Failure to Tender Jury Instructions In Criminal Cases

In People v. Moore, 95 Ill. 2d 404, 409, 447 N.E.2d 1327, 69 Ill. Dec. 640 (1983), the defendant faced charges under the felony murder rule. In that scenario, evidence of intent to kill or the existence of an unreasonable belief that force was necessary irrelevant to the ultimate finding and an instruction on voluntary manslaughter was properly refused. Even if error, the court held that the refusal to tender voluntary manslaughter instructions would be harmless. Moore, 95 Ill. 2d at 410-11. In People v. Johnson, 236 Ill. App. 3d 125, 137-38, 603 N.E.2d 624, 177 Ill. Dec. 554 (1992), the defendant confessed to breaking into the victim's home, and then killing the victim when he returned home and attempted to pull a revolver on the defendant when he discovered there was an intruder. The court found that the failure to tender voluntary manslaughter instructions was not an error because Illinois law precludes justifying the use of force during the commission of a forcible felony. As in Moore, even if error, the court noted that it was harmless based on the overwhelming evidence against the defendant. Johnson, 236 Ill. App. 3d at 137-38. The court in People v. Blan, 392 Ill. App. 3d 453, 459, 913 N.E.2d 23, 332 Ill. Dec. 428 (2009) discussed precedent where the failure to tender a lesser-included offense was harmless in a case involving charges of drug possession and intent to deliver. However, the court departed from that precedent and found that the defendant's inconsistent testimony sufficiently met the requirement of the slight evidence to support instructions on a lesser-included offense. Blan, 392 Ill. App. 3d at 459-60.