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FOURTH DIVISION
March 31, 2004

JUSTICE GREIMAN delivered the opinion of the court:

The defendant, Ronald Schickel, Jr., was indicted for first and second degree murder, felonymurder based upon mob action, and aggravated battery. Prior to trial, the State dismissed all countsagainst the defendant with the exception of the felony murder charge. After a bench trial, the defendantwas found not guilty of felony murder and the predicate felony of mob action, but was found guilty ofinvoluntary manslaughter as a lesser included offense. Consequently, he was sentenced to 4 1/2 years'imprisonment. On appeal, he argues that his conviction should be reversed because involuntarymanslaughter is not a lesser included offense of felony murder. Because we find that defense counsel's anddefendant's actions before the trial court indicate a waiver of this issue, we affirm.

The facts of this case surround the well-publicized events following two wedding receptions onAugust 5, 2000, at the William Tell Holiday Inn in Countryside, Illinois. Before the night was over, achaotic melee involving approximately 25 to 30 guests of both wedding receptions erupted in the hotellobby. As a result of that mass altercation, many people were seriously injured, and one victim, MichaelChambers, lost his life.

At trial, multiple witnesses were called to relate the events of that evening. The trouble began, itappears, around midnight in and around the hotel lobby and bar. Apparently, the defendant andcodefendant, Timothy Brogan⁽¹⁾, along with 10 to 15 other people, were lined up against one of thehallways that led from the lobby to the bar. While other guests would walk past, the individuals in the hallbegan harassing them, making lewd comments to female guests, and verbally challenging the male gueststo fight. During this time, one of the guests told the bartender to call security after he had been callednumerous names by the men in the hallway. After hotel security was called to control the situation,codefendant Brogan identified himself to security officers as a Cook County sheriff and asserted that thesituation was under control. It was not.

At approximately that time, physical altercations began breaking out in the area outside the barand near the lobby. According to some witnesses, the situation was "unbelievable." Things in the lobbywere smashed, furniture was turned over, and people were crying. One of the wedding guests, Mr.Lange, saw five to eight men on the top of the back of another wedding guest, Mr. Rademacher, who waslying on the ground on his hands and knees. After Mr. Lange realized that Mr. Rademacher was beingchoked and could not breathe, he attempted to intervene. In response, Mr. Lange was kicked in the face,his glasses split his nose open, and he was tossed toward a windowsill, which cut his head. At that timeMr. Rademacher stood up after being released from the choke hold, and was immediately hit from behindby codefendant Brogan, who slammed him against a wall and held him for approximately 15 seconds. After Mr. Rademacher's wife slapped codefendant and yelled at him while he was holding her husband,the codefendant said,"I'm a cop, my name is Tim, I'm a cop." Codefendant then released Mr.Rademacher from the window and forcibly took him to a bench in the hallway. In response to Mrs.Rademacher's inquiry as to whether codefendant was going to arrest her husband, he said, "No, but if hegets off the bench, I'll kill him."

While this was occurring, Michael Chambers returned through the hotel lobby after he had boughtsome hamburgers at a nearby White Castle. As he was entering the hotel, the men who were lined upagainst the wall were still harassing some women. According to testimony, Mr. Chambers attempted toget the women away from the men, telling everyone to "go home." At that point, codefendant Brogan toldthe victim to "back off motherf-----," and he and the defendant pushed and punched the victim in the face. After the defendant hit Mr. Chambers, Mr. Chambers attempted to flee into the lobby, but he wasgrabbed by the men in the hallway, who pulled him into the vestibule by his neck, got on top of him, andkicked and beat him.

At that point, security guards who witnessed codefendant Brogan pushing Mr. Chambersattempted to get people off of Mr. Chambers, who was now at the bottom of a pile. While they wereable to get him to stand, codefendant Brogan still had him in a headlock, and both tumbled into thevestibule area. Immediately thereafter, Countryside police arrived, and codefendant Brogan againidentified himself as a Cook County sheriff. After displaying his badge, he informed the other policeofficers that the victim should be arrested because he was "fighting with everybody." After codefendantBrogan released Mr. Chambers, the defendant, who was also in the vestibule area, jumped into Brogan'sposition on top of Mr. Chambers and placed him in a headlock. At that point, defendant was in thevestibule, on top of the victim, choking the victim by his neck as he lay face-down on the ground. OfficerBattaglia from the Countryside police said the choker, whom he could not identify, had his arm wrappedaround the victim's neck and had him in a choke-hold known as the "carotid artery choke," a dangerousand deadly hold if applied improperly, according to Officer Battaglia.

Accepting what codefendant Brogan had told them, the Countryside police then attempted tohandcuff the victim and, while doing so, told the choker to release the choke hold. Codefendant Broganremained in the vestibule during that time. While the defendant still had Mr. Chambers in a choke hold,the Countryside police told Mr. Chambers that he was under arrest and attempted to handcuff him whilehe resisted. During this time, Officer Battaglia told the choker to release his hold, but the choker did notcomply. Officer Battaglia told the choker once again to release the victim, and then felt the victim fall limponto his own right arm. The choker stated at that point, "he's out cold." According to Officer Battaglia,Mr. Chambers still appeared to be breathing at the point they had successfully handcuffed him Tim Fahey, defendant's friend, then pulled the defendant off of Mr. Chambers as he lay on theground in the vestibule; injured, unconscious and totally immobile. The security officers who were alsopresent helping the Countryside police secure the scene saw the victim in this condition and becameconcerned because no one was attending to him. The police officers then pulled Mr. Chambers up, andhe appeared to be unconscious. Mr. Chambers expired sometime later.

Later that evening, codefendant Brogan told his ex-fiancée and another female wedding guest tofind the defendant and get him out of the hotel because "everybody was leaving." When the two womenfound the defendant, the defendant asked why he had to leave because "he wasn't there, that he didn'tknow what happened." Defendant then apparently left the hotel approximately one-half hour after chokingthe victim in the vestibule. Days later, defendant told his friend, Dan O'Rourke, that he burned the suit hewas wearing the evening of the wedding and bought another exactly like it. He also told Tim Fahey not tosay anything, that Tim did not see him in the vestibule, and he thanked Tim for pulling him off the victim.

After the State rested, the defendant's motion for a directed verdict was denied. Defendant thenpresented testimony from traffic patrol officer Anthony Jarvis from the Village of Hodgkins, who statedthat he had been at the William Tell Holiday Inn on August 6, 2000, at approximately 2:30 a.m. WhenOfficer Jarvis approached the front vestibule, he saw Countryside officers and Mr. Chambers in a"skirmish," and two other people in the corner of the vestibule in the back. Officer Jarvis then attemptedto prevent entry into the vestibule, and when codefendant Brogan tried to enter, Jarvis grabbed him by thearm. Brogan then stated, "don't touch me. I'm a f------ Cook County Sheriff." Because Officer Jarvisbelieved that the other Countryside officers had the situation in control, he walked away from the vestibuleto attend to the other fights.

After the defense's presentation of witnesses, both defendants chose not to testify on their ownbehalf. After the trial court fully admonished the defendants as to their rights, the trial court then heardclosing arguments from both sides. During argument, defense counsel stated:

"MR. KREJCI [Defense Counsel]: And I think its pretty clear in [People v.Davis, 335 Ill. App. 3d 1102 (2002)], Judge, that one of the issues is whether or not alesser included instruction of voluntary manslaughter could be given.

And the Court did an analogy of the issue of recklessness and whether or notthere are factors that the Court could look to to determine whether or not the personwho's charged acted recklessly instead of knowingly and intentionally committing the mobaction for felony murder.

And the Court recognized that there [are] circumstances and that the Court couldin fact find that someone during the mob action might be acting recklessly, but withoutknowledge and intent and then that aspect, it could not be felony murder. It would besomewhat of involuntary manslaughter.

I am not conceding that in this case, Judge, but I think that is what the Davis caseset forth.

THE COURT: [Davis] said that you could, under some circumstances, getinvoluntary manslaughter as a lesser included offense of felony murder, but not in the caseof [the defendant] Davis.

MR. KREJCI: That is correct. And the Court said that certain factors vary;whether or not the defendant used a weapon.

I believe in that case the evidence showed that that person in fact had a weapon, astick, and the victim was on the ground and nobody was around, continued to beat thatperson with the stick.

And the Court believed under the factors that it set forth that it was proper for thetrial court not to give an involuntary manslaughter instruction but they set forth theperimeters that a Court can look to if in fact the Court would be deciding something tothat effect.

* * *

* * * This case is a tragedy, but it's not a murder. And the State has not proven Ronald Schickel guilty of murder.

THE COURT: Let me ask you then. Are you asking the Court to consider acharge other than murder?

MR. KREJCI: Judge, I believe that the State has not proven their case beyond areasonable doubt against Ronald Schickel.

I am just telling the Court that there are, I don't believe it's a - -

That the Court has other options.

* * *

I believe the Court has other options to consider and is not precluded - -

THE COURT: I am not agreeing or not. Is it your client's request that the Courtconsider a lesser charge, if there is one? As opposed to your's [sic]?

* * *

MR. KREJCI: Judge, the answer to your question, yes. [Co-counsel and I] bothspent a great deal of time speaking to Mr. Schickel and we would ask the Court toconsider - -

THE COURT: It's odd in the circumstance.

Mr. Schickel, are you asking the Court to consider the possibilities of theresponsibility of a lesser offense, if there is one, for felony murder?

THE DEFENDANT: Yes sir."

Ultimately, the trial court determined that the defendant was not guilty of mob action. However, inlooking to the evidence, the court determined that the defendant's "holding [Mr. Chambers] down,choking him, until the stress showed on [defendant's] face, was, at a minimum, reckless indifference tohuman life. And he's thus guilty and I so find of involuntary manslaughter, as a lesser offense of felonymurder." Thereafter, the defendant filed a posttrial motion for judgment of acquittal or arrest of judgmentin which he claimed, among other things, that his involuntary manslaughter conviction should be vacatedbecause involuntary manslaughter is not a lesser included offense of felony murder. The trial court deniedthe defendant's motion, and then after discussing how the defendant "did all he could to avoid anyresponsibility whatsoever for the death of Michael Chambers," the court sentenced him to 4 1/2 years'imprisonment.

The issue in this case is not whether felony murder encompasses involuntary manslaughter as alesser included offense. For if it were, principles of stare decisis would compel us simply to stand byprecedent of this court and find that the trial court improperly convicted the defendant of a crime of whichall the elements had not been charged. As defendant now notes, this court has held that involuntarymanslaughter is not a lesser included offense of felony murder. The basis for this holding can be tracedback to People v. Weathers, 18 Ill. App. 3d 338 (1974), in which the defendant asserted that the trialcourt erred in refusing his proposed involuntary and reckless conduct jury instructions in a felony murdercase. This court held:

"We find this argument unpersuasive. It was the State's theory that the defendantwas guilty of murder under the so-called 'felony murder rule'. (Ill. Rev. Stat.1969, ch. 38,par. 9--1(a)(3).) This provides that a person is guilty of murder if he kills an individualwhile attempting or committing a forcible felony. No intent is required, and the accusedneed not be the actual perpetrator of the killing. (People v. Brooks (1972), 51 Ill. 2d156, 281 N.E.2d 326.) It follows, then, that it would be impossible for one committing ahomicide during the course of a forcible felony to be guilty of manslaughter. In the presentcase the defendant admitted participation in a planned armed robbery. Therefore, itwould have been impossible for the jury to have found him guilty of manslaughter orreckless conduct, and any conjecture as to the precise circumstances under which the gunwas discharged is immaterial." Weathers, 18 Ill. App. 3d at 345-46.

See also People v. McCarroll, 168 Ill. App. 3d 1020, 1023 (1988) ("Where the sole murder chargeagainst a defendant is based on felony murder, no involuntary manslaughter charge need be given").

We also considered this issue in People v. Williams, 315 Ill. App. 3d 22 (2000). There, thedefendant was charged with intentional murder, knowing murder, and felony murder under sections 9-1(a)(1), (a)(2), and (a)(3) of the Illinois Criminal Code of 1961 (720 ILCS 5/9-1(a)(1), (a)(2) (West1994)), but the State dismissed the murder charge under section 9-1(a)(1) following jury selection. Afterthe trial court indicated that it would give an involuntary manslaughter instruction as a lesser includedoffense, the State dismissed the section 9-1(a)(2) murder charge. Because only the felony murder charge,section 9-1(a)(3), remained, the trial court refused to give second degree murder or involuntarymanslaughter instructions. On appeal, we applied the charging instrument approach and held thatinvoluntary manslaughter is not a lesser included offense, stating:

"It is clear that the offense of involuntary manslaughter requires a mental state ofrecklessness whereas felony murder requires no mental state independent of the mentalstate of the predicate felony. See People v. Sandy, 188 Ill. App. 3d 833, 842-44, 544N.E.2d 1248, 1254 (1989) (involuntary manslaughter is not a lesser-included offense offelony murder because it requires a reckless mental state and felony murder does notrequire any mental state independent of that required by the underlying felony); seePeople v. McCarroll, 168 Ill. App. 3d 1020, 1023, 523 N.E.2d 150, 152 (1988) ('ifdeath resulted from recklessness or even accident during the commission of the underlyingfelony, the defendant would still be guilty of felony murder'). Essentially, involuntarymanslaughter requires proof of a more culpable mental state than felony murder. Therefore, where the sole murder charge against a defendant is based on felony murder,no involuntary manslaughter instruction need be given. McCarroll, 168 Ill. App. 3d at1023, 523 N.E.2d at 152. Since involuntary manslaughter is not a lesser-includedoffense of felony murder, we need not discuss the second prong of the inquiry--whetherevidence exists to permit a jury to rationally find Taylor guilty of the lesser offense." Williams, 315 Ill. App. 3d at 32-33.

Based on the above cases, defendant asks us to hold that as involuntary manslaughter is not alesser included offense of felony murder, we must reverse defendant's conviction and enter a judgment ofacquittal. In its brief, the State asks this court to stay our decision in this matter until our supreme courtrules on the issue of whether involuntary manslaughter is a lesser included offense of felony murder basedon mob action in the case of People v. Davis, 335 Ill. App. 3d 1102 (2002), appeal allowed, 203 Ill. 2d554 (2003). We accede to defendant's request that we not stay our decision. We do this for tworeasons. We decline to defer our decision in this case solely because a pending, unrelated appeal may ormay not alter the applicable legal principles. As the supreme court has observed, we are bound by theexisting law until instructed otherwise by that court. People v. Harris, 123 Ill. 2d 113, 129 (1988). Also,as we resolve the instant case by applying the doctrine of invited error, whatever decision the supremecourt makes in the Davis case will not impact our decision.

The trial court in this case did not act upon its own inclination. Instead, it acted upon the biddingof defense counsel and defendant to consider the "lesser" charge of involuntary manslaughter. As noted,after hearing defense counsel's suggestions, the trial court asked whether under the Fifth District's decisionin Davis, a defendant could "get" involuntary manslaughter as a lesser included offense of felony murder,and defense counsel responded, "[t]hat is correct." Defense counsel then went even further and suggestedthat the Davis court laid out "certain factors" and "parameters" for a trial court to use to determine whethera person could be convicted of involuntary manslaughter as a lesser included offense of felony murder,based upon the evidence of a given case.

Our supreme court recently addressed the doctrine of invited error in People v. Carter, 208 Ill. 2d309 (2003). In Carter, the defendant was charged with first degree murder for shooting his neighbor todeath. The defendant testified that while he did fire his shotgun in the direction of the victim, he did notintend to kill him. The trial court asked the defendant if he wanted the jury to be instructed on involuntarymanslaughter and the defendant said that he did not, even though his defense attorney wanted the jury tobe so instructed. On appeal, the defendant raised the failure of the trial court to instruct the jury oninvoluntary manslaughter as an issue. In affirming the defendant's conviction, our supreme court held:"Under the doctrine of invited error, an accused may not request to proceed in one manner and then latercontend on appeal that the course of action was in error. People v. Villarreal, 198 Ill. 2d 209, 227(2001); People v. Lowe, 153 Ill. 2d 195, 199 (1992); People v. Segoviano, 189 Ill. 2d 228, 240-41(2000). * * * Action taken at defendant's request precludes defendant from raising such course ofconduct as error on appeal. See Villarreal, 198 Ill. 2d at 227 ('To allow defendant to object, on appeal,to the very forms he requested at trial, would offend all notions of fair play' (emphasis in original))." People v. Carter, 208 Ill. 2d 309, 319 (2003). The purpose of the invited error rule is to prohibit adefendant from unfairly obtaining a second trial on the basis of error which he injected into theproceedings. People v. Cortes, 181 Ill. 2d 249, 283 (1998), citing Ervin v. Sears, Roebuck & Co., 65Ill. 2d 140, 144 (1976). See also People v. Morris, No. 87645, slip op. at 46 (March 18, 2004)(Fitzgerald, J., specially concurring) ("Plainly speaking, this court will not tolerate counsel 'manufacturing'reversible error any more than we would tolerate a prosecutor using unethical tactics to obtain aconviction").

For example, in the venerable People v. Clements, 316 Ill. 282 (1925), the defendant argued thatit was error for the trial court to submit to the jury the question of his guilt of manslaughter and to sentencehim for manslaughter, despite the fact that defendant requested such an instruction. Clements, 316 Ill. at283. The supreme court found:

"It is a well settled principle of law that a party will not be allowed to take advantage of hisown wrong or of an error of the court induced by his own motion. If it was error toinstruct the jury upon the question of manslaughter and to submit to the jury the question ofplaintiff in error's guilt of the crime of manslaughter, plaintiff in error invited the error, andhaving done so must accept its results. He cannot ask the court below to make a specificruling or to proceed in a certain manner and then successfully assign as error in a court ofreview that the ruling or action of the court is erroneous. Sheridan v. City of Chicago, 175Ill. 421; Union Traction Co. v. Lundahl, 215 id. 289; People v. Darr, 262 id. 202; 2 R. C.L. 238." Clements, 316 Ill. at 284.

In People v. Feldmann, 314 Ill. App. 3d 787 (2000), the defendant was charged with the murderof her newborn baby after she attempted to flush her down the toilet. The evidence at trial showed thatthe defendant's actions were intentional or at least done with knowledge. The trial court instructed the juryon involuntary manslaughter at the defendant's behest. Feldmann, 314 Ill. App. 3d at 788. The defendantappealed her conviction of involuntary manslaughter, arguing that there was no evidence to support theverdict. Feldmann 314 Ill. App. 3d at 789. The appellate court agreed that "[t]here was absolutely nofactual basis for concluding that she acted recklessly" and that it was debatable whether she had beenconvicted of a crime "that she did not commit, and the State did not prove." Feldmann, 314 Ill. App. 3dat 795. However, the appellate court affirmed Feldmann's conviction, holding that the defendant could"not be allowed to take advantage of her own wrong or of an error induced by her own motion." Feldmann, 314 Ill. App. 3d at 797. The appellate court further noted: "There is an old adage thatcautions restraint in what we seek. Its message draws upon the irony that can sometimes mock asuccessful pursuit." Feldmann, 314 Ill. App. 3d at 788. We see no reason to depart from this rule in thecase at bar.

In his reply brief, defendant seeks to distinguish the case at bar from the situations presented inClements and Feldmann. Specifically, defendant argues that where, as in those cases, a defendant ischarged with first degree murder, the lesser included offense of involuntary manslaughter is still legallyavailable to the State. In other words, he claims that in those types of situations, there is no dispute that adefendant could be found guilty of involuntary manslaughter as a lesser included offense of intelligent andknowing murder, if the evidence so warrants. He asserts, however, that those decisions have no bearingon whether a court may contemplate handing down a conviction for a crime not charged in an indictment. Accordingly, he notes that the defendants in Clements and Feldmann were simply arguing that theevidence was insufficient to support an involuntary manslaughter conviction despite having taken theopposite position in the trial court. Here, however, because the defendant does not argue evidentiaryinsufficiency, he concludes that Clements and  Feldmann do not provide a basis for affirming the trialcourt's decision.

While we agree with the defendant that the factual situations in Clements and Feldmann aredifferent, we do not find that difference in any way weakens the overall thrust of those opinions; namely,that a defendant will be held accountable for any mistakes he injects into his own trial. To be sure, we arenot implying that the holdings in Clements and Feldmann constitute a blanket abrogation of a defendant'sright to be informed of the nature and cause of the charges against him. However, where a defendant hasindicated to a trial court that he is aware of the possibility that he could be found guilty of a certain crime,even going so far as to suggest that the trial court consider it as an alternative possibility, he cannotseriously contend on appeal that he was unaware of that very charge. Certainly, where defense counselproposed "other options" to the court, and the defendant himself assented to the court's consideration ofthose "options," it is safe to say that he was sufficiently apprised of those charges.

Thus, where the overarching purpose of a defendant's right to be informed of the nature and causeof the charges against him is to provide him with the ability to prepare a defense and to assure him that thecharged offense may serve as a bar to subsequent prosecution arising out of the same conduct (People v.Meyers, 158 Ill. 2d 46, 51-52 (1994)), the intended goals of that constitutional right have been met herewhere the defendant himself argued that the court should consider involuntary manslaughter, and thatcharge would operate as a bar to a later prosecution for involuntary manslaughter. See also People v.Gilmore, 63 Ill. 2d 23, 29 (1976) (When a defendant attacks an information or indictment for the first timeon appeal, it is sufficient if the defendant is apprised of the precise offense charged with ample specificityto prepare his defense and allow pleading a resulting conviction as a bar to future prosecution arising outof the same conduct). Consequently, we find that the defendant in this case may not now argue before usthat he was denied the right to be informed of the crimes for which he was charged, where his counsel'sand his own conduct indicate otherwise.

In so finding, we note that the defendant's purported incognizance of the potential penalties for theinvoluntary manslaughter charge also do not manifest a violation of his constitutional rights. In People v.Perez, 113 Ill. App. 3d 143 (1983), appeal denied, 94 Ill. 2d 556 (1983), this court considered theUnited States Supreme Court's decision in Bordenkircher v. Hayes, 434 U.S. 357, 54 L. Ed. 2d 604, 98S. Ct. 663 (1978), reh'g denied, 435 U.S. 918, 55 L. Ed. 2d 511, 98 S. Ct. 1477 (1978), and IllinoisSupreme Court Rule 402(a)(2) (177 Ill. 2d R. 402(a)(2)), which requires possible penalties be madeknown to a defendant at the time of pleading guilty, and concluded a trial court is not obligated to inform adefendant of potential sentences where the defendant has not pleaded guilty. Because we agree withPerez and because the defendant did not plead guilty in the present case, the trial court did not err in failingto inform of the possible penalties of involuntary manslaughter.

Finally, although not raised by defendant, we also consider whether defendant's argument shouldbe reviewable under the plain error doctrine. Under Supreme Court Rule 615(a), issues affectingsubstantial rights are reviewable as plain error even where such issues were not properly preserved forreview. 134 Ill. 2d R. 615(a). Our supreme court has explained that " ' "before an appellate court cancorrect an error not raised at trial, there must be (1) 'error,' (2) that is 'plain,' and (3) that 'affect[s]substantial rights.' " [Citation.] ' "If all 'three conditions are met, an appellate court may then exercise itsdiscretion to notice a forfeited error, but only if (4) the error seriously affect[s] the fairness, integrity, orpublic reputation of judicial proceedings.' " ' " People v. Crespo, 203 Ill. 2d 335, 348 (2003), quotingUnited States v. Cotton, 535 U.S. 625, 631-32, 152 L. Ed. 2d 860, 868, 122 S. Ct. 1781, 1785(2002). The record clearly demonstrates that any issue regarding notice to the defendant was waived, andif not waived, any conceivable error did not affect the fairness of the proceedings.

For the foregoing reasons, the trial court's decision is affirmed.

Affirmed.

HARTMAN, J., concurs.

QUINN, P.J., specially concurs.

PRESIDING JUSTICE QUINN, specially concurring.

I completely concur with everything in the majority's opinion. I write separately to highlight threerecent decisions which I believe are pertinent.

Our supreme court recently reviewed a case that is procedurally very similar to the instant case. In People v. Knaff, 196 Ill. 2d 460 (2001), the State indicted the defendant on two counts of delivery of acontrolled substance while on a public way, within 1,000 feet of a public housing property. The indictmentalso included two counts alleging that the same sales occurred, but without the location language. Prior tojury selection, the State nol-prossed the two lesser counts. After the State rested its case, the trial courtindicated that it did not believe the State had proved the location element. The State then moved toamend the remaining counts of the indictment by deleting the location element. Over a defense objection,the trial court allowed the amendment and the jury convicted the defendant of the lesser charges. Thesupreme court affirmed the defendant's convictions, rejecting the defendant's contentions on appeal thatthe trial court erred in allowing the State to amend the indictment after the evidence was in, holding:

"[W]e reject the defendant's argument that the trial court erred in allowing amendment of the indictment and the submission of the lesser charges to the jury.

We believe that it would be illogical not to allow a trial judge presiding over a jury trial to ultimately submit a lesser-included offense to the jury under the present circumstances. TheState's request to dismiss the lesser charges prior to jeopardy attaching in this case was of noimport, as the defendant did not actually need to be charged with the lesser offense in order to be convicted of it. The charging instrument provided both the defendant and the State with a closed set of facts, and both parties had notice of all possible lesser-included offenses and could plan their trial strategies accordingly. See Novak, 163 Ill. 2d at 113." Knaff, 196 Ill. 2d at 473.

Similarly, in the instant case, defendant was charged with first degree murder and second degreemurder of the victim in addition to felony murder. It was not until the day of trial that the first degree andsecond degree murder counts were nol-prossed. On appeal, defendant posits that the trial court couldhave found defendant guilty of involuntary manslaughter had the State not nol-prossed the first degreemurder charge. This being so, as in Knaff, the charging instrument provided the parties "with a closed setof facts, and both parties had notice of all possible lesser-included offenses and could plan their trialstrategies accordingly." Knaff, 196 Ill. 2d at 473.

The defendant also argues that the concerns expressed by Presiding Justice O'Mara Frossard inher concurring opinion in People v. Williams, 315 Ill. App. 3d at 41-42, are very much applicable to theinstant case. In Williams, Presiding Justice O'Mara Frossard disagreed with the majority's reliance on theholding in People v. Rixie, 190 Ill. App. 3d 818 (1989),

"because such reliance tends to lend approval to the prosecution gamesmanship condoned by the court in Rixie, where the prosecution was allowed to limit jury instruction to only the charge of felony murder by deciding to nol-pros the charge of first degree murder after evidence had been heard by the jury on the charge of first degree murder and after the court agreed to instruct the jury on the lesser-included offenses of murder. Rixie, 190 Ill. App. 3d at 825 (1989)." Williams, 315 Ill. App. 3d at 42 (O'Mara Frossard, P.J., specially concurring).

Presiding Justice O'Mara Frossard continued:

"Once the charges are brought and evidence is presented and as a result of those charges and evidence the record reflects that instruction on a lesser-included offense is warranted by the evidence. I believe fundamental fairness requires that a prosecution motion to dismiss the charges that provide the basis for the lesser-included offense instruction should be denied and instruction on the lesser-included offense should be given. Where there is sufficient evidence to support an instruction to the jury on a lesser-mitigated offense, yet the trial court denies the jury the opportunity to return a verdict of guilty on that mitigated offense, such denial contributes to the likelihood of not only inaccurate, but substantially unfair, jury verdicts." Williams, 315 Ill. App. 3d at 42 (O'Mara Frossard, P.J., specially concurring).

In the instant case, the State nol-prossed the first and second degree murder counts before thebench trial began. Consequently, the actions of the State in this case are really not the same as those ofthe State in Williams. Perhaps more importantly, acting at the behest of the defendant, the trial court in theinstant case went beyond the protections suggested by Presiding Justice O'Mara Frossard in herconcurrence in Williams. The trial court rendered a finding that defendant was guilty of the "mitigatedoffense." It is this action of the trial court of which defendant now complains.

Finally, our supreme court recently addressed the manner in which courts of review shouldconsider findings made by trial courts after a bench trial. In People v. McCoy, 207 Ill. 2d 352 (2003),our supreme court applied their holding in People v. Jones, 207 Ill. 2d 122 (2003), that inconsistentverdicts may not provide the sole basis to challenge an appellant's convictions, to bench trials. McCoy,207 Ill. 2d at 355. Our supreme court based their decision in Jones on the decision of the United StatesSupreme Court in United States v. Powell, 469 U.S. 57, 83 L. Ed. 2d 461, 105 S. Ct. 471 (1984),which "reiterated that consistency in the verdicts is not required as a matter of constitutional law and thatinconsistent verdicts can often be explained as a product of juror lenity." Jones, 207 Ill. 2d at 130, citingPowell, 469 U.S. at 63, 83 L. Ed. 2d at 467, 105 S. Ct. at 475.

In McCoy, our supreme court held:

"Though we do not encourage trial judges to stray from their duty to follow the law, we do acknowledge, without condoning, the clear reality that trial judges may exercise lenity in what they perceive as the interests of justice." McCoy, 207 Ill. 2d at 358.

While the McCoy court said this in the context of what they termed "inconsistent verdict[s] rendered in abench trial" (McCoy, 207 Ill. At 358), I believe that it is applicable to our review of the actions of the trialcourt in the instant case. Here, the defendant asked the trial court to consider the holding in People v.Davis, 335 Ill. App. 3d 1102, appeal allowed, 203 Ill. 2d 554, and find the defendant guilty of involuntarymanslaughter. Had the trial court not done as defendant requested, the only alternatives for the trial courtwould have been to find defendant either guilty or not guilty of felony murder. While the State was willingto take this risk, defendant was not. I believe that while there was a good deal of evidence to support thetrial court's finding that defendant's actions demonstrated a reckless indifference to human life, theevidence in the record would also support a finding of guilty of either felony murder or first degree murderbased on defendant's knowledge that his acts created a strong probability of death or great bodily harm tothe victim. Consequently, defendant's decision to ask the trial court to consider involuntary manslaughterbenefitted him greatly.

1. Codefendant Brogan was found guilty of four counts of official misconduct and was sentencedto 3 1/2 years in prison. He is not a party to this appeal, but his conviction is the subject matter of apending appeal, No. 1-03-0829.