from the Circuit Court of Kane County. No. 08-CF-2729,
Honorable Susan Clancy Boles, Judge, Presiding.
JUSTICE delivered the judgment of the court, with opinion.
Justices McLaren and Jorgensen concurred in the judgment and
1 Following a second jury trial, defendant, Arthur Manning,
was found guilty of first-degree murder (720 ILCS 5/9-1(a)(1)
(West 2008)) and sentenced to 25 years in prison. He timely
appealed and now argues 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." For the
reasons that follow, we reverse and remand for a new trial.
2 I. BACKGROUND
3 In 2008, defendant was indicted on 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 (720 ILCS 5/9-1(a)(1) (West 2008)) and
sentenced to 29 years in prison. Defendant appealed. We
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(2011) (unpublished order under Supreme Court Rule 23).
4 The evidence at defendant's second jury trial generally
established the following. Defendant worked for Windy City
Amusements (Windy City) and lived with other Windy City
employees in a house owned by Windy City. Windy City had a
no-guest policy; only Windy City employees were allowed on
the premises. On the evening of the incident, Mannery, who
did not live at the house, refused to leave the premises.
Defendant, along with three other residents-Darren Barnett,
Guy Manning (defendant's brother), and Willie Wimberly-
approached Mannery. One of the residents asked Mannery to
leave. A fight ensued, during which Mannery suffered a fatal
stab wound to his chest. An autopsy revealed a blunt
laceration to his forehead and three injuries that appeared
to be caused by a single-edged serrated knife: one to his
right bicep, one to his back, and one to the middle of his
5 Barnett testified that Wimberly threw the first punch and
struck Mannery. Mannery then charged Guy, who sidestepped
Mannery and then hit Mannery on the back with a folded lawn
chair. Mannery and defendant then charged each other
simultaneously. Philip David Lehrfeld, a resident of the
Windy City house, testified that Wimberly threw a punch at
Mannery and that defendant and Guy also started fighting with
Mannery. Lehrfeld stated that the fight was over quickly.
Richard Rusin, a resident of the Windy City house, testified
that the fight lasted no more than two minutes. He saw Guy
hit Mannery with the chair, and he saw defendant punch
Mannery. He did not see Mannery do anything during the
6 Defendant was interviewed and, although he initially denied
fighting with Mannery, he admitted, after being told that
others had implicated him, that he fought with Mannery and
stabbed him with a small pocket knife that he had obtained
from Guy. Defendant stated that Mannery refused to leave the
premises, called defendant a "bitch ass, " and
punched defendant in the face. Defendant recalled stabbing
Mannery only in the arm and in the back. Defendant showed the
police where they could find the knife in the Windy City
7 At defendant's request, the trial court instructed the
jury on self-defense. The trial 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). Thus, the
jury received instructions that are given when both
first-degree murder and second-degree murder are at issue,
namely Illinois Pattern Jury Instructions, Criminal, Nos.
7.06B and 26.01A (4th ed. 2000) (hereinafter, IPI Criminal
4th). In keeping with 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 same instruction told the
jury: (1) if it found that the State had failed to prove each
first-degree murder element 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; (3) if it found that defendant had met that burden,
it should find him guilty of second-degree murder; but (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),
that its verdict must be unanimous, and that it should sign
only one verdict form.
8 During the course of deliberations, the following occurred:
"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 ...