{ "id": 8499546, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BRADFORD SIVERLY, Defendant-Appellant", "name_abbreviation": "People v. Siverly", "decision_date": "1990-03-02", "docket_number": "No. 2\u201487\u20141016", "first_page": "981", "last_page": "993", "citations": [ { "type": "official", "cite": "194 Ill. App. 3d 981" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "177 Ill. App. 3d 593", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3620494 ], "pin_cites": [ { "page": "598" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/177/0593-01" ] }, { "cite": "177 Ill. App. 3d 684", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3621222 ], "year": 1988, "pin_cites": [ { "page": "789" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/177/0684-01" ] }, { "cite": "124 Ill. 2d 176", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3217570 ], "year": 1988, "pin_cites": [ { "page": "187" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/124/0176-01" ] }, { "cite": "175 Ill. App. 3d 136", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3554616 ], "weight": 2, "pin_cites": [ { "page": "142" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/175/0136-01" ] }, { "cite": "167 Ill. App. 3d 790", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3472183 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/167/0790-01" ] }, { "cite": "123 Ill. 2d 184", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5550970 ], "weight": 3, "pin_cites": [ { "page": "198-99" }, { "page": "194-95, 197" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/123/0184-01" ] }, { "cite": "187 Ill. App. 3d 190", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2664463 ], "pin_cites": [ { "page": "201" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/187/0190-01" ] }, { "cite": "159 Ill. App. 3d 1005", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3611185 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/159/1005-01" ] }, { "cite": "128 Ill. 2d 253", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3228419 ], "weight": 4, "pin_cites": [ { "page": "269" }, { "page": "269" }, { "page": "270-71" }, { "page": "270" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/128/0253-01" ] }, { "cite": "186 Ill. App. 3d 898", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2653968 ], "pin_cites": [ { "page": "917" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/186/0898-01" ] }, { "cite": "104 Ill. 2d 218", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3146600 ], "year": 1989, "pin_cites": [ { "page": "237-38" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/104/0218-01" ] }, { "cite": "121 Ill. 2d 537", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3202119 ], "pin_cites": [ { "page": "548" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/121/0537-01" ] }, { "cite": "466 U.S. 648", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204502 ], "weight": 3, "pin_cites": [ { "page": "659" }, { "page": "668" }, { "page": "2047" } ], "opinion_index": 0, "case_paths": [ "/us/466/0648-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 4, "pin_cites": [ { "page": "687" } ], "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "129 Ill. 2d 233", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5566993 ], "weight": 2, "pin_cites": [ { "page": "241-42" }, { "page": "242" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/129/0233-01" ] }, { "cite": "169 Ill. 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App. 3d", "case_ids": [ 3501020 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/ill-app-3d/144/0829-01" ] }, { "cite": "109 Ill. 2d 449", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3125912 ], "weight": 3, "pin_cites": [ { "page": "460-64" }, { "page": "464-65" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/109/0449-01" ] }, { "cite": "146 Ill. App. 3d 912", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3572045 ], "pin_cites": [ { "page": "920" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/146/0912-01" ] }, { "cite": "187 Ill. App. 3d 860", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2665061 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "868" }, { "page": "868" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/187/0860-01" ] }, { "cite": "184 Ill. App. 3d 253", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2639217 ], "pin_cites": [ { "page": "275" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/184/0253-01" ] }, { "cite": "112 Ill. App. 3d 964", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5435086 ], "pin_cites": [ { "page": "967" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/112/0964-01" ] }, { "cite": "185 Ill. App. 3d 1097", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2644931 ], "weight": 3, "pin_cites": [ { "page": "1103" }, { "page": "1103" }, { "page": "1103" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/185/1097-01" ] }, { "cite": "95 Ill. 2d 535", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3111774 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "539" }, { "page": "539" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/95/0535-01" ] }, { "cite": "131 Ill. 2d 66", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5569514 ], "weight": 5, "year": 1983, "pin_cites": [ { "page": "71" }, { "page": "71" }, { "page": "71" }, { "page": "76" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/131/0066-01" ] }, { "cite": "161 Ill. App. 3d 147", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3467618 ], "pin_cites": [ { "page": "157" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/161/0147-01" ] }, { "cite": "150 Ill. App. 3d 535", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3502257 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/150/0535-01" ] }, { "cite": "35 Ill. 2d 620", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5379924 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/ill-2d/35/0620-01" ] } ], "analysis": { "cardinality": 1091, "char_count": 27652, "ocr_confidence": 0.733, "pagerank": { "raw": 7.598852834561106e-08, "percentile": 0.4500100198891904 }, "sha256": "20dcfc940a45fa7792f8c3ded1e6d0bb7560f35902df140cbdcc983cd4eb5379", "simhash": "1:b802b492632a36a1", "word_count": 4554 }, "last_updated": "2023-07-14T21:36:32.853539+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "DUNN and WOODWARD, JJ., concur." ], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BRADFORD SIVERLY, Defendant-Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE UNVERZAGT\ndelivered the opinion of the court:\nThe defendant, Bradford Siverly, was found guilty by a jury in the circuit court of Winnebago County of the offenses of murder and attempted murder. (Ill. Rev. Stat. 1985, ch. 38, pars. 9 \u2014 1(a)(1), 8 \u2014 4.) He was sentenced to consecutive 28- and 12-year terms of imprisonment, respectively, for these convictions.\nThe defendant charges three errors deprived him of a fair trial. First, the trial court erroneously excluded important testimony offered as nonhearsay state-of-mind evidence. Second, his guilt of the lesser included offense of voluntary manslaughter was improperly conceded by his trial counsel. Third, the burden-of-proof jury instructions for murder and manslaughter were incorrect and amounted to grave, reversible error. We affirm.\nThe charges against the defendant arose out of the February 12, 1987, fatal stabbing of Lonnie Jenkins, Jr., who was approximately 55 years of age, and the stabbing injury to 15-year-old Douglas Thompson. The decedent, Lonnie Jenkins, was confined to a wheelchair on the date of his death as a result of a progressive muscle disorder. Jenkins was also a seller of marijuana.\nDaniel Sreenan, who was then living at Jenkins\u2019 house in Rockford, testified for the prosecution that the defendant came to Jenkins\u2019 house twice on the morning of the incident. The first time, at about 10 a.m., the defendant had a friendly, 10-minute conversation with Jenkins and then left to get his wallet. The defendant apparently was purchasing some marijuana from Jenkins, but, when Sreenan brought out the drug at Jenkins\u2019 bidding, the defendant discovered that he did not have his wallet.\nThe defendant returned to the house about one-half hour later, passing by Sreenan, who was then washing a car in the driveway. Shortly after the defendant reentered the house, Douglas Thompson and his 18-year-old brother, Danny, arrived, and Sreenan sent Douglas into the house to obtain a chamois. Moments later, a scream and thumping noises were heard coming from the house. Rushing inside, Sreenan found Jenkins injured on the bathroom floor and was told by the defendant that Jenkins and Douglas Thompson had gotten \u201cinto a scuffle.\u201d Sreenan then heard Douglas Thompson say, \u201cThe son-of-a-bitch stabbed me.\u201d\nAccording to Douglas Thompson\u2019s testimony, he was unexpectedly stabbed in the back of the neck while he was looking for the chamois in a metal closet on the porch of the house. The defendant then covered Thompson\u2019s mouth with his hand and dragged him into a bedroom. Thompson testified the defendant was bent over him in position to stab him again and that he said to the defendant, \u201cPlease don\u2019t kill me.\u201d At that point, Sreenan and Danny Thompson came into the house, and the defendant jumped up and hid the knife when he heard them. Danny Thompson scuffled with the defendant, trying to prevent him from leaving the house, but Sreenan, who did not yet realize what had happened, told Danny to let the defendant go. The defendant ran out of the house to his car, which was parked two or three blocks away from Jenkins\u2019 house. The defendant testified that he parked that far away because Jenkins felt the police were watching the traffic at his house.\nAccording to the record, when defendant neared his grandmother\u2019s house, where he was living with his children, the police were already there, so he went to a friend\u2019s house, where the friend advised him to call the police. The defendant called his grandmother instead, and he spoke with a police officer who was there. The defendant agreed to go to his grandmother\u2019s house, where the police would be waiting for him. On the way there, he was spotted in his car and was arrested.\nThe defendant subsequently gave the police two written statements which were read at trial. In his first statement, the defendant claimed he was attacked by a young white male in Jenkins\u2019 house\u2014 presumably Douglas Thompson \u2014 and that he took the knife away from the boy and stabbed him in the back. He then used the knife to stab Jenkins after Jenkins said, \u201cI am going to get you\u201d and leaned out of his wheelchair. The defendant stated that for about three weeks he owed Jenkins $50 from the sale of an ounce of marijuana and had gone to Jenkins\u2019 house on February 12 to talk with him about the debt. He was too afraid to tell Jenkins he could not pay him, however, and told him he forgot his wallet instead and left to get it.\nIn his second statement, given later that same day, the defendant stated that when he returned to Jenkins\u2019 house he had with him a kitchen knife from his grandmother\u2019s house because he feared Jenkins would get mad when he told him he didn\u2019t have the money to pay him. When he told Jenkins that he had no money, Jenkins said, \u201cI guess I am going to have to teach you a lesson.\u201d Jenkins then said that he knew where the defendant\u2019s daughter goes to school. When the defendant asked if Jenkins was threatening defendant\u2019s daughter, Jenkins said, \u201cWell, you will find out.\u201d The defendant told Jenkins, \u201cYou are not [obscenity] with my family, especially my daughter,\u201d and he pulled the knife out of his coat and stabbed Jenkins in the back either once or twice. Jenkins fell out of the wheelchair onto the floor, and the defendant told him, \u201cYou are not messing with my daughter.\u201d The defendant then stabbed Jenkins a couple more times. When he encountered Douglas Thompson on the porch by the metal cabinet, the defendant thought Thompson might go in the house and see what he had done. The defendant stabbed Thompson in the back and dragged him across the living room and threw him on the bed in the bedroom. He encountered Sreenan and Danny Thompson as he was leaving and told them something happened, that he had \u201cgone nuts\u201d when Jenkins threatened his kids. Thompson grabbed the defendant, but he pushed Thompson away, ran outside and was later arrested as he related in his first statement.\nLonnie Jenkins died as a result of stab wounds to the chest. He sustained five or six wounds in his upper chest and back. Douglas Thompson\u2019s carotid artery on the right side of his neck was 80% severed; emergency surgery saved his life.\nAt trial, the defendant testified that he had custody of his two children, Stacey, age 10, and Tracey, age five, after his wife ran off with his grandfather in 1985, when the defendant and his grandmother discovered them in bed together. His wife and grandfather returned after two weeks, but ultimately left again after about one month, and they presently reside together. The defendant stated that he knew Lonnie Jenkins for more than 10 years and that he bought marijuana from him about twice a month, sometimes on credit. The defendant testified he usually carried a pocketknife with him when he went to Jenkins\u2019 house because he was afraid of the people who came there. He could not find his pocketknife when he returned to his grandmother\u2019s house after having been to Jenkins\u2019 house the first time, so he took the kitchen knife because he was afraid of Jenkins and the things he told him \u201cwould happen to people that owed him money and didn\u2019t come up with it.\u201d When the defendant returned to Jenkins\u2019 house, Jenkins asked him if he had the money he owed him. The defendant replied he did not but that he would be able to get it shortly. Jenkins told the defendant Jenkins waited long enough and that he would have to deal with it in his own way and that he knew where the defendant\u2019s children went to school. Defendant testified he asked Jenkins what he meant by that, and Jenkins told him he would find out. The defendant stated Jenkins then began wheeling himself towards the bathroom. The defendant told Jenkins he was not messing with defendant\u2019s kids, and he took out the knife and stabbed Jenkins. He testified he did not remember stabbing Jenkins more than once because he \u201cmore-or-less snapped.\u201d The defendant also testified he did not remember stabbing Douglas Thompson or Thompson saying anything to him, but he did remember dragging Thompson through the living room and throwing him in the bedroom.\nThe defendant first contends he was denied a fair trial because he was not permitted to testify as to his reason for fearing the threat made against his children by Lonnie Jenkins. Specifically, he claims he was not allowed to testify to previous conversations between himself and Jenkins regarding what happens to those who fail to pay their debts to Jenkins. Inasmuch as such conversations were being offered to show their effect on his state of mind and not for the truth of the matter asserted, the defendant contends they were relevant to the issue of whether he stabbed Jenkins \u201cwith malice aforethought\u201d and that he is entitled to a new trial.\nThe State responds that assuming, arguendo, the alleged conversations took place and were truthful, they and the testimony offered at trial would not, as a matter of law, have risen to the level of serious provocation needed to reduce the defendant\u2019s murder conviction of voluntary manslaughter. Thus, the State argues the defendant cannot claim prejudice due to the excluded evidence. We agree.\nPreliminarily, we note the defendant provides no record references to any offers of proof which were made regarding the substance of any of the excluded conversations. Without such offers of proof, this court would have no way of determining whether the exclusions were erroneous and prejudiced the defendant to the extent that a new trial is warranted. (See People v. Wallace (1966), 35 Ill. 2d 620; People v. Brown (1986), 150 Ill. App. 3d 535.) That aside, it has been held that out-of-court statements offered to show the resultant effect on the listener\u2019s state of mind are not hearsay. (People v. Campbell (1987), 161 Ill. App. 3d 147, 157.) \u201cSimilarly, threats made to the defendant bearing on the reasonableness of his apprehension of danger, or which conversely provide a reason for conduct, are not hearsay when offered for such purpose.\u201d M. Graham, Cleary & Graham\u2019s Handbook of Illinois Evidence, \u00a7801.5, at 516-17 (4th ed. 1984).\nAs the State argues, however, even assuming the defendant had knowledge of Jenkins\u2019 probable \u201cmuscle\u201d collection tactics and, thus, reason to believe his threats against his children, the Illinois Supreme Court has recognized only four categories of \u201cserious provocation\u201d as that term is used in the voluntary manslaughter statute. They are (1) substantial physical injury or assault, (2) illegal arrest, (3) mutual quarrel or combat, and (4) adultery with the defendant\u2019s spouse. (People v. Chevalier (1989), 131 Ill. 2d 66, 71; People v. Fausz (1983), 95 Ill. 2d 535, 539; People v. Wiley (1989), 185 Ill. App. 3d 1097, 1103.) \u201cSerious provocation is conduct sufficient to excite an intense passion in a reasonable person.\u201d (Ill. Rev. Stat. 1985, ch. 38, par. 9\u20142(a)(2).) Words alone, no matter how aggravated, abusive, opprobrious, or indecent, are not sufficient to constitute \u201cserious provocation.\u201d (Wiley, 185 Ill. App. 3d at 1103; People v. Neal (1983), 112 Ill. App. 3d 964, 967.) No matter how intense the passion on the part of the slayer, he will not be relieved of liability for murder unless the passion is engendered by a serious provocation which the law recognizes as being reasonably adequate. (People v. Nunn (1989), 184 Ill. App. 3d 253, 275.) Further, the provocation must be proportionate to the manner in which the accused retaliates (People v. Pugh (1989), 187 Ill. App. 3d 860, 868; People v. Stanley (1986), 146 Ill. App. 3d 912, 920), and where a defendant\u2019s retaliation is disproportionate to the victim\u2019s provocation, the crime committed is murder, not manslaughter, especially if the defendant accomplishes the offense with a deadly weapon. Pugh, 187 Ill. App. 3d at 868.\nThus, even if the excluded evidence here would have tended to establish that the defendant believed Jenkins could carry through his veiled threat to defendant\u2019s children, Jenkins\u2019 threat did not constitute the serious provocation necessary to allow the jury to find the defendant guilty of voluntary manslaughter rather than murder. Accordingly, the court\u2019s error, if any, in excluding such evidence did not prejudice the outcome of the defendant\u2019s trial.\nThe defendant next contends he was deprived of the effective assistance of counsel where there is no indication in the record that he agreed to the concession of his guilt of voluntary manslaughter made by trial defense counsel during opening and closing argument. In opening argument, counsel told the jury: \u201cThere is no dispute as to the fact that my client, Brad Siverly, *** did kill Lonnie Jenkins.\u201d In closing, counsel argued: \u201cAnd I believe after reviewing everything and carefully considering facts and the law as the Judge describes it to you, you could very likely and in good conscious [sic] and doing your duty as a jury, convict him of voluntary manslaughter which is a serious felony. *** [B]ut there is no question in my mind he is not guilty of murder based on the evidence.\u201d Defendant relies primarily on People v. Hattery (1986), 109 Ill. 2d 449, in support of his argument.\nIn Hattery, the court found the defendant was deprived of his sixth amendment right to the effective assistance of counsel where his trial attorneys conceded during the guilt-innocence phase of the trial that the jury would find him guilty of murder and would find him eligible for the death penalty and that the only issue to be decided by the jury was whether he should receive the death penalty. The court reasoned that counsel\u2019s trial strategy \u2014 showing that the defendant was guilty of murder but undeserving of the death penalty \u2014 was totally at odds with his earlier plea of not guilty and the record was silent as to whether the defendant had consented to his attorneys\u2019 strategy. In the absence of an adequate showing of the defendant\u2019s knowing and intelligent consent to such strategy, the court found counsels\u2019 actions deprived the defendant of the right to have the issue of his guilt or innocence presented to the jury as an adversarial issue, and, thus, there was a denial of sixth amendment rights that made the adversarial process itself presumptively unreliable. (Hattery, 109 Ill. 2d at 460-64.) The defendant also cites People v. Calhoun (1986), 144 Ill. App. 3d 829, and People v. Woods (1986), 151 Ill. App. 3d 687, in support of his position on this issue.\nThe State asserts Hattery does not support the broad interpretation ascribed to it by the defendant, to wit: that whenever defense counsel admits his client\u2019s guilt without his client\u2019s on-the-record acquiescence, it amounts to ineffective assistance of counsel. It argues the instant cause is distinguishable from Hattery and Woods and points out that Calhoun has been criticized in People v. Weger (1987), 154 Ill. App. 3d 706, as misapplying Hattery. It argues an admission of guilt to less than all the elements of a crime charged where the evidence of the defendant\u2019s guilt is overwhelming and where counsel otherwise provides a vigorous defense has been recognized as good defense strategy in Weger and People v. Gill (1988), 169 Ill. App. 3d 1049. Assuming, arguendo, counsel\u2019s actions were erroneous, the State alternatively urges such error was harmless in light of the strength of the State\u2019s case.\nAlthough the instant issue was not raised in the defendant\u2019s post-trial motion, the Illinois Supreme Court has approved review under the plain error doctrine where, as here, defendant\u2019s trial counsel prepared and argued the post-trial motion. People v. Chandler (1989), 129 Ill. 2d 233, 241-42.\nGenerally, a defendant must meet the two-pronged test announced in Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, in order to establish a deprivation of the sixth amendment right to the effective assistance of counsel. In rare cases, however, ineffectiveness of counsel will be presumed without application of the Strickland test. Where counsel entirely fails to subject the prosecution\u2019s case to meaningful adversarial testing, there has been a denial of sixth amendment rights that makes the adversary process itself presumptively unreliable. United States v. Cronic (1984), 466 U.S. 648, 659, 80 L. Ed. 2d 657, 668, 104 S. Ct. 2039, 2047.\nStrickland requires proof (1) that counsel\u2019s performance was deficient by having made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the sixth amendment, and (2) that counsel\u2019s deficiencies prejudiced the defendant. (Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064; Chandler, 129 Ill. 2d at 242.) Errors in counsel\u2019s trial strategy, judgment or tactics alone will not render counsel\u2019s performance deficient (People v. Hillenbrand (1988), 121 Ill. 2d 537, 548), and prejudice may be established by proof that there is a reasonable probability that, but for counsel\u2019s deficient conduct, the outcome of the proceeding would have been different (People v. Barnard (1984), 104 Ill. 2d 218, 237-38; People v. Cobb (1989), 186 Ill. App. 3d 898, 917).\nIn line with the State\u2019s argument, the court in People v. Johnson (1989), 128 Ill. 2d 253, 269, stated that Hattery does not hold that it is per se ineffectiveness of counsel whenever an attorney concedes his client\u2019s guilt to offenses in which there is overwhelming evidence of that guilt but fails to show on the record consent by defendant. The Johnson court also noted that Hattery is to be narrowly construed. (Johnson, 128 Ill. 2d at 269.) The Cronic \u201cpresumption\u201d standard was met in Hattery due to counsel\u2019s unequivocal concession of the defendant\u2019s guilt to the murder charge, the only charge brought against the defendant.\nThe presumption standard utilized in Hattery has not been met here, however, where the defendant was charged with murder and attempted murder, and counsel presented a vigorous theory of defense to the murder charge, i.e,, that the defendant was acting under serious provocation engendered by the victim. Counsel did not concede all the elements of the murder offense as counsel did in Hattery, and counsel\u2019s actions here were not inconsistent with the defendant\u2019s plea of not guilty to the offense of murder. Consequently, where counsel held the prosecution to its heavy burden of proof beyond a reasonable doubt, a showing of the defendant\u2019s consent to counsel\u2019s trial strategy was not necessary. See Hattery, 109 Ill. 2d at 464-65; see also Johnson, 128 Ill. 2d at 270-71.\nPeople v. Woods and People v. Calhoun, cited by the defendant, are distinguishable. In Woods, the defendants were found guilty of theft and burglary. In closing argument, defense counsel conceded defendant\u2019s guilt of the theft offense when he argued to the jury that it was within its province to determine that this is \u201cmerely a theft, not burglary.\u201d Because there was no effective way to argue that the defendants, by opening the car hood and removing the battery, were guilty of theft but not of burglary, and there was no showing that the defendants agreed to concede their guilt of any offense charged, the court reversed their convictions and remanded for a new trial. Woods, 151 Ill. App. 3d at 694.\nSimilarly, in Calhoun, a prosecution for murder and two armed robberies, defense counsel conceded in opening and closing statements and in the presentation of evidence his client\u2019s guilt of the armed robberies but not the murder, and there was no indication in the record that Calhoun agreed to concede his guilt of the armed robberies. Accordingly, under Hattery, the court reversed his convictions of those robberies and remanded the cause.\nAs noted by the State, the court in People v. Weger agreed Woods was correctly decided under Hattery because counsel\u2019s conduct in that case was so deficient, but it felt that Calhoun misapplied the Hattery case. The Weger court considered that conceding a client\u2019s guilt on a less serious offense of a multicount indictment where there exists overwhelming evidence of that lesser offense and contesting the more serious offense could be viewed as good defense strategy inasmuch as it enhances counsel\u2019s credibility with the trier of fact when it comes to the charges for which a legitimate defense exists. This view was echoed in People v. Gill (1988), 169 Ill. App. 3d 1049, 1055, where the court rejected the defendant\u2019s claim of ineffective assistance of counsel. In that case, counsel conceded the defendant\u2019s guilt of robbery, a lesser-included offense of armed robbery, in an attempt to remove the defendant from the ambit of a life sentence as an habitual offender. See also Johnson, 128 Ill. 2d at 270.\nThe evidence here included the defendant\u2019s own statements to the police and testimony at trial admitting he stabbed Jenkins and that he did so because he \u201csnapped\u201d and \u201cwent nuts,\u201d when Jenkins threatened his children. Given this evidence, counsel\u2019s concession of the defendant\u2019s guilt only to the lesser-included offense of voluntary manslaughter in the hope of avoiding a murder conviction may be viewed as good defense strategy, where counsel otherwise vigorously defended the murder charge. Cf. People v. Powell (1987), 159 Ill. App. 3d 1005 (not unreasonable for defense counsel to concede defendant shot three people where defendant did not deny shootings, there was no question regarding defendant\u2019s identity, and the only issue was the defendant\u2019s intentions during the shootings).\nConsequently, ineffectiveness of counsel may not be \u201cpresumed\u201d under Cronic as it was in Hattery. Further, under the first prong of a Strickland analysis, counsel\u2019s performance here cannot be viewed as deficient, and defendant\u2019s claim of the ineffective assistance of counsel must fail. Even absent counsel\u2019s concession of the defendant\u2019s guilt of voluntary manslaughter, there is no reasonable probability that the result of the defendant\u2019s trial would have been different (People v. Barfield (1989), 187 Ill. App. 3d 190, 201), considering that the \u201cserious provocation\u201d here is not the type recognized as being reasonably adequate under the voluntary manslaughter statute. Chevalier, 131 Ill. 2d at 71; Fausz, 95 Ill. 2d at 539; Wiley, 185 Ill. App. 3d at 1103.\nIn a supplemental brief, the defendant\u2019s final contention is that he was deprived of a fair trial because the jury instructions improperly stated the prosecution\u2019s burden of proof. In support, he relies on People v. Reddick (1988), 123 Ill. 2d 184, in which the supreme court held that when the IPI voluntary manslaughter instructions and the instruction for murder are read together, they erroneously state the burdens of proof on the issues of whether a defendant has acted under either intense passion \u2014 which is the case here \u2014 or has acted under the unreasonable belief that his action was justified. (Illinois Pattern Jury Instructions, Criminal, Nos. 7.02 (murder), 7.04 (voluntary manslaughter-provocation), 7.06 (voluntary manslaughter \u2014 belief of justification) (2d ed. 1981) (IPI Criminal 2d).) He also cites as supplemental authority, People v. Chevalier (1988), 167 Ill. App. 3d 790, where this court agreed with the defendant that the jury was improperly instructed and the defendant entitled to a new trial when it received the same two instructions at issue here, IPI Criminal 2d Nos. 7.02 and 7.04. We note that Chevalier has since been reversed by the Illinois Supreme Court on the basis Chevalier was not prejudiced by the erroneous instructions because the evidence did not, as a matter of law, constitute the serious provocation necessary to reduce the homicide from murder to voluntary manslaughter. People v. Chevalier (1989), 131 Ill. 2d 66.\nThe State similarly contends here that the error, if any, in the instructions was harmless and did not prejudice defendant because the evidence here was insufficient to reduce the defendant\u2019s murder conviction to involuntary manslaughter and, thus, the giving of a voluntary manslaughter instruction of any kind \u2014 even an erroneous one\u2014 would only have benefitted the defendant.\nAt the outset, we note the State\u2019s \u201cbenefit to the defendant\u201d argument was rejected in People v. Brooks (1988), 175 Ill. App. 3d 136, 142, in light of the supreme court\u2019s recognition in Reddick of the gravity of the error of not correctly apprising the jury of the State\u2019s burden of proof. Also due to the gravity of the error, Reddick found the defendant there had not waived the issue by failing to object or proffer alternative instructions at trial or to raise the issue in his post-trial motion. (Reddick, 123 Ill. 2d at 198-99.) Defendant here raises the issue for the first time as well, and, per Reddick, we proceed to review the issue under the plain error doctrine.\nIt was stated in Reddick:\n\u201c[Wjhen read together, [the murder and voluntary manslaughter instructions] erroneously state the burdens of proof on the issues of whether the defendants acted under either intense passions or unreasonable beliefs that their actions were justified. The voluntary manslaughter instructions indicate that to obtain a voluntary manslaughter conviction the People must prove the existence of one of the alternative mitigating mental conditions which the People contend did not exist. By contrast, the murder instruction makes no mention of the mitigating mental conditions. These instructions essentially assure that, if the jury follows them, the jury cannot possibly convict a defendant of voluntary manslaughter. The reason is that even if a mitigating mental state is proved, it will have been proved by the defendant, not the People.\nThe burden-of-proof instructions regarding both voluntary manslaughter and murder *** were thus incorrect in placing upon the People the burden of proving the existence of intense passion or unreasonable belief in justification. The instructions should have placed upon the People the burden of disproving the existence of either of these two states of mind.\u201d (Emphasis added.) Reddick, 123 Ill. 2d at 194-95, 197.\nBased on Reddick, which has been applied retroactively (People v. Brooks (1988), 175 Ill. App. 3d 136), it is evident the jury here was improperly instructed as to the State\u2019s burden of proof. Errors in instructions may be found to be harmless beyond a reasonable doubt, however, where the result of the trial would not have been different if the proper instruction had been given. (People v. Fierer (1988), 124 Ill. 2d 176, 187; People v. Skipper (1988), 177 Ill. App. 3d 684, 789; People v. Carter (1988), 177 Ill. App. 3d 593, 598.) Although the State agreed at trial that the defendant was entitled to have the jury instructed as to manslaughter, the evidence of provocation offered here was, as a matter of law, insufficient to constitute the type of serious provocation necessary to reduce the homicide for murder to voluntary manslaughter. (See, e.g., Chevalier, 131 Ill. 2d at 71.) Accordingly, as the State argues, the defendant could not have been prejudiced by the erroneous instructions, and reversal is not warranted. Chevalier, 131 Ill. 2d at 76.\nFor the reasons stated above, the judgment of the circuit court of Winnebago County is affirmed.\nAffirmed.\nDUNN and WOODWARD, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE UNVERZAGT" } ], "attorneys": [ "G. Joseph Weller, of State Appellate Defender\u2019s Office, of Elgin, for appellant.", "Paul A. Logli, State\u2019s Attorney, of Rockford (William L. Browers and David A. Bernard, both 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. BRADFORD SIVERLY, Defendant-Appellant.\nSecond District\nNo. 2\u201487\u20141016\nOpinion filed March 2, 1990.\nG. Joseph Weller, of State Appellate Defender\u2019s Office, of Elgin, for appellant.\nPaul A. Logli, State\u2019s Attorney, of Rockford (William L. Browers and David A. Bernard, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0981-01", "first_page_order": 1003, "last_page_order": 1015 }