{
  "id": 8498891,
  "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KEVIN W. TAYLOR, Defendant-Appellant",
  "name_abbreviation": "People v. Taylor",
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  "casebody": {
    "judges": [
      "LUND and SPITZ, JJ., concur."
    ],
    "parties": [
      "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KEVIN W. TAYLOR, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "JUSTICE GREEN\ndelivered the opinion of the court:\nOn March 20, 1986, after a jury trial in the circuit court of Sangamon County, defendant Kevin W. Taylor was convicted of murder and home invasion. Subsequently, he was sentenced to concurrent terms of 35 years\u2019 and 6 years\u2019 imprisonment, respectively. He then took a direct appeal to this court, which entered an order affirming on February 2, 1987. (People v. Taylor (1987), 151 Ill. App. 3d 1167 (order under Supreme Court Rule 23).) Defendant then filed a pro se petition under the Post-Conviction Hearing Act (Act) on February 23, 1987 (Ill. Rev. Stat. 1985, ch. 38, par. 122 \u2014 1). On December 23, 1987, the circuit court allowed the State\u2019s motion to dismiss the petition without an evidentiary hearing. Defendant has appealed. We affirm.\nAt trial, the circuit court granted a defense request that the jury be instructed as to voluntary manslaughter based upon sudden and intense passion. However, the court rejected the State\u2019s suggestion that the issues instruction in regard to murder be modified to require the State to negate the mitigating element of sudden and intense passion which would reduce the homicide to voluntary manslaughter as this court had indicated should be done in People v. Bolden (1985), 132 Ill. App. 3d 1047, 477 N.E.2d 1380 (Bolden I). The court\u2019s failure to modify this instruction was one of the two claims of error raised on behalf of defendant on direct appeal. This court held defendant had waived any error by failing to request that the burden of proof instruction be modified.\nIn the instant'\u2018petition for post-conviction relief, defendant asserted that he was deprived of his sixth amendment right to effective assistance of counsel because of trial counsel\u2019s failure to request the modification. Subsequent to the circuit court\u2019s decision dismissing the pro se petition, on June 20, 1988, the supreme court issued its decision in People v. Reddick (1988), 123 Ill. 2d 184, 198, 526 N.E.2d 141, 147, holding that failure of a circuit court to give the type of issues instruction which the State suggested here is \u201cgrave error\u201d which cannot be waived. This overruled the precedent of our decision in Bolden I, on the direct appeal in this case, holding that such an error can be waived.\nCiting People v. Dredge (1986), 148 Ill. App. 3d 911, 500 N.E.2d 445, and People v. Cowherd (1983), 114 Ill. App. 3d 894, 449 N.E.2d 589, defendant requests we relax the rules of res judicata and reconsider the propriety of our decision on direct appeal in light of Reddick. We need not rely upon giving res judicata effect to our decision on direct appeal to affirm. In a proceeding under the Act, we can only consider error which deprives of a constitutional right. In our decision rendered on this date in People v. Bolden (1989), 181 Ill. App. 3d 481 (Bolden II), we have held that the Reddick court did not intend the \u201cgrave error\u201d arising from the type of instructions used here to amount to constitutional error. Thus, we cannot consider any error on the part of the circuit court in giving the questioned issues instruction as to murder.\nWe do consider the question, raised in defendant\u2019s petition, of whether he was deprived of his constitutional right to counsel because that counsel did not request modification of the issues instruction on murder. In order to establish incompetence of trial counsel on that basis, the evidence would have to show that counsel\u2019s representation fell below a reasonable objective standard, thus depriving the defendant of a fair trial under circumstances where there was a reasonable probability that if a proper standard were followed, a different result would have been obtained. Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052; People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246.\nThe evidence here was very weak that defendant acted with the \u201csudden and intense passion resulting from serious provocation by another\u201d required by section 9 \u2014 2(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 9 \u2014 2(a)) in force at the time of the alleged offense and as described in the instructions given by the court at trial. As we stated in our order of February 2, 1987, even by defendant\u2019s testimony, his passion was not sudden and the provocation was. very questionable. Defendant admitted he had argued with the victim, who was defendant\u2019s estranged wife\u2019s live-in lover. Defendant stated that on the morning he stabbed the victim, he had spoken to him, and the victim had told defendant that the defendant could not see his young daughter the next day. The daughter was living with the mother and the victim. According to defendant, he drove across town to the apartment where the child lived at speeds of 60 to 70 miles per hour, took a hunting knife that was in his automobile, and knocked at his ex-wife\u2019s apartment. He stated he then heard his daughter crying and kicked in the door with the intent to take the child with him. Defendant testified he then saw the victim reach for something and jumped on him. According to defendant, they struggled, and he stabbed the victim.\nFor the stated reasons, the trial record clearly shows that a request by defendant\u2019s counsel for issues instructions conforming to Reddick and Bolden I would have been very unlikely to have resulted in defendant\u2019s homicide conviction having been voluntary manslaughter rather than murder.\nAccordingly, we affirm.\nAffirmed.\nLUND and SPITZ, JJ., concur.",
        "type": "majority",
        "author": "JUSTICE GREEN"
      }
    ],
    "attorneys": [
      "Robert Agostinelli, of State Appellate Defender\u2019s Office, of Ottawa, for appellant.",
      "Donald M. Cadagin, State\u2019s Attorney, of Springfield (Kenneth R. Boyle, Robert J. Biderman, and Michael K. Blazicek, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People."
    ],
    "corrections": "",
    "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KEVIN W. TAYLOR, Defendant-Appellant.\nFourth District\nNo. 4\u201488\u20140075\nOpinion filed March 31, 1989.\nRobert Agostinelli, of State Appellate Defender\u2019s Office, of Ottawa, for appellant.\nDonald M. Cadagin, State\u2019s Attorney, of Springfield (Kenneth R. Boyle, Robert J. Biderman, and Michael K. Blazicek, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People."
  },
  "file_name": "0538-01",
  "first_page_order": 560,
  "last_page_order": 563
}