People v. Wilmington

Defendant was convicted, after jury trial, of first degree murder and concealment of a homicidal death. Court did not err in not asking Defendant if he agreed with tender of second degree murder instruction (requested by defense counsel) and understood its consequences. A defendant can only be found guilty of second degree murder if State has first proven all elements of first degree murder, and thus a defendant is not exposing himself to potential criminal liability which he might otherwise avoid by tendering second degree murder instruction. Court erred in not inquiring as to jury's understanding and acceptance of principle that Defendant's failure to testify could not be held against him, but no plain error as evidence was not closely balanced. That jury sent notes to judge during deliberations, no indication that jury had reached an impasse or that jurors considered this a close case. (KILBRIDE, THOMAS, GARMAN, and THEIS, concurring; BURKE and FREEMAN, dissenting.)