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requires a trial court to use the latest version of a particular IPI instruction that may be
applicable, use by a trial court of an earlier IPI version of that same instruction is not reversible
error as long as the earlier version still correctly states the law.” Tucker, 193 Ill. App. 3d at
854.
Here, unlike Tucker, the instruction was not a recent amendment and, unlike Kegley,
the proper instruction was not withdrawn. Further, the committee notes and titles of the
instructions make clear that IPI Criminal 4th No. 26.01 is not a proper substitute for IPI
Criminal 4th No. 26.01R. As we have discussed, IPI Criminal 4th No. 26.01 does not
accurately instruct the jury as to verdict forms when a defendant has been charged with lesser
included offenses. Significantly, this is not a situation where the harm to defendant is
theoretical; as we will discuss further, the jury expressed confusion in a question and entered
conflicting verdicts based on this error.
Accordingly, we find that the trial court erred in giving IPI Criminal 4th No. 26.01
instead of IPI Criminal 4th No. 26.01R. However, this finding does not end our analysis. We
must now consider whether this error was so substantial as to have affected the fundamental
fairness of defendant’s trial. We conclude that it did for the following reasons.
The record shows proof of the jury’s confusion in considering greater and lesser
included offenses where the jury sent out a question on this subject during its deliberations.
The jury asked, “Can Carter be guilty for under 100 grams and over 100 grams using the same
evidence?” This question indicates that the jury was considering whether it could find
defendant guilty of the greater and lesser charged cocaine offenses. Paragraph 4 of IPI
Criminal 4th No. 26.01R would have instructed the jury that if it found defendant guilty of the
