Once the State has proven first degree murder beyond a reasonable doubt, the defendant must prove by a preponderance of the evidence either that he was acting under a sudden and intense passion resulting from serious provocation by the victim or that he believed that the circumstances justified using self-defense, but that his belief was unreasonable. People v. Shumpert, 126 Ill.2d 344, 352, 533 N.E.2d 1106 (1989); People v. Brown, 218 Ill. App.3d 890, 895, 578 N.E.2d 1168 (1991); 720 ILCS 5/9-2(c)(West 1994). The mitigating factors present in the second degree murder statute are not elements of the offense.

( E.g., People v. Davis (1991), 221 Ill. App.3d 1023, 583 N.E.2d 64; People v. Guidry (1991), 220 Ill. App.3d 406, 581 N.E.2d 38; People v. Willis (1991), 217 Ill. App.3d 909, 926, 577 N.E.2d 1215 (and cases cited therein); People v. Cook (1991), 217 Ill. App.3d 299, 576 N.E.2d 1242.) Given the abundance of authority holding that the second degree murder statute does not violate a defendant's constitutional rights to due process of law, we decline to expound at length on the present defendant's analogous argument. Due process requires the State to prove beyond a reasonable doubt all elements included in the definition of the offense with which the defendant is charged. ( People v. Mitchell (1991), 221 Ill. App.3d 926, 931, 583 N.E.2d 78; People v. Brown (1991), 218 Ill. App.3d 890, 896-97, 578 N.E.2d 1168.) The second degree murder statute in Illinois expressly states that "the burden of proof remains on the State to prove beyond a reasonable doubt each of the elements of first degree murder."

Rev. Stat. 1989, ch. 38, par. 1005-8-1). Defendant argues that the sentence does not take into consideration the mitigating factors of her lack of a criminal history, her aversion toward violence, the fact that she is the mother of a minor child, and the stimulus which motivated her conduct. ( People v. Brown (1991), 218 Ill. App.3d 890, 578 N.E.2d 1168.) Defendant contends that the trial court departed from the constitutional requirement that the sentence be determined "both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship."

Before Jeffries was decided, several appellate court decisions had reached the same conclusion, finding that section 9-2 did not violate a defendant's due process rights. See, e.g., People v. Brown, 218 Ill. App.3d 890 (1991); People v. Jerome, 206 Ill. App.3d 428 (1990); People v. Buckner, 203 Ill. App.3d 525 (1990). The courts in all of these decisions relied on the United States Supreme Court decision in Patterson v. New York, 432 U.S. 197, 53 L.Ed.2d 281, 97 S.Ct. 2319 (1977), wherein the Court approved a statute requiring a defendant charged with second-degree murder to prove by a preponderance of the evidence an affirmative defense of emotional disturbance in order to reduce the crime to manslaughter.

There is an implied acquittal of an offense where there is a guilty verdict on a lesser offense and silence as to the charged offense. ( Green v. United States (1957), 355 U.S. 184, 190-91, 2 L.Ed.2d 199, 206, 78 S.Ct. 221, 225; People v. Brown (1991), 218 Ill. App.3d 890, 898, 578 N.E.2d 1168, 1173.) In order to be classified as a lesser-included offense, all the elements must be included within the greater offense or there must be a less culpable mental state.

The first defect violates Illinois law, see People v. Reddick, 123 Ill.2d 184, 122 Ill.Dec. 1, 526 N.E.2d 141 (1988), while the second defect violates the Due Process Clause, see Taylor v. Gilmore, 954 F.2d 441 (7th Cir. 1992), petitionfor cert. filed, 60 U.S.L.W. 3783 (U.S. April 27, 1992) (No. 91-1738); Falconer v. Lane, 905 F.2d 1129 (7th Cir. 1990). Illinois has since changed its law, as noted in People v. Brown, 218 Ill.App.3d 890, 161 Ill.Dec. 522, 526, 578 N.E.2d 1168, 1172 (1991), appeal denied, 144 Ill.2d 636, 169 Ill.Dec. 145, 591 N.E.2d 25 (1992): Defendant misplaces his reliance on People v. Reddick (1988), 123 Ill.2d 184, 122 Ill.Dec. 1, 526 N.E.2d 141, because that case was decided under the former voluntary manslaughter statute.

Pursuant to amendments to the Illinois Criminal Code effective July 1, 1987, the crime of "murder" is now "first degree murder," and "voluntary manslaughter" is now "second degree murder." See Ill.Ann.Stat. ch. 38, ¶¶ 9-1, 9-2 (Smith-Hurd 1991); Fleming v. Huch, 924 F.2d 679, 680 n. 1 (7th Cir. 1991); People v. Brown, 218 Ill.App.3d 890, 161 Ill.Dec. 522, 526, 578 N.E.2d 1168, 1172 (1st Dist. 1991). At trial Taylor did not deny that he committed the homicide (although he was less forthright with the police following his arrest).

To be convicted of second degree murder, after the State has proved beyond a reasonable doubt the elements of first degree murder, a defendant bears the burden of proving by a preponderance of the evidence that a mitigating factor existed. People v. Brown, 218 Ill.App.3d 890, 896 (1991). These mitigating factors are: (1) whether at the time of the killing, the defendant acted under a sudden and intense passion resulting from serious provocation by the individual killed or (2) whether at the time of the killing, the defendant believes the circumstances to be such that, if they existed, would justify the killing but the defendant's belief was unreasonable.

Not even defendant's version of events established that Atkins was intending to and capable of inflicting serious bodily harm when defendant shot him. See People v. Brown, 218 Ill. App. 3d 890, 899 (1991) ("it must appear that the aggressor is capable of inflicting serious bodily harm with or without the use of a deadly weapon, and is intending to do so."). ¶ 46 Defendant also argues Dr. Dukes's testimony supported his version of events.

A sentence of probation is not an inherent or statutory right and instead is a discretionary matter for the trial court. People v. Brown, 218 Ill. App. 3d 890, 900 (1991).¶ 18 Here, defendant was convicted of a Class 1 felony. 720 ILCS 5/16-1(b)(6) (West 2014).