FIFTH DIVISION December 11, 2015

Nos. 1-13-0135 & 1-13-3166 (consolidated)

______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 10 CR 8303 ) MICHAEL CACINI, ) Honorable ) Mary Margaret Brosnahan, Defendant-Appellant. ) Judge Presiding. ______________________________________________________________________________

JUSTICE LAMPKIN delivered the judgment of the court, with opinion. Presiding Justice Reyes and Justice Palmer concurred in the judgment and opinion.

O PI N I O N

¶1 Following a jury trial, defendant Michael Cacini was convicted of attempted first degree

murder of Chicago police officer Kristopher Rigan and aggravated battery of Officer Thomas

O’Shaughnessy. He was sentenced to 20 years’ imprisonment for attempted first degree murder

consecutive to 3 years’ imprisonment for aggravated battery.

¶2 Defendant filed a direct appeal challenging his convictions and, while this direct appeal

was pending, a postconviction petition challenging his conviction for a substantial deprivation of

his constitutional rights. This court consolidated defendant’s direct appeal with his appeal from

the denial of his postconviction petition. Nos. 1-13-0135 & 1-13-3166 (consolidated)

¶3 In this consolidated appeal, defendant contends: (1) a new trial is necessary due to

critical omissions from the jury instructions and because the State knowingly adduced false

evidence; (2) he was not proven guilty beyond a reasonable doubt; (3) the trial court erred by

failing to consider information concerning complaints against the police officers; (4) defendant

was prejudiced by the trial court’s denial of his continuance request; and (5) the trial court erred

by summarily dismissing defendant’s postconviction petition at the first stage of those

proceedings.

¶4 We reverse the judgment of the trial court in the direct appeal and remand this case for

further proceedings. We hold that the trial court’s failure to instruct the jury on the State’s

burden to disprove defendant’s justification for his use of force in self-defense was plain error.

We also hold that the trial court did not abuse its discretion in concluding after an in camera

inspection that confidential records of complaints against the arresting police officers were not

admissible at trial or subject to disclosure. We dismiss as moot defendant’s appeal of the

summary dismissal of his postconviction petition.

¶5 I. BACKGROUND

¶6 This cause arose from defendant’s arrest during the early morning hours of April 20,

2010, after Officers Rigan and O’Shaughnessy confronted defendant while he was in his car, a

struggle ensued, and he sped away.

¶7 At the February 2012 trial, Officers Rigan and O’Shaughnessy testified that they were

working the midnight shift on the date of the incident. They were in an unmarked Crown

Victoria automobile, which had green-lettered municipality license plates and a police light

package that included blue strobe lights on the front windshield, in each rear door window, and a

light bar across the back window. The police vehicle also had a siren and strobe lights in the -2- Nos. 1-13-0135 & 1-13-3166 (consolidated)

headlights and taillights. The officers were in civilian clothes. Rigan wore a black baseball cap,

a black long-sleeved shirt, a bullet-proof vest, a black zip-up sweatshirt jacket over his vest, and

khaki pants. His police star was around his neck on a metal chain and was hanging on the outside

of his vest and jacket. His jacket was unzipped and a Chicago police department star was

embroidered on his vest. O’Shaughnessy wore a T-shirt, a bullet-proof vest, a black zip-up

sweatshirt jacket and jeans. His name, star, and district were embroidered on the chest of his vest

and his jacket was unzipped. Both officers wore their full duty belts.

¶8 About 3 a.m., the officers saw a dark colored Mercedes automobile driven by defendant

pull towards the curb at approximately 15 West Division Street. The rear tires of defendant’s car

were blocking traffic. Defendant engaged in a conversation with a man standing on the side of

the street. The officers recognized the man as Keith Harris, a known panhandler and drug dealer

in that area. Harris entered the passenger side of defendant’s car, they gave each other a knuckle

bump or handshake, and then defendant drove off. The officers suspected that defendant and

Harris were involved in a narcotics transaction, so the officers drove around the block and saw

defendant’s car again on Elm Street, which is a one-way street. The officers turned onto Elm

Street, proceeding in the wrong direction towards defendant’s car. Accordingly, O’Shaughnessy,

who was driving, activated the emergency lights of the police vehicle to prevent any accidents.

Defendant stopped his car in a lane of traffic near a bar, and Harris exited the car and walked

quickly towards the bar. O’Shaughnessy stopped his car 10 to 15 feet in front of defendant’s car,

and he and Rigan exited the car. O’Shaughnessy approached Harris while Rigan approached the

driver’s side of defendant’s car.

¶9 Rigan testified that the driver’s window was down and defendant yelled, “F*** you. You

are not getting in my car without a search warrant.” Defendant then rolled up the window, and -3- Nos. 1-13-0135 & 1-13-3166 (consolidated)

Rigan responded by saying, “Police, please turn off the car.” Rigan continued to walk towards

the car and again announced his office and asked defendant to turn the car off and exit the

vehicle. Rigan then opened the car door, and defendant punched him in the chest, face and jaw

several times. Rigan called to O’Shaughnessy for help.

¶ 10 Rigan testified that defendant said he had a license and insurance, but Rigan told him that

he was under arrest for punching him and to get out of the car. Defendant did not comply but,

rather, swore several times and said, “I am not going to jail unless you drag me out of here in

cuffs.” Rigan continued to announce his office, and O’Shaughnessy arrived at the driver’s side of

the car and tried to assist him. Defendant then grabbed Rigan’s bullet proof vest and the side of

his duty belt that held his gun and pulled Rigan into the car. Defendant continued to punch Rigan

and moved for the gear shift. Rigan tried to remove the keys from the ignition, but defendant put

the car in drive and floored it while Rigan was still in the car with his legs, from the thighs down,

hanging out the door. The car door flung back and squeezed Rigan’s legs, pushing him further

into the car. Rigan yelled to O’Shaughnessy to shoot because Rigan felt that his life was in

danger. O’Shaughnessy fired a round as defendant drove away. Defendant punched Rigan

several more times and then pushed him out of the car while it was traveling at a high rate of

speed. Rigan was thrown from the car. His head bounced off the pavement, and his jaw snapped

shut. The left tire of defendant’s car ran over Rigan’s legs and the top of his body, including his

shoulder. Defendant sped away.

¶ 11 Rigan testified that O’Shaughnessy drove up next to him, helped him into the police

vehicle, and chased after defendant. When they turned onto Division Street, Rigan yelled at

O’Shaughnessy to let him out of the car; Rigan could not move anything from his shoulder to his

legs on the left side of his body. O’Shaughnessy stopped, and Rigan “hucked” himself out of the -4- Nos. 1-13-0135 & 1-13-3166 (consolidated)

car and told O’Shaughnessy to continue chasing defendant and to call him an ambulance. Rigan

remained in the street, in and out of consciousness, until an ambulance arrived and took him to

the hospital. Rigan gave a verbal report to a detective at the hospital after Rigan had been

sedated. As a result of this incident, Rigan suffered a dislocated shoulder, bruises and abrasions

to his legs, lacerations on his elbow, arm and hand, and some cracked teeth. He had several

surgeries to replace those teeth. He missed work because of his injuries, his arm remained in a

sling for approximately one month, and he received physical therapy for his shoulder injury for

approximately six months.

¶ 12 Rigan thought Harris was fleeing from the police when he exited defendant’s car. Rigan

never heard defendant yell, “Don’t steal my car, don’t take my car, I am not getting out of the

car.” Rigan explained that he did not try to remove defendant from the car until after defendant

struck him.

¶ 13 O’Shaughnessy testified that when he exited his police vehicle, Harris complied when

O’Shaughnessy told him to “come here.” They stood in front of the police vehicle, by the

driver’s side, and O’Shaughnessy saw Rigan approach defendant’s car, announce his office and

ask defendant to exit the car. O’Shaughnessy also heard defendant yelling. O’Shaughnessy

looked toward Rigan and saw that he and defendant were engaged in a verbal altercation. The car

door was open and defendant began hitting Rigan with a closed fist. Defendant was still yelling,

and Rigan called for help.

¶ 14 O’Shaughnessy put one handcuff on Harris and called for additional cars as he walked

Harris over to defendant’s car. O’Shaughnessy had Harris kneel down by the driver’s side door

of defendant’s car. Defendant was in the driver’s seat, still had his seat belt on, and yelled, “I

have a license, I have insurance, you can’t take me out of the car, I have a license.” Rigan -5- Nos. 1-13-0135 & 1-13-3166 (consolidated)

repeatedly announced his office and told defendant to exit the vehicle. When O’Shaughnessy

reached into the car to try to release defendant’s seatbelt, defendant reached for the gear shift and

put the car in drive. O’Shaughnessy removed himself from the car, but Rigan was unable to get

out of the car because defendant was holding Rigan’s vest. Rigan tried to get the ignition key,

but defendant accelerated the car. As the car sped away, the door slammed closed on the officers.

The door hit O’Shaughnessy on his left arm, elbow, hand and leg. Rigan called for help and told

O’Shaughnessy to shoot. The lower half of Rigan’s body was hanging outside the car and his

legs were being dragged on the ground. O’Shaughnessy fired his gun, and the bullet hit the rear

driver’s side window, went through the window, and hit the backseat headrest. Then Rigan came

completely out of the car and landed on the street. Defendant’s vehicle ran over Rigan, did not

stop, and continued down the street.

¶ 15 O’Shaughnessy called for assistance and provided a description of defendant’s car.

O’Shaughnessy drove to Rigan, put him in the car, and pursued defendant, but Rigan was in too

much pain so O’Shaughnessy let him out of the car. As O’Shaughnessy caught up to defendant’s

car, one marked squad car and one unmarked squad car, both with their lights and sirens

activated, met up with O’Shaughnessy’s car. Defendant, however, did not stop his vehicle until

the area of 1700 North Clark Street, about 10 blocks from where the incident began.

¶ 16 O’Shaughnessy testified that he and Officers Bart Murphy and Steven White exited their

vehicles. Defendant opened his car door and stuck his hands out. He had a cell phone in one hand

and said, “I have a license, I have a license.” Defendant resisted when Officer Murphy tried to

remove him from his car. Defendant did not punch or kick any of the officers that arrested him,

but he flailed his arms and was uncooperative before being handcuffed.

-6- Nos. 1-13-0135 & 1-13-3166 (consolidated)

¶ 17 Keith Harris testified that he had three prior felony convictions: two for possession of a

controlled substance with intent to deliver in 2002 and one for possession of a look-alike

substance in 2004. On the date in question, he was panhandling near a donut shop that was

boarded up and closed. Defendant drove up and asked him where he could get a drink. Harris

walked toward the car, and defendant told him to get in. They talked about marijuana and

women. At some point, defendant also said that he hoped Harris would not “jack” him for his

car. Harris thought defendant did not trust him because Harris was black. They drove to a bar on

Division Street, and Harris got out and saw that the bar was closed. Harris talked to some people

but defendant was impatient to go, and Harris got back into defendant’s car. They drove onto

Elm Street. Harris got out of the car, went up to a bar, looked in the window, and saw that it was

closed. Then an unmarked detective’s car, with the green “M” license plate, drove up. Harris did

not remember if the emergency lights were on. Officers O’Shaughnessy and Rigan, wearing

bullet proof vests, badges around their necks, and guns in their holsters, exited the car. The vests

were visible even though the vests were worn underneath something. Harris knew

O’Shaughnessy and Rigan, they had been good to him before, and had never arrested him.

¶ 18 Harris testified that O’Shaughnessy grabbed him, told him to come to the car, and put a

handcuff on him. Rigan walked towards defendant’s car. Harris and O’Shaughnessy were

talking, and Harris did not pay attention to Rigan until O’Shaughnessy looked toward Rigan and

defendant, who were fighting. Specifically, Harris saw defendant hit and kick Rigan and saw

Rigan fight back. O’Shaughnessy dragged Harris over to defendant’s car. Harris told

O’Shaughnessy he was hurting him, so O’Shaughnessy let go and began helping Rigan. Harris

stumbled and fell. He looked up and saw defendant fighting with both officers. As Harris stood

up, defendant drove off and ran over Harris’s feet and skinned the side of his leg. Defendant’s -7- Nos. 1-13-0135 & 1-13-3166 (consolidated)

car was dragging Rigan, whose legs were outside the vehicle. Harris heard a gunshot and ducked

his head. O’Shaughnessy jumped into the police vehicle and took off. Harris waited at the scene

until the police arrived. Harris never sold defendant drugs, and defendant never asked him for

drugs. Harris never heard defendant tell the officer “don’t steal my car.”

¶ 19 Officer White testified consistently with Officer O’Shaughnessy concerning the pursuit

and apprehension of defendant. Officer White added that when Officer Murphy grabbed

defendant by the shoulders and started to pull him from the car, defendant slid out of his jacket

and a struggle ensued. Defendant kept pulling away from Officer Murphy, pushing off of him.

After defendant was arrested, the officers found a small bag of suspect cannabis in his jacket

pocket. He also had $400 in his right pants pocket and a small dog in the backseat of his car.

¶ 20 Detective Ed Heerdt testified that he was assigned to investigate this case around

3:30 a.m. on the date of the incident. He contacted the mobile crime lab and looked for video

evidence that may have captured the incident. A police department camera at the corner of State

and Elm streets was pointed in another direction and did not capture the incident. Furthermore, a

high-rise building’s camera on Dearborn Street did not capture the incident. In addition, a

manager from the bar on Elm Street informed Heerdt that the bar’s video surveillance shut off

just before midnight, so the bar’s cameras were not operating during the incident. Moreover, a

drug store at Division and Dearborn streets did not have any outside cameras that would have

offered any evidentiary information.

¶ 21 The parties stipulated that the substance recovered from defendant’s jacket tested positive

for 0.8 grams of cannabis.

¶ 22 Defendant testified that he drove from his home in Arlington Heights around 1:15 a.m.

after having an argument with his wife. He was wearing his glasses and was not under the -8- Nos. 1-13-0135 & 1-13-3166 (consolidated)

influence of drugs or alcohol. His dog was in the backseat and he drove to downtown Chicago to

get a drink. He saw Harris, whom he did not know, walk out of a donut shop. They made eye

contact, and Harris walked towards defendant’s car. Defendant rolled down his window and

asked if there was a bar open. Harris offered to show him to a bar, and defendant let him in his

car because he seemed friendly. The first bar they went to on Division Street was closed, so they

drove to another bar on Elm Street. Harris got out of the car, walked up to the bar, and looked in

the window. A car sped down Elm Street and stopped in front of defendant’s car. Defendant did

not see any markings on the car or emergency lights to indicate it was a police vehicle. Two men

jumped out of the car. One ran towards Harris and the other, who looked like he had a gun on his

hip, came towards defendant’s car. Neither man identified himself as a police officer.

¶ 23 According to defendant, Rigan yelled at him to put his car in park and turn it off.

Defendant initially thought Rigan was a police officer, so he listened; however, when Rigan

yelled at him “to get the f*** out of the car,” defendant thought he was being carjacked. Rigan

opened defendant’s car door and a struggle ensued. Rigan hit defendant three times in the head

with a fist and tried to pull him out of the car. Defendant never said anything to Rigan but

defended himself and tried to get away. When O’Shaughnessy and Harris came to defendant’s

car door, he thought they were going to kill him. Defendant grabbed the steering wheel, started

his car, and put it into gear. He heard O’Shaughnessy yell, “I’m going to kill you” and saw

O’Shaughnessy fire his gun as defendant drove away. Rigan was still hitting him and trying to

pull him from the car. The car door made contact with Rigan as it was shutting. Rigan let go and

fell off defendant’s car. Defendant did not feel his car run over anything, and he never pointed or

accelerated his car at the men. Defendant said he just drove away and did not call the police.

-9- Nos. 1-13-0135 & 1-13-3166 (consolidated)

¶ 24 Defendant testified that, at some point, he was stopped by the police but did not know

why he was pulled over. He exited his car with his hands up but the police were pointing guns at

him. He did not struggle and complied when the police told him to get on the ground. The police

kicked him, kneed him in the back, and almost suffocated him by standing on the side of his head

when they took him into custody. Defendant cried out to Jesus for help, said, “Thank God” when

they walked him to a police car, and asked them to “please, just put [him] into the car.”

¶ 25 Defendant asserted that he never grabbed anyone by the vest or kicked anyone. He did

not intentionally injure anybody that night. Defendant denied hitting or kneeing Rigan, dragging

Rigan into his car, or pushing Rigan out of his car. Defendant asserted that the only thing that hit

Rigan was the car door and that Rigan let go of defendant and fell when defendant drove off.

¶ 26 The jury found defendant guilty of attempted first degree murder of Rigan, aggravated

battery of Rigan, and aggravated battery of O’Shaughnessy. Thereafter, defense counsel

subpoenaed records from the Office of Professional Standards (OPS) and the Independent Police

Review Authority (IPRA) for Officers Rigan and O’Shaughnessy. The trial court conducted an in

camera review of the documents that were returned to the court pursuant to those subpoenas. The

court concluded that it would not have tendered to the defense prior to trial the OPS files

regarding prior allegations of police misconduct unrelated to defendant’s case because those files

did not meet the requirements for admissibility. The court also noted that all the files relating to

Rigan and O’Shaughnessy either exonerated the officers or concluded that the misconduct

allegations were unfounded or not sustained. The trial court did tender to the defense IPRA

records, in their entirety, relating to the investigation in the instant case and employment

attendance records. The State indicated that it never received any such IPRA records, and the

court noted that the defense had a duty to copy and tender those documents. - 10 - Nos. 1-13-0135 & 1-13-3166 (consolidated)

¶ 27 The trial court denied defendant’s posttrial motions and sentenced him to 20 years

imprisonment for attempted murder of Rigan consecutive to 3 years for aggravated battery of

O’Shaughnessy. Defendant appealed his convictions and sentences.

¶ 28 While that appeal was pending, defendant filed a postconviction petition alleging that his

trial counsel rendered ineffective assistance by (1) providing unreasonable advice that his case

was winnable and not to plea; (2) failing to use medical records to contradict the extent of

Rigan’s injuries; (3) failing to investigate all witnesses who could have provided evidence

favorable to the defense; (4) failing to investigate the backgrounds of Rigan and O’Shaughnessy;

and (5) failing to object to misrepresentations about the nature of Harris’s prior convictions.

Defendant also alleged that the State used perjured testimony to obtain his conviction and

withheld exculpatory evidence. The trial court dismissed the petition as frivolous and patently

without merit.

¶ 29 Defendant appealed the dismissal of his postconviction petition, and this court

consolidated defendant’s appeals.

¶ 30 II. ANALYSIS

¶ 31 On appeal, defendant contends: (1) a new trial is necessary due to critical omissions from

the jury instructions and because the State knowingly adduced false evidence; (2) defendant was

not proven guilty beyond a reasonable doubt; (3) the trial court erred by failing to consider

information concerning complaints against the police officers; (4) defendant was prejudiced by

the trial court’s denial of his continuance request; and (5) the trial court erred by summarily

dismissing defendant’s postconviction petition at the first stage of those proceedings.

¶ 32 A. Jury Instruction Error

¶ 33 Defendant contends the trial court committed reversible error by failing to inform the jury - 11 - Nos. 1-13-0135 & 1-13-3166 (consolidated)

that the State had the burden to prove beyond a reasonable doubt that defendant’s use of force

was not justified. Specifically, defendant argues that although the trial court properly ruled that

the evidence justified giving the jury self-defense instructions, the court failed to instruct the jury

that, in order to sustain the charges of attempted first degree murder of Rigan and aggravated

battery of both police officers, the State had to prove beyond a reasonable doubt that defendant

was not justified in using the force that he used. Defendant also argues that the trial court

contributed to this error when it gave the jury instructions according to their published

chronological sequence and, thus, confused the jury by not giving the affirmative defense

definition instructions after the offense definition instructions.

¶ 34 According to the record, during a jury instruction conference, the defense requested a

self-defense instruction. The defense argued that, even though the law is clear that a person

cannot resist even an unlawful arrest, the jury could believe defendant’s testimony that he

believed the event here was not an arrest. The defense argued that everybody testified to

defendant’s use of force and defendant admitted that he put his foot on the accelerator and drove

off because he feared he was being attacked by somebody with a gun.

¶ 35 The State objected, arguing that the instruction was not justified because defendant did

not admit to intentionally using any type of force in self-defense. The State noted that defendant

denied striking Rigan or running him over with the car and claimed it was accident that, as

defendant drove away, the car door swung closed and hit Rigan, who then fell off the car. The

State also argued that, assuming arguendo, defendant used some force to thwart Rigan from

pulling him out of the car, defendant was not justified in using force to drag Rigan from a

moving vehicle and then throw him out of the car.

- 12 - Nos. 1-13-0135 & 1-13-3166 (consolidated)

¶ 36 The trial judge stated defendant testified that: he was sitting in his car doing nothing

wrong when he was confronted by Rigan and O’Shaughnessy and did not know they were police

officers; he was not the aggressor and saw that Rigan had a gun; defendant feared for his life

when they tried to “rip him out of the car”; defendant admitted “taking off and hitting one with a

car door after a struggle”; and O’Shaughnessy fired his gun, hitting the headrest of the rear seat.

The trial court noted that it was not the court’s role to judge defendant’s credibility and

concluded the evidence was sufficient to warrant giving the self-defense instruction.

¶ 37 The trial court instructed the State to add to the definition instructions for the charged

aggravated battery offenses, in accordance with the guidance in Illinois Pattern Jury Instructions,

Criminal, No. 11.15 (4th ed. 2000) (hereinafter, IPI Criminal 4th No. 11.15), the phrase “without

legal justification.” When defense counsel asked if that phrase should also be added to the issue

instructions for the aggravated battery offenses, the trial judge referred to the Committee Notes

for IPI Criminal 4th No. 11.16 and confirmed that it was not necessary to include “without legal

justification” in the issue instructions. Thereafter, the court told the State and defense to discuss

the wording of the self-defense instructions and the court would finalize the instructions the next

morning. The defense requested the instruction on the use of force in defense of property because

defendant thought he was being carjacked, and the trial court stated it would rule on that issue

the next morning. The next morning, the trial court allowed, over the State’s objection, the

instruction on the use of force in defense of property.

¶ 38 The trial court gave the jury issue instructions for attempted first degree murder of Rigan,

a peace officer; aggravated battery of Rigan, a peace officer, with great bodily harm; and

aggravated battery of O’Shaughnessy, a peace officer. However, contrary to the guidance in IPI

Criminal 4th No. 24-25.06A, Committee Note, none of these issues instructions informed the - 13 - Nos. 1-13-0135 & 1-13-3166 (consolidated)

jury that the State had the burden to prove that “the defendant was not justified in using the force

which he used” as the final proposition of the charged offenses.

¶ 39 Over the State’s objection, the following self-defense instructions were also given to the

jury:

“A person is justified in the use of force when and to the extent that he

reasonably believes that such conduct is necessary to defend himself against the

imminent use of unlawful force.

However, a person is justified in the use of force which is intended or

likely to cause death or great bodily harm only if he reasonably believes that such

force is necessary to prevent imminent death or great bodily harm to himself.

A person is justified in the use of force when and to the extent that he

reasonably believes that such conduct is necessary to prevent another’s wrongful

interference with personal property lawfully in his possession.

However, he is justified in the use of force which is intended or likely to

cause death or great bodily harm only if he reasonably believes that such force is

necessary to prevent the commission of aggravated vehicular hijacking.

A person is not authorized to use force to resist an arrest which he knows

is being made by a peace officer, even if he believes that the arrest is unlawful

and the arrest in fact is unlawful.”

¶ 40 Defendant asserts counsel sufficiently preserved review of this error where he sought

self-defense instructions on the record and suggested the trial judge add “without legal

justification” to the aggravated battery issues instructions. We disagree. The record establishes

that defense counsel failed to tender IPI Criminal 4th No. 24-25.06A, failed to timely object to - 14 - Nos. 1-13-0135 & 1-13-3166 (consolidated)

the absence of the instruction, and failed to include the issue in his posttrial motion. See People

v. Piatkowski,

(2007).

¶ 41 Defendant argues reversal is warranted under Illinois Supreme Court Rule 451(c) (eff.

Apr. 8, 2013) and this issue should be considered as plain error. Furthermore, defendant contends

the State exacerbated this error by shifting the burden of proof during rebuttal closing argument

when the prosecutor stated that the jury would see a self-defense instruction and defendant, with

regard to his self-defense testimony, had the burden to prove that he fought. In the alternative,

defendant contends trial counsel rendered ineffective assistance by failing to tender IPI Criminal

4th No. 24-25.06A or more clearly object to the omissions in the issue instructions.

¶ 42 Rule 451(c) provides that “substantial defects [in criminal jury instructions] are not

waived by failure to make timely objections thereto if the interests of justice require.” Ill. S. Ct.

R. 451(c) (eff. Apr. 8, 2013). The purpose of Rule 451(c) is to permit correction of grave errors

and errors in cases so factually close that fundamental fairness requires that the jury be properly

instructed. People v. Sargent,

(2010). Rule 451(c) is coextensive with the

plain-error clause of Illinois Supreme Court Rule 651(a) (eff. Feb. 6, 2013) Sargent,

. The plain-error doctrine is a narrow and limited exception. People v. Hillier,

(2010). Under the plain-error doctrine, “[a]ny error, defect, irregularity, or variance

which does not affect substantial rights shall be disregarded” unless the appellant demonstrates

plain error. Ill. S. Ct. R. 615. The plain-error doctrine bypasses normal forfeiture principles and

allows a reviewing court to consider unpreserved error when either (1) the evidence is so closely

balanced that the error alone threatened to tip the scales of justice against the defendant,

regardless of the seriousness of the error, or (2) the error is so serious that it affected the fairness

of the defendant’s trial and challenged the integrity of the judicial process. Piatkowski, 225 Ill. - 15 - Nos. 1-13-0135 & 1-13-3166 (consolidated)

2d at 565. In both instances, the burden of persuasion remains with the defendant. People v.

Naylor,

(2008). The first step in plain-error review is to “determine whether

a ‘clear or obvious’ error occurred at all.” People v. McLaurin,

(2009).

¶ 43 The State contends the trial court’s failure to instruct the jury in accordance with IPI

Criminal 4th No. 24-25.06A is not plain error because defendant was not entitled to instructions

on self-defense and defense of property based on the evidence presented at trial. The State argues

that defendant is improperly attempting to establish a theory of self-defense by combining

defense testimony establishing defendant’s fear for his safety with the State’s evidence that

defendant repeatedly hit and kicked Rigan, pulled him into the car, sped off, pushed Rigan out of

the moving car and then ran over Rigan. The State notes that defendant maintained throughout

his testimony that he never intentionally injured anybody that night. Moreover, defendant denied

ever striking the officers, never acknowledged that he ran over Rigan with his car, and at most

testified that he struggled with Rigan and the car door hit Rigan as defendant drove away.

¶ 44 Self-defense is an affirmative defense (720 ILCS 5/7-14 (West 2008)), and “the raising of

such a defense necessarily constitutes an admission by the defendant that he committed the crime

for which he is being prosecuted” (People v. Raess,

(1986)). Because

self-defense presupposes the intentional use of force in defense of one’s person, no instruction of

self-defense is applicable to an act that a defendant denies committing. People v. Chatman,

(2008). To obtain a jury instruction of self-defense, a defendant must

establish some evidence of six factors: (1) force is threatened against a person, (2) the person is

not the aggressor, (3) the danger of harm was imminent, (4) the threatened force was unlawful,

(5) the person actually and subjectively believed a danger existed that required the use of the

force applied, and (6) the person’s beliefs were objectively reasonable. People v. Jeffries, 164 Ill. - 16 - Nos. 1-13-0135 & 1-13-3166 (consolidated)

2d 104, 128 (1995). “If the State negates any one of the self-defense elements, the defendant’s

claim of self-defense must fail.” (Emphasis in original.)

¶ 45 “[U]nless the State’s evidence raises the issue involving the alleged defense, the

defendant bears the burden of presenting evidence sufficient to raise the issue.” People v.

Everette,

(1990) (holding a homicide defendant was entitled to a self-defense

instruction where there was some evidence in the record which, if believed by the jury, would

have supported the defense, even though the defendant testified that he accidentally killed the

victim). A theory of self-defense may properly be raised even if a defendant’s own testimony is

inconsistent with that theory. People v. Bailey,

(1982). However, a

defendant does not meet his burden to raise the theory of self-defense by combining the State’s

evidence of the defendant’s act with his own testimony that he was in fear of his safety. People v.

Freeman,

(1986). A defendant is entitled to a jury instruction on self-

defense even if very slight or only some evidence exists to support the theory of self-defense.

People v. Lee,

(2004); Everette,

.

¶ 46 “There must be some evidence in the record to justify an instruction, and it is within the

trial court’s discretion to determine which issues are raised by the evidence and whether an

instruction should be given.” People v. Mohr,

(2008); see also People v. Jones,

(2006). But see People v. Washington,

(where the court

was determining whether an instruction on second degree murder must be given as a mandatory

counterpart when the evidence supports the giving of a jury instruction on self-defense, the court

stated the “question of whether sufficient evidence exists in the record to support the giving of a

jury instruction is a question of law subject to de novo review”). In the instant case, the question

of whether there was sufficient evidence to support the self-defense jury instruction is a question - 17 - Nos. 1-13-0135 & 1-13-3166 (consolidated)

of fact, not of law, and thus is properly within the discretion of the trial court. See People v.

DiVincenzo,

(1998) (noting that whether an involuntary manslaughter

instruction is warranted depends on the facts and circumstances of each case).

¶ 47 Although we agree with the State that its evidence did not serve to raise the affirmative

defense of self-defense, we reject the State’s argument that the trial court erred by finding there

was sufficient evidence to support the giving of the self-defense instruction. The State presented

evidence that defendant resisted; however, the State did not present evidence that his resistance

was out of fear for his safety where the police testified that they activated the police lights of

their unmarked vehicle, announced their office as they approached defendant, and wore their

badges or stars outside of their open jackets and bulletproof vests but defendant was hostile,

swore, and refused to exit his car without a search warrant.

¶ 48 Nevertheless, putting aside the issue of defendant’s credibility, he did testify that he used

some force to get away from Rigan, O’Shaughnessy and Harris. According to the record,

defendant testified that he was sitting in his car doing nothing wrong and did not know Rigan

and O’Shaughnessy were police officers; when Rigan confronted him and demanded that he exit

his car, defendant feared he was being carjacked; Rigan opened defendant’s car door, hit him

multiple times and tried to pull him from the car; a struggle ensued and defendant defended

himself and tried to get away without hitting, kicking, kneeing or grabbing Rigan; when

O’Shaughnessy and Harris came to defendant’s car door, defendant thought they were going to

kill him; defendant started his car and drove away as O’Shaughnessy fired his gun; and the car

door made contact with Rigan as it was shutting and Rigan let go and fell off defendant’s car.

Defendant asserted that he did not feel his car run over anything and did not intend to injure

anyone. Although the defense presented very slight evidence of defendant’s use of force against - 18 - Nos. 1-13-0135 & 1-13-3166 (consolidated)

the officers, he did acknowledge that he struggled with Rigan and defended himself, he

intentionally accelerated his car to get away from Rigan and O’Shaughnessy, who were standing

at the open car door, and the door struck at least Rigan as it was shutting from the force of

defendant driving away. We find no abuse of discretion by the trial court in giving the jury the

defense of self and defense of property instructions based on the defense’s very tenuous evidence

concerning defendant’s use of force.

¶ 49 Once the defense properly raises the affirmative defense of self-defense, the State bears

the burden of proving beyond a reasonable doubt that the defendant did not act in self-defense.

People v. Lee,

(2004). The jury, then, must be instructed as to this defense

and the State’s corresponding burden of proof. See People v. Green,

(2007)

(“[T]o ensure a fair trial, the trial court must instruct the jury on such basic matters as the

elements of the offense, the presumption of innocence, and the burden of proof.”). “It is of the

essence of a fair trial that ‘the jury not be permitted to deliberate a defendant’s guilt or innocence

of the crime charged without being told the essential characteristics of that crime.’ ” People v.

Ogunsola,

(1981) (quoting People v. Lewis,

(1969)).

¶ 50 Instructions convey to the jury the correct principles of law applicable to the evidence

presented at trial so that the jury may arrive at the correct conclusion according to the law and

the evidence. People v. Mohr,

(2008); People v. Hudson,

(2006). We review de novo the question of whether the jury instructions accurately stated the

applicable law to the jury. People v. Parker,

(2006). Jury instructions are

sufficient if, as a whole, the series of instructions fully, fairly and comprehensively apprised the

jury of the relevant legal principles. People v. Marcos,

.

- 19 - Nos. 1-13-0135 & 1-13-3166 (consolidated)

¶ 51 Rule 451(a) requires the trial court to use the Illinois Pattern Jury Instructions, Criminal,

related to a subject when “the court determines that the jury should be instructed on the subject.”

Ill. S. Ct. R. 451(a) (eff. Apr. 8, 2013). IPI Criminal 4th No. 24-25.06 provides the general

definition of self-defense, which the trial court properly gave in this case. However, the

Committee Note of this instruction also directs the trial court to give IPI Criminal 4th No. 24-

25.06A when instructing the jury regarding self-defense, and the trial court failed to give that

instruction, which would have informed the jury as the final proposition in the issues instructions

for the attempted murder and aggravated battery offenses that the State bears the burden of

proving beyond a reasonable doubt that defendant lacked justification in using the force he used.

¶ 52 We find that the failure to include IPI Criminal 4th No. 24-25.06A in the issues

instructions for the attempted murder and aggravated battery offenses was error. See People v.

Berry,

(1984) (where the evidence was closely balanced on the issue of

whether the shooting occurred as a result of self-defense, the court reversed the defendant’s

convictions, finding that the failure to instruct the jury on self-defense in the issues instructions

was a critical error that severely threatened the fundamental fairness of the defendant’s trial).

¶ 53 Having found that the trial court erred in omitting IPI Criminal 4th No. 24-25.06A, we

must still consider whether an exception to defendant’s forfeiture of the issue is warranted under

the plain-error doctrine. Defendant does not argue under the first prong of plain error analysis

that the evidence in this case was closely balanced, and we would not agree with any such

argument where Harris corroborated the credible testimony of Officers Rigan and

O’Shaughnessy that defendant knew Rigan and O’Shaughnessy were police officers and

defendant was the aggressor who hit and kicked Rigan, pulled Rigan into the car, and then

dragged Rigan from the moving car and ran over him. Defendant’s testimony, in contrast, was - 20 - Nos. 1-13-0135 & 1-13-3166 (consolidated)

impeached in important aspects by Harris’s testimony.

¶ 54 Under the second prong of plain-error analysis, “[p]rejudice to the defendant is presumed

because of the importance of the right involved, regardless of the strength of the evidence.”

(Emphasis and Internal quotation marks omitted.) People v. Thompson,

(2010). The supreme court has held that the second prong of the plain-error doctrine applies to

structural error, which is “a systemic error which serves to erode the integrity of the judicial

process and undermine the fairness of the defendant’s trial.” (Internal quotation marks omitted.)

at 613-14 (quoting People v. Glasper,

(2009)).

¶ 55 After considering the jury instructions as a whole, we find that the trial court’s omission

of the self-defense instruction on the three offenses before the jury—attempted first degree

murder of Officer Rigan and aggravated battery of Officers Rigan and O’Shaughnessy—was

second-prong plain error because the error was of such a magnitude as to have denied defendant

a fair trial. The jury was informed that the State had the burden of proving defendant’s guilt

beyond a reasonable doubt, this burden remained on the State throughout the case, and defendant

was not required to prove his innocence. However, the jury was never instructed that the State

bore the burden to prove beyond a reasonable doubt that defendant’s use of force in self-defense

was not justified, and neither the prosecutor nor defense counsel mentioned this burden of proof

during closing argument. Cf. People v. Huckstead,

(1982) (the trial court’s

failure to instruct the jury on the State’s burden to disprove the defendant’s justification for his

use of force was not plain error where the evidence was not closely balanced but the closing

arguments of both the State and the defense repeatedly and specifically emphasized the State’s

burden to prove the defendant was not justified in the force he used).

- 21 - Nos. 1-13-0135 & 1-13-3166 (consolidated)

¶ 56 Moreover, the prosecutor argued during rebuttal that the jury would see a self-defense

instruction and defendant, with regard to his self-defense testimony, had the burden to prove that

he fought. While we reject defendant’s assertion that this statement by the prosecutor—which

correctly stated the law that the defendant bears the burden to present some evidence of self-

defense—improperly shifted the burden of proof, this statement may have confused the jury in

the absence of proper jury instructions on the State’s burden to disprove defendant’s justification

for his use of force.

¶ 57 Because the instructions failed to address the State’s burden of proof concerning the self-

defense claim, if the jury had relied upon the erroneous instructions as correct statements by the

court of the task the jury was to perform, the jury could have concluded that it was incumbent on

defendant to prove that he acted in self-defense and not held the State to the standard of proof

beyond a reasonable doubt on all elements of the attempted first degree murder and aggravated

battery offenses. In Sullivan v. Louisiana,

(1993), the Court held that a

constitutionally deficient reasonable-doubt instruction was a structural defect and not an error

amenable to analysis by harmless-error standards. The deficient instruction described reasonable

doubt as a substantial and grave doubt, and thereby improperly suggested a higher degree of

reasonable doubt than is required under the reasonable-doubt standard.

at 277 (citing Cage v.

Louisiana,

(1990)). The Court found that the misdescription of the burden of proof

vitiated all the jury’s findings because the essential connection to a beyond a reasonable doubt

factual finding could not be made and a reviewing court could “only engage in pure speculation

[about] its view of what a reasonable jury would have done.” Id. at 281. Moreover, when a

reviewing court engages in such speculation, “ ‘the wrong entity judge[s] the defendant guilty.’ ”

Id. (quoting Rose v. Clark,

(1986). Under the circumstances of the case before - 22 - Nos. 1-13-0135 & 1-13-3166 (consolidated)

us, the credibility of defendant’s self-defense testimony was an issue for the jury to decide and it

would be speculation for this court to conclude the jury made the factual finding that the State

met its burden to disprove defendant’s justification of his use of force.

¶ 58 The State cites People v. Washington,

(1984), and People v.

Rand,

(1997), for the proposition that a trial court’s failure to give

IPI Criminal 4th No. 24-25.06A does not constitute plain error where the evidence was not

factually close. The State’s reliance on Washington is misplaced; in that case, the court

concluded that no grave error occurred because the given jury instructions—which instructed the

jury on the State’s burden to disprove self-defense on the murder charge but failed to so instruct

the jury concerning the attempted murder charge—in combination with the closing arguments of

both the prosecutor and defense counsel—which emphasized and stressed the State’s burden to

disprove self-defense as to both the murder and attempted murder charges—adequately informed

the jury. Here, in contrast, the jury received no instruction on any of the three charged offenses

about the State’s burden to disprove self-defense, and the closing arguments did not mention the

State’s burden to disprove self-defense. In Rand, the court concluded, without any discussion of

the jury instructions given or the totality of the circumstances in that case, that the “purported

error” of failing to give IPI Criminal 4th No. 24-25.06A “was neither grave nor such that it

denied defendant fundamental fairness.”

. In the absence of any analysis

of second-prong plain error in Rand, we find that case unpersuasive and decline to follow it.

¶ 59 Under the circumstances of this case, where the evidence was not closely balanced but

the issues instructions failed to inform the jury of the State’s burden to disprove defendant’s

justification for his use of force, the closing arguments did not mention this burden of proof to

the jury, and the jury may have been confused by the prosecutor’s statement concerning the - 23 - Nos. 1-13-0135 & 1-13-3166 (consolidated)

defendant’s burden to present some evidence of self-defense, we conclude that the erroneous jury

instructions were of such a magnitude as to constitute second-prong plain error. Accordingly, we

reverse defendant’s convictions for attempted first degree murder and aggravated battery and

remand for a new trial on those offenses.

¶ 60 Because the evidence against defendant, when viewed in the light most favorable to the

prosecution, was sufficient to convict him of attempted first degree murder and aggravated

battery, double jeopardy does not bar his retrial for those offenses. See People v. Ward,

; People v. Smith,

(1999); see also People v. Gargani,

(2007) (“When considering the sufficiency of the evidence, a reviewing court

does not retry the defendant.”). Here, the State’s evidence established that defendant used his car

as a weapon with the requisite intent to kill Rigan and cause bodily harm to Rigan and

O’Shaughnessy when defendant hit and kicked Rigan, pulled him into the car and held onto his

vest, put the car in gear and sped off while the officers were at the car door, hit both officers with

the car door, and dragged Rigan’s legs on the pavement and then pushed him out of the car and

ran over him.

¶ 61 Defendant also argues the trial court erred when it gave the jury instructions according to

their published chronological sequence. Specifically, defendant complains the trial court placed

the affirmative defense definition instructions near the end of the jury instructions instead of after

the offense definition instructions, and thereby prevented the jurors from deducing the correct

application of the justified use of force principles.

¶ 62 The introduction to chapters 24 and 25 of the IPI Criminal 4th states:

“The Committee believes that elements or issues of an affirmative defense

should be treated in two ways: first, by definition following the definition of the - 24 - Nos. 1-13-0135 & 1-13-3166 (consolidated)

crime with which the defendant is charged; second, in the same instruction with

the issues or elements of the crime and the State’s burden of proof. [Citation.] The

appropriate issues and burden of proof defenses instruction should be

superimposed upon the appropriate issues and burden of proof crimes instruction

so that the jury receives a single instruction covering all of the issues in the case.

(Emphasis in original.)”

According to the record, instead of reading the definition of the affirmative defense instruction

after the definition instructions for attempted first degree murder and aggravated battery, the trial

court read the instructions in chronological order.

¶ 63 Defendant has forfeited review of this issue by failing to timely object and include this

specific issue in his posttrial motion. See People v. Enoch,

(1988). Such

forfeiture notwithstanding, there is no indication that the placement of the affirmative defense

instructions confused or misled the jury and resulted in prejudice to defendant. The comments of

the supreme court’s jury instruction committee are not law (People v. Edwards,

(2003)), and the committee’s recommendations and comments do not conclusively

determine the propriety of the trial court’s instructions (Lange v. Freund,

(2006)). Trial courts have considerable discretion in deciding how to instruct the jury

(People v. Atkins,

(1987)), and the order of giving instructions lies

within the discretion of the trial court (United States v. De Marie,

(7th Cir. 1955)).

Although it is preferable to follow the definition of the charged offenses with the self-defense

definition instruction (People v. Bigham,

(1992)), the trial court’s

determination of the sequence of the instructions was not an abuse of discretion.

- 25 - Nos. 1-13-0135 & 1-13-3166 (consolidated)

¶ 64 B. In Camera Inspection of Complaints Against the Officers

¶ 65 Because this issue may arise on retrial, we review defendant’s argument that the trial

court erred in ruling, after an in camera review of the OPS files for Officers Rigan and

O’Shaughnessy, that the records were not relevant or admissible and would not be disclosed to

the parties. Defendant alleges the trial court abused its discretion in its review of the OPS files

and asks this court to review the OPS files in camera and unseal those files. Defendant also

argues the State committed Brady and discovery violations by failing to obtain and disclose the

OPS files prior to trial. Defendant asserts that if the OPS records had been disclosed, the jury

would have learned that the officers had a marked history for behaving violently, defendant’s

testimony that Rigan physically accosted him without provocation would have been

substantiated, and Rigan’s testimony that he politely identified himself as a police officer only to

be attacked by defendant would have been significantly undermined.

¶ 66 “When confidential records are sought in discovery, the trial court should review the

records in camera and use its discretion to disclose only material information.” People v. Porter-

Boens,

. “The trial court has broad discretion in ruling on issues of

relevance and materiality and its determination will not be disturbed absent an abuse of

discretion.” People v. Williams,

(1994). Prior allegations of police

misconduct may be deemed relevant to impeach an officer on the issues of bias, interest or

motive to testify falsely. Porter-Boens,

. However, to be

admissible, the evidence must not be too remote or uncertain, and must raise an inference that the

witness had something to gain or lose by his testimony. People v. Nelson,

(2009); see also People v. Hobley,

(1994) (specific allegations of police

torture may be admissible only with sufficient indicia of timeliness and similarity). A witness - 26 - Nos. 1-13-0135 & 1-13-3166 (consolidated)

may not be impeached on collateral or irrelevant matters (People v. Williams,

), so “[m]ere evidence of a civil suit against an officer charging some breach of duty

unrelated to the defendant’s case is not admissible to impeach the officer” (People v. Coleman,

(2002) (in order to impeach a police officer with prior allegations of

misconduct, the alleged misconduct must relate to the defendant’s case)). Moreover, “[m]ere

allegations of misconduct, without evidence the officer was disciplined, are not admissible as

impeachment [citations] and do not raise an inference of bias or motive to testify falsely.”

Porter-Boens,

; see also People v. Evans,

(2007) (proof of arrests, indictments and other unproven charges are not admissible to attack

a witness’s character).

¶ 67 According to the record, the trial court received, posttrial and pursuant to defense

subpoena, 19 OPS files regarding O’Shaughnessy and 15 OPS files regarding Rigan. The trial

court examined each OPS file in camera and thereafter conducted a hearing at which defendant

was permitted to argue. Concerning O’Shaughnessy, 16 of his 19 OPS files occurred between

2002 and 2006. The trial court found that those 16 files were too remote in time and contained

allegations that were wholly unrelated to defendant’s allegations of misconduct pursuant to his

trial testimony. The 3 remaining files, which pertained to matters between 2008 and 2010, did

not contain any similar allegations of misconduct.

¶ 68 Concerning Rigan, 9 of his 15 OPS files occurred between 2002 and 2006. The trial court

found that those 9 files were too remote and not similar to defendant’s allegations of misconduct

in this case to establish any kind of pattern of misconduct. The 6 remaining files, which pertained

to matters between 2008 and 2010, did not contain any similar allegations that would establish a

pattern of abuse. - 27 - Nos. 1-13-0135 & 1-13-3166 (consolidated)

¶ 69 The trial court noted that in every OPS file reviewed for O’Shaughnessy and Rigan the

allegations were either deemed unfounded or not sustained or the officers were exonerated. The

court concluded that none of the OPS files met the requirements for admissibility and, therefore,

it would not have tendered any of the OPS files to defendant had they been received prior to trial.

The trial court sealed and impounded the files in the event of appellate review.

¶ 70 After conducting our own review of the materials the trial court reviewed, we find the

trial court did not abuse its discretion in finding the files were not discoverable or admissible.

The trial court used the proper review procedure and did not err in its decision as to the

remoteness and irrelevancy of the information in the OPS files. Regarding the 9 files of both

officers that were not too remote in time, the allegations of misconduct were completely distinct

from anything that happened in this case, and the police authorities found all the claims against

the officers were either unfounded or not sustained by sufficient evidence. Moreover, our review

of the nature of the complaints does not reveal a series of similar incidents spanning several

years. Therefore, the trial court properly found that the OPS files were not admissible and, thus,

not subject to disclosure. Based upon our conclusion, we need not address defendant’s arguments

concerning Brady or discovery violations. (Brady v. Maryland,

(1963)).

¶ 71 III. CONCLUSION

¶ 72 For the foregoing reasons, in case number 1-13-0135, we reverse the judgment of the

circuit court of Cook County and remand the case for further proceedings consistent with this

order. In case number 1-13-3166, we dismiss defendant’s appeal of the denial of his

postconviction petition as moot.

¶ 73 No. 1-13-0135, Reversed and remanded.

¶ 74 No. 1-13-3166, Appeal dismissed. - 28 -