{ "id": 4285205, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MORRIS E. CARTER III, Defendant-Appellant", "name_abbreviation": "People v. Carter", "decision_date": "2009-03-13", "docket_number": "No. 1-07-2872", "first_page": "175", "last_page": "190", "citations": [ { "type": "official", "cite": "389 Ill. App. 3d 175" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "229 Ill. 2d 584", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3615113 ], "year": 2008, "pin_cites": [ { "page": "610-11" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/229/0584-01" ] }, { "cite": "359 Ill. App. 3d 411", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5595480 ], "year": 2005, "pin_cites": [ { "page": "417" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/359/0411-01" ] }, { "cite": "74 Ill. 2d 444", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2994926 ], "year": 1979, "pin_cites": [ { "page": "455", "parenthetical": "Ryan, J., specially concurring" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/74/0444-01" ] }, { "cite": "185 Ill. 2d 179", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 121977 ], "year": 1998, "pin_cites": [ { "page": "214" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/185/0179-01" ] }, { "cite": "207 Ill. 2d 122", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 974986 ], "year": 2003, "pin_cites": [ { "page": "133-34" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/207/0122-01" ] }, { "cite": "108 Ill. 2d 54", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3130811 ], "weight": 3, "year": 1985, "pin_cites": [ { "page": "61-62" }, { "page": "64" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/108/0054-01" ] }, { "cite": "159 Ill. 2d 217", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 781322 ], "year": 1994, "pin_cites": [ { "page": "228-29" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/159/0217-01" ] }, { "cite": "136 Ill. 2d 27", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3254843 ], "year": 1990, "pin_cites": [ { "page": "39" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/136/0027-01" ] }, { "cite": "364 Ill. 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App. 3d", "case_ids": [ 3617986 ], "year": 1988, "pin_cites": [ { "page": "401" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/171/0391-01" ] }, { "cite": "87 Ill. 2d 216", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3030605 ], "weight": 5, "year": 1981, "pin_cites": [ { "page": "221" }, { "page": "222" }, { "page": "222" }, { "page": "223" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/87/0216-01" ] }, { "cite": "215 Ill. 2d 283", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4060183 ], "year": 2005, "pin_cites": [ { "page": "298" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/215/0283-01" ] }, { "cite": "189 Ill. 2d 99", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1224818 ], "weight": 5, "year": 2000, "pin_cites": [ { "page": "138" }, { "page": "138" }, { "page": "138" }, { "page": "138" }, { "page": "138" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/189/0099-01" ] }, { "cite": "507 U.S. 725", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6237509 ], "weight": 6, "year": 1993, "pin_cites": [ { "page": "734" }, { "page": "520" }, { "page": "1778" }, { "page": "734" }, { "page": "520" }, { "page": "1778" } ], "opinion_index": 0, "case_paths": [ "/us/507/0725-01" ] }, { "cite": "203 Ill. 2d 352", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 799391 ], "weight": 4, "year": 2003, "pin_cites": [ { "page": "363" }, { "page": "363" }, { "page": "363" }, { "page": "363" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/203/0352-01" ] }, { "cite": "183 Ill. 2d 130", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 209973 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/ill-2d/183/0130-01" ] }, { "cite": "209 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5462052 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "7" }, { "page": "8" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/209/0001-01" ] }, { "cite": "194 Ill. 2d 305", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1096295 ], "year": 2000, "pin_cites": [ { "page": "335" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/194/0305-01" ] }, { "cite": "215 Ill. 2d 167", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4060336 ], "weight": 6, "year": 2005, "pin_cites": [ { "page": "175" }, { "page": "175" }, { "page": "175" }, { "page": "175" }, { "page": "187" }, { "page": "187-88" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/215/0167-01" ] } ], "analysis": { "cardinality": 1183, "char_count": 39713, "ocr_confidence": 0.774, "pagerank": { "raw": 4.5828155114230504e-08, "percentile": 0.28736366483142456 }, "sha256": "32bfe917c7fc4b559725c4344b440f3c4885ae88a52d6d1184bf1d2b7c63514b", "simhash": "1:5feec66a56aaf9f7", "word_count": 6655 }, "last_updated": "2023-07-14T20:37:38.013620+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MORRIS E. CARTER III, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE McBRIDE\ndelivered the opinion of the court:\nFollowing a jury trial, defendant Morris E. Carter III, who appeared pro se at trial, was convicted for possession with intent to deliver more than 100 grams, but less than 400 grams of cocaine and possession with intent to deliver more than 500 grams, but less than 2,000 grams of cannabis. The trial court subsequently sentenced him to concurrent terms of 12 years\u2019 imprisonment on the cocaine conviction and 6 years for the cannabis conviction.\nDefendant appeals, arguing that he was denied a fair jury trial because the trial court gave the jury an improper pattern instruction about the verdict forms, refused to answer the jury\u2019s question about its confusion over the verdict forms, and accepted multiple and conflicting verdicts for the offenses when only one verdict should have been entered.\nIn November 2005, defendant was charged with (1) possession with intent to deliver more than 100 grams, but less than 400 grams of a substance containing cocaine; (2) two counts of possession with intent to deliver more than 15 grams, but less than 100 grams of a substance containing cocaine; (3) possession of more than 100 grams, but less than 400 grams of a substance containing cocaine; (4) possession with intent to deliver more than 500 grams, but less than 2,000 grams of a substance containing cannabis; and (5) possession of more than 500 grams, but less than 2,000 grams of a substance containing cannabis.\nInitially, defendant was appointed a public defender, but later, defendant opted to represent himself pro se. The trial court admonished defendant pursuant to Supreme Court Rule 401(a) (134 Ill. 2d R. 401(a)) and warned him about the disadvantages of representing himself. Defendant told the court that he still wished to represent himself and he had not been promised anything or threatened to give up his right to counsel. The court warned him that he would not appoint a lawyer for defendant to consult with at trial.\nPrior to trial, defendant filed several motions with the trial court, including motions to suppress evidence found pursuant to a search warrant, to suppress his statements and to quash the search warrant. The trial court considered each motion, but all were denied.\nThe following evidence was admitted at defendant\u2019s August 2007 jury trial.\nAt around 9:30 a.m. on November 11, 2005, Sergeant James Bur-dett and Detective Paul Lanzi with the Major Case Assistance Team (MCAT) obtained a search warrant for defendant\u2019s apartment at 8516 West 47th Street, Apartment 8 in Lyons, Illinois. The MCAT officers then went to defendant\u2019s apartment to execute the search warrant. Detective Lanzi knocked and announced the police presence several times, but there was no response. The officers used a battering ram to force open defendant\u2019s door, which was heavily fortified.\nDefendant and a woman named Erin Spromack were in the living room of the apartment. The officers checked to make sure there were no other people in the apartment. Then, Officer Joseph DiGangi of the K-9 unit and his dog, Dago, performed a systematic search of defendant\u2019s apartment for drugs and items that had been in contact with drugs. Dago alerted the officers to several locations in defendant\u2019s living room, kitchen and bedroom. Sergeant Burdett and Officer Lanzi followed up on the K-9 search and recovered many items throughout the apartment. They found cocaine, cannabis, and a large amount of United States currency hidden in various places around defendant\u2019s apartment. Specifically, the officers recovered 60.2 grams of a substance containing cocaine from a sandwich box found in a kitchen cabinet, 52.4 grams of a substance containing cocaine from a white robe hanging in a closet, and over 600 grams of cannabis in a duffel bag in the bedroom. They also found a digital scale with white powder residue, which is typically used by drug dealers to weigh out amounts of narcotics, plastic bags, and other drug paraphernalia. In a closet, the officers found a white Sentry safe. They also found defendant\u2019s lease with his name listed as the lessee of the apartment.\nThe recovered cocaine and cannabis were inventoried and sent to the Illinois State Police crime lab. The suspected cocaine tested positive for 112.6 grams of cocaine. The suspected cannabis tested positive for 640 grams of cannabis. The officers also found over $10,000 in various locations in defendant\u2019s apartment.\nFollowing the search, defendant was arrested and taken to the Brookfield police department. Detective Lanzi advised defendant of his Miranda rights and had defendant initial a form that he understood each of those rights. Defendant waived his rights and agreed to give a statement to the officers. Defendant was questioned by Detective Lanzi with Sergeant Burdett present as a witness.\nDefendant admitted that he started selling cannabis in 2002 after he lost his commercial driver\u2019s license and his job as a semi-truck driver. He told the officers that he started selling cannabis to his friends and then later added cocaine. He mostly sells powder cocaine, but he said he would \u201ccook up some rock cocaine for [his] friends that want it.\u201d Defendant stated that he kept the money and drugs in various places around his apartment, including a pound and a half of cannabis in a bag in his bedroom and about an ounce and a half of cocaine in a white robe. Defendant admitted he had scales in the apartment and explained that he used them to weigh the drugs for his customers. After giving his oral statement, defendant agreed to give a written statement. Sergeant Burdett prepared a written statement that summarized defendant\u2019s oral statement. Defendant reviewed the statement with Sergeant Burdett and was able to make any necessary revisions. The third page of the statement contained defendant\u2019s signature.\nDefendant also gave the officers the combination to the Sentry safe that was in his closet. He admitted to having a safety deposit box at a Citibank branch in Brookfield and it contained money made from selling drugs. He told the officers that the key to the safe deposit box was on his kitchen counter. Defendant signed a consent to search form for his apartment.\nThe officers returned to defendant\u2019s apartment to get the key and the safe. The police officers opened the safe and found gift cards, travelers checks and over $2,000 in cash.\nThe next day, defendant signed a consent to search form for his safety deposit box. The officers went to a Citibank branch and entered the vault with bank personnel. They found defendant\u2019s box. They placed it in a room filled with other safety deposit boxes and then brought in Officer DiGangi and his dog. The dog searched the room and alerted the officers to defendant\u2019s box. The officers opened defendant\u2019s safety deposit box and found $2,700 inside the box.\nWhen it was defendant\u2019s turn to present his case, he attempted to call Erin Spromack to testify, but she failed to appear in court. Defendant indicated that he wished to testify, but then changed his mind. Defendant rested without putting on any evidence. During closing arguments, defendant admitting possessing the drugs, but claimed he and some friends bought a large amount of drugs together for personal use. He denied selling or delivering drugs to anyone.\nDuring the jury instruction conference, the trial court indicated that it was going to give Illinois Pattern Jury Instructions, Criminal, No. 26.01 (4th ed. 2000) (hereinafter IPI Criminal 4th No. 26.01). IPI Criminal 4th No. 26.01 is a concluding instruction relating to verdict forms. Defendant objected to this instruction because he was \u201cnever charged with a delivery, never arrested for delivery.\u201d The trial court considered the arguments and decided to give the instruction. When given to the jury, this instruction stated that the jury would \u201creceive 12 forms of verdict,\u201d and, \u201c[flrom these 12 verdict forms you should select the one verdict form that reflects your verdict.\u201d The court further instructed it to \u201csign only one verdict form.\u201d\nImmediately after being sent to deliberate, the jury sent out a question. It asked, \u201cCan Carter be guilty for under 100 grams and over 100 grams using the same evidence?\u201d After conferring with the parties, the trial court\u2019s response to the jury was, \u201cYou are to consider the evidence and the written instructions and continue to deliberate.\u201d\nFollowing deliberations, the jury found defendant guilty of possession with intent to deliver more than 100 grams, but less than 400 grams of a substance containing cocaine and possession of cannabis with intent to deliver more than 500 grams, but less than 2,000 grams as well as the offenses of simple possession for each charge. However, the jury found defendant not guilty of the lesser included offense of possession with intent to deliver more than 15 grams, but less than 100 grams of a substance containing cocaine.\nDefendant filed two posttrial motions, which the trial court denied. At sentencing, the trial court heard arguments in aggravation and mitigation from the parties. The court sentenced defendant to concurrent terms of 12 years on his conviction for possession with intent to deliver more than 100 grams, but less than 400 grams of cocaine and 6 years for his conviction of possession with intent to deliver more than 500 grams, but less than 2,000 grams of cannabis. The simple possession convictions merged with the possession with intent to deliver convictions.\nThis appeal followed.\nOn appeal, defendant argues that the trial court deprived him of a fair trial when it improperly instructed the jury on verdict forms by giving IPI Criminal 4th No. 26.01. The trial court compounded this error by refusing to answer the jury\u2019s question when it expressed confusion over the verdict forms and then accepted multiple and conflicting verdicts when there should have been only one verdict for each of the charged offenses. The State asserts that defendant forfeited this issue by failing to raise it in his posttrial motion, and in the alternative, the State contends that any error by the trial court was harmless.\n\u201cGenerally, a defendant forfeits review of any putative jury instruction error if the defendant does not object to the instruction or offer an alternative instruction at trial and does not raise the instruction issue in a posttrial motion.\u201d People v. Herron, 215 Ill. 2d 167, 175 (2005). However, defendant asks this court to review this issue as plain error. Supreme Court Rule 615(a) states that \u201c[a]ny error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded. Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court.\u201d 134 Ill. 2d R. 615(a). \u201cUnder the plain error rule, issues not properly preserved may be considered by a reviewing court under two limited circumstances: (1) where the evidence is closely balanced, so as to preclude argument that an innocent person was wrongfully convicted; or (2) where the alleged error is so substantial that it affected the fundamental fairness of the proceeding and remedying the error is necessary to preserve the integrity of the judicial process.\u201d People v. Hall, 194 Ill. 2d 305, 335 (2000).\nFurther, Supreme Court Rule 451(c) \u201cprovides that \u2018substantial defects\u2019 in criminal jury instructions \u2018are not waived by failure to make timely objections thereto if the interests of justice require.\u2019 \u201d Herron, 215 Ill. 2d at 175, quoting 177 Ill. 2d R. 451(c). \u201cRule 451(c) crafts a limited exception to the general rule to correct \u2018grave errors\u2019 and errors in cases \u2018so factually close that fundamental fairness requires that the jury be properly instructed.\u2019 \u201d Herron, 215 Ill. 2d at 175, quoting People v. Hopp, 209 Ill. 2d 1, 7 (2004). \u201cRule 451(c) is coextensive with the \u2018plain error\u2019 clause of Supreme Court Rule 615(a), and we construe these rules \u2018identically.\u2019 \u201d Herron, 215 Ill. 2d at 175, quoting People v. Armstrong, 183 Ill. 2d 130, 151 n.3 (1998).\nThe State contends that any error by the trial court is not plain error, but instead amounts only to harmless error. \u201cThough plain-error analysis normally requires the same kind of inquiry as does harmless-error review, there is an \u2018important difference\u2019 between the two.\u201d People v. Thurow, 203 Ill. 2d 352, 363 (2003), quoting United States v. Olano, 507 U.S. 725, 734, 123 L. Ed. 2d 508, 520, 113 S. Ct. 1770, 1778 (1993). In considering harmless error, the defendant would have made a timely objection and preserved the error and, thus, it is the State that carries the burden of proving beyond a reasonable doubt that the jury verdict would have been the same absent the error. Thurow, 203 Ill. 2d at 363. Additionally, a reviewing court \u201cmay invoke the harmless error doctrine to dispose of claims of error that have a de minimus impact on the outcome of the case.\u201d People v. Blue, 189 Ill. 2d 99, 138 (2000). In contrast, a plain error analysis arises when the defendant has failed to object to the error and now carries the burden of persuasion. Thurow, 203 Ill. 2d at 363. \u201c \u2018In most cases, a court of appeals cannot correct the forfeited error unless the defendant shows that the error was prejudicial.\u2019 \u201d Thurow, 203 Ill. 2d at 363, quoting Olano, 507 U.S. at 734, 123 L. Ed. 2d at 520, 113 S. Ct. at 1778.\nIn the present case, defendant did not make a timely objection so it is the defendant\u2019s burden to show that the instruction error was prejudicial. In his argument, defendant relies on the second prong of the plain error analysis, asserting that \u201cthe trial court did not allow the jury the opportunity to follow the procedures and standards appropriate for a criminal trial when it denied the jury the applicable law it needed to reach a legally valid verdict.\u201d We agree that defendant cannot succeed under the first prong as the evidence in this case was not closely balanced. Thus, \u201cthe question is whether a \u2018grave error\u2019 has been committed or, stated another way, whether an error of such gravity or magnitude has occurred that the fundamental fairness of defendant\u2019s trial has been severely threatened.\u201d People v. Durr, 215 Ill. 2d 283, 298 (2005).\n\u201cThe function of jury instructions is to convey to the jury the law that applies to the evidence presented.\u201d Herron, 215 Ill. 2d at 187. \u201cJury instructions should not be misleading or confusing [citation], but their correctness depends upon not whether defense counsel can imagine a problematic meaning, but whether ordinary persons acting as jurors would fail to understand them [citation].\u201d Herron, 215 Ill. 2d at 187-88. We recognize that the supreme court has held that \u201ca jury instruction error rises to the level of plain error only when it \u2018creates a serious risk that the jurors incorrectly convicted the defendant because they did not understand the applicable law, so as to severely threaten the fairness of the trial.\u2019 \u201d Herron, 215 Ill. 2d at 193, quoting People v. Hopp, 209 Ill. 2d 1, 8 (2004).\nIn People v. Ogunsola, 87 Ill. 2d 216 (1981), the supreme court considered whether the trial court had erred when it gave the jury an instruction that incorrectly defined the offense of deceptive practices by omitting an essential element of the offense. In that case, the defendant was charged with deceptive practices under $150 after he paid for his car repairs with a check that the funds in his account would not cover and on which he intended to stop payment. When instructing the jury, the trial court failed to include the phrase, \u201cwith intent to defraud,\u201d in the offense\u2019s definition. The supreme court found that the intent to defraud is an essential element of deceptive practices and is a specific mental state, different from the knowing mental state. Ogunsola, 87 Ill. 2d at 221. Though the defendant did not preserve the error, the supreme court reviewed it under the plain error doctrine to ensure the fundamental fairness of the defendant\u2019s trial. \u201cFundamental fairness includes, among other things, seeing to it that certain basic instructions, essential to a fair determination of the case by the jury, are given.\u201d Ogunsola, 87 Ill. 2d at 222. The Ogunsola court noted that instructions defining the elements of the offense are included among these basic instructions and the failure to inform the jury of the elements \u201chas been held to be error so grave and fundamental that the waiver rule should not apply.\u201d Ogunsola, 87 Ill. 2d at 222. The court concluded that it could not say that \u201ca properly instructed jury might not have acquitted the defendant, based on a lack of proof beyond a reasonable doubt that he intended to defraud\u201d the victim. Ogunsola, 87 Ill. 2d at 223.\nHere, the trial court read the following instruction to the jury, which tracked IPI Criminal 4th No. 26.01.\n\u201cWhen you retire to the jury room, you first will elect one of your members as your foreperson. He or she will preside during your deliberations on your verdict.\nYour agreement on a verdict must be unanimous. Your verdict must be in writing and signed by all of you, including your foreperson.\nThe defendant is charged with the offenses of possession of a controlled substance with the intent to deliver 100 or more \u2014 100 grams or more, but not less [sic] than 400 grams of a substance containing cocaine; possession of a controlled substance with the intent to deliver 15 grams or more, but less than 100 grams of a substance containing cocaine; possession of a controlled substance with the intent to deliver 15 grams or more, but less than 100 grams of a substance containing cocaine; possession of a controlled substance of 100 grams or more, but less than 400 grams of a substance containing cocaine; possession of cannabis with the intent to deliver more than 500 grams, but less than 2,000 grams; and possession of cannabis, more than 400 grams [sic] but not more than 2,000 grams.\nYou will receive 12 forms of verdict, you will be provided with both a not guilty and a guilty form of verdict. From these 12 verdict forms you should select the one verdict form that reflects your verdict and sign it, as I have stated. Do not write on the other verdict forms, sign only one verdict form.\u201d\nWe note that the oral version of the instruction had two misstatements, but the written version given to the jury was correct. The trial court then read from the verdict forms it was providing for the jury. The 12 forms included a not guilty and a guilty form for each of the six charges. Defendant argues that this was the incorrect concluding instruction and the jury should have been instructed under IPI Criminal 4th No. 26.01R.\nWe agree. The title and the committee note to IPI Criminal 4th No. 26.01 make clear that this instruction should not be used when the jury is being instructed on a lesser included offense. IPI Criminal 4th No. 26.01. The full title for IPI Criminal 4th No. 26.01 includes the language, \u201cJury Is Not To Be Instructed On A Lesser Included Offense.\u201d Similarly, the committee note for IPI Criminal 4th No. 26.01 provides:\n\u201cThis instruction should not be used under any of the following circumstances: (1) the jury is to be instructed on a lesser offense\n*** Do not use this instruction, however, if the jury is to be instructed on a lesser included offense; instead, use one of the instructions from Part III of the 26.01 series.\u201d (Emphasis in original.) IPI Criminal 4th No. 26.01, Committee Note, at 364.\nIn the instant case, the jury was being asked to consider the lesser included offenses of possession for both the cocaine and cannabis charges as well as possession with intent to deliver a smaller amount of cocaine than the greater offense of possession with intent to deliver more than 100 grams, but less than 400 grams of a substance containing cocaine. As defendant points out, the proper concluding instruction was IPI Criminal 4th No. 26.01R, which states:\n\u201c26.01R Concluding Instruction \u2014 Jury Is To Be Instructed On One Or More Charges Including Lesser Offenses ***\nWhen you retire to the jury room you first will elect one of your members as your foreperson. He or she will preside during your deliberations on your verdict.\nYour agreement on a verdict must be unanimous. Your verdict must be in writing and signed by all of you, including your foreperson.\n[1] The defendant^] ((is) (are)] [also) charged with the offense of _[greater offense]. Under the law, a person charged with _[greater offense] may be found (1) not guilty of _[greater offense] and not guilty of_[lesser offense]; or (2) guilty of_[greater offense]; or (3) guilty of _[lesser offense].\n[2] Accordingly, you will be provided with three verdict forms [as to each defendant] pertaining to the charge of_[greater offense]: \u2018not guilty of_[greater offense] and not guilty of _[lesser offense],\u2019 \u2018guilty of_[greater offense],\u2019 and \u2018guilty of_[lesser offense].\u2019\n[3] From these three verdict forms, you should select the one verdict form that reflects your verdict [as to each defendant] and sign it as I have stated. Do not write on the other two verdict forms [as to that defendant]. Sign only one of these verdict forms [as to that defendant]. Sign only one of these verdict forms [as to each defendant],\n[4] If you find the State has proved the defendant guilty of both _ [greater offense] and_ [lesser offense], you should select the verdict form finding the defendant guilty of _[greater offense] and sign it as I have stated. Under these circumstances, do not sign verdict form finding the defendant guilty of_[lesser offense],\n[6] The defendants] [(is) (are)] also charged with the offense of _. You will receive two forms of verdict [as to each defendant] as to this charge. You will be provided with both a \u2018not guilty of _\u2019 and a \u2018guilty of_\u2019 form of verdict [as to each defendant].\n[7] From these two verdict forms, you should select the one verdict form that reflects your verdict [as to each defendant] pertaining to the charge of_and sign it as I have stated. You should not write at all on the other verdict form pertaining to the charge of_.\u201d IPI Criminal 4th No. 26.01R.\nThis instruction makes clear to the jury how to use the verdict forms when considering lesser included offenses. A lesser included offense is \u201cone which includes all elements of a greater offense so that it would be impossible to commit the greater offense without committing the lesser offense.\u201d People v. Brown, 171 Ill. App. 3d 391, 401 (1988). \u201cThe purpose of an instruction on a lesser offense is to provide \u2018an important third option to a jury which, believing that the defendant is guilty of something but uncertain whether the charged offense has been proved, might otherwise convict rather than acquit the defendant of the greater offense.\u2019 \u201d People v. Hamilton, 179 Ill. 2d 319, 323-24 (1997), quoting People v. Bryant, 113 Ill. 2d 497, 502 (1986), citing Keeble v. United States, 412 U.S. 205, 212-13, 36 L. Ed. 2d 844, 850, 93 S. Ct. 1993, 1997-98 (1973). Here, the jury was instructed on the elements of the lesser included offenses, but was not told how to render a verdict when considering both a greater and lesser offense. Instead, the jury received a misleading instruction that it would \u201creceive 12 verdict forms\u201d and it \u201cshould select the one verdict form that reflects [its] verdict.\u201d The given instruction was especially confusing because defendant was charged with two different types of offenses \u2014 one involving cocaine and one involving cannabis. One verdict would not be a proper finding on these charges.\nFurther, as IPI Criminal 4th No. 26.01R makes clear, the jury should not have received two verdict forms, a guilty and not guilty, for each of the greater and lesser included offenses. Rather, the jury should have received one not guilty form for all related charges and then individual guilty forms for the greater offense and each of the lesser included offenses.\nThe State responds that any error by the trial court was harmless because the jury was instructed about lesser included offenses by IPI Criminal 4th No. 2.01R. IPI Criminal 4th No. 2.01R details the charges against the defendant and is to be given whenever \u201cthe jury is to be instructed on one or more charges which include a lesser offense.\u201d (Emphasis in original.) IPI Criminal 4th No. 2.01R, Committee Note, at 52. Here, the trial court instructed the jury according to IPI Criminal 4th No. 2.01R as follows.\n\u201cThe defendant is charged with the offense of possession of controlled substance with the intent to deliver 100 grams or more, but less than 400 grams of a substance containing cocaine. The defendant has pleaded not guilty. Under the law, a person charged with possession of a controlled substance with the intent to deliver 100 grams or more, but less than 400 grams of a substance containing cocaine may be found not guilty or guilty of possession of controlled substance with the intent to deliver 100 grams or more, but less than 400 grams of a substance containing cocaine, or guilty of possession with intent to deliver 15 grams or more, but less than 100 grams of a substance containing cocaine, or guilty of possession of more than 100 grams, but less than 400 grams of a substance containing cocaine, or guilty of possession of 15 grams, but less than 100 grams of a substance containing cocaine.\nThe defendant is also charged with the offense of possession of cannabis with the intent to deliver more than 500 grams, but not more than 2,000 grams. The defendant has pleaded not guilty. Under the law, a person charged with possession of cannabis with the intent to deliver more than 500 grams, but less than 2,000 grams may be found not guilty, or guilty of possession of cannabis with the intent to deliver more than 500 grams, but less than 2,000 grams, or guilty of possession of cannabis, more than 500 grams, but less than 2,000 grams.\u201d\nThe State asserts that this instruction informed the jury about the lesser included offenses and the instructions as a whole \u201cfairly, fully, and comprehensively informed the jury of the necessary legal principles.\u201d We disagree with the State\u2019s argument for two reasons. First, the committee note for IPI Criminal 4th No. 2.01R limits its use in conjunction only with IPI Criminal 4th No. 26.01R. The committee note for IPI Criminal 4th No. 2.01R explicitly states that \u201c[wjhenever this instruction is given, Instruction 26.01R must also be given. This instruction may not be used in conjunction with any other instruction from the 26.01 series.\u201d (Emphasis added.) IPI Criminal 4th No. 2.01R, Committee Note, at 52. Thus, the trial court is not permitted to use this instruction alongside IPI Criminal 4th No. 26.01. Second, this instruction does not inform the jury how to complete the verdict forms, the subject of the 26.01 series. The fact that the jury was instructed as to the presence of lesser included offenses does not correct the fact that the jury was improperly informed on how to render a verdict involving lesser included offenses.\nWe are also unpersuaded by the State\u2019s contention that it was not an error to give IPI Criminal 4th No. 26.01 because it is a former version of IPI Criminal 4th No. 26.01R and while not specifically crafted for lesser included offenses, it still accurately states the law. The State cites the Second District case of People v. Kegley, 227 Ill. App. 3d 48, 56 (1992), as support. However, this case is easily distinguishable from the present case. There, defense counsel tendered IPI Criminal 2d Nos. 2.01R and 26.01R, but later agreed that the instructions were confusing and that the former versions, IPI Criminal 2d Nos. 2.01 and 26.01, should be given. Kegley, 227 Ill. App. 3d at 53. The reviewing court held that the defendant\u2019s attorney effectively withdrew the instructions and there was no error in giving the former versions. Kegley, 227 Ill. App. 3d at 56. The Kegley court referred to a prior decision from the Fourth District, People v. Tucker, 193 Ill. App. 3d 849 (1990), for its position that \u201cthe use of an earlier version of a pattern instruction that still correctly states the law is not reversible error.\u201d Kegley, 227 Ill. App. 3d at 56, citing Tucker, 193 Ill. App. 3d at 854. In Tucker, a defendant contended on appeal that the jury received an outdated non-IPI instruction, but the reviewing court found that the version given was not outdated and noted the instruction offered by the defendant was part of the 1989 supplement though his trial was held in November 1988. Tucker, 193 Ill. App. 3d at 853. The Tucker court went on to state as dicta, with no citation to authority, that \u201c[w]hile we believe that Supreme Court Rule 451(a) (107 Ill. 2d R. 451(a)) requires a trial court to use the latest version of a particular IPI instruction that may be applicable, use by a trial court of an earlier IPI version of that same instruction is not reversible error as long as the earlier version still correctly states the law.\u201d Tucker, 193 Ill. App. 3d at 854.\nHere, unlike Tucker, the instruction was not a recent amendment and, unlike Kegley, the proper instruction was not withdrawn. Further, the committee notes and titles of the instructions make clear that IPI Criminal 4th No. 26.01 is not a proper substitute for IPI Criminal 4th No. 26.01R. As we have discussed, IPI Criminal 4th No. 26.01 does not accurately instruct the jury as to verdict forms when a defendant has been charged with lesser included offenses. Significantly, this is not a situation where the harm to defendant is theoretical; as we will discuss further, the jury expressed confusion in a question and entered conflicting verdicts based on this error.\nAccordingly, we find that the trial court erred in giving IPI Criminal 4th No. 26.01 instead of IPI Criminal 4th No. 26.01R. However, this finding does not end our analysis. We must now consider whether this error was so substantial as to have affected the fundamental fairness of defendant\u2019s trial. We conclude that it did for the following reasons.\nThe record shows proof of the jury\u2019s confusion in considering greater and lesser included offenses where the jury sent out a question on this subject during its deliberations. The jury asked, \u201cCan Carter be guilty for under 100 grams and over 100 grams using the same evidence?\u201d This question indicates that the jury was considering whether it could find defendant guilty of the greater and lesser charged cocaine offenses. Paragraph 4 of IPI Criminal 4th No. 26.01R would have instructed the jury that if it found defendant guilty of the greater and the lesser included offenses, then it should only sign the verdict form for the greater offense. Rather than correct its instruction error, the trial court\u2019s response to the jury was, \u201cYou are to consider the evidence and the written instructions and continue to deliberate.\u201d\n\u201cThe trial court has a duty to instruct the jury when clarification is requested, the original instructions are insufficient or the jurors are manifestly confused.\u201d People v. Jones, 364 Ill. App. 3d 740, 748 (2006), citing People v. Reid, 136 Ill. 2d 27, 39 (1990).\n\u201cA trial court may exercise its discretion and properly decline to answer a jury\u2019s inquiries where the instructions are readily understandable and sufficiently explain the relevant law, where further instructions would serve no useful purpose or would potentially mislead the jury, when the jury\u2019s inquiry involves a question of fact, or if the giving of an answer would cause the court to express an opinion which would likely direct a verdict one way or another. [Citation.] However, jurors are entitled to have their inquiries answered. Thus, the general rule is that the trial court has a duty to provide instruction to the jury where it has posed an explicit question or requested clarification on a point of law arising from facts about which there is doubt or confusion. [Citation.] This is true even though the jury was properly instructed originally. [Citation.] When a jury makes explicit its difficulties, the court should resolve them with specificity and accuracy [citations]. If the question asked by the jury is unclear, it is the court\u2019s duty to seek clarification of it. [Citations.] The failure to answer or the giving of a response which provides no answer to the particular question of law posed has been held to be prejudicial error. [Citations.]\u201d People v. Childs, 159 Ill. 2d 217, 228-29 (1994).\nWe have already found that the trial court improperly instructed the jury as to the verdict forms because the defendant was charged with a lesser included offense. Since the original instructions were insufficient and the jury expressed its confusion concerning the substantive issue as to whether it could find defendant guilty of both the greater offense involving more than 100 grams as well as the lesser included offense involving less than 100 grams on the same evidence, the trial court should have answered the jury by correctly instructing the jury on this issue. If the trial court had responded to the jury\u2019s question, it could have corrected the instruction error. Without this information, the jury was not fully instructed on the proper way to consider lesser included offenses. The trial court\u2019s failure to answer the jury\u2019s question further compounded the error in the improper jury instructions, which culminated in the jury rendering conflicting verdicts.\nFollowing its deliberations, the jury returned verdicts that illustrate its confusion over the verdict forms and lesser included offenses. The jury signed verdict forms finding defendant guilty of possession with intent to deliver more than 100 grams, but less than 400 grams of a substance containing cocaine, but also found defendant not guilty of possession with intent to deliver more than 15 grams, but less than 100 grams of a substance containing cocaine. As we have previously pointed out, if the jury had been properly instructed under IPI Criminal 4th No. 26.01R, then it would have been instructed to only sign a verdict form for the greater offense and not to sign any forms relating to the lesser included offenses.\nDefendant, relying on People v. Almo, 108 Ill. 2d 54 (1985), contends that the trial court should have resubmitted the verdicts to the jury with clarifying instructions. In Almo, the jury entered guilty verdicts against the defendant for both murder and voluntary manslaughter. The trial court gave the jury instructions to clarify that if it found the defendant guilty of murder, then it must not return a verdict on voluntary manslaughter. The jury returned to deliberate and came back with a verdict of murder. Almo, 108 Ill. 2d at 61-62. The supreme court found the trial court acted properly to correct the jury\u2019s misapprehension and to do nothing would have been error. Almo, 108 Ill. 2d at 64.\nThe instant case presents a different situation. Here, the jury entered a guilty on the greater offense and a not guilty as to a lesser offense. While we recognize that the supreme court has held that \u201cdefendants in Illinois can no longer challenge convictions on the sole basis that they are legally inconsistent with acquittals on other charges\u201d (People v. Jones, 207 Ill. 2d 122, 133-34 (2003)), defendant has not based his challenge on appeal on the inconsistent verdicts. Instead, defendant points to the inconsistency to demonstrate the jury\u2019s confusion after being given the incorrect instruction.\nIn response to defendant\u2019s argument, the State has asserted that even if the trial court erred, such error was harmless. As we previously noted, we \u201cmay invoke the harmless error doctrine to dispose of claims of error that have a de minimus impact on the outcome of the case.\u201d Blue, 189 Ill. 2d at 138. However, we do not find that the errors in this case had a de minimus impact on the outcome of the case.\nAs the supreme court in Blue went on to state, \u201cprejudice to a defendant\u2019s case is not the sole concern that drives our analysis of defendant\u2019s appeal: \u2018A criminal defendant, whether guilty or innocent, is entitled to a fair, orderly, and impartial trial\u2019 conducted according to law.\u201d Blue, 189 Ill. 2d at 138, quoting People v. Bull, 185 Ill. 2d 179, 214 (1998). \u201c[WJhen a defendant\u2019s right to a fair trial has been denied, this court must take corrective action so that we may preserve the integrity of the judicial process.\u201d Blue, 189 Ill. 2d at 138. Additionally, \u201cwhen an error arises at trial that is of such gravity that it threatens the very integrity of the judicial process, the court must act to correct the error, so that the fairness and the reputation of the process may be preserved and protected. Critically, the court will act on plain error regardless of the strength of the evidence of defendant\u2019s guilt.\u201d (Emphasis in original.) Blue, 189 Ill. 2d at 138, citing People v. Green, 74 Ill. 2d 444, 455 (1979) (Ryan, J., specially concurring).\nHere, we find that the combined effect of these errors affected the fundamental fairness of defendant\u2019s trial. In light of the instruction error and the expressed confusion by the jury, we are not confident in their verdict. The jury was not given an opportunity to fully consider the lesser included offenses because IPI Criminal 4th No. 26.01 did not provide the requisite information to reach a fair verdict. Further, the trial court supplied the jury with incorrect information as to the number of verdict forms to sign and the wrong number of verdict forms to consider. This is not a case where the reviewing court can only speculate as to the affect an improper instruction had on the jury. Rather, the facts in this case clearly demonstrate the jury\u2019s continued confusion over how to render its verdicts on greater and lesser included offenses. We do not know if the jury was trying to show lenity toward defendant in reaching the not guilty verdict on the lesser included offense or if it was simply confused. The cumulative effect of these errors rendered the verdict unreliable and denied defendant a fair trial.\nWhile we are mindful that defendant, appearing pro se, is held to the same requirements as an attorney (see People v. Radford, 359 Ill. App. 3d 411, 417 (2005)), we also recognize that defendant did object to this instruction during the jury instruction conference, though for a different reason. We find that this trial court\u2019s error in instructing the jury under IPI Criminal 4th No. 26.01, rather than the correct instruction of IPI Criminal 4th No. 26.01R, along with the trial court\u2019s failure to respond to the jury\u2019s question with the correct instruction and the entering of inconsistent verdicts amount to plain error affecting the fundamental fairness of defendant\u2019s trial.\nFinally, we find that there is no double jeopardy impediment to a new trial. After reviewing the record, we conclude that the evidence was sufficient to prove defendant guilty beyond a reasonable doubt. However, in our finding, we reach no conclusion as to defendant\u2019s guilt that would be binding on retrial. People v. Naylor, 229 Ill. 2d 584, 610-11 (2008).\nBased on the foregoing reasons, we reverse defendant\u2019s convictions and remand for a new trial.\nReversed and remanded.\nO\u2019MALLEY, PJ., and J. GORDON, J., concur.", "type": "majority", "author": "JUSTICE McBRIDE" } ], "attorneys": [ "Patricia Unsinn and John Koltse, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Anita Alvarez, State\u2019s Attorney, of Chicago (James E. Fitzgerald, Samuel Shim, and Cristin Duffy, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MORRIS E. CARTER III, Defendant-Appellant.\nFirst District (6th Division)\nNo. 1\u201407\u20142872\nOpinion filed March 13, 2009.\nPatricia Unsinn and John Koltse, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nAnita Alvarez, State\u2019s Attorney, of Chicago (James E. Fitzgerald, Samuel Shim, and Cristin Duffy, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0175-01", "first_page_order": 191, "last_page_order": 206 }