2017 IL App (1st) 143728 FOURTH DIVISION November 30, 2017

No. 1-14-3728
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff

- Appellee, ) Cook County. )

v. ) No. 09 CR 21018 ) ERIC SMITH, ) Honorable ) Brian K. Flaherty, Defendant -Appellant. ) Judge Presiding.

PRESIDING JUSTICE BURKE delivered the judgment of the court, with opinion. Justices Gordon and Ellis concurred in the judgment and opinion.

OPINION ¶ 1 Following a jury trial, defendant Eric Smith was found guilty of first degree murder and attempted first degree murder and sentenced to a total of 58 years’ imprisonment. On appeal, defendant contends that (1) the cumulative effect of multiple errors during his trial resulted in the jury being presented with emotional argument and inflammatory evidence which , in turn, created a pervasive pattern of unfair prejudice th at deprived him of a fair trial, (2 ) his pretrial fitness hearing failed to meet minimal due process requirements where the trial court merely adopted an expert’s conclusion based on stipulated testimony that he was fit to stand trial, (3) People’s

i nstruction No. 6 improperly limited the jury to return the same verdict for both first degree murder and attempted first degree murder, (4) People’s instruction Nos. 17 and 18 misstated the

law and confused the jury on how to reach its verdicts , (5) the trial court abused its discretion in sentencing him , and (6) he should be given an additional day of presentence custody cr edit.No. 1-14-3728

Because we find that the cumulative effect of multiple trial errors resulted in a pervasive pattern of unfair prejudice that deprived defendant of a fair trial, we reverse his convictions and remand

for a new trial. ¶ 2 I. BACKGROUND ¶ 3 During an October 2009 family gathering in South Holland, Illinois, defendant stabbed

Fias Mannie to death and wounded his infant daughter, Brooklyn, who was in her father’s arms. None of the family members present knew what precip it ated the stabbing s. Defendant ran from the scene, and the police arrested him a short time late r. As a result, the State charged him with , inter alia , first degree murder and attempted first degree murder. ¶ 4 A. Pretrial Proceedings ¶ 5 In May 2011, at defense counsel’s r equest , the trial court ordered an evaluation of

defendant to assess his fitness to stand trial and fitness to stand trial with medication. Dr.

Mat hew Markos , a psychiatrist, examined defendant, reviewed his records , and submitted a

document to the court, opining that defendant w as “mentally fit with medications .” T he court subsequently found defendant fit for trial with medication s. ¶ 6 In June 2012, defendant hired a new attorney to represent him, who later requested that defendant be assessed for his sanity at the time of the alleged offense s and his ability to

understand Miranda warnings. The trial court ordered the evaluation. Dr. Nishad Nadkarni, a

p sychiatrist, examined defendant, reviewed his records , and submitted a document to the court, opining that defendant “would have been legally sane at the time of the alleged offense [s] ” as he “was not suffering from any mental disease or defect that would have substantially impaired his capacity to appreciate the criminality of the alleged act [s] .” Dr. Nadkarni further opined that

defendant would have been able to understand Miranda warnings at the time of his arrest.

- 2 ­No. 1-14-3728 ¶ 7 D efense counsel subsequently requested a second opinion of defendant’s sanity at the time of the alleged offenses from Dr. Georgia Conic, which the trial court allowed. Dr. Conic examined defendant, reviewed his records , and submitted a report to the court, diagnosing

defendant at the time of the offenses with a “[s] chizophrenic disorder paranoid type” and a “[p]sychogenic fugue state,” as well as an antisocial personality disorder. Dr. Conic opin ed that defendant “experienced a psychogenic fugue state and was unaware of his actions as related to the stabbing of Fias and his daughter Brooklyn, and was not in control of himself.” She further believed that “[t]he fugue state was probably induced by his mental illness or stress from

situations at home.” ¶ 8 In April 2014, the parties commenced jury selection for defendant’s trial. During the questioning of a prospect ive juror, defendant began crying loudly. Defense counsel requested a break which the trial court allowed. After the court instructed all of the prospective jurors to temporarily leave the courtroom, counsel informed the court that defendant was “upset” an d had

not taken his medication that morning. D efendant stated that he was “okay” to continue with jury selection, prompting the court to bring the prospective jurors back into the courtroom. Later , toward the end of jury selection, the State expressed “ concern s” about moving forward in light of

defendant’s lack of medication that morning. The court consequently dismissed all of the prospective jurors, and the parties agreed to postpone defendant’s trial. ¶ 9 At a subsequent court date, at the State’s reques t, the trial court ordered another

evaluation of defendant to assess his fitness to stand trial and fitness t o stand trial with

medication. Dr. Na dkarni again examined defendant, reviewed his records , and submitted a

document to the court, opining that def endant was “fit to stand trial

. ” Dr. Nadkarni also found

that there was “ no evidence that the defendant suffers from bona fide major mental illness, or

- 3 ­No. 1-14-3728 cognitive impairment that would preclude him from ” assisting in his defense and maintaining appropriate courtroom behavior

. Dr. Nadkarni stated that “[a] ny observations to the contrary should be interpreted as volitional on the part of the defendant and secondary to documented malingering of mental impairments, as well as marked character pathology.” Additio nally, Dr.

Nadkarni determined that defendant’s medication did not impact his fitness and he did not need “psychotropic medication in order to maintain his fitness or functioning. ” Lastly, Dr. Nadkarni referred the court to his psychiatric summary “for the basis of [his] opinion.” ¶ 10 On June 17, 2014, the tri al court held a fitness hearing where the State and defense counsel agreed to proceed by stipulation. The parties stipulated that , if Dr. Nadkarni had testified, he would have opined that defendant was “fit to stand trial.” The court asked if there

was a ny other evidence , but neither side offered any additional evidence. The court subsequently

found defendant fit to stand trial without further comment, and his case proceeded to trial. ¶ 11 B. Opening St atements ¶ 12 The State began its opening statement by telling the jury that Fias Mannie was “a newlywed,” “a loving husband,” a “loving father to two beautiful girls ,” and “a spiritual man.”

The State remarked that he had fasted the week prior to his death as part of his spirituality and invited family members over for a dinner to break the fast. The State then commented that “Fias was everything that the defendant is not,” which prompted an unsuccessful objection from defense counsel. Following the completion of the State’s opening statements, counsel moved for a mistrial arguing that the State’s comments were both argumentative and prejudicial. The trial

court denied the motion , finding the State’s comments proper and merely what its evidence planned to show. The court further observed that it could not “think of an opening statement

where the [S]tate’s not going to want to paint the defendant in a negative light.”

- 4 ­No. 1-14-3728 ¶ 13 In defendant’s opening statement, defense counsel tacitly acknowledged that defendant

committed the alleged acts but told the jury that it would hear evidence that he had “severe mental problems,” which caused him to not understand his actions and to not be criminally responsible for them

. ¶ 14 C. The State’s Case

- in

- Chief ¶ 15 The evidence in t he State’s case

- in

- chief revealed that , in October 2009, Fias Mannie lived in South Holland along with his wife, Shavon Mann ie , and their daughters, Lerrick and six

month-old Brooklyn. 1 Shavon’s brother was Floyd Wimberly. That month , defe ndant and his brother, who were cousins of Wimberly’s wife, were staying at Wimberly’s house. ¶ 16 O n October 23 , defendant helped Wimberly clean out a neighbor’s house , during which Wimberly handed him a box of knives to throw away in a dumpster outside

. Wimberly assumed

that defendant threw them away as instructed

. The next day , defendant accompanied Fias and his family, as well as Wimberly and his family, to church services. During the services, defendant was listening, clapping , and singing along to the hymns. At the completion of the servi ces , many people, including defendant, hugged one another. Afterward , Fias invited the Wimberly family to his house for a dinner the following day to celebrate the completion of a week

- long religious fast

he had undertaken. ¶ 17 On October 25 , defendant and the Wimberly family arrived at Fias’s house . D efendant greeted Fias, shook his hand, and played with the family dog. After the families ate dinner, some

of them watched a Chicago Bears game

. Later in the evening , F ias, Brooklyn , and defendant

w ere alone in the living room together. Fias was standing against a wall holding Brooklyn in his

1 Because multiple members of the Mannie family are referenced throughout, we will address them by their first names.

- 5 ­No. 1-14-3728

arms while he watched the football game

. Up until this point, according to both Shavon and Wimberly , Fias and defendant seemed to be getting along well without any semblance of

contention. Defendant was pleasant, acting normal, had not raised his voice , and never had an argument with Fias. ¶ 18 S havon briefly went upstairs and when she returned downstairs , she observed defendant “swing ing ” at Fias, who was still holding Brooklyn. She yelled for Wimberly to help, who

rushed into the living room

. Shavon noticed a knife in defendant’s hand, and when she looked back at Fias, she saw blood gushing from his face. Wimberly noticed blood coming through

Fias’s shirt and also saw a knife in defendant’s hand , which he recognized as one of the knives

he had given defendant to throw away two days prior

. Wimberly immediately grabbed defendant, threw him against the wall , and eventually pushed him outside of the house

. D efendant , however, wrestled himself away from Wimberly , jumped over a fence, and ran away. ¶ 19 Fias also ran out of the house where a neighbor, Kelly Heitmann, observ ed him covered

in blood. She called 911 and tried to help him by putting pressure on a wound on his neck . T he

911 operator had difficulty understanding Heitmann , which caused her to throw her phone in

frustration. Heitmann ’s husband picked up the phone and continued speaking with the operator.
While Heitmann was aiding Fias, he began choking on his own blood , and she noticed his eyes

roll back into his head. Heitmann told Fias “it was okay if he needed to leave” and said a prayer

for him. ¶ 20 The State played the 911 call from Heitmann for the jury. In the call, Heitmann can be heard struggling to inform the operator of her address, clearly panicked and overwhelmed. After

Heitmann disappeared from the call, her husband appear ed on the call and inform ed the operator

- 6 ­No. 1-14-3728 of the address while also observing that Fias was “bleeding all over” from his neck. Crying and hysteria can be heard in the background. ¶ 21 Paramedics arrived to the scene shortly thereafter and transported both Fias and Brooklyn to the hospital. Fias eventually died as a result of multiple stab and incised wounds as well as congestion of his right lung. Brooklyn had a small gash on her cheek and a large one above her mouth and below her nose. Her injuries required surgery. ¶ 22 Meanwhile, a t the scene , Wimberly talked to the police and identified defendant as the

offender . South Holland police officer Robert Williams found defendant, approached him and asked him to identify himself. Defendant told Officer Williams that he was “Eric Smith from Michigan,” and Officer Williams arrested him. ¶ 23 At the police station, South Holland police detective Chris Lareau interviewed defendant

and advised him of his Miranda rights. Defendant stated that he understood his rights and agreed

to talk. Detective Lareau found defendant’s responses to the questioning to be appropriate and thought defendant appeared “inquisitive” about the police’s knowledge of the events. ¶ 24 Near Fias ’s house, the police recovered two knives. One was the knife that Wimberly had

seen defendant with during the incident and the other was a knife that Wimberly later discovered

had been taken from a drawer in his house. ¶ 25 D. Defendant’s Case

- in

- Chief ¶ 26 In defendant’s case
- in

- chief , Patricia Smith, defendant’s mother, testified. She recounted that, during a two

- week period in August 2009, defendant exhibited strange behavior, including hiding in a closet , being afraid to sleep by himself , and commenting that he was hearing voices

. Because of his fears , defendant began sleeping in Smith’s bed , something he had never previously done , even as a child

. As a result, Smith took defendant to see a psychologist in their

- 7 ­No. 1-14-3728 hometown of Saginaw, Michigan, named Dr. Georgia Conic

. In October 2009, Smith thought that defendant was “doing better” and could potentially find a job in the Chicago area, so she sent him to stay with Wimberly. ¶ 27 Dr. Georgia Conic testified as an expert in the field of psychology. She stated that she first met defendant in August 2009 when Smith brought him to her office based on Smith’s

concerns over his recent behaviors , including increased agitation, paranoia, and fear that people were after him and his family

. Dr. Conic evaluated defendant and observ ed that he a ppeared normal in some respects but also appeared to have some hallucinations. Ultimately, because he exhibited some symptoms consistent with schizophrenia and there had been a self

- reported family history of it , Dr. Conic diagnosed defendant with schizophrenia and instructed him to

have follow- up appointments with a psychiatrist, who could prescribe medication if necessary.

D r. Conic, however, acknowledged that normally a diagnosis of schizophrenia can not be made unless a person had exhibited such symptoms for six months. As part of her evaluation, Dr.

Conic examined defendant’s antisocial behav ior, where he scored a 70% antisocial rating. This rating was based on a history of rule breaking, reckless behavior, being argumentative with authority, verbal and physical fighting, and a pattern of poor impulse control. Dr. Conic stated that an antisocial personality disorder is not considered a mental illness but rather a mental

disorder. ¶ 28 The next time Dr. Co nic saw defendant was in July 2013 , after he was charged for the

instant offenses

. In preparation for another evaluation of him, she reviewed police reports,

witness statements , and defendant’s own statement s. However, she acknowledged she did not

review h is criminal history, a psychiatric summary of him by Dr. Markos , a psychiatric summary

of him by Dr. Nadkarni , a clinical social work evaluation of him by licensed clinical social

- 8 ­No. 1-14-3728 worker Janine Bostick, or his recent medical records. After Dr. Conic’s evaluation of defendant,

she concluded that he seemed “more rational,” “more interactive , ” and generally “functioning better” than when she initially met him , but he could not emotionally connect to the fact that he

had killed Fias

. She also stated that, i n statement s defendant made to the police, he indicated that he had no recollection of the events, could not recall even being present when the stabbing s
occurred , stated he did not have a knife , and explained to the police the blood on his shirt had been there for days

. ¶ 29 Dr. Conic ultimately opined that , on October 25, 2009, defendant was suffering from “schizophrenia paranoid type” an d was in a “psychogenic fugue state ” brought on by a combination of schizophrenia and stress at home. Dr. Conic explained that a fugue state w as “a period of time where a person actually participates in actions that they are not aware of. They have a break from reality, and they are not functioning as their rational self.” The fugue state can

last for hour s , and afterward , the person resumes normal functioning and has no recollection of what occurred during the fugue state. According to Dr. Conic, the conditions defendant suffered from that day resulted in him lacking the substantial capacity to appreciate the criminality of h is

conduct. ¶ 30 Dr. Conic acknowledged that some people “malinger,” or falsely report the manifestation of psychological symptoms , in order to avoid prosecution. But she concluded that defendant was not malingering because it is “very hard to fake a fugue stat e,” and he did not have the “need to calculate or manipulate thinking

. ” Dr. Conic admitted she was unaware that other doctors had
suspect ed defendant of malingering. ¶ 31 E. The State’s Rebuttal Case

- 9 ­No. 1-14-3728 ¶ 32 In rebuttal, the State called Dr. Nishad Nadkarni , a psychiatrist, who testified as an expert in forensic psychiatry

. In March 2013, in preparation for an evaluation of defendant, Dr.

Nadkarni reviewed his criminal history, a psychological assessment of him prepared by GEC Psychological Consultants from August 2009, the psychiatric summary of him by Dr. Markos,

the clinical social work evaluation of him by Bostick, police reports, several witness statem ents,
statements from him, a DVD of him being interviewed by the police , and his recent medical

records

. ¶ 33 Defendant’s medical records revealed that he did not seek treatment for his mental health issues until six or seven months after his arrest, and there were “significant notations” that defendant was “malingering.” Defendant’s medications included one milli gram of Risperdal, an antipsychotic and mood stabilizer, every 12 hours, which was a “very small dose,” as people with “true mental illness like schizophrenia” require four to six mi lligrams of Risperdal per day. Dr. Nadkarni acknowledged, however, that de fendant’s medications were ones designed to treat people with a bona fide psychosis. ¶ 34 Dr. Nadkarni ’s review of the DVD revealed that defendant showed “no signs of any psychiatric or cognitive impairment.” Rather, defendant appeared to be “interactive in a h igh and logical level” and “somewhat gamey in his demeanor .” At one point, defendant was left alone in

the interview room and told himself that he had left the scene and was not there, which led Dr. Nadkarni to believe that defendant was acting rational an d logical, but merely antisocial. ¶ 35 During Dr. Nadkarni’s evaluation, defendant reported his symptoms as including paranoia and hallucinations but did so in a “stilted and artificial manner,” which was “atypical of somebody who h as a true, major mental illness .” A ccording to Dr. Nadkarni, people with true

mental illnesses appear “very ill” and are “reluctant” to talk about their symptoms, which

- 10 ­No. 1-14-3728

oftentim es makes a diagnosis difficult. Defendant, however, was “very well engaged” and called “attention to [h is] symptoms.” He also possessed a goal

- oriented thinking process without any signs o f hallucinations or psychosis, and h e acted “interpersonally charismatic,” which was also contrary to the typical person with schizophrenia who acts “very flat

. ” Based on the evaluation,

Dr. Nadkarni concluded that defendant did not demonstrate “any bona fide or true psychiatric or cognitive impairments.” ¶ 36 Dr. Nadkarni also discussed the stabbing incident with defendant, who reported that,

p rior to it , he “was in a bad spirit,” and heard voices and animals talking to him. Defendant

stated that, during the stabbing s, he suffered from “ different psychiatric symptoms, ” felt “out of

control” and possibly heard more voices. He told Dr. Nadkarni that he “just st abbed” Fias and “left the scene because [he] realized what [he] had done.” Defendant acknowledged to Dr.

Nadkarni that his actions were unlawful. ¶ 37 Dr. Nadkarni ultimately diagnosed defendant with malingering, which is “the creation or feigning of mental symptoms ,” a history of mood disorder, and an antisocial personality disorder,

the latter of which was not a mental disea se or defect but rather a behavior problem. Dr. Nadkarni opined that, at the time of the stabbings, defendant did not “manifest a bona fide or true mental disease or defect that would have substantially impaired his capacity to appreciate the criminality of the alleged acts.” ¶ 38 When asked about a psychogenic fugue state, Dr. Nadkarni stated that only a “few dozen case reports” of a true fug ue state had been documented and that most claims of such were really just malingering. Dr. Nadkarni, who had conducted over 3 100 forensic evaluations in his capacity as a psychiatrist, could not answer whether a person in a fugue state would be able to

- 11 ­No. 1-14-3728

ap preciate the wrongfulness of his conduct because Dr. Nadkarni had never diagnosed anyone

with a bona fide fugue state

. ¶ 39 F. Verdict , Posttrial , and Sentencing ¶ 40 Following closing arguments and deliberation s , the jury found defendant guilty of first degree murder and attempted first degree murder. Following defendant’s unsuccessful motion for

a new trial, t he trial court sentenced him to consecutive terms of 40 years’ imprisonment for first degree murder and 18 years’ imprisonment for attempted first degree murder , for a total of 58 years’ imprisonment. This appeal followed. ¶ 41 II . ANALYSIS ¶ 42 A. Denial of a Fair Trial ¶ 43 Defendant first contends that he was denied a fair trial due to the cumulative effect of multiple trial errors
. Specifically, he argues that (1) the State made an improper and argumentative opening statement, (2) the trial court improperly allowed Kelly Heitmann ’s overly emotional testimony , (3) the trial court erred in allowing the State to play the recording of

Heitmann ’s call to 911 , a nd (4) the State improperly emphasized portions of the emotionally charged evidence during its closing argument. Defendant does not assert that each of these errors

alone warrant a reversal of his convictions but instead that the pervasive pattern of infla mmatory argument and emotionally charged evidence together resulted in the jury deciding his case based

on emotion rather than the decisive issue of his sanity . D efendant therefore concludes that he

must receive a new and fair trial

. ¶ 44 Under both the United States and Illinois Constitutions, due process guarantees the defendant, regardless of his guilt or innocence, a fair and impartial trial. People v. Bull , 185 Ill. 2d 179, 214 (1998) (citing U.S. Const., amend. XIV; Ill. Const. 1970, art. I, § 2). In People v.

- 12 ­No. 1-14-3728

Blue , 189 Ill. 2d 99, 119 (2000), a defendant made several claims of trial court and prosecutorial error during his trial. O ur supreme court agreed that some of th ose claims amounted to actual

error. Id. at 120. The court ultimat ely found that the cumulative effect of th e errors “may have coerced the jury into returning a verdict more likely grounded in sympathy than on a dispassionate evaluation of the facts.” Id. Accordingly, the court held that the defendant did not

receive a fair trial, reversed his convictions , and remanded the matter for a new trial. Id. at 120,

140. We will utilize the framework of Blue to determine whether a similar result is warranted in

this case. ¶ 45 Initially, we note that some of defendant’s contentions of error have been preserved for review through contemporaneous objections and inclusion in a posttrial motion. See P eople v.

Leach , 2012 IL 111534, ¶ 60. However, defendant acknowledges that some of his contentions of error have not been preserved for rev iew. Regardless, in certain , unique circumstances and when the defendant’s interest in receiving a fair trial is at stake, as we find is the case here, we may decline to apply the forfeiture doctrine. Blue , 189 Ill. 2d at 127. Moreover, “forfeiture is a

li mitation on the parties and not the reviewing court, and we may overlook forfeiture where necessary to obtain a just result.” People v. Holmes , 2016 IL App (1st) 132357, ¶ 65. We therefore begin by examining each of the alleged errors individually. ¶ 46 1. The State’s Opening Statement ¶ 47 Defendant’s first alleged error concerns the propriety of the following comments made by

the State at the beginning of its opening statemen t: “Fias Mannie. He was a newlywed and a loving husband. Only married for three

month s. He was a loving father to two beautiful girls, six -month-old Brooklyn and

six

- year
- old [Lerrick]. He was also a spiritual man. And he had made a spiritual

- 13 ­No. 1-14-3728 sacrifice. He invited his family over to watch the Bears game and to have Sunday

dinner in celebra tion of his spiritual discipline . You see, he had fasted that week for what he wanted to come into his life. Little did Fias know that would actually mark the end of his life. Fias was everything that the defendant is not.”

D efendant argues that the State’ s remarks were argumentative, improperly compared his

character to the character of Fias , and improperly dwelled on Fias’s family

. ¶ 48 During an opening statement, t he State generally has wide latitude in discussing the case

. People v. Pasch , 152 Ill. 2d 133, 184 (1992). The purpose of an o pening statement is to allow a party to remark generally and concisely about the facts and issues of the case

. People v. Jones , 2016 IL App (1st) 141008, ¶ 22. It should not become argumentative. Id. Given these limitations, the latitude afforded to the State during an opening statement may not be as great as the latitude afforded to it during a closing argument. Id. In other words, statements made during an opening statement may be improper where those same statements may be proper during a closing
argument. Id. C omments intended “only to arouse the prejudice and passion of the jury are improper.” Id. ¶ 21. The State, however, may discuss the evidence that will be presented and matters that may be reasonably inferred from th at evidence. People v. Smith , 141 Ill. 2d 40, 63 (1990). Challenged remarks during an opening statement must be viewed in context. People v. Thompson , 2016 IL App (1st) 133648, ¶ 47. ¶ 49 Initially, t he parties dispute the applicable standard o f review. Defendant argues that we
should review the opening statement de novo while the State argues we should review it for an
abuse of discretion. Recent decisions from this court have used both standards. Compare Jones , 2016 IL App (1st) 141008, ¶ 23 ( reviewing de novo ), with People v. Trotter , 2015 IL App (1st)

- 14 ­No. 1-14-3728 131096, ¶ 43 (reviewing for an abuse of discretion). We need not resolve this apparent conflict because under either standard of review, our conclusion would be the same. ¶ 50 First, the State properly discussed Fias being religious and spiritual , as th ese
characteristics pro v ided context to why defendant happened to be at his house on the day in question, i.e. , a family gathering to celebrate the ending of Fias’s week

- long religious fast. And, in fact, Shavon testified to these very facts. See Smith , 141 Ill. 2d at 63 (in an ope ning statement , the State may discuss what its evidence will show) . The State cannot be faulted for discussing

Fias’s religion and spirituality when those two concepts were at the very heart of why the circumstances brought him and defendant together. ¶ 51 How ever, the State’s comments , though fleeting, to Fias being a “newlywed,” “loving husband, ” and “loving father” to two “beautiful” daughters when juxtaposed with its later

comment that Fias was everything defendant was not were improper. “[A] victim does not live in a vacuum,” and naturally the victim has family. People v. Cloutier , 156 Ill. 2d 483, 508 (1993). References to the victim’s family are proper to the extent necessary to properly present the State’s case, which occur s when such references are incidental and uncalculated

. Id. However,

these references are imp roper when they are deliberate attempts “to inject irrelevant and prejudicial matters into th e trial .” Id. ¶ 52 Here, the State’s references to Fias’s family were deliberate and intended to inject prejudice into defendant’s trial , as the State sought to pit Fias

— the loving family man with two beautiful daughters—against defendant, the antithesis

. Not only were the statements calculated to inject prejudice , but they also were argumentative, inviting the jury to evaluate and compare the character of the two key figures in the case. If defendant is the opposite of Fias, the loving family man, then implici tly defendant must be cold and cruel. Although the State did not use a

- 15 ­No. 1-14-3728 pejorative to describe defendant, such as calling him a “ criminal” ( Jones , 2016 IL App (1st) 141008, ¶¶ 24- 25) or a “crack

- head” ( People v. Deloney , 359 Ill. App. 3d 458, 469 (2005)) , the

State’s comments were intended to frame the jury’s consideration of the two men as , in essence, good versus evil. See People v. Johnson , 208 Ill. 2d 53, 80 (2003) (finding that, during closing
argument, it is improper to imply that the jury has to choo se between “ ‘good and evil ’ ” ). The se

comments in conjunction were intended to invoke an emotional response in the jury and therefore improper. ¶ 53 Though the trial court instructed the jury that opening statements were not evidence immediately before the State gave its opening statement, the State’s improper comments

occurred during the jury’s first introduction to defendant, as his attorney had not yet made an opening statement on his behalf. See Jones , 2016 IL App (1st) 141008, ¶ 25 (finding the State’s

“derisive characterization” of the defendant as a “ ‘ criminal ’ ” during its opening statement particularly prejudicial to him “where it was the jurors’ first introduction to him”). Consequently, it was improper for the State to use Fias’s famil y as a mechanism to compare his character to that of defendant during its opening statement. ¶ 54 2. The Testimony of Kelly Heitmann ¶ 55 Defendant’s second alleged error concerns the trial court allowing Kelly Heitmann’s emotional testimony about Fias’s suffering and her attempts to aid him despite the State already proving the death of Fias through other evidence. Defendant highlights that defense counsel noted for the record that, during Heitmann’s testimony, she cried and was hysterical, which even

re sulted in a couple of jurors crying. Defendant argues that her emotionally charged testimony was prejudicial especially in light of its minimal probative value.

- 16 ­No. 1-14-3728 ¶ 56 At trial, Heitmann testified that she heard multiple people scream and observed Fias , who was “screaming very loud” in a “very

- high pitched shrill,” run a cross the street covered in blood.

Heitmann called 911 and then, while she tried to help Fias, she noticed that his “eyes rolled back

into his head ” and he began “choking on his blood .” Eventually, when Heitmann realized there was nothing that she could do to save him, she recited a prayer for him. ¶ 57 After providing this narrative of the events, Heitmann identified photographs taken from the scene of the crime, including of Fias’s driveway, his blood y shirt , and her bloody shirt. These photographs were subsequently admitted into evidence. The State then showed her photographs

of Fias deceased at the hospital, which included close

- up views of his wounds, prompting

de fense counsel to request a side bar. Counsel noted for the record that Heitmann had been “hysterical and crying through her whole testimony.” He argued that her testimony was “not probative,” but rather “incredibly inflammatory ” and “way over the top,” especially the portions about Fias choking on his own blood and Heitmann saying a prayer for him. Counsel additionally asserted that he had stipulated to the autopsy and was not contesting whether or not Fias was stabbed to death by defendant. ¶ 58 The State responded “that’s the way that [Heitmann] recalls [Fias] appearing to her” and

it only showed her the photographs “so she could identify the person that she’s referring to as Fias.” The trial court noted that a couple of the jurors were actually crying and found Heitmann’s testimony to be “very overwhelming from an emotional point of view.” Because whether

defendant committed the acts that resulted in Fias’s death was not at issue, the court precluded the State from showing the jury the photograph s of Fias. ¶ 59 With this chronology of Heitmann’s testimony in mind , we note that defense counsel never objected to her emotional narrative of events nor did he file a motion in limine to bar her

- 17 ­No. 1-14-3728 testimony, let alone any portion of it. In light of this, d efend ant, in essence, asks us to find that

the trial court should have sua sponte curtailed, excluded , or controlled Heitmann’s emotional testimony. ¶ 60 It is well

- established that the trial court has no duty to sua sponte exclude evidence when a party fails to make an objection. People v. Driver , 62 Ill. App. 3d 847, 852 (1978). However, the court does have a responsibility to ensure that a trial is “conducted in an orderly manner with proper decorum.” People v. Williams , 201 Ill. App. 3d 207, 221 (1990). Emotional outbursts, such as a witness crying, do not require the court to order a mistrial because it is in the best position to determine the impact on a jury of such outbursts. People v. Smith , 242 Ill. App. 3d 344, 350 (1993). Still, the court must take appropriate measures under the circumstances to

ensure that the defendant receives a trial before a fair and impartial jury. People v. McLain , 226 Ill. App. 3d 892, 901 (1992). The court is entitled to considerable latit ude and discretion in how

it administers a trial. People v. Schuld , 175 Ill. App. 3d 272, 282 (1988). ¶ 61 In this case , the court had no duty to sua sponte prevent Heitmann from testi fying or preclude certain portions of her emotional testimony . See Driver , 62 Ill. App. 3d at 852. However, that does not mean the court had no responsibility whatsoever in regard to her testimony. During the sidebar , the court observed that Heitmann’s testimony was “very overwhelming from an emotional point of view” and caused s ome members of the jury to cry

themselves

. Although the court is in the best position to determine the impact on a jury of a

witness’ s crying, t his observation was a clear indication that Heitmann’s testimony was exceedingly emotion al and risked distracting the jury from the true issue at hand to reach a

verdict based on the evidence. Once the court realized that Heitmann could not control her

- 18 ­No. 1-14-3728 emotions, it should have taken some corrective action to best ensure that defendant received a

tri al before an impartial and fair jury

. ¶ 62 For example, once Heitmann began crying hysterically , t he trial court could have called

for an immediate recess to allow her time to control her emotions . See People v. Sambo , 197 Ill. App. 3d 574, 583

- 84 (1990) (finding that the trial court properly found no mistrial was warranted

after a witness “ broke down and cried during her testimony ” because the court “ordered a recess immediately after [she] cried”). The court also cou ld have immediately provided the jury with a curative instruction such as “[n]either sympathy nor prejudice should influence you” (see Illinois Pattern Jury Instructions, Criminal, No. 1.01(5) (4th ed. 2000) ), an instruction the court actually provided the jury before deliberations

. But by doing neither during Heitmann’s clear emotional outburst and merely holding a brief sidebar well after the fact , the court abused its discretion. ¶ 63 3. The Recording of Heitmann’s 911 Call ¶ 64 Defendant’s third alleged error concerns the trial court’s ruling on the admissibility of the recording of Heitmann’s 911 call. At trial, after the court precluded the State from introducing the photographs of Fias decease d at the hospital , the State indicated that it would introduce th e

rec ording of Heitmann’s 911 call. Defense counsel, however, objected to the introduction of the recording as being unduly inflammatory and prejudicial. The court responded that, during the

cross
- examination of Wimberly earlier in the trial, counsel attempted to impeach him on where he stated Shavon was located when she called for his help , which w as outside the defense’s “theory” of the case

. The court further observed that, during a sidebar related to counsel’s attempted impeachment of Wimberly, counsel justified his questioning because he did not “know what’s going to come up” later. The court similarly found that the State did not “know what’s going to happen down the road” and had to prov e its case beyond a reasonable doubt. Based on

- 19 ­No. 1-14-3728

this reasoning , t he court allowed the State to play the recording of Heitmann’s 911 call for the jury. ¶ 65 In the 911 call , Heitmann initially exclaimed “there’s a man bleeding in the middle of the street” and “the whole family is screaming.” She then struggled to inform the operator of her address, panting while appearing overwhelmed and panicked. After the operator understood the

street address, the operator asked Heitmann what town she was located in. Heitmann responded

that “he ’s dying , you don’t understand ” and disappear ed from the call . She was on the phone for approximately one minute. Heitmann’s husband subsequently appear ed on the call , and the
operato r again attempt ed to discern what town they were located in . H e responded in a distressed

manner “oh my god” and proceed ed to inform the operator that he was in South Holland. The

husband described Fias as being cut from the neck and “bleeding all over

. ” The husba nd

continued talking to the operator, who inform ed him that someone needed to u se a clean cloth to
put pressure on the wound

. Eventually, the husband informed the operator that police had

arrived. During the entire 51⁄2

- minute call, crying and mostl y unintelligible screaming is heard in the background. ¶ 66 Evidence is admissible at trial “ if it is relevant and its probative value is not substantially outweighed by its prejudice.” People v. Sharp , 2015 IL App (1st) 130438, ¶ 93. Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the

evidence.” Ill. R. Evid. 401 (eff. Jan. 1, 2011). Evidence that is not relevant is in admissible. Ill.

R. Evid. 402 (eff. Jan. 1, 2011). ¶ 67 Recordings of 911 calls “will not be excluded merely because it may prejudice the accused or because it might arouse feelings of horror or indignation in the jury.” People v.

- 20 ­No. 1-14-3728

Williams , 181 Ill. 2d 297, 314 (1998). Rather, the trial court must weigh the probative value of the recording against its prejudicial effect, which depends upon the specific circumstances of the

case. Id

. “[P]rejudice means an undue tendency to suggest decision on an improper basis,

c ommonly an emotional one, such as sympathy, hatred, contempt, or horror.” (Internal quotation marks omitted.) People v. Lewis , 165 Ill. 2d 305, 329 (1995). The admissibility of a 911 recording is within the court’s discretion, and we will not interfere with th e ruling absent an

abuse of that discretion. Williams , 181 Ill. 2d at 314. “An abuse of discretion occurs only where the trial court’s decision is arbitrary, fanciful, or unreasonable to the degree that no reasonable person would agree with it.” People v. Rivera , 2013 IL 112467, ¶ 37. ¶ 68 In this case, assuming arguendo that the 911 recording was relevan t to the State ’s case

in

- chief , i.e. , having some tendency to prove that defendant’s acts caused Fias’s death , an
element of first degree murder (see 720 ILCS 5/9

- 1(a) (West 2014); People v. Hardimon , 2017 IL App (3d) 120772, ¶ 38 n.1), its admission served primaril y to inflame the passion of the jury. At this point in the trial, defendant had already stipulated to the autopsy report , which

demonstrated that Fias died from m ultiple stab and incised wounds, and it was undisputed that

defendant stabbed Fias and Brooklyn

. Furthermore, Heitmann herself had already testified that she observed Fias running across the street covered in blood, called 911, and tried to assist him

. Though evidence cumulative to oral testimony may be admissible (see Williams , 181 Ill. 2d at 315), the recording included exceptionally emotional evidence, t he introduction of which served

no clear purpose other than to give the jury a real

- time look at the moments immediately after the stabbings and the resulting emotions of horror and shock experienced by the people at the scene. Notably, the 911 recording provided no insight into the actual stabbings, what precipitated them ,

or defendant’s sanity. The prejudicial effect of introducing the recording substantially

- 21 ­No. 1-14-3728 outweighed what little probative value it had , and the court’s decision to allow it into evidence was unreasonable to the degree that no reasonable person would agre e. Therefore, t he recording

should have been deemed inadmissible. ¶ 69 T he State , however, argues that the recording was necessary because defendant had not pled guilty, thus placing all aspects of the offenses at issue, and defense counsel stated during trial that he intended to challenge the “overall composition” of the State’s case. Defense counsel

made this remark in the sidebar during his cross

- examination of Wimberly and attempted impeachment of Wimberly c oncerning where Shavon was located when she called for his

assistance

. During the sidebar , t he trial court asked counsel why he was attempting to impeach Wimberly on a collateral matter when the decisive issue of the case was defendant’s sanity. Counsel responded that , while the court was correct regarding sanity being the critical issue , he could not ignore “an obvious contradiction” and thought he “could argue the overall composition of the case, how the case is being put together.” The court replied that it did not know how impeaching Wimberly on a collateral mat ter would help defendant’s case but allowed counsel to proceed. Counsel stated that “we don’t know what will develop down the road” and that he would make his point and move on. ¶ 70 While defense counsel clearly stated that he could possibly challenge the overall composition of the State’s case, notwithstanding the fact that this would have directly contradicted his theory of the case, opening statement , and the expected testimon y of his expert witness, this assertion by counsel still does not mean the 911 recording was admissible. Even assuming that counsel might later change his theory of the case, the 911 recording was cumulative to other properly admissible evidence and did no t materially advance the State’s case

.

- 22 ­No. 1-14-3728 Thus, the prejudicial effect of introducing the recording would still substantially outweigh its probative value. ¶ 71 Lastly, we find the State’s reliance on People v. Jurczak , 147 Ill. App. 3d 206 (1986), for

the proposition that the trial court properly admitted the 911 recording misplaced. In Jurczak , the defendant had stabbed his wife to death shortly after she called 911 for help and while the call

was still connected. Id. at 208. The recording of her call was played during the defendant’s jury

trial. Id. at 210. In the defendant’s case

- in

- chief , he raised the defense of insanity and testified, admitting that he stabbed his wife to death

. Id. at 211

- 12. The jury ultimately found the

defendant guilty of murder but mentally ill. Id. at 212. On appeal, the defendant contended that the trial court erred in allowing the State to play the 911 recording for the jury because it was gruesome in nature and had no probative value on his insanity defense

. Id. This court disagreed, finding that, despite the gruesome nature of the recording, it “was the most probative evidence

available of the actual commission of the crime ” given that no one had witnessed the actual commission of the crime except the defend ant. Id. at 213. This court also found that the recording was relevant to the defendant’s insanity defense because it showed “how the killing occurred and by providing the jury with information it needed to determine the weight to give to the expert testim ony on sanity.” Id. at 214. ¶ 72 Here, i n contrast to Jurczak , the 911 recording was not probative to the actual

commission of the crime because Heitmann never witnessed the stabbing s, and it had no

relevance to defendant’s in sanity defense. Jurczak is therefore inapposite. Accordingly, we find that the trial court abused its discretion when it allowed the State to play the 911 recording for the jury. ¶ 73 4. The State’s Closing Argument

- 23 ­No. 1-14-3728 ¶ 74 Defendant’s fourth alleged error concerns multiple comments made by the State during

its closing argument . First, he points to the State’s reference to Fias as a “newlywed” who

encountered “an amazing woman” in Heitmann. Defendant next highlights the following

comments: “Imagine, there is a man bleeding, running at her. She doesn’t run away. She goes to him. And he says, ‘I think that I a m going to fall out.’ And she grabs him, and she helps him down to the ground. She let’s this bleeding stranger land on her. And then she begins applying pressure to the wound, again, while this defendant is running through dark backyards, tossing everything he has.” Finally, defendant notes that the State recalled that Heitmann said a prayer for Fias when she realized that he was about to die. Altogether, defendant argues this portion of the State’s closing argument repeated and exacerbated the emotional content of its case. ¶ 75 The State has wide latitude during a closing argument ( People v. Wheeler , 226 Ill. 2d 92, 123 (2007) ), where axiomatically argument is permitted

. Remarks that may be improper in an opening statement may nevertheless be proper in a closing argument

. Jones , 2016 IL App (1st) 141008, ¶ 22. In a closing argument, t he State may comment on the evidence presented at trial and draw reasonable or fair inferences from that evidence, even if they reflect poorly on the

defendant. People v. Nicholas , 218 Ill. 2d 104, 121 (2005). However, “[c] losing argument must serve a purpose beyond inflaming the jury’s emotions.” Thompson , 2016 IL App (1st) 133648, ¶ 48. The appropriate standard of review is currently uncertain. In Wheeler , 226 Ill. 2d at 121, our supreme court applied de novo review while in Blue , 189 Ill. 2d at 128, the court reviewed the propriety of a closing argument for a n abuse of discretion. See People v. Donahue , 2014 IL App (1st) 120163, ¶ ¶ 102-103 (acknowledging the conflict regarding the standard of review).

- 24 ­No. 1-14-3728 However, we need not resolve this conflict, as our conclusion would be the same under either

standard. ¶ 76 Here , all of the complained

- of remarks are based on the evidence presented at trial , such as Fias being a “newlywed,” or reasonable inferences from the evidence, such as Heitmann, who tried to save a stranger’s life, being an “amazing woman .” None of the State’s comments were overly inflammatory, and it was merely reviewing the evidence at trial with the jury

. Give n the wide latitude the State has during its closing argument , we cannot find these comments improper. ¶ 77 5. Cumulative Effect of the Errors ¶ 78 In light of the foregoing, we find that defendant has raised three valid trial errors
. This

case at its core was gruesome and tragic , as it involved the stabbing death of Fias and the stabbing of his six -month- old daughter Brooklyn, all in front of family and neighbors . The se facts cannot change. But through the combination of errors, overwhelming and unnecessary emotion was injected into defendant’s trial. In the State’s opening statement, the jury’s first introduction to defendant, the State improperly s ought to pit good in the form of Fias versus evil

in the form of defendant. The trial court then allowed Kelly Heitmann to cry hysterically throughout her testimony, which resulted in members of the jury crying, without any attempt to help reign in her emotions or cure any possible prejudice on the jury

. Finally , the court allowed the highly inflammatory 911 recording to be played for the jury during Heitmann’s testimony, which only further exacerbated her emotional testimony

. ¶ 79 There was a real risk that these errors, regardless of the strength or weakness of the

State’s case , compelled the jury into rendering verdict s grounded in compassion rather than a dispassionate evaluation of the facts and the decisive issue of defendant’s sanity

. See Blue , 189

Ill. 2d at 120, 139. Together , these errors created a pervasive pattern of unfair prejudice that

- 25 ­No. 1-14-3728 deprived defendant of his right to a fair trial. See id. at 139. Accordingly, due process demands

that we reverse his convictions and remand the case for a new trial

. See id. at 140. ¶ 80 B. Fitness Hearing ¶ 81 Although we have found that defendant is entitled to a new trial due to the cumulative effect of multiple trial error s , we still must address some of his additional contentions of error , beginning with the propriety of his pretrial fitness hearing

. We note that, i f we were to find a deficiency in defendant’s fitness hearing, the appropriate remedy would be a retrospective fitness hearing in which the trial court w ould properly dete rmine whether he was fit to stand trial. See People v. Gipson , 2015 IL App (1st) 122451, ¶ 38 (remanding for a retrospective fitness hearing after a deficient fitness hearing) ; People Cook , 2014 IL App (2d) 130545, ¶ 22 (same)

. At the retrospective fitness hearing, if the court found defendant fit, then his convictions would stand.

See Cook , 2014 IL App (2d) 130545, ¶ 22. Alternatively, i f the court found defendant unfit, then

it would be required to vacate his convictions and provide him a new trial. See Gipson , 2015 IL App (1st) 122451, ¶ 38. ¶ 82 Obviously, if defendant’s fitness hearing was sufficient, we would still be reversing his

convictions based on the trial errors. On the other hand, if his fitness hearing was deficient, we
would still be granting hi m a new trial based on the reversal of his convictions. Thus, the propriety of his fitness hearing is moot. However, because it is possible his fitness to stand trial

re emerges as an issue upon remand , we address the sufficiency of his fitness hearing

. ¶ 83 Defendant contends that the trial court’s June 17, 2014, fitness hearing was constitutionally deficient because instead of making its own independent conclusion as to his

fitness to stand trial , the court merely adopted the opinion of Dr. Nadkarni as provided in the stipulated testimony . The following is the entirety of defendant’s fitness hearing:

- 26 ­No. 1-14-3728 “MS. CORBIN [Assistant State’s Attorney]: *** We are in receipt today of the psychiatric summary. So, to that end we can now proceed by way of stipulation.

THE C OURT: All right. MR. FULTON [defense counsel]: That’s correct. MS. CORBIN: It is stipulated by and between the parties that pursuant to Your Honor’s latest order Doctor Nishad Nadkarna [ sic ] he would testify that pursuant to Your Honor’s order on June 4, 2014 he examined the defendant, Eric Smith, to render an opinion regarding Mr. Smith’s fitness to stand trial and fitness

with medication. It would be Doctor Nishad Nadkarna ’s [ sic ] testimon y within a reasonable degree of medical and psychiatric certainty that the defendant, Mr. Smith, is in fact fit to stand trial. So stipulate? MR. FULTON: So stipulated. THE COURT: Okay. Any other evidence? MR. FULTON: Not from us, Judge.

THE COURT: Defenda nt fit to stand trial.” ¶ 84 The fourteenth amendment’s due process clause precludes the prosecution of a defendant

who is unfit to stand trial. People v. Holt , 2014 IL 116989, ¶ 51. A defendant is presume d fit to

stand trial but will be deemed unfit if a ment al or physical condition prevents him from understanding the nature and purpose of the proceedings against him or assisting in his defense.

725 ILCS 5/104

- 10 (West 20 14 ). The issue of a defendant’s fitness to stand trial may be raised by the trial court, t he defense, or the State at any time before, during, or after trial, and once a

- 27 ­No. 1-14-3728

bona fide doubt as to his fitness has been raised, the court must order a behavioral clinical examination of the defendant by a licensed physician, clinical psychologist or psychiatrist. 725

ILCS 5/104

- 11(a), (b), 104

- 13(a) (West 2014). After the court has ordered an examination and received the corresponding report, it “shall conduct a hearing to determine the issue of the

defendant’s fitness.” 725 ILCS 5/104

- 16(a) (West 20 14 ). “On the basis of the evidence before it,

the court *** shall determine whether the defendant is fit to stand trial *** .” 725 ILCS 5/104

­ 16(d) (We st 2014). ¶ 85 T he trial court’s determination that the defendant is fit to stand trial will not be reversed

unless the court has abused its discretion. People v. Contorno , 322 Ill. App. 3d 177, 179 (2001)

. But because constitutional due process concerns are present, “the record must show an affirmative exercise of judicial discretion regarding the fitness determinatio n.” Cook , 2014 IL App (2d) 130545, ¶ 13. ¶ 86 During a fitness hearing, “the trial court may consider an expert’s stipulated testimony to assess a defendant’s fitness but may not rely solely on the parties’ stipulation to an expert’s

conclusion that the defendant is fit.” (Emphasis in original.) Gipson , 2015 IL App (1st) 122451, ¶ 30; see also Contorno , 322 Ill. App. 3d at 179 (“A trial court’s determination of fitness may not be based solely upon a stipulation to the existence of psychiatric conclusions or findings.”) . T he

ultimate decision of the defendant’s fitness must be made by the court, not the expert, and thus,

the “court must analyze and evaluate the basis for an expert’ s opinion instead of merely relying upon the expert ’ s ultimate op inion.” Contorno , 322 Ill. App. 3d at 179. The defendant’s due process rights will not be satisfied if the trial court fails to independently inquir e into the defendant’s fitness and, instead, exclusively relies on the parties’ stipulation. Cook , 2014 IL A pp (2d) 130545, ¶ 15. However, the defendant’s due process rights will be satisfied if the court’s

- 28 ­No. 1-14-3728 determination of fitness is based not only on a stipulation but also on additional evidence of his fitness, such as the expert’s report or its own observations of the defendant

. Gip son , 2015 IL App (1st) 122451, ¶ 30. ¶ 87 In the present case, defendant’s fitness hearing was brief and consisted solely of the stipulated testimony from Dr. Nadkarni . Following his stipulated testimony, the only statement

fr om the court was : “D efendant fit to stand trial.” Based on only this statement, the record does

not demonstrate that the court affirmatively exercised its judicial discretion in concluding defendant was fit to stand trial. Such an independent inquiry was especially necessary here because defendant initially had been found fit to stand trial but with medication. Although the court may have made a determination of defendant’s fitness without relying solely on the stipulated testimony of Dr. Nadkarni , the record fails to show an independent inquiry . Therefore, defendant’s fitness hearing did not satisfy his due process rights

. ¶ 88 As this court stated in Cook , 2014 IL App (2d) 130545, ¶ 20, “it is incumbent upon the court to make a record reflecting that it did mo re than merely base its fitness finding on the stipulation to the expert’s ultimate conclusion.” This record need not be detailed, but the court must show its reliance on more than just the stipulation, such as its review of the expert’s report

or its own observations of the defendant. See Gip son , 2015 IL App (1st) 122451, ¶ ¶ 29-30. This

mandate is minimal ly burdensome to the court y et maximal ly protective to the defendant ’s due process rights . Consequently, if defendant’s fitness to stand tri al reemerges a s an issue on remand, the trial court must ensure that his due process rights are satisfied. ¶ 89 C. Jury Instructions

- 29 ­No. 1-14-3728 ¶ 90 Defendant ’s next two contentions concern the jury instructions used in his trial . Although we have reversed his convictions, thereby also making these contentions moot, they may reoccur upon retrial. We therefore address them. ¶ 91 1. Split Jury Verdicts ¶ 92 Defendant first contends that People’s instruction No. 6 improperly instructed the jury that it could only return the same verdict for both first degree murder and attempted first degree murder. People’s instruction No. 6, based on Illinois Pattern Jury Instructions, Criminal, No. 2.01AA (4th ed. 2000) (hereinafter, IPI Criminal 4th No. 2.01AA), instructed the jury that: “The defendant is charged with the offenses of first degree murder and attempt first degree murder. The defendant has pleaded not guilty. Under the law, a person charged with first degree murder and attempt first degree murder may be found (1) not guilty; or (2) not guilty by reason of insanity of first degree murder and attempt first degree murder; or (3) guilty of first degree murder and attempt first degree murder; or (4) guilty but mentally ill of first degree murder and attempt first degree murder.” ¶ 93 The committee n ote to IPI Criminal 4th No. 2.01AA instructs the parties to list in the first

sentence “all offenses specifically charged in the indictment, information, or complaint as to which the jury will receive a form of verdict.” IPI Criminal 4th No. 2.01AA, Commit tee Note.

The committee n ote further states that “[i]f the jury is to be instructed on more than one charge, then the third sentence of this instruction should be repeated for each such charge.” Id. In People’s instruction No. 6, despite defendant facing c harges on both first degree murder and attempted first degree murder, the third sentence of IPI Criminal 4th No. 2.01AA was not repeated. Instead, the charges for first degree murder and attempted first degree murder were

- 30 ­No. 1-14-3728

combined in to one sentence. While we need not decide if this mistake prejudiced defendant, the parties should follow the committee note to IPI Criminal 4th No. 2.01AA upon retrial. ¶ 94 2. Guilty b ut Mentally Ill Jury Instruction s ¶ 95 Defendant next contends that People’s instruction No s . 17 and 18 misstated the law and confused the jury

. These were the issues instructions, detailing to the jury how to reach one of the four possible verdicts

— (1) not guilty, (2) not guilty by reason of insanity, (3) guilty, or (4) guilty but mentally ill —for the offenses of attempted first degree murder and first degree murder, respectively. Defendant highlights the following language in People’s instruction No. 18: “A special verdict of guilty but mentally ill may be returned by you instead of a general verdict of guilty if you find each of the following circumstances to be present in this case:

First: That the State has proved beyond a reasonable doubt that the defendant is guilty of First Degree Murder; and

Second: That the defendant has not proved by clear and convincing

evidence that he was insane at th e time he committed the offense of First Degree Murder; and

Third: That the defendant has proved by a preponderance of the evidence that he was mentally ill at the time he committed the offense of First Degree

Murder. If you find from your consideration of all the evidence that each one of these circumstances is present, you may return the special verdict finding the defendant guilty but mentally ill of First Degree Murder.

- 31 ­No. 1-14-3728 If you find from your consideration of all the evidence that the State has proved beyond a reasonable doubt that the defendant is guilty of First Degree Murder and if you find that either the second or third circumstance concerning the guilty but mentally ill verdict is not present, you should return the general verdict finding the def endant guilty of First Degree Murder.” (Emphasis in original.) People’s instruction No. 1 7 provided the jury with the same instruction except that it listed attempted first degree murder as the offense charged

. ¶ 96 Defendant asserts that these instructions misstated the law and confused the jury in three
respects

. First, he argues that, if the second circumstance listed was “ not present, ” then he ha d

not “not proved” his insanity, meaning he actually proved his insanity by clear and convincing

evidence and thus the jury would have to return a verdict of not guilty by reason of insanity. However, he points out that , if the second circumstance was not present, the instruction s req uire d the jury to find him guilty rather than not guilty by reason of insanity . S econd, d efendant argues

that , even disregarding th is double negative, t he instructions misled the jury because they

allowed it to return a guilty verdict if proof of insanity was “not present .” However, he asserts

that is not the law because the lack of insanity is a prerequisite, not a barrier, to a verdict of guilty but mentally ill

. ¶ 97 Initially, we note that People’s instruction No s . 17 and 18 mirror Illinois Pattern Jury Instructions, Criminal, No. 24

- 25.01D (4th ed. 2000) (hereinafter, IPI Criminal 4th No. 24

­ 25.01D). The Illinois pattern jury instructions “have been painstakingly drafted , ” and trial courts “should not take it upon themselves to second- guess the drafting committee where the instruction in question clearly applies.” (Internal quotation marks omitted.) People v. Durr , 215 Ill. 2d 283, 301 (2005). Indeed, Illinois Supreme Court Rule 451(a) (eff. Apr. 8, 2013) provides that when an

- 32 ­No . 1-14-3728 Illinois Pattern Jury Instruction applies, it “shall be used, unless the court determines that it does not accurately state the law .” ¶ 98 T he language highlighted by defendant must be read in conjunction with the rest of People’s instruction No s . 17 and 18. Those instructions first directed the jury to determine

whether the State ha d proved defendant guilty beyond a reasonable doubt. If the State did not , the instructions told the jury to return a not guilty verdict. If the State did , then they instruct ed the jury to consider whether defendant ha d proved the defense of insanity. The instructions subsequently stated:

“ If you find from your consideration of all the evidence that the defendant has proved by clear and convincing evidence that he is not guilty by reason of insanity of First Degree Murder (or Attempt First Degree Murder) your deliberations should end, and you should return the verdict of not guilty by reason of insanity of First Degree Murder (or Attempt First Degree Mur der)

. If you find from your consideration of all the evidence that the defendant has not proved by clear and convincing evidence that he is not guilty by reason of insanity of First Degree Murder (or Attempt First Degree Murder) , then you should continue your deliberations to determine whether the defendant is guilty but mentally ill of First Degree Murder (or Attempt First Degree Murder) .”

When viewed in their totality, People’s instruction No s. 17 and 18 made clear that defendant

could only be found g uilty but mentally ill after the jury ha d determined whether or not he was not guilty by reason of insanity. Thus, if the jury reached this part of the instructions, i.e. , determining whether defendant was guilty but mentally ill, it would have already found that (1)

- 33 ­No. 1-14-3728 the State proved defendant guilty and (2) defendant had failed to prove his insanity. Thus, we

find no misstatements of law in the instructions. Moreover, even if these instructions could potentially confuse the jury ba sed on their wording, the trial court would have no basis to deviate from them given that they accurate ly state d the law. See Ill. S. Ct. R. 451(a) (eff. Apr. 8, 2013). ¶ 99 Lastly, defendant argues that the instructions added another layer of confusion when they told the jury that, if he had proved he was mentally ill at the time he committed the offenses, it “may” find him guilty but mentally ill. Specifically, People’s instruction Nos. 17 and 18 stated that “[a] special verdict of guilty but mentally ill may be returned by” the jury and later the jury “may return the special verdict finding the defendant guilty but mentally ill” if the three conditions necessary for a finding of guilty but mentally ill were satisfied, i.e. , (1) the State proved defendant’s guilt, (2) he did not prove he was insane, and (3) he proved he was mentally

ill. ¶ 100 The use of the language “may return” and “may be returned” in People’s instruction Nos.
17 and 18 c ome directly from IPI Criminal 4th No. 24

- 25.01D, which itself mirror s the applicable statutory law on findings of guilty but mentally ill. Guilty but mentally ill is not an affirmative defense raised by the defendant, but rather it is “an alternat ive *** finding that may be accepted, under appropriate evidence, when the affirmative defense of insanity is raised.” (Emphasis added.) 720 ILCS 5/6

- 4 (West 2014); see also People v. Wood , 2014 IL App (1st) 121408, ¶ 74. ¶ 101 In a bench trial where the defendant has raised the defense of insanity, the trial “court

may find the defendan t guilty but mentally ill if, after hearing all of the evidence, the court finds that:” (1) the State proved his guilt, (2) he did not prove he was insane, and (3) he proved he was mentally ill. (Emphasis added.) 725 ILCS 5/115- 3(c) (West 2014). Similarly, in a jury trial where

- 34 ­No. 1-14-3728 the defendant has raised the defense of insanity, “the court, where warranted by the evidence, shall also provide the jury with a special verdict form of guilty but mentally ill, as to each offense charged and shall separately instru ct the jury that a special verdict of guilty but mentally

ill may be returned instead of a general verdict, but that such special verdict requires a unanimous finding by the jury that:” (1) the State proved his guilt, (2) he did not prove he was insane, and (3) he proved he was mentally ill. (Emphasis added.) 725 ILCS 5/115

- 4(j) (West 2014). ¶ 102 Given that IPI Criminal 4th No. 24 -25.01D mirrors the language of the statutory provisions governing findings of guilty but mentally il l, it accurately stated the applicable law. In

turn , the use of the “may” language in People’s instruction Nos. 17 and 18, which were based on

IPI Criminal 4th No. 24 -25.01D, w ere similarly accurate statements of law . Consequently, we
find no error in Peop le’s instruction Nos. 17 and 18. ¶ 103 To the extent defendant argues that, as a matter of statutory construction, a verdict of guilty but mentally ill should be mandatory if the three circumstances are present, such a

conclusion would still not invalidate IPI C riminal 4th No. 24 -25.01D. The legislature has the responsibility of drafting statutes (see People v. Sevedo , 2017 IL App (1st) 152541, ¶ ¶ 22-23 ),

and any change in the wording of the relevant statutes on finding s of guilty but mentally ill would have to come from the legislature, not this court. It follows that , even if we were to interpret the “may” language in the statutes as being mandatory rather than permissive , contrary
to the common statutory connotation of the word (see People v. One 1998 GMC , 2011 IL 110236, ¶ 16; People v. Reed , 177 Ill. 2d 389, 393 (1997 ) ), the statutory language would

nevertheless remain the same . Thus, IPI Criminal 4th No. 24

- 25.01D would still accurately state the applicable law given that the relevant statutes would still contain the “may” language.

- 35 ­No. 1-14-3728 Consequently, even if we were to find that a verdict of guilty but mentally ill should be mandatory if the three circumstances are present, the trial court would have no basis to refrain from using IPI Criminal 4th No. 24-25.01D. See Ill. S. Ct. R. 451(a) (eff. Apr. 8, 2013). ¶ 104 D. Remaining Contentions ¶ 105 Defendant’s last two contentions are that the trial court abused its discretion in sentencing

him to a total of 58 years’ imprisonment and he is entitled to an additional day of presentence custody credit. B oth claims are now moot given that we have reversed his convictions, and

therefore we do not address either. ¶ 106 III. CONCLUSION ¶ 107 For the foregoing reasons, we reverse defendant’s convictions and remand the matter for

a new trial. ¶ 108 Reverse d and remanded.

- 36 ­