lesser included offense instruction in Illinois

2025“In order for a defendant to be entitled to a lesser-included offense instruction, the evidence must be such that a jury could rationally find defendant guilty of the lesser offense, yet acquit him of the greater.” People v. Medina, 221 Ill. 2d 394, 410 (2006).

2025While “it is the defendant's right to decide whether to tender a lesser-included offense instruction *** [that right] is an entirely different matter than a right to actually have the jury instructed on a lesser-included offense.” (Emphasis omitted.) Medina, 221 Ill. 2d at 402 .

2025Id. at 229-30 . ¶ 57 In contrast, where a defendant has made the decision whether to give a lesser-included offense instruction, that decision is considered one of trial strategy, which has no bearing on the competency of counsel.

2023We interpret this as a concession of the issue and, for the reasons stated below, we accept the concession. ¶ 21 In People v. Brocksmith, 162 Ill. 2d 224, 227-28 (1994), our supreme court held the decision to submit a lesser-included-offense instruction is one of five decisions belonging exclusively to a criminal defendant, as opposed to defense counsel.

2019In People v. Garcia , 188 Ill. 2d 265 , 284, 242 Ill.Dec. 295 , 721 N.E.2d 574 (1999), our supreme court held that a lesser-included offense instruction should be given upon request of the defendant where "the evidence would permit a jury rationally to find the defendant guilty of the lesser-included offense and acquit of the charged greater offense." Some or slight evidence "that tends to prove the lesser offense rather than the greater" will satisfy that requirement.

2019In People v. Garcia , 188 Ill. 2d 265 , 284, 242 Ill.Dec. 295 , 721 N.E.2d 574 (1999), our supreme court held that a lesser-included offense instruction should be given upon request of the defendant where "the evidence would permit a jury rationally to find the defendant guilty of the lesser-included offense and acquit of the charged greater offense." Some or slight evidence "that tends to prove the lesser offense rather than the greater" will satisfy that requirement.

2021“A defendant is entitled to a lesser included offense instruction only if an examination of the evidence reveals that it would permit a jury to rationally find the defendant guilty of the lesser included offense but acquit the defendant of the greater offense.” Id.; see also Ceja, 204 Ill. 2d at 360 ; People v. Jones, 175 Ill. 2d 126, 135 (1997); People v. Landwer, 166 Ill. 2d 475, 486 (1995).

2016By contrast, the State argues that the proper standard of review is abuse of discretion under People v. Jones, 175 Ill. 2d 126, 131-32 (1997) (“A defendant is entitled to an instruction on his theory of the case if there is some foundation for the instruction in the evidence, and if there is such evidence, it is an abuse of discretion for the trial court to refuse to so instruct the jury.”), and People v. Garcia, 188 Ill. 2d 265, 283 (1999) (“ ‘abuse of discretion’ standard of review must be applied in determining the propriety of the trial court’s [decision to submit a lesser included offense

2024“A defendant is entitled to a lesser included offense instruction only if the evidence would permit a jury rationally to find the defendant guilty of the lesser included offense and acquit him or her of the greater offense.” Novak, 163 Ill. 2d at 108 .

2013This court noted that “[t]he charging instrument approach best serves the purposes of the lesser-included offense doctrine.” Id. at 112-13 .

2025Our supreme court has made this clear too: “A defendant is entitled to a lesser included offense instruction only if an examination of the evidence reveals that it would permit a jury to rationally find the defendant guilty of the lesser offense yet acquit the defendant of the greater offense.” People v. Hamilton, 179 Ill. 2d 319, 324 (1997). ¶ 30 These limitations rest on principles of due process and the prescribed role of the factfinder in our criminal justice system.

2021We agree. ¶ 126 Once a lesser-included offense is identified, “[a] defendant is entitled to a lesser included offense instruction only if an examination of the evidence reveals that it would permit a jury to rationally find the defendant guilty of the lesser offense yet acquit the defendant of the greater offense.” People v. Hamilton, 179 Ill. 2d 319, 324 (1997).

2020In other words, a claim that the court should have given a lesser-included offense instruction will by its own nature be inconsistent with the original verdict. ¶ 30 The jury’s finding of guilt does not foreclose our analysis because the purpose of lesser- included offense instructions “is to provide ‘an 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.’ ” (Emphasis added.) Id. at 323 (quoting People v. Bryant, 113

2020In other words, a claim that the court should have given a lesser included offense instruction will by its own nature be inconsistent with the original verdict. ¶ 30 The jury’s finding of guilt does not foreclose our analysis because the purpose of lesser included offense instructions “is to provide ‘an 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.’ ” (Emphasis added.) Id. at 323 (quoting People v. Bryant, 113

2021“A defendant is entitled to a lesser included offense instruction only if an examination of the evidence reveals that it would permit a jury to rationally find the defendant guilty of the lesser included offense but acquit the defendant of the greater offense.” Id.; see also Ceja, 204 Ill. 2d at 360 ; People v. Jones, 175 Ill. 2d 126, 135 (1997); People v. Landwer, 166 Ill. 2d 475, 486 (1995).

2020Defendant asserts that the trial court improperly denied his request because the evidence in this case would have allowed the jury to rationally find him guilty of aggravated discharge of a firearm as a lesser-included offense of aggravated battery and acquit him of the greater offense. ¶ 61 "Giving a lesser-included offense instruction provides an important 'third option' to the jury because '[i]f a jury believes that a defendant is guilty of something, but uncertain whether the charged offense has been proved, the jury might convict the defendant of the lesser offense rather than convict or

2010Kolton, 219 Ill.2d at 361 , 302 Ill.Dec. 386 , 848 N.E.2d 950 ; People v. Medina, 221 Ill.2d 394, 405 , 303 Ill.Dec. 795 , 851 N.E.2d 1220 (2006) (explaining that "[a] defendant is entitled to a lesser-included offense instruction only if the evidence at trial is such that a jury could rationally find the defendant guilty of the lesser offense, yet acquit him of the greater").

2010Kolton, 219 Ill.2d at 361 , 302 Ill.Dec. 386 , 848 N.E.2d 950 ; People v. Medina, 221 Ill.2d 394, 405 , 303 Ill.Dec. 795 , 851 N.E.2d 1220 (2006) (explaining that "[a] defendant is entitled to a lesser-included offense instruction only if the evidence at trial is such that a jury could rationally find the defendant guilty of the lesser offense, yet acquit him of the greater").

2021Petitioner stated in his successive postconviction petition that “[t]he failure to consider the lesser included offense [of second-degree murder by an unreasonable belief in self- defense] deprived him of his fifth amendment right to due process.” In support of this claim, petitioner cited to Beck v. Alabama, 447 U.S. 625, 635 (1980), which held that a defendant is entitled to a lesser-included offense instruction where the evidence warrants it. ¶ 49 In the case at bar, however, defense counsel requested and received jury instructions for both the affirmative defense of self-defense and the of

1991Ed. 2d 392 , 100 S. Ct. 2382 , is authority for the proposition that “if the unavailability of a lesser included offense instruction enhances the risk of an unwarranted conviction, [a State] is constitutionally prohibited from withdrawing that option from the jury in a capital case.” ( 447 U.S. at 638 , 65 L.

2016This avoids the possibility of a compromise verdict where the ‘jury may be induced to find defendant guilty of the lesser offense rather than to continue the debate as to his innocence.’ People v. Benford, 349 Ill.

2016This avoids the possibility of a compromise verdict where the 'jury may be induced to find defendant guilty - 14 - 1-13-3389 of the lesser offense rather than to continue the debate as to his innocence.' People v. Benford, 349 Ill.

2001See also People v. Kliner, 185 Ill. 2d 81, 118 (1998) (in the course of litigation, “[a] defendant is bound by the acts or omissions of his counsel”); cf. People v. Segoviano, 189 Ill. 2d 228, 240 (2000) (“[t]he only trial-related decisions over which a defendant ultimately must have control are: whether to plead guilty; whether to waive a jury trial; whether to testify in his own behalf; whether to appeal; and whether to submit a lesser-included offense instruction”).

2001See also People v. Kliner , 185 Ill. 2d 81, 118 (1998) (in the course of litigation, “[a] defendant is bound by the acts or omissions of his counsel”); cf. People v. Segoviano , 189 Ill. 2d 228, 240 (2000) (“[t]he only trial-related decisions over which a defendant ultimately must have control are: whether to plead guilty; whether to waive a jury trial; whether to testify in his own behalf; whether to appeal; and whether to submit a lesser-included offense instruction”).

2021“A defendant is entitled to a lesser included offense instruction only if an examination of the evidence reveals that it would permit a jury to rationally find the defendant guilty of the lesser included offense but acquit the defendant of the greater offense.” Id.; see also Ceja, 204 Ill. 2d at 360 ; People v. Jones, 175 Ill. 2d 126, 135 (1997); People v. Landwer, 166 Ill. 2d 475, 486 (1995).

2018Id. ¶ 29 Thus, contrary to the analysis in Chandler, the issue here is not whether the lesser offense is “separate”; the issue is whether the indictment set out the outline of the lesser offense such -7- that the lesser offense is “included.” Because theft was “included” here, and because there was evidence that would have supported a conviction of theft and an acquittal of burglary, the trial court erred in refusing a theft instruction. ¶ 30 We note that the State asserts that the trial court’s refusal to issue the lesser-included-offense instruction, even if error, was harmless.

2003The majority in Brocksmith acknowledged that the supreme court had previously held that "the decision whether to tender a lesser included offense instruction involves matters of trial strategy. ( People v. Barnard , 104 Ill. 2d 218, 232 (1984); People v. Kubat , 94 Ill. 2d 437, 485-86 (1983); [Citations].)" Brocksmith , 162 Ill. 2d at 228 .

1999See People v. Barnard (1984), 104 Ill.2d 218, 232 [ 83 Ill.Dec. 585 , 470 N.E.2d 1005 ]; People v. Chapman (1981), 94 Ill.App.3d 602, 608 [ 50 Ill.Dec. 1 , 418 N.E.2d 995 ]." (Emphasis added.) Brocksmith, 162 Ill.2d at 232-33 , 205 Ill.Dec. 113 , 642 N.E.2d 1230 (Freeman, J., concurring). [2] Notably, Chapman held that, in light of the strategic nature of the decision to tender a lesser-included offense instruction, "it may be reversible error for the trial court to instruct the jury sua sponte on a lesser-included offense." Chapman, 94 Ill.

2009A lesser-included offense instruction is only proper where the charged greater offense requires the jury to find a disputed factual element which is not required for conviction of the lesser-included offense.’ ” Cramer, 85 Ill. 2d at 99-100 , quoting Sansone v. United States, 380 U.S. 343, 349-50 , 13 L.

2009A lesser-included offense instruction is only proper where the charged greater offense requires the jury to find a disputed factual element which is not required for conviction of the lesser-included offense.’ ” Cramer, 85 Ill. 2d at 99-100 , quoting Sansone v. United States, 380 U.S. 343, 349-50 , 13 L.

2013Rowell, 229 Ill. 2d at 97 (citing People v. Knaff, 196 Ill. 2d 460 , 477- 78 (2001)). ¶ 42 A lesser-included-offense analysis involves two inquiries.

2013See generally People v. Medina, 221 Ill. 2d 394, 405 (2006) (citing People v. Knaff, 196 Ill. 2d 460, 473 (2001)).

2025App. 3d 181 , 186- 87 (2001) (citing Wright, 111 Ill. 2d 18 ); see also People v. Jackson, 2018 IL App (1st) 150487, ¶ 29 (decision to pursue “all or nothing” defense strategy may be unreasonable if based on a misapprehension of the law or if it was the functional equivalent of withdrawing a lesser-included offense instruction).

2021Jackson, 2018 IL App (1st) 150487, ¶ 29 . ¶ 53 The State initially asserts that reckless conduct was not a lesser included offense of child endangerment as charged.

2025See People v. Evans, 369 Ill.

2008However, irrespective of whether an offense is considered a lesser-included offense, Illinois courts have generally recognized that “ ‘[t]he decision to offer an instruction on a lesser-included offense is one of trial strategy, which has no bearing on the competency of counsel.’ ” People v. Evans, 369 Ill.

2022“An abuse of discretion occurs only when the trial court’s decision is arbitrary, fanciful, or 16 unreasonable or where no reasonable person would take the view adopted by the trial court.” Seymour v. Collins, 2015 IL 118432, ¶ 41 . ¶ 42 “[I]n order for a defendant to be entitled to a lesser-included offense instruction, ‘the evidence must be such that a jury could rationally find the defendant guilty of the lesser offense, yet acquit him of the greater.’ ” People v. Wilmington, 2013 IL 112938, ¶ 47 (quoting People v. Medina, 221 Ill. 2d 394, 405 (2006)). ¶ 43 “A person who unintentionally kil

2021“While a defendant who tenders a lesser-included offense instruction exposes himself to ‘potential criminal liability, which he otherwise might avoid if neither the trial judge nor the prosecutor seeks the pertinent instruction’ *** that is not the case with the tender of a second degree murder instruction ***.” Id. (quoting People v. Medina, 221 Ill. 2d 394, 405 (2006)).

2009The rule is settled that the lesser-included offense doctrine “does not apply where the two offenses in a particular case involve the same issues of disputed fact.” People v. Cramer, 85 Ill. 2d 92, 98 (1981).

2009A lesser-included offense instruction is only proper where the charged greater offense requires the jury to find a disputed factual element which is not required for conviction of the lesser-included offense.’ ” Cramer, 85 Ill. 2d at 99-100 , quoting Sansone v. United States, 380 U.S. 343, 349-50 , 13 L.

2007"A defendant is entitled to a lesser-included offense instruction only if the evidence at trial is such that a jury could rationally find the defendant guilty of the lesser offense, yet acquit him or her of the greater." People v. Medina, 221 Ill. 2d 394, 405 (2006), citing Schmuck v. United States, 489 U.S. 705 , 716 n.8, 103 L.

2007"A defendant is entitled to a lesser-included offense instruction only if the evidence at trial is such that a jury could rationally find the defendant guilty of the lesser offense, yet acquit him or her of the greater." People v. Medina, 221 Ill. 2d 394, 405 (2006), citing Schmuck v. United States, 489 U.S. 705 , 716 n.8, 103 L.

2025In contrast, in a jury trial, unless a lesser-included offense instruction is tendered, the jury “does not have the option to convict the defendant of an uncharged lesser-included offense.” Id.

2018App. 3d at 589 , 317 Ill.Dec. 1 , 880 N.E.2d 993 ) or (2) was the functional equivalent of withdrawing a lesser-included offense instruction ( People v. Shamlodhiya , 2013 IL App (2d) 120065 , ¶ 20, 369 Ill.Dec. 255 , 986 N.E.2d 204 ).

2020Defendant does not argue that a lesser-included-offense analysis applies and instead argues only that the conduct was a single physical act. ¶ 10 The definition of an “act” is “any overt or outward manifestation which will support a different offense.” People v. King, 66 Ill. 2d 551, 566 (1977).

2019Defendant does not argue that a lesser-included-offense analysis applies and instead argues only that the conduct was a single physical act. - 10 - 2019 IL App (2d) 170484-U ¶ 33 The definition of an “act” is “any overt or outward manifestation which will support a different offense.” People v. King, 66 Ill. 2d 551, 566 (1977).

1988Referring again to the Supreme Court's decision in Hopper , the Court there noted that under the Federal ruling, a lesser included offense instruction should be given only if the evidence would permit a jury rationally to find a defendant guilty of the lesser offense and acquit him of the greater. ( Hopper v. Evans (1982), 456 U.S. 605, 612 , 72 L.Ed.2d 367, 373 , 102 S.Ct. 2049, 2053 .) Under the evidence in this case the jury could not have rationally convicted the defendant of unlawful restraint and could not have rationally acquitted him of aggravated kidnapping.

1988Ed. 2d 367, 373 , 102 S. Ct. 2049, 2052 .) The Court then noted that Beck held that due process requires that a lesser included offense instruction be given when the evidence warrants such an instruction.

2023“Under the doctrine of invited error, an accused may not request to proceed in one manner and then later contend on appeal that the course of action was in error.” People v. Carter, 208 Ill. 2d 309, 319 , 802 N.E.2d 1185, 1190 (2003). ¶ 34 Here, defendant sought the lesser-included offense instruction at trial.

2023“Under the doctrine of invited error, an accused may not request to proceed in one manner and then later contend on appeal that the course of action was in error.” People v. Carter, 208 Ill. 2d 309, 319 , 802 N.E.2d 1185, 1190 (2003). ¶ 34 Here, defendant sought the lesser-included offense instruction at trial.