Defense counsel argued that under People v. Lockett, 82 Ill. 2d 546, 552 (1980), and People v. Edmondson, 328 Ill. App. 3d 661 (2002), when there is sufficient evidence to support a self-defense instruction, if the defendant requests a second degree murder instruction, it must be given. The trial court rejected defendant's argument and, citing People v. Anderson, 266 Ill. App. 3d 947 (1994), it distinguished Lockett and Edmondson. The court reasoned that a self-defense instruction was proper as the defendant testified that he observed Ronald with a weapon and, rather than be shot, shot Ronald.
We hold Judge Kirby acted within his discretion in not instructing the jury on second degree murder because the defendant's subjective belief was not at issue; no evidence exists upon which the jury could have found the defendant believed circumstances existed that would justify his intentional or knowing killing of Thompson, but that his belief was unreasonable. In so holding, we follow People v. Anderson, 266 Ill. App. 3d 947, 641 N.E.2d 591 (1994), and distance ourselves from the unfortunate characterization in People v. Washington, 399 Ill. App. 3d 664, 680, 926 N.E.2d 899 (2010), that the Anderson decision is an "aberration." As in Anderson, this case involves only a claim of perfect self-defense: the evidence permitted only a conclusion of guilty of first degree murder or not guilty by reason of self-defense.
The State argues that Lockett did not address the situation presented in the instant case where the only question is whether the factual scenario that the defendant alleges occurred actually took place. The State cites two appellate court cases in support, People v. Anderson, 266 Ill.App.3d 947, 204 Ill.Dec. 367, 641 N.E.2d 591 (1994), and People v. Billups, 404 Ill.App.3d 1, 343 Ill.Dec. 818, 935 N.E.2d 1046 (2010). ¶ 44 Anderson interpreted Lockett as holding only that a second degree murder instruction must be given when there is a question as to the reasonableness of a defendant's subjective belief.
The ultimate decision of whether to testify at trial is left to the defendant's discretion. ( People v. Brocksmith (1994), 162 Ill.2d 224, 642 N.E.2d 1230; People v. Anderson (1994), 266 Ill. App.3d 947, 641 N.E.2d 591.) However, certain matters involving trial strategy are left to the discretion of trial counsel, such as: whether to offer certain evidence, whether to call particular witnesses, which defense theory to present at trial, and whether and how to conduct cross-examination.
degree murder instruction must uniformly accompany a self-defense instruction. Specifically, the defendant asserted that Washington abrogated the case of People v. Anderson, 266 Ill. App. 3d 947, 641 N.E.2d 591 (1994), upon which the appellate court relied here for its conclusion that the second degree murder instruction need only be given where the reasonableness of the defendant's subjective belief in the need to use force is actually in question. He further contended that, under Washington, the failure to give the requested instruction deprived him of his right to have the jury make the factual determination as to whether his subjective belief may have been unreasonable, and that this omission cannot be regarded as harmless error.
Such performance by counsel cannot be excused as mere trial strategy. See People v. Anderson, 266 Ill. App. 3d 947, 956-57 (1994). Generally, matters of trial strategy include whether to offer certain evidence or call particular witnesses, whether and how to conduct cross-examination, what jurors to accept or strike, what motions to make, whether to seek substitution or recusal of a judge, and what instructions to tender.
While the record indicates that the State used four of the six, or 66% of, peremptory challenges exercised to dismiss black members of the venire, this fact alone is not sufficient to establish intentional discrimination. See People v. Henderson, 142 Ill.2d 258 (1990); People v. Anderson, 266 Ill. App.3d 947 (1994); People v. Dukes, 227 Ill. App.3d 988 (1992). Moreover, the record further reveals that at least four members of the jury were black; a fact that militates against a finding of intentional discrimination.
The State's answering brief cites a case that is representative of the minority rule. See People v. Anderson, 641 N.E.2d 591 (Ill.Ct.App. 1994).See, e.g., Godinez v. Moran, 509 U.S. 389, 400-01 (1993) (stating that the standards of competency to stand trial and waive counsel are identical).
The Supreme Court apparently considers it constitutional for a court to enter such pleas over defendant's objections."); cf. People v. Anderson, 641 N.E.2d 591, 598-601 (Ill.App. 1994) (upholding defense counsel's decision to proceed with insanity defense over the objection of the defendant against claims of constitutional error). But see Jacobs v. Commonwealth, 870 S.W.2d 412, 418 (Ky. 1994) (rejecting on constitutional grounds the imposition of a mental status defense over the objection of a defendant).
The minority position holds that, where there is a conflict between a competent defendant and defense counsel, the decision to assert or to reject the insanity defense rests with defense counsel, as a matter of defense strategy. People v. Anderson, 266 Ill. App.3d 947, 956-957 (1994), cert. denied, 516 U.S. 834 (1995). The defendant also argues that, even if the decision to assert the defense rests with him, the judge must first determine that he is competent to do so and that the decision is knowing and voluntary. The defendant was evaluated for competency on four separate occasions, and on the basis of these evaluations the judge found the defendant competent each time.