                                      2018 IL 122081



                                         IN THE

                                SUPREME COURT

                                            OF

                          THE STATE OF ILLINOIS




                                    (Docket No. 122081)

               THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
                        ARTHUR MANNING, Appellee.


                               Opinion filed March 22, 2018.



        CHIEF JUSTICE KARMEIER delivered the judgment of the court, with
     opinion.

         Justices Freeman, Thomas, Kilbride, Garman, Burke, and Theis concurred in
     the judgment and opinion.



                                         OPINION

¶1       The issue presented in this appeal, distilled to its essence, is whether jurors’
     inability to unanimously agree upon whether a mitigating factor exists, for
     purposes of second degree murder, results in a finding of first degree murder, as
     charged, and as necessarily found by the jury in the required statutory progression.
     We hold that it does.


¶2                                       STATUTE INVOLVED

¶3      In 2008, the second degree murder statute (720 ILCS 5/9-2 (West 2008))
     provided in pertinent part:

         “(a) A person commits the offense of second degree murder when he commits
         the offense of first degree murder as defined in paragraphs (1) or (2) of
         subsection (a) of Section 9-1 of this Code and either of the following mitigating
         factors are present:

                 (1) At the time of the killing he is acting under a sudden and intense
              passion resulting from serious provocation by the individual killed ***; or

                  (2) At the time of the killing he believes the circumstances to be such
              that, if they existed, would justify or exonerate the killing under the
              principles stated in Article 7 of this Code, but his belief is unreasonable.

             (b) Serious provocation is conduct sufficient to excite an intense passion in
         a reasonable person.

             (c) When a defendant is on trial for first degree murder and evidence of
         either of the mitigating factors defined in subsection (a) of this Section has been
         presented, the burden of proof is on the defendant to prove either mitigating
         factor by a preponderance of the evidence before the defendant can be found
         guilty of second degree murder. However, the burden of proof remains on the
         State to prove beyond a reasonable doubt each of the elements of first degree
         murder and, when appropriately raised, the absence of circumstances at the
         time of the killing that would justify or exonerate the killing under the
         principles stated in Article 7 of this Code.[1] In a jury trial for first degree

         1
           In People v. Fort, 2017 IL 118966, ¶ 33, the majority opinion stated: “Because defendant was
     convicted of second degree murder, the State obviously failed to meet its burden of proof with
     respect to the absence of a mitigating factor.” The suggestion that the State has such a burden is a
     misstatement of the law. The statute places no such burden on the State. The statute requires the
     State to prove “the absence of circumstances at the time of the killing that would justify or exonerate
     the killing under the principles stated in Article 7 of this Code.” (Emphasis added.) 720 ILCS




                                                     -2­
         murder in which evidence of either of the mitigating factors defined in
         subsection (a) of the Section has been presented and the defendant has
         requested that the jury be given the option of finding the defendant guilty of
         second degree murder, the jury must be instructed that it may not consider
         whether the defendant has met his burden of proof with regard to second degree
         murder until and unless it has first determined that the State has proven beyond
         a reasonable doubt each of the elements of first degree murder.” 2


¶4                                          BACKGROUND

¶5       In 2008, the defendant, Arthur Manning, was charged in the circuit court of
     Kane County with three counts of first degree murder (720 ILCS 5/9-1(a)(1),
     (a)(2), (a)(3) (West 2008)) based on the stabbing death of Naromi Mannery.
     Following a jury trial, defendant was found guilty of first degree murder (id.
     § 9-1(a)(1)) and sentenced to 29 years in prison. The appellate court reversed and
     remanded for a new trial, finding that the trial court abused its discretion in refusing
     to instruct the jury on self-defense. People v. Manning, No. 2-09-0752 (2011)
     (unpublished order under Illinois Supreme Court Rule 23).

¶6       The second trial, like the first, generally established that the victim was highly
     intoxicated and ultimately an unwelcome visitor at a residence occupied by
     defendant and at least five other individuals. The victim was asked to leave and
     refused to do so. A fight ensued between the inebriated victim and four of the
     residents, including the defendant. Defendant was armed with a knife. In the course
     of that fight, the victim, who was apparently unarmed, was stabbed three times. A
     stab wound to the chest proved fatal. Defendant admitted to stabbing the victim



     5/9-2(c) (West 2016). The mitigating factors set forth in section 9-2 of the Criminal Code of 2012 do
     neither. Section 9-2 clearly places the burden of proof, with respect to the existence of those
     mitigating factors, on the defendant. Defendant in this case “freely concedes that the majority in
     Fort may have erred by suggesting that the State must disprove a mitigating factor.”
          2
           The last sentence of subsection (c) has since been deleted (see Pub. Act 96-720, § 25 (eff.
     Jan.1, 2010) (amending 720 ILCS 5/9-2(c)), but the burdens specified by the legislature remain the
     same. The statute still requires, under subsection (a), a prerequisite finding that a defendant has
     “commit[ted] the offense of first degree murder” before a jury can find a defendant guilty of second
     degree murder. 720 ILCS 5/9-2(a) (West 2016).




                                                    -3­
     twice: once in the arm and once in the back. There was no evidence that anyone
     other than defendant was armed.

¶7        Pursuant to defendant’s request—and the appellate court’s prior directive—the
     trial court instructed the jury on self-defense. Relatedly, the court also granted
     defendant’s request to instruct the jury on second degree murder, based on both
     statutory mitigating factors: an unreasonable belief in the need for self-defense and
     provocation, with mutual combat being the requisite provocation. See 720 ILCS
     5/9-2(a) (West 2008). Hence, the jury received Illinois Pattern Jury Instructions,
     Criminal, Nos. 7.06B and 26.01A (4th ed. 2000) (hereinafter IPI Criminal 4th).
     Commensurate with the provisions of the second degree murder statute, IPI
     Criminal 4th No. 7.06B listed the elements of first degree murder and indicated that
     the State had to prove each element beyond a reasonable doubt. The instruction
     then informed the jury (1) if it found that the State had failed to prove each element
     of first degree murder beyond a reasonable doubt, it should stop deliberating and
     return a verdict of not guilty; (2) if it found that the State had proven each of those
     elements beyond a reasonable doubt, it should then decide whether defendant had
     proven that a mitigating factor existed; and (3) if it found that defendant had met
     that burden, it should find him guilty of second degree murder; however, (4) if it
     found that defendant had failed to meet that burden, it should find him guilty of first
     degree murder. IPI Criminal 4th No. 26.01A instructed the jury that it would
     receive three verdict forms—(1) not guilty, (2) guilty of first degree murder, and
     (3) guilty of second degree murder—and that its verdict must be unanimous. The
     instruction directed the jury to sign only one verdict form.

¶8       During the course of deliberations in this case, the following colloquy occurred
     outside the presence of the jury:

            “THE COURT: *** We received a question from the jury: For approving
        mitigating factors to reduce charge to second degree murder, if vote on
        mitigating factor is not unanimous, does it revert to first degree murder? Okay.
        Proposed responses?

            [THE STATE]: Yes.

            [DEFENSE COUNSEL]: My response would be no, Judge.




                                              -4­
    THE COURT: Okay. I will listen to respective—

    [THE STATE]: The answer is yes and it’s not no. I mean if—if they’re
unanimous, 12 to nothing for first degree murder, which either under a
hypothetical they are or they are—and they’re contemplating a second degree
instruction, that has—or a charge—that has to be unanimous. If that’s six to six
or 11 to one, it’s not found.

    THE COURT: And I don’t disagree with that. That’s assuming and we
know that that’s the instructions and that they have to find first degree before
they even get to the mitigating factors. I understand that. I’m not sure that an
answer is just simply that that is clear enough, for lack of a better term.

                                      ***

    [DEFENSE COUNSEL]: Judge, I think if they are—if we use the language
that they have found guilty on first degree murder, and now that they are on the
second theory, if they are not unanimous, doesn’t say, all right, you six are
wrong since we can’t agree, or you 11 are wrong since you can’t agree so it’s
guilty of first degree murder; that’s not correct at all. So simply answering that
question yes is leading the jury to believe that if one says a mitigating factor
exists and 11 state a mitigating factor doesn’t exist, if [sic] guilty of first degree,
that’s not true at all, Judge.

    [THE STATE]: To be honest, I don’t know the answer to that question. If
they found 12 to nothing for first degree murder, and they contemplate second
degree murder, I don’t know what the answer to that question is. I think it has to
be 12 to nothing to find that mitigating factor, but if we get to a point in time
that they are deadlocked on that, if it’s six to six, I don’t think that’s a hung jury,
Judge. I might be wrong about that. I would have to do some research on that.
But what’s the hung—what are they hung on at that point in time?

    THE COURT: Here’s what I’m proposing responding and willing to listen
to either side, simply to say: Your verdict must be unanimous. Continue
deliberating.

    [THE STATE]: I have no problems with that.




                                       -5­
            [DEFENSE COUNSEL]: I believe that’s correct, Judge.

            THE COURT: Okay. It is 1:22.

            [THE STATE]: Judge, before you send that back, can we do some research,
        because I want to know whether—I don’t know that it has to be unanimous to
        not find that mitigating factor.

           THE COURT: But it’s fair to say that this is correct, State, that in essence
        your verdict must be unanimous?

            [THE STATE]: Well, I don’t know whether the verdict on the mitigating
        factor—I know the verdict of a mitigating factor to find it has to be unanimous,
        but to not find it, I don’t know that. It probably does, but I don’t know that.

            [DEFENSE COUNSEL]: Judge, there are two different things. I don’t see
        how there would be any case law out there stating otherwise, that if it was 12
        people found unanimously, that the first degree murder was proven, and then
        they went on to deliberate about the mitigating factor, and six of them decided
        yes, it does exist, then they’re not unanimous on first degree murder or second
        degree murder. They’re still split on what the charge is.

            [THE STATE]: They’re unanimous on first degree.

            [DEFENSE COUNSEL]: But they are not unanimous on first degree
        murder because there’s people who say that there is a mitigating factor that
        exists, so they are not unanimous on first degree murder.

            THE COURT: Well, I don’t think this is an incorrect statement of law and a
        response to this. This is not going to say to you, [State], that you can’t do some
        research with regard to this issue, but at this point in time I am going to send this
        response back, and obviously we will figure out and hopefully have more
        clarity. If you wish to do that research, that’s fine, but right now what it’s going
        to say is: Your verdict must be unanimous. Please continue your deliberations.

            [THE STATE]: That’s fine.”

¶9      The jury subsequently returned a verdict finding defendant guilty of first degree
     murder. After the verdict was read, the trial court asked the parties if either would




                                              -6­
       like the court to poll the jury. Defense counsel responded: “I would, Judge, and I
       also ask to poll the jury on [sic] they found the mitigating factor did not exist.” The
       clerk then asked each juror: “Was this then and is this now your verdict?” Each
       juror responded, “Yes.” Thereafter, defense counsel stated: “I would like the
       specific question, if they found the mitigating factor did not exist, so—.” The court
       stated its belief that the polling was sufficient: “I think they answered the question.”

¶ 10       In a posttrial motion, defendant claimed as error the trial court’s denial of
       defendant’s request to poll the jury on the issue of “whether each jury member had
       found that a mitigating factor to reduce the charge to second degree murder
       existed.” The circuit court denied defendant’s motion, noting that the jury was in
       fact polled, that defense counsel had agreed with the court’s response to the jury’s
       question, and that defendant “did not have the right to have the jury polled as to
       specific factors, mitigating factors, or the like.” Defendant was subsequently
       sentenced to 25 years in prison.

¶ 11       On appeal, defendant argued that “[t]he trial court reversibly erred where it:
       (a) failed to give a direct answer when the jury asked if non-unanimity regarding
       the mitigating factor meant that the charge would ‘revert’ from second degree
       murder to first degree murder; and (b) refused to poll the jury specifically to
       determine if any juror believed that a mitigating factor existed.”

¶ 12       The appellate court agreed with defendant, in part, on his first contention of
       error, concluding that the correct answer to the jury’s question was “no.” The
       appellate court’s analysis of the central issue comprised three sentences:

          “To be sure, as indicated by IPI Criminal 4th No. 7.06B, the jury’s
          consideration of the presence of a mitigating factor presupposes that the jury
          has unanimously found that the State has proven the elements of first degree
          murder. But a juror who goes on to vote to find the presence of a mitigating
          factor is voting to convict the defendant of second degree murder. Thus, if some
          jurors vote to find the presence of a mitigating factor, and if other jurors vote
          otherwise, the jury is not unanimous on the defendant’s guilt of first degree
          murder.” 2017 IL App (2d) 140930, ¶ 15.

       Notwithstanding that pronouncement, the appellate court determined that defense
       counsel had acquiesced in the trial court’s response to the jury’s question and thus




                                                -7­
       the invited-error doctrine applied to preclude relief based on defendant’s first
       argument. Id. ¶ 19.

¶ 13       However, the appellate court held that defendant was entitled to relief on the
       basis of his second argument, concluding that the trial court had abused its
       discretion when it refused to ask each juror, in polling, whether he or she believed
       that a mitigating factor existed for purposes of second degree murder. The appellate
       court reasoned:

          “The jury’s question starkly revealed the jury’s uncertainty as to whether a split
          vote on the presence of a mitigating factor should (or should not) produce a
          verdict of guilty of first degree murder. After the jury delivered that verdict, the
          trial court’s use of the standard polling question—‘Was this then and is this
          now your verdict?’—did not resolve the uncertainty. To be sure, as shown by
          the jurors’ unequivocal responses, there was no uncertainty as to whether the
          jurors’ verdict was that defendant was guilty of first degree murder. The
          uncertainty at issue, however, concerned whether that verdict was wrongly the
          product of a split vote on defendant’s guilt of second degree murder.” Id. ¶ 23.

¶ 14       In holding that the trial court had abused its discretion, when it declined to
       conduct more specific polling, the appellate court purported to distinguish People
       v. Raue, 236 Ill. App. 3d 948 (1992), which presented a very similar fact pattern.
       This appellate panel summarized the circumstances of Raue thusly:

          “[T]he jury asked virtually the same question: ‘ “If we have all agreed to first
          degree murder and some of us feel there is a preponderance of evidence that a
          mitigating factor is present so that he is guilty of a lesser offense of second
          degree murder instead of first degree murder, the question is: If we cannot
          unanimously agree that there is a preponderance of evidence that a mitigating
          factor is present, is the final verdict first degree?” ’ Raue, 236 Ill. App. 3d at
          951. Finding that the instructions had been explicit, and fearing that a yes-or-no
          answer would effectively direct a verdict, the trial court responded by
          rephrasing IPI Criminal 4th No. 7.06B: ‘ “[i]t is the burden of the defendant to
          prove the existence of mitigating factors by a preponderance of the evidence,
          and if that burden has not been met, the verdict is one of first degree murder. If
          that burden has been met, the verdict is one of second degree murder. Whatever
          verdict you reach must be unanimous.” ’ Raue, 236 Ill. App. 3d at 951. The



                                               -8­
          defendant was convicted of first degree murder. In holding that no plain error
          had occurred, the appellate court noted, among other things, that the trial court
          had gone on to poll the jury by asking each juror only whether first degree
          murder ‘was his or her verdict.’ Id. at 952.” 2017 IL App (2d) 140930, ¶ 24.

       The appellate panel in this case claimed that Raue was distinguishable because
       “defendant there, unlike defendant here, did not ask the trial court to poll the jury
       differently” and “although there the trial court’s response to the jury’s question
       merely rephrased the pertinent instruction *** that mere rephrasing might have
       been sufficient to alleviate confusion.” Id. ¶ 25. The appellate court cited no
       authority that would substantiate the significance of those distinctions—assuming
       they even are plausible distinctions.


¶ 15                                       ANALYSIS

¶ 16        The core question in this case—the resolution of which determines whether the
       trial court’s response to the jury’s question was correct, and whether juror polling
       was sufficient—is whether the jurors’ inability to unanimously agree, with respect
       to the existence of a mitigating factor for purposes of second degree murder, results
       in a finding of first degree murder, as charged by the State, and as necessarily found
       by the jury in the required statutory progression. The answer to that question entails
       construction of the statutory scheme in order to discern the intent of the legislature.
       The construction of a statute is a question of law that we review de novo. DeLuna v.
       Burciaga, 223 Ill. 2d 49, 59-60 (2006).

¶ 17       In an effort to ascertain the legislature’s intent with respect to the procedural
       mechanism of the second degree murder statute, we believe it instructive to
       consider the procedural features of the statute it replaced, i.e., the voluntary
       manslaughter statute. As this court explained in People v. Jeffries, 164 Ill. 2d 104,
       113 (1995), under the old homicide statute, the State—as now—had the burden to
       prove, beyond a reasonable doubt, the elements of murder. The defendant then had
       the opportunity to present evidence of a factor in mitigation, either serious
       provocation or unreasonable belief, which must have been present to reduce an
       offense of murder to voluntary manslaughter. Id. at 113-14. “The State then had the
       burden to prove, beyond a reasonable doubt, the absence of the factor in
       mitigation.” (Emphasis in original.) Id. at 114. As this court observed in Jeffries:



                                                -9­
       “Under the new act, *** the defendant now bears the burden to prove, by a
       preponderance of the evidence, one of the factors in mitigation which must be
       present to reduce an offense of first degree murder to second degree murder.”
       (Emphasis in original.) Id.

¶ 18       Obviously, as this court recognized in Jeffries, the significant change the
       legislature saw fit to make was to take the burden of proving the absence of a
       mitigating factor from the State and to place the burden of proving the presence of a
       mitigating factor on the defendant. This court also clarified, in Jeffries, that second
       degree murder is properly characterized as “a lesser mitigated offense of first
       degree murder,” that it is “first degree murder plus defendant’s proof by a
       preponderance of the evidence that a mitigating factor is present.” (Emphases in
       original.) Id. at 122. As the Jeffries court recognized, as the jury in this case was
       instructed, and as this court continues to affirm, “[t]he State must prove the
       elements of first degree murder beyond a reasonable doubt before the jury can even
       consider whether a mitigating factor for second degree murder has been shown.”
       (Emphasis added.) People v. Staake, 2017 IL 121755, ¶ 40. “The jury”—not some
       jurors, rather the jurors unanimously—must first find that the State has proven
       defendant guilty of first degree murder beyond a reasonable doubt before “the jury”
       can consider whether defendant has met the burden the legislature has imposed
       upon him, the burden of proving the existence of a mitigating factor by a mere
       preponderance of the evidence. See IPI Criminal 4th No. 7.06B (advising the jury
       that it “may not consider whether the defendant is guilty of *** second degree
       murder until and unless” it has “first determined that the State has proved beyond a
       reasonable doubt each” of the elements of first degree murder).

¶ 19       It is defendant’s position that his failure to meet the modest burden the
       legislature has imposed upon him, i.e., to convince “the jury” that a mitigating
       factor exists, should negate what is necessarily a unanimous finding that the State
       has proven defendant guilty of first degree murder beyond a reasonable doubt. His
       failure to meet his burden should, in effect, render the entire proceeding a nullity.

¶ 20       The appellate panel in this case appears to have come to that conclusion by
       taking a disjunctive view of the statutory scheme. According to the appellate court,
       “if some jurors vote to find the presence of a mitigating factor, and if other jurors
       vote otherwise, the jury is not unanimous on the defendant’s guilt of first degree




                                               - 10 ­
       murder.” 2017 IL App (2d) 140930, ¶ 15. However, the sequence of consideration
       dictated by the legislature is clearly to the contrary. First degree murder is the only
       finding upon which the jurors are unanimous. The jurors are not unanimous in
       making an additional finding for which defendant has the burden of proof, a finding
       of mitigation that would lessen the range of punishment imposable for the same
       conduct committed with the same mental state as that required for first degree
       murder. See Jeffries, 164 Ill. 2d at 122. 3

¶ 21       Defendant would have us believe, (1) despite the legislature’s decision to take
       the burden of proving the absence of a mitigating factor from the State and to place
       the burden of proving the presence of a mitigating factor on the defendant and
       (2) despite the legislature’s requirement that “the jury” first find that the State has
       proven defendant guilty of first degree murder beyond a reasonable doubt before
       “the jury” can even consider whether defendant has met the burden the legislature
       has imposed upon him, that his inability to convince “the jury,” even by a
       preponderance of the evidence, that a mitigating factor exists, should result in a
       hung jury, essentially nullifying the entire proceeding. 4 “The process of statutory
       interpretation should not be divorced from consideration of real-world results, and
       in construing a statute, courts should presume that the legislature did not intend
       unjust consequences.” Fort, 2017 IL 118966, ¶ 35. In Fort, this court concluded
       that “the State’s reading of [that] statute” led “to unjust and absurd results.” Id.

           3
             We emphasize and reiterate that we are not here addressing the “justifiable use of force” or
       “exoneration” under Article 7 of the Code. In order to first find that the State has proven defendant
       guilty of first degree murder, the jury must have found—and it was so instructed here—“[t]hat the
       defendant was not justified in using the force which he used.” See IPI Criminal 4th No. 7.06B.
            4
             We note in passing that there are some similarities in the structure of the statutory scheme here
       and that governing the consideration and rendering of a verdict of guilty but mentally ill (GBMI).
       Before a GBMI verdict may be rendered, the jury must find that (1) the State has proven beyond a
       reasonable doubt that the defendant is guilty of the offense charged, (2) defendant has failed to
       prove his insanity, and (3) defendant has proven by a preponderance of the evidence that he was
       mentally ill at the time of the offense. 725 ILCS 5/115-4(j) (West 2008). Though there is arguably
       less to gain for a defendant in a GBMI verdict, i.e., the prospect of treatment as opposed to the
       assurance of a lower sentencing range (see People v. Wood, 2014 IL App (1st) 121408, ¶ 67), the
       legislature, nonetheless, has required that the jurors, unanimously, find those three
       elements—including defendant’s proof, by a preponderance of the evidence, that he was mentally
       ill—before a GBMI verdict may be returned. It is incomprehensible that the legislature would have
       intended anything less here.




                                                       - 11 ­
       Defendant’s reading of this statute does that here.


¶ 22                                         CONCLUSION

¶ 23       We conclude that the legislature clearly intended that a defendant’s failure to
       sustain his burden—the burden of convincing all 12 jurors that a mitigating factor
       exists for purposes of second degree murder—does not nullify the jurors’
       unanimous finding that the State has proven defendant guilty of first degree murder
       beyond a reasonable doubt. Given our holding, the trial court’s response to the
       jury’s question was correct when considered in conjunction with instructions the
       jurors had already received. The jurors, who had obviously proceeded beyond a
       unanimous finding of first degree murder—having followed the required,
       sequential statutory progression 5 —were advised that their verdict must be
       unanimous. They then returned a verdict of first degree murder, and subsequent
       polling verified that was indeed the verdict of each juror. The trial court’s response
       to the jury’s question was correct; the polling the trial court conducted was
       appropriate. Nothing more was required.

¶ 24       For the foregoing reasons, the judgment of the appellate court is reversed, and
       the circuit court’s judgment is affirmed.


¶ 25       Appellate court judgment reversed.

¶ 26       Circuit court judgment affirmed.




           5
             “Absent some indication to the contrary, we must presume that jurors follow the law as set
       forth in the instructions given them.” People v. Wilmington, 2013 IL 112938, ¶ 49.




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