2017 IL App (2d) 140930
No. 2-14-0930
Opinion filed March 2, 2017
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Kane County. ) Plaintiff-Appellee, ) ) v. ) No. 08-CF-2729 ) ARTHUR MANNING, ) Honorable ) Susan Clancy Boles, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________
JUSTICE BURKE delivered the judgment of the court, with opinion. Justices McLaren and Jorgensen concurred in the judgment and opinion.
OPINION
¶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 2017 IL App (2d) 140930
¶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 People v. Manning, No. 2-09-0752 (2011) (unpublished order under Supreme Court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 chest.
¶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
-2 2017 IL App (2d) 140930
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 altercation.
¶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 house.
¶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.
-3 2017 IL App (2d) 140930
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 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]?
[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
-4 2017 IL App (2d) 140930
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.
[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?
-5 2017 IL App (2d) 140930
[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 Thereafter, the jury found 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
-6 2017 IL App (2d) 140930
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
responded: “I think the sufficiency with regard to polling the jury with regard to this is sufficient.
I think they answered the question.”
¶ 10 Defendant filed a motion for judgment notwithstanding the verdict or for a new trial,
arguing, inter alia, that “[t]he Court erred when it denied a defense 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.” Following a hearing, the trial court denied defendant’s motion.
The court stated:
“[T]he Court agrees with the Defense in that a Defendant who is denied an
opportunity to poll the jury would be denied a substantial right; however, he was given
that right and the jury was, in fact, polled. A question did come from the jury which you
summarized, [defense counsel] for the record, and all—uhm—Counsel was in agreement
with the response that was given to the jury—uhm—as a result of that question, which
indicated that: ‘Your verdicts must be unanimous, please continue your deliberations’. I
don’t believe that the Defendant has a right to have the jury polled as to specific factors,
mitigating factors, or the like, so the Motion is going to be denied.”
¶ 11 Following a sentencing hearing, the trial court sentenced defendant to 25 years in prison.
Defendant timely appealed.
¶ 12 II. ANALYSIS
¶ 13 Defendant 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
-7 2017 IL App (2d) 140930
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.”
According to defendant, these errors warrant a new trial.
¶ 14 In response, the State argues that, because defendant acquiesced to the trial court’s
response to the jury’s question, defendant cannot now complain that the trial court erred.
Alternatively, the State argues that defendant forfeited the issue by failing to object to the court’s
response and raise the issue in his posttrial motion. The State further argues that the court did
not abuse its discretion in the manner in which it polled the jury.
¶ 15 We first address the trial court’s response to the jury’s question. That question, again,
was whether a split vote on the presence of a mitigating factor—essentially, a split vote on
whether the defendant is guilty of second-degree murder—“reverts” to a unanimous verdict that
the defendant is guilty of first-degree murder. The State initially proposed an answer of yes;
defendant countered with no. Of those proposals, defendant’s was right. 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.
¶ 16 However, in light of the parties’ disagreement, the trial court proposed to instruct the jury
simply that its verdict must be unanimous. Whatever the merits of that response, we agree with
the State that defendant cannot challenge it. Under the invited-error doctrine, a party cannot
acquiesce to the manner in which the trial court proceeds and later claim on appeal that the trial
-8 2017 IL App (2d) 140930
court’s actions constituted error. In re Detention of Swope, 213 Ill. 2d 210, 217 (2004); People v.
Villarreal, 198 Ill. 2d 209, 227 (2001). “Simply stated, a party cannot complain of error which
that party induced the court to make or to which that party consented.” In re Detention of Swope,
213 Ill. 2d at 217. Here, after the trial court proposed its response, defense counsel, without
argument or objection, stated, “I believe that’s correct.” In light of this acquiescence, we agree
that defendant cannot now challenge the trial court’s response. See People v. Raue, 236 Ill. App.
3d 948, 951-52 (1992) (although the defendant initially proposed an answer of “ ‘no’ ” to a
similar jury question, “[w]hen the judge finally proposed [his own] response, he asked both
attorneys if it was satisfactory; they both agreed that it was”); see also People v. Averett, 237 Ill.
2d 1, 23-24 (2010) (defendant could not challenge on appeal the trial court’s response to a jury
question where defense counsel agreed with the trial court’s response); People v. Halerewicz,
2013 IL App (4th) 120388, ¶ 23 (defendant could not challenge on appeal the trial court’s
response where defense counsel “stood silent and did not object” when, after discussions, the
trial court stated its proposed response); People v. Pryor, 372 Ill. App. 3d 422, 432-33 (2007)
(defendant acquiesced when he failed to object to the trial court’s proposed response).
¶ 17 Nevertheless, although defendant concedes that counsel in this case, like counsel in
Averett, Halerewicz, and Pryor, agreed that the trial court’s response was correct, he argues that,
“unlike counsel in those cases, counsel here also argued that the court’s response should include
a more direct answer to the jury’s question.” The record does not support this claim. Although
further discussion took place after defense counsel responded, “I believe that’s correct,” that
discussion was initiated by the State and concerned its confusion as to whether the verdict on the
absence of a mitigating factor must be unanimous. At no point during this discussion did
-9 2017 IL App (2d) 140930
defense counsel advocate for “a more direct answer to the jury’s question” or object when the
trial court restated its proposed response. See Raue, 236 Ill. App. 3d at 951-52.
¶ 18 Defendant also attempts to liken his acquiescence to a situation “where counsel loses an
argument about whether an objection to certain evidence should be sustained.” He asserts that
“[a]t some point, counsel must stop arguing and at least passively accept the court’s ruling, lest
counsel risk being reprimanded by the court or even held in contempt.” Here, however, defense
counsel never objected to the trial court’s proposed response or reiterated that a different
response was warranted. The trial court noted as much when it denied defendant’s posttrial
motion. Moreover, counsel certainly did not “risk being reprimanded by the court or even held
in contempt,” given the trial court’s explicit statement that it was “willing to listen to either
side.”
¶ 19 Accordingly, because any error was invited, we will not address the merits of the trial
court’s response. In addition, we note that the plain-error doctrine does not apply. See People v.
Harding, 2012 IL App (2d) 101011, ¶ 17 (“[P]lain-error review is forfeited when the defendant
invites the error.”). That said, however, we observe that the trial court’s response did not directly
address the jury’s confusion. The jury’s confusion was not as to whether its “verdict” must be
unanimous. Its confusion was as to whether its finding that the State had proven the elements of
first-degree murder constituted a unanimous “verdict” of that offense, which would stand unless
it reached a unanimous “verdict” of second-degree murder. Thus, when the trial court instructed
the jury only that its “verdict” must be unanimous, it did not necessarily foreclose such a
misguided—though still unanimous—verdict of first-degree murder. Again, however, the extent
to which a trial court must do so—and how best it should do so, if indeed it must—are issues that
we leave for another day.
- 10 2017 IL App (2d) 140930
¶ 20 We turn now to the issue of whether the trial court’s refusal to poll the jury to specifically
determine if any juror believed that a mitigating factor existed was reversible error. Defendant
argues that polling the jury as he requested would have disclosed whether the jury had
unanimously determined that no mitigating factor existed. The State responds that the trial
court’s conduct in polling the jury properly satisfied defendant’s procedural right to have the jury
polled.1 We agree with defendant.
¶ 21 A criminal defendant has an absolute right to poll the jury. People v. McGhee, 2012 IL
App (1st) 093404, ¶ 15. One purpose of polling the jury is to determine whether a juror’s vote
was the result of coercion. People v. Kliner, 185 Ill. 2d 81, 166 (1998). However, polling the
jury is also “the primary device for uncovering the doubt or confusion of individual jurors.”
Crowder v. United States, 383 A.2d 336, 340 (D.C. 1978). The specific form of the question to
be asked is subject to the trial court’s discretion. People v. Kellogg, 77 Ill. 2d 524, 528 (1979).
¶ 22 Polling should be done in a manner that elicits an unequivocal response from each juror.
People v. Beasley, 384 Ill. App. 3d 1039, 1048-49 (2008). Although the trial court should not
turn the polling process into an opportunity for further deliberations, the court also must not
hinder a juror’s expression of dissent. People v. Cabrera, 116 Ill. 2d 474, 490 (1987); Beasley,
384 Ill. App. 3d at 1049. If a juror indicates some hesitancy or ambivalence in his or her answer,
then the trial court must determine the juror’s present intent by affording the juror the
opportunity to make an unambiguous reply as to his or her present state of mind. Kliner, 185 Ill.
2d at 166-67; Kellogg, 77 Ill. 2d at 528.
1 Although the State asserts that defendant “links this argument intrinsically to the trial
judge’s response to the jury’s question about a unanimous vote on the mitigating factors,” the
State does not suggest that this argument is likewise foreclosed by the invited-error doctrine.
- 11 2017 IL App (2d) 140930
¶ 23 Here, we agree with defendant that the trial court abused its discretion by refusing to ask
each juror whether he or she found the presence of a mitigating factor. 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. For all we know, the jury deemed itself required to convict defendant of first-
degree murder even though as many as 11 jurors voted to convict him of second-degree murder.
In an ordinary case, this would amount to mere speculation, and thus we do not hold that a trial
court must poll the jury on this issue in every case that involves instructions on second-degree
murder. (Indeed, we do not hold even that the trial court here must do so with a different jury on
remand.) Here, however, in light of the jury’s question, this is not mere speculation; it is, rather,
a distinct possibility, which undermines any reasonable confidence in the verdict.
¶ 24 In so holding, we distinguish Raue. There, the 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
- 12 2017 IL App (2d) 140930
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.’ ” Id. The
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.
¶ 25 However, the defendant there, unlike defendant here, did not ask the trial court to poll the
jury differently. Further, although there the trial court’s response to the jury’s question merely
rephrased the pertinent instruction—and although we express no opinion on the merits of that
response—that mere rephrasing might have been sufficient to alleviate the jury’s confusion.
Here, whatever its merits, the trial court’s response was very unlikely to have done so. Thus,
here, defendant’s request to poll the jury was valid, and the trial court should have granted it.
¶ 26 III. CONCLUSION
¶ 27 For the reasons stated, we reverse the judgment of the circuit court of Kane County and
remand the cause for a new trial.
¶ 28 Reversed and remanded.
- 13