JUSTICE KARMEIER delivered the judgment of the court, with
opinion.Justices Freeman, Thomas, Kilbride, Garman, Burke,
and Theis concurred in the judgment and opinion.
KARMEIER CHIEF JUSTICE
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. In a jury 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."
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
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 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
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
[THE STATE]: Yes.
[DEFENSE COUNSEL]: My response would be ...