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                                  Supreme Court                              Date: 2019.02.04
                                                                             09:35:56 -06'00'



                         People v. Manning, 2018 IL 122081




Caption in Supreme   THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
Court:               ARTHUR MANNING, Appellee.



Docket No.           122081



Filed                March 22, 2018
Rehearing denied     May 29, 2018



Decision Under       Appeal from the Appellate Court for the Second District; heard in that
Review               court on appeal from the Circuit Court of Kane County, the Hon.
                     Susan Clancy Boles, Judge, presiding.



Judgment             Appellate court judgment reversed.
                     Circuit court judgment affirmed.

Counsel on           Lisa Madigan, Attorney General, of Springfield, and Joseph H.
Appeal               McMahon, State’s Attorney, of St. Charles (David L. Franklin,
                     Solicitor General, Michael M. Glick and Lindsay Beyer Payne,
                     Assistant Attorneys General, of Chicago, and Patrick Delfino,
                     Lawrence M. Bauer, and Victoria E. Jozef, of the Office of the State’s
                     Attorneys Appellate Prosecutor, of Elgin, of counsel), for the People.

                     Michael J. Pelletier, State Appellate Defender, Thomas A. Lilien,
                     Deputy Defender, and Paul Alexander Rogers, Assistant Appellate
                     Defender, of the Office of the State Appellate Defender, of Elgin, for
                     appellee.
     Justices                   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


           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 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.

                                                       -2-
             trial for first degree 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
     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 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-
     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.
                   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.
                   [DEFENSE COUNSEL]: I believe that’s correct, Judge.
                   THE COURT: Okay. It is 1:22.

                                                   -4-
                   [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 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


                                                    -5-
       (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 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 defendant

                                                    -6-
               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 the “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: “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


                                                    -7-
       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 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
           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.

                                                        -8-
       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. 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 progression5—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.

                                                      -9-
