## I L L I N O I S 

## O F F I C I A L 

## R E P O R T S Appellate Court

People v . Richardson , 2011 IL App (4th) 100358

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. RONAL D RI CHARDSON, Def endant- Appellant.

District & N o. Four th District Docke t No. 4-10-0358

Filed November 29, 2011

Held (Note : Thi s syl lab us
con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e
c o n v e n i e n c e o

f t h e
rea der

. ) I n a prosec ution fo r first deg ree murder wher e defe ndant elec ted to proce ed pro se and he was convicted following a jury trial, his conviction

was aff irmed, despite his content ion that the trial court should have

sua sponte instructed the jury on second deg ree murder, since the t ri al court admoni shed defe ndant about his duties in deciding to repr esent himself, including his duty with reg ard to instructions, and in his case , the decision as to whether he should reque st an instruction on second deg ree murder r ested solely

with him.

Dec ision Under Review Appeal from the Circuit Court of Morg an County , No. 09–CF–1 9 ; t h e Hon. Richard T . Mitchell, J udg e, pre siding.

J udg ment Affir med.Counsel on

Appea l Michae l J

. Pelletier, Kar en Munoz, and Gar y R. Pe terson, all of State Appellate D efe nder’ s Offic e, of Spring field, for appellant.

Chris Reif, State’s Attorney , of Jacksonville (Patrick De lfino, Robert J

. Bi d erman, and Luke McNe ill, all of State’s Attorney s Appellate Prosecutor’ s Offic e, of c ounsel), for the People.

Panel PRES I DI NG J USTI CE KNECHT delivere d the judgme nt of the court, with opinion. J ustices McCullough a

nd Cook concurr ed in the judgme nt a nd opinion.

OP INION

¶ 1 I n Marc h 2010, a jury convicted defe ndant, R onald R ichar dson, of first deg ree murder (720 I L CS 5/9-1(a) (1), (a) (2) (West 2008)). I n May 2010, the trial court sentenc ed defe ndant to 40 y ear s’ imprisonment. De fe n d an t appea ls, arguing he was entitled to have the jury instructed on the lesse r off ense of second de g ree murder. We a ffirm.

¶ 2 I . BA CKGROUND ¶ 3 I n Fe bruar

y 2009, the State cha

rg ed def endant with thre e counts of f irst deg ree murder (720 I L CS 5/9-1(a) (1), (a) (2) (West 2008)). Eac h count related to a single crime but char g ed defe ndant under a differ ent theory of first deg ree murder. Def endant pleade d not g uilty and reque sted a jury trial. Be fore the case rea ched trial, defe ndant reque sted permission to proce ed pro se

. The trial court advised defe ndant of the difficulties in r epre senting himself pro se and eng ag ed in the followingdiscourse w ith him: “THE COURT: Okay

. And y ou understand that by g oing to trial without counsel that y ou are expected to f

ollow the same rules of proce dure as [y our former counsel] would if he we re involved in re prese nting you? You under stand that? DEF ENDAN T: Iunderstand sir. THE C OU R T : * ** There ’s also instructions which are the law of the case

. You understand what that is? DEF ENDAN T: Yes, sir. THE COURT: And of course , ag ain, y ou would be expected to repr esent y ourself in any instruction confe renc es and any whe r e th r o ug hout, throug hout the whole trial, just the

same a s if y ou had counse l. Do y ou understand that? DEF ENDAN T: Iunderstand, sir.”

-2-After advising defe ndant of his responsibilities and g iving him time to weig h his options, the

court allowed defe ndant to pr ocee d pro se

. I n Marc h 2010, the case proce eded to tr ial. The evidenc e introduce d to the jury showed the f

ollowing. ¶ 4 Police discovere d the vi ctim’s body in the walkway of an ap ar t m en t building adja cent to defe ndant’s apar

tment building. Def

endant was seen in the are a acting strang ely the night b ef o re police found the body

. Whil e investigating the murder, police office rs went t o defe ndant’s apar

tment. Def

endant’s wife g ave the office rs permission to sear ch the apar tment. The police rec overe d the boots and overa lls defe ndant h ad b ee n wea ring the previous evening

. Def

endant’ s wife also informed them a larg e knife was missing from the kitchen. The knife was later found on the roof of a neig hboring apar tment building. The knife, boots, and ove ralls all had the vic tim’s blood on them. ¶ 5 Offic ers asked defe ndant to acc ompany them to the police station to be interviewe d, and he agr eed. The i nterview was recor ded. During the interview, defend an t as k ed to speak to his wife, and office rs g rante d his reque st, though they advised defe ndant they wer e g oing to tape the c onversation. W hile speakingto his wife, defe ndant admitted stabbing the victim, but c laimed it wa s in se lf-def ense during a drug deal g one bad. He told his wife he stabbed the victim with the knife from their kitchen and threw it on the roof of a near by building. Offic ers a rre sted defe ndant and c harg ed him with first deg ree murder. ¶ 6 A few day s later, defenda nt asked to speak with an o ff i ce r. This second interview wa s also rec orded. At first, defe ndant denied any involvement in the murder and claimed he was only a witness. Eventually defe ndant admitted stabbing the victim, but he insisted it was done in self-de fense during a dispute over drug money

. L ater in the day , defe ndant made two phone calls. Def

endant’ s phone ca lls were r ecor ded. Dur ing the first phone c all, defe ndant ad m itted stabbing the victim in self-de fense but explained it “wa s a drug addict s el fdefe nse.” Def

endant went on to state he was high and not thinking clea rly when he stabbed the victim. De fenda

nt the n called his mother

and admitted stabbingthe victim but c laimed he had done so in self-def ense w hile high on dr

ug s. ¶ 7 At trial, the S tate, inter alia , introduced defenda nt’s rec orded statement s t o p o lice and

rec ording s of hi s telephone conver sations into evidenc e. De fenda nt’s wife a lso testified t o what defe ndant told her about the events of the night in question. I n addition, a friend of the victim who had sold dr

ug s to de fenda

nt on previous occa sions testified the victim left with defe ndant ar ound 1:30 a.m. and neve r ca me bac k. Def

endant did not testify

. ¶ 8 Following closing arguments , th e ju r y convicted defe ndant of first deg ree murder. I n May 2010, the trial court sentenc ed defe ndant to 40 y ear s’ imprisonment. Def endant did not file a posttrial motion. This appeal followe d.

¶ 9 I I . ANALYSI S ¶ 10 On appea l, defe ndant argues the trial court committe d p l ai n er ro r wh en i t failed to instruct the jury on the lesser offe nse of second deg ree murder s u a s p o n t e or, in the alternative, when it failed to inform defe ndant of his rig ht to reque st an instruction on second deg ree murder. Specifica lly , defe ndant ar g ues the fa ilure to introduce a jury instruction on second deg ree murder amounted to g rave err or and rende red the proce eding s fundame ntally

-3-unfair.

¶ 11 Ge n er al ly , any err or relating to jury instructions is forf eited if the defe ndant does n o t object or proff

er alternative i n s tructions at t rial, and issues not raised in a post trial motion will not be considere d on appea l. People v. Reddick , 123 I ll. 2d 184, 198, 526 N.E.2d 141, 147 (1988). “Howe ver, if the interests of justice require , substantial defe cts in jury instructions in criminal case s may be considere d, even though the defe nd an t h as failed to make timely objections.” Id

. T h i s rule applies to corr ect g rave err ors or err ors in case s so closely balanc ed fundame ntal fairne ss require s the jury be instructed proper ly

. Id. This court has previously found a failure to g ive ins t ructions on the elements of a crime constitutes g rave err or bec ause “ ‘the jury was not apprised of the People’s burden of proof.’ ” People

v. Kill en , 217 I ll. App. 3d 473, 478, 577 N.E.2d 560, 563 (1991) (quoting Reddick , 123 I ll. 2d at 198, 526 N.E.2d at 147). Absent plain err or, a court g ener ally has no duty to introduce an instruction not reque sted by counsel. People v. Springs , 51 I ll. 2d 418, 425, 283 N.E.2d 225, 228-29 (1972)

. ¶ 12 The decision whether to instruct the jury on a lesser offe nse rests with the defe ndant and is one of trial strategy

. People v. Brocksm ith , 162 I ll. 2d 224, 229, 642 N.E.2d 1230, 1232-33 (1994). Dep ending on the particula r circ umstances of eac h individual case , the defe ndant may decide to g o with a

n all-or- nothing approa ch and not tender the second deg ree murder instruction, le aving the jury with the option to convict the defe ndant of first deg ree murder

or acquit. See People v. Griffit h , 158 I ll. 2d 476, 491-94, 634 N.E.2d 1069, 1076-78 (1994), cert. denied, 513 U.S. 952 (1994). Finally , wher e a defe ndant elec ts to proce ed pro se , he is responsible for his r epre sentation and is held to the same standards as any attorney

. People

v. Allen , 401 I ll. App. 3d 840, 854, 929 N.E.2d 583 , 595 (2010) (“D efe ndant was admonished about the conseque nces of proce eding pro se and that he would be require d to perf orm as an attorney would and the court could not provide any leg al assistance to him.”). ¶ 13 Def

endant argues the trial court’s failure to offer t h e s ec o n d d egr ee m u rder jury instruction or to inform him of his responsibility to reque st it amounted to g rave err or which rende red the proce eding s fundame ntally unfair. We disag ree

. Def endant elec ted to repr esent himself, despite admonitions by the court reg arding the difficulties of doing so. Fur ther, the court expre ssly advised defe ndant of his duties reg arding the jury instruction confe renc e. The decision whether to reque st a second deg ree m urder jury instruction rested solely with defe ndant. The co u rt h ad no duty to introduce the jury instruction sua sponte or inform defe ndant of the possibili ty of introducing th e jury instruction. Def endant had the responsibi lity , as his own counsel, to raise the issue with the court. We conclude no err or
occur red, and we need not examine defe ndant’s claim under either pro n g o f p l ain-e rror analy sis. ¶ 14 Def

endant argues his case i s an al o go us to People v. Brocksm ith , 162 I ll. 2d 224, 642 N.E.2d 1230 (1994), and People v. Du P ree , 397 I ll. App. 3d 719, 922 N.E.2d 503 (2010). We conclude Brocksm ith and DuPree are distinguishable. T h e co urts in both Brocksm ith , 162 I ll. 2d at 2 2 9 -3 0 , 6 4 2 N.E.2d at 1232-33, and DuPree , 397 I ll. App. 3d at 737, 922 N.E.2d at 518, focuse d on whether defe nse counsel usurped the defe ndant’s rig ht to decide whether to introduce an instruction on a lesser offe nse. The prese nt case does not involve this issue. Def

endant re p re s en ted himself at trial and could not have usurped the decision

-4-reg ardinga sec ond degree murder jur y instruction.

¶ 15 I I I . CONCL USI ON ¶ 16 For the fore g oing rea sons, we aff irm the trial court’s judgme nt. As part of our judg ment

we a war d the State its $50 statutory assessment ag ainst defe ndant as c osts of this appeal.

¶ 17 Affir

med.

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