People v. Manning

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

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 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).

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 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.

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 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.

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 [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

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 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

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 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

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 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:

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 “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

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 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.

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 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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