has held in murder cases “that if there is

evidence in the record which, if believed by a jury, would

reduce the crime to manslaughter, an instruction defining

manslaughter should be given.” (People v. Lockett (1980),

82 Ill. 2d 546, 550. See People v. Ward (1984), 101 Ill.

2d 443, 451.) In the instant case, there was ample evidence

to support the tendering of a manslaughter instruction.

As stated above, defendant was aware that Peters owned

guns and had threatened him, on a prior occasion, with

a gun. In addition, defendant was aware that Peters knew

how to use guns and became violent when intoxicated.

(See People v. Lynch (1984), 104 Ill. 2d 194.) Further, the

State’s argument that murder and involuntary manslaugh-

ter do not have inconsistent mental states is contrary to

the language of the involuntary-manslaughter statute (IIl.

Rev. Stat. 1981, ch. 38, par. 9-3(a)), which defines the of-

fense as an unintentional killing (People v. Fernetti (1984),

104 Ill. 2d 19, 25).

Having concluded, therefore, that the legally inconsis-

tent verdicts require reversal and a new trial, we need

address defendant’s argument that remanding the cause

for a new trial violates principles of collateral estoppel

and his right to be free from double jeopardy. The prem-

ise of defendant’s argument is that the jury’s verdict, find-

ing him guilty of the lesser included offense of involuntary

manslaughter, negates the existence of the intent element

of murder and voluntary manslaughter and, therefore, im-

pliedly acquitted him of the greater offenses. Thus, de-

fendant contends, to remand the cause and relitigate the

charged offense of murder, as well as the included offenses

of voluntary and involuntary manslaughter, would offend

both Federal and State double jeopardy guarantees (U.S.

Const., amend. V; Ill. Const. 1970, art. I, sec. 10), as well

as Illinois statutory law (Ill. Rev. Stat. 1981, ch. 38, par.

3-4(a)).

The constitutional prohibition of double jeopardy pro-

tects a defendant from prosecution of an offense after ac-

quittal or conviction of the same offense and prohibits

multiple punishments for the same offense. (Jilinois v.

Vitale (1980), 447 U.S. 410, 415, 65 L. Ed. 2d 228, 235,

100 S. Ct. 2260, 2264.) Section 3-4(a) of the Criminal Code

of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 3-4(a)) provides,

in relevant part, that “{a] conviction of an included of-

fense is an acquittal of the offenses charged.’’ Defendant

relies on this statutory provision and the “implicit acquit-

tal” principle enunciated in Green v. United States (1957),

355 U.S. 184, 2 L. Ed. 2d 199, 78 S. Ct. 221, in support

B10

of his double-jeopardy argument. We find that reliance

on both the statute and the principle of law set forth in

Green is misplaced.

In Green, the defendant was charged with arson and

murder in the first degree. The jury was instructed that

it could find the defendant guilty of arson under the first

count and either first- or second-degree murder under the

second count. Defendant Green was found guilty of arson

and second-degree murder. The verdict was silent as to

the charge of murder in the first degree. Defendant ap-

pealed the second-degree-murder conviction. The convic-

tion was reversed and the cause remanded for a new trial.

Although defendant raised the defense of former jeopardy

in his secormd trial, he was tried again for first-degree

murder and found guilty on that charge. The Supreme

Court found that the constitutional prohibition against dou-

ble jeopardy had been violated since the jury had implicit-

ly acquitted defendant on the charge of first-degree mur-

der by finding him guilty of second-degree murder.

“In brief, we believe this case can be treated no dif-

ferently, for purposes of former jeopardy, than if the

jury had returned a verdict which expressly read:

‘We find the defendant not guilty of murder in the

first degree but guilty of murder in the second de-

gree.’”’ 355 U.S. 184, 191, 2 L. Ed. 2d 199, 206, 78

S. Ct. 221, 225.

To apply this rationale to the facts of the instant case

is to ignore the jury’s express findings of guilt as to the

offenses of murder and voluntary manslaughter. We agree

with the appellate court, therefore, that, under the cir-

cumstances of this case, application of the doctrine of im-

plied acquittal would be fictional. Similarly, we find that

the established principle of law codified in section 3-4(a)

of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38,

par. 3-4({a)), wherein conviction of a lesser offense operates

Bll

as an acquittal of the greater offense (People ex rel. Daley

v. Limperis (1981), 86 Ill. 2d 459, 466), cannot rationally

be applied where, as here, a jury returns verdicts of

guilty not only on the offense charged but also on the

uncharged lesser included offenses. We find that the

statutory provision applies only when the jury returns a

guilty verdict on a lesser offense and is silent as to the

charged offense.

Defendant further argues that the principle of collateral

estoppel, which is embodied in the double jeopardy clause

(Ashe v. Swenson (1970), 397 U.S. 436, 25 L. Ed. 2d 469,

90 S. Ct. 1189), bars defendant’s retrial for murder and

voluntary manslaughter. The court in Ashe stated that

the principle of collateral estoppel “means simply that

when an issue of ultimate fact has once been determined

by a valid and final judgment, that issue cannot again be

litigated between the same parties in any future lawsuit.’

(397 U.S. 436, 443, 25 L. Ed. 2d 469, 475, 90 S. Ct. 1189,

1194.) Defendant maintains that in finding him guilty of

involuntary manslaughter, the jury found that he had

acted unintentionally and recklessly. Thus, defendant con-

cludes, this factual finding negates the accusation that he

acted with intent or knowledge and estops the State from

relitigating those mental states anew.

tn Bin ON 8 cite OL, Bene on

The jury, in the instant case, had to make a factual

determination as to the mental state of the defendant at

the time of the homicide. By finding defendant guilty of

the charged offenses as well as the two included offenses,

the jury necessarily found that the defendant possessed

three distinct and mutually inconsistent mental states at

the time of the offense. As such, we found the verdicts

legally inconsistent. Implicit in the rule of law which re-

quires a new trial when multiple guilty verdicts are legally

inconsistent is the invalidity of the underlying factual find-

hesitant

B12

ings upon which the verdicts were made. In the instant

case, there has been no valid and final judgment and thus

no ultimate factual determination upon which to rely for

purposes of collateral estoppel.

We note that the amicus curiae brief of the public de-

fender urges this court to find that verdicts of guilty of

murder and guilty of voluntary manslaughter are legally

and logically consistent. This view is based upon the issues

instruction for murder prescribed in the second (1981) edi-

tion of IPI Criminal where self-defense is raised. (IPI

Criminal 2d No. 27.01 (7.02 and 24-25.06A).) Because this

instruction does not include the “lack of belief in justifica-

tion” element, the instruction for voluntary manslaughter

(IPI Criminal 2d No. 7.06) includes al! of the elements

of murder plus the additional elements of provocation or

unreasonable belief in the necessity to act in self-defense.

As such, amicus curiae maintains that guilty verdicts on

each offense are consistent, since the jury has necessarily

found all the elements of murder, accompanied by miti-

gating circumstances. He concludes, therefore, that judg-

ment must be entered and sentence imposed on the less

serious offense of voluntary manslaughter. (He a!so agrees

with defendant that, in this case, judgment should be en-

tered on the involuntary-manslaughter conviction, although

he does not provide any reasoning to support this posi-

tion.)

As discussed above, the jury in the instant case received

an issue instruction for murder which did include the

“lack of belief in justification’ element. As such, the ar-

gument asserted by amicus curiae is inapplicable to the

facts of this case and, accordingly, does not persuade. We

view with concern, however, the significant number of

cases in which juries are finding defendants guilty of both

murder and voluntary or involuntary manslaughter. (See,

iii ail aii

B13

e.g., People v. Washington (1984), 127 Ill. App. 3d 365;

People v. Milner (1984), 123 Ill. App. 3d 656; People v.

Kendricks (1984), 121 Ill. App. 3d 442; People v. Fox

(1983), 114 Ill. App. 3d 593; People v. Stuller (1979), 71

Ill. App. 3d 118.) We would suggest that this phenomenon

results from the failure to apprise the jury of the distinct

and mutually exclusive mental states necessary to sup-

port findings of guilty for the offenses of murder, volun-

tary manslaughter and involuntary manslaughter. Also

contributing to the inconsistent verdicts, as mentioned by

the appellate court, is the recommended forms of verdict

in murder-manslaughter cases. (See People v. Glass (1984),

128 Ill. App. 3d 869, and People v. Almo (1984), 123 IIl.

App. 3d 406, wherein the juries in murder-manslaughter

cases demonstrated their confusion as to the proper pro-

cedure for deliberation by inquiring of the court whether

it was necessary to return verdicts on each charge.) It

follows that amendment of the pattern instruction is

needed.

For the reasons stated above, the judgment of the ap-

pellate court, reversing the circuit court and remanding

the cause for a new trial, is affirmed.

Judgment affirmed.

APPENDIX C

59927

59947

Cons.

ILLINOIS SUPREME COURT

JULEANN HORNYAK, CLERK

Supreme Court Building

Springfield, Ill. 62706

(217) 782-2035

May 31, 1985

Mr. Ralph Ruebner

Associate Prof. of Law

The John Marshall Law School

315 S. Plymouth Court

Chicago, IL 60604

Nos. 59927 — People State of Illinois, et al., appellees, v.

59947 Donald Hoffer, et al., appellants. Appeal,

Cons. Appellate Court, Second District.

The Supreme Court today DENIED the petition for

rehearing in the above enti‘led cause.

The mandate of this Court will issue to the appropriate

Appellate Court and/or Circuit Court or other agency on

June 10, 1985.

State of Illinois

SUPREME COURT CLERK

Supreme Court Building

Springfield 62706

June 10, 1985

Alms & Miller Prof. Ralph Ruebner

Mr. Randy K. Johnson John Marshall Law School

257 E. Main St., S#301 315 S. Plymouth Court

Barrington, IL 60010 Chicago, IL 60604

In re: Nos. 59927 & 59947 Cons.—People State of IIli-

nois, appellee, v. Donald Hoffer, appellant.

Counsel:

We are enclosing a copy of an order entered by Justice

Moran in the above entitled cause.

A certified copy of the order has been forwarded to the

Clerk of the Appellate Court, Second District and to the

Circuit Court of Kane County.

Very truly yours,

Clerk of the Supreme Court

ee: Cook PD. (Robert J. Isaacson)

AG/Crim. (Jack Donatelli)

SAASC/Elgin (Phyllis J. Perko)

Robert J. Morrow

JH/dem

NOS. 59927 & 59947 CONS.

IN THE

SUPREME COURT OF ILLINOIS

People State of Illinois,

)

) Appellate Court

Second District

)

Vv.

Donald Hoffer,

ORDER

This matter has come for consideration upon the mo-

tion of Appellant to stay the mandate of this Court and

to continue bond pending appeal or application for cer-

tiorart in the United States Supreme Court.

IT IS ORDERED that the mandate of this Court in

the above cause is stayed and bond is continued pending

the filing of a notice of appeal or an application for cer-

tiorari or the expiration of the period within which said

application or notice may be filed. If certiorari is applied

for or notice of appeal filed, the mandate of this Court

shall, upon proof of such filing being made by affidavit

filed with the clerk of this Court, be further stayed and

bond will continue pending resolution by the United States

Supreme Court of such application or appeal. If no such

affidavit is filed, the mandate shall, without further order,

issue upon the expiration of the time within which ap-

peal or certiorari may be sought and the bond shall be

revoked.

[FiLep JUNE 10, 1985]

on ene

f J nat.

APPENDIX D

A person commits the offense of Murder when he kills

an individual without lawful justification if, in perform-

ing the acts which cause the death,

ihe intends to kill or do great bodily harm to that

individual or another;

he knows that such acts will cause death to that in-

dividual or another;

he knows that such acts create a strong probability

of _— or great bodily harm to that individual or

another.

[FILED SEPTEMBER 17, 1982]

To sustain the charge of murder, the State must prove

the following propositions:

FIRST: That the defendant performed the acts which

caused the death of Harold Edward Peters; and

SECOND: That when the defendant did so,

1. he intended to kill or do great bodily harm to

Harold Edward Peters;

2. he knew that his act would cause death or great

bodily harm to Harold Edward Peters;

3. he knew that his acts created a strong probability

of death or great bodily harm to Harold Edward

Peters;

THIRD: That the defendant did not believe that cir-

cumstances existed which justified the use of force which

he used;

FOURTH: That the defendant acted without lawful

justification in using the force which he used.

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 nct been proved

beyond a reasonable doubt, you should find the defendant

not guilty.

[FILED SEPTEMBER 17, 1982]

A person commits the crime of voluntary manslaughter

when he kills an individual if, in performing the acts which

cause the death,

1. he intends to kill or do great bodily harm to that

individual or another;

2. he knows that such acts will cause death to that

individual or another;

3. he knows that such acts create a strong probabil-

ity of death or great bodily harm to that individual

or another;

and at the time of the killing he believes that circum-

stances exist which would justify the deadly force he uses,

but his belief that such circumstances exist is unreason-

able.

[FILED SEPTEMBER 17, 1982]

To sustain the charge of voluntary manslaughter, the State

must prove the following propositions:

FIRST: That the defendant performed the acts which

caused the death of Harold Edward Peters; and

SECOND: That when defendant did so,

1. he intended to kill or do great bodily harm to

Harold Edward Peters;

2. he knew that his acts would cause death or great

bodily harm to Harold Edward Peters;

3. he knew that his acts created a strong probability

of death or great bodily harm to Harold Edward

Peters; and

THIRD: That when the defendant did so he believed

that circumstances existed which would have justified kill-

ing Harold Edward Peters; and

FOURTH: That the defendant’s belief that such

circumstances existed was unreasonable.

FIFTH: That the defendant acted without lawful justi-

fication in using the force which he used.

If you find from your consideration of all the evidence

that each one of the 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.

[FILED SEPTEMBER 17, 1982]

A person commits the offense of involuntary manslaughter

when he unintentionally cies the death of an individual

without lawful justification by acts which are performed

recklessly and are likely to cause death or great bodily

harm to another.

[FILED SEPTEMBER 17, 1982]

To sustain the charge of involuntary manslaughter, the

State must prove the following propositions:

FIRST: That the defendant performed the acts which

caused the death of Harold Edward Peters; and

SECOND: That the defendant performed those acts

recklessly; and

THIRD: That those acts were likely to cause death or

great bodily harm.

FOURTH: That the defendant acted without lawful

justification in using the force which he used. )

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. |

[FILED SEPTEMBER 17, 1982]

)

We, the jury, find the defendant Donald Hoffer, Guilty

of the offense of voluntary manslaughter.

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We, the jury, find the defendant Donald Hoffer, Guilty

of the offense of involuntary manslaughter.

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We, the jury find the defendant Donald Hoffer, Guilty

of the offense of murder.

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JUDGMENT

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D10

We, the jury, find the defendant Donald Hoffer, Not

Guilty of the offense of involuntary manslaughter.

Foreperson

[FILED SEPTEMBER 17, 1982]

D11

We, the jury, find the defendant Donald Hoffer, Not

Guilty of the offense of voluntary manslaughter.

Foreperson

[FILED SEPTEMBER 17, 1982]

D12

We, the jury, find the defendant Donald Hoffer, Not

Guilty of the offense of murder.

Foreperson

[FILED SEPTEMBER 17, 1982]

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.