*1 ILLINOIS, Plаintiff-Appellee, THE PEOPLE THE OF OF STATE AUSTIN, Defendant-Appellant. J.W.
Second District No. 2 — 89—0616 31, 1991. Rehearing July Opinion filed June denied 1991. *2 J.,
NICKELS, concurring. specially Weller, Glaser, Lilien, Ap- G. J. and Thomas A. all of State Joseph Paul Office, appellant. of for pellate Elgin, Defender’s Logli, (William
Paul of L. Browers and Attorney, A. State’s Rockford Schneider, Cynthia Attorneys Appellate Prosecutor’s Of- N. both State’s fice, counsel), People. for the of the court: opinion
JUSTICE WOODWARD delivered Defendant, Austin, and his convictions of sentences appeals J.W. attempted for two counts ap on raises two issues 4(a), l(aXl)). pars. 8— 9— where denied the effective assistance counsel
peal: whether was on second de jury his failed to seek instructions attorney ex murder; sentences are 10-year and the concurrent gree whether cessive. that she lived testified trial, “Lucy”
At Lunetta Powell had known defend- Lucy as defendant. apartment building the same get a Lucy helped incident. Defendant for a year prior ant over 1988. Defendant College in November Rockford at the cafeteria at job In December and in maintenance. there in food service employed was that she could Lucy so 1989, defendant loaned January or $50 about “forget told her to In January, her bill. electric pay and gallon of booze him half “bought Lucy it” call we’ll says and he something[,] five or ten dollars [sic] him gave it even.” 2, 1989, was February on she under
Lucy testified At reported approxi- the influence of alcohol when she work. a.m., intoxicated and told her mately Lucy defendant noticed was working ought that she and that she day should not been call go get Lucy home. then tried to someone a ride home. Lucy certain, she around thought was she took bus home noon. home, it got did not know what time was when she but she Lucy thоught Hodges, boyfriend, it was p.m. Lucy’s before Delbert was already at her did not have a apartment, telephone. two got when re- began drinking According Lucy, beer she home. they sumed at 5 or 6 drinking p.m. continued drink until defendant came over.
Lucy it night believed was between 8:30 and 9 that at the apartment. Hodges watching arrived Lucy apartment. television. admitted defendant into the According defendant had Lucy, drinking, speech was and he his slurred staggering. was sat in a chair the end the kitchen counter; couch, sitting on the sat a table down, next the couch. After defendant sat he took a from be- рut hind back and legs. Lucy between his asked what defendant doing gun, with the but defendant did not answer. Lucy, defendant then and she discussed Lucy’s “messing up at work.” did part not take in the conversation. *3 later, A short while Lucy’s came brother Marvin over. He sat on the Hodges. couch next to When Marvin the apartment, entered defend- ant the in the put gun back of his pants. Marvin for a few stayed only minutes.
Lucy testified farther in the meantime continued defendant to discuss work Lucy’s performance with her. Defendant was upset it, about and Lucy told him that she should not come to work after drinking and that she would if that quit made defеndant “look bad.” Defendant then having accused an Lucy affair the store room with a co-worker. Lucy denied that and told defendant that she and the gone co-worker had get down to the basement food from storage. Defendant then got and ready leave mentioned the $50 which Lucy owed him. Lucy . testified:
“He the I says, ‘By said, want I T way, my back.’ And $50 thought ‘Oh, we even.’ And he ‘No.’ I says, says, And you change your ‘Yeah, mind And he god now?’ damn says, you’re right.’ said, then ‘Well,’ ‘Well, And he he it says, I tomor- want row I didn’t pick up check And I my Thursday.’ told him I pay tomorrow, know, would him some of it you and he ‘Well, I I owe say, really he all of it. And don’t want
says [siс] And he partial the owe the 50.’ you anyway, only you he if he it gets he tomorrow and don’t care wanted says [it] says says, from me or Delbert. And Delbert —then Delbert — ‘Man, he Delbert much does she owe And you?’ says, how ‘$50.’ for tomor- said, get you I’ll to the and worry, go ‘Don’t bank ” row.’ “ door, said, ‘Well, the and stopped then walked towards Defendant what, jail tonight I’m because some- gonna go I’ll tell you guys ” the fired it pulled gun out and at body’s gonna die.’ Defendant bullet, the it struck way to move out of the Lucy. Lucy tried thigh. Hodges sitting her was still the upper her the back of left couch, at him and fired. Defendant gun and defendant the pointed get him to there, so told again, yet Hodges sitting Lucy fired was still “hit floor crawled in the pantry.” out of the and she and way, in the pantry. heard shots while she was Lucy saw
According Lucy, pantry she came out of the and defendant wrestling. Lucy pointed saw at Hodges into and heard more again. pantry her ducked back shots. Lucy Lucy like had to do so she came back out. something, She felt she door, Hodges was halfway then that defendant was out saw and closed the pushed to close. defendant out trying Lucy Hodges then the window and Hodges door. the couch went Lucy helped noticed that therе was a help. Subsequently, Lucy started yelling Hodges of her denied that she or hole in one kitchen cabinets. shooting. or he approached threatened defendant before started of his legs that he had a rod in one Hodges Delbert testified running Hodges’ him from testi- bending leg. which prevented Lucy’s regarding similar events mony substantially was drinking left after one night shooting. apartment Marvin some more Hodges liquor get sent him to the store to beer because about an hour. Defend- Hodges, stayed beer. tonight.” to “kill Defendant was going somebody ant said Hodges heard defendant had say the counter whеn standing by shot, in the Hodges then shot gun. Hodges heard a fully aware sitting got up, still down. groin. shot, kept and went towards defendant. Af- defendant out door. Hodges. Hodges pushed then shooting *4 he had been Hodges he to learned that hospital, ter was taken wrist, area and chest. arm, groin once in the shot twice nor he at or weapon, yell did that he did not Hodges stated defendant. threaten
Hodges couple admitted that he had a “fifth and a of [of wine] noon February Hodges thought Lucy beers” before 1989. came while, from work asleep home around 10 a.m. fell for a then drinking resumed around 2 him- p.m. Hodges estimated between self and Lucy, they consumed two fifths wine and a 12-pack beer Hodges thought p.m. was 6 when defendant to the p.m. came apartment and that stayed for two hours. nearly believed defendant drunk was because he was night “hollering at Lucy.” According Hodges, to he night, was not drunk that but he feeling “was pretty good.”
Reverend Poole George testified that he president was resident building counsel of the in which defendant lived. Shortly p.m., before 9 Reverend Poole was in office on the main floor the building when defendant came into the office. Defendant had blood on his so Poole jacket, asked he had hunting. Defendant told Poole: “ Reverend, ‘No, I to I want surrender want myself you. turn myself just in. shot people. They’re up two on the ” eighth floor.’ gun Defendant then laid a on the desk and said “he didn’t just like nobody misuse him.” Poole surprised never known defendant to be violent. Poole immediately called the po- lice. He then took the and locked it in a desk drawer. they While waiting police arrive, gave Poole $310 give to defendant’s girlfriend. Poole, there was an odor of alcohol on defendant’s breath.
Mark police West the Rockford department testified that he went to Reverend Poole’s office following shooting. gave Poole “ him the gun. West, told T did me it. She owed fifty ” Nobody bucks. does me wrong.’ Powell, mother,
Arlene Lucy’s testified that late in the morning on the shooting day she received a call from Arlene Lucy. went pick work, up Lucy at but she was not there. Arlene with spoke defendant, who told her that Lucy drinking, had been and she needed go home. Defendant asked for Arlene’s and said telephone number he would her. call work getting also said he would be off 5 p.m.
Arlene sometime testified that before 5 o’clock that after- noon, defendant cаlled off got Arlene. He told her “that he had early and he inwas Loves Park drinking good and he asked if whiskey,” Arlene Lucy. not, had found said Arlene she had and defendant told her would call back. Defendant also told Arlene that he mad *5 328 it was when Arlene not know what time day.
and he had a bad did Arlene, According to defendant sounded like defendant called back. no, He if Arlene had When she said Lucy. he was drunk. asked found home and at Deborah’s Lucy’s defendant asked if she checked at going get gun go to his and over to house. Defendant said “he was kill Arlene told defendant she up people.” Deborah’s house and some hung night up. to tаlk to him that and anymore did not want old, 56 and he had worked years Defendant testified that he was gotten the College years. for the four Defendant had past at Rockford he and shooting in the after had been robbed beaten. gun used day 9:30 a.m. permit gun. had a for At Defendant him came to and told one of the cafeteria workers defendant shooting, caf- had to her out get that drunk and that defendant Lucy was minutes, five and he eteria. Defendant looked for about Lucy told defendant Lucy and she telephone. crying, found her at the go that to her told she had Lucy that she called mothеr. Defendant defendant, reported for work drunk Lucy to had home. that, get her to and no one but defendant could three times before leave. 1 mother came to Lucy’s testified that at p.m.,
Defendant further for her with her for a while and asked the cafeteria. Defendant talked her tell her he “wanted to call and what number because phone drunk no more. If [Lucy] he didn’t want out there boss said. He said he her.” straight, couldn’t use she couldn’t come to work left to one of the early help that he work Defendant then testified At Park. about 3 and Loves amplifiers cooks deliver instruments brandy. afternoon, half-pint drank half of a in the o’clock Arlene, Defendant called home around 5 o’clock. Defendant returned p.m., At 8 approximately did not where was. Lucy she know to her su- asked her tell that again Lucy called Arlene and any- denied that said that was fired. Defendant Lucy said pervisor to Lucy’s go Defendant intended to thing regarding people dying. defend- first, apartment to a to return neighbor’s $10 then apartment had Defendant borrowed, to his mother’s house. ant and then where neighborhood in a his mother lived bad with him because robbed. defendant had been apartment Luсy’s he arrived at testified that
Defendant supervisor their Lucy Defendant advised p.m. after sometime Defend- anymore. not to come work Lucy to tell wanted defendant got she after following day him give ant also asked $50 explained him. promised repay she had paid because Lucy’s “first before because money did not ask for that he *** and some dol- got ***. next one she paycheck small [T]he drugs off all ***.” then bought up lars she went $50, responded, she asked she owed defendant “[n]ot then testified: really.” think she told him that the reason she didn’t she owed
“[W]hen get me I had her to bed trying go $50 [was] time, said, And He Hodges jumped up. with me. Mr. and come after me jumped lunged up ‘what?’ And —he he had about And got halfway between couch me. coming knowed that he was do me something be- [sic] know, you running. cause he he was was— So I shooting around, when started at him to him I turn tried to him arm, hit in the I couldn’t hit him tell *6 he was still coming.
* * * *** I know going were to do they something. [H]e jumped and come after me like up that with that tone voice everything. before, and And had been and I don’t jumped chances, like taking I don’t like to be hurt.” the According defendant, him, to Hodges grabbed when defendant began backing the up Hodges towards door. “ran in on” defendant. Thеy minute, scuffled for a and then defendant shoved and Hodges got out the According defendant, door. to in Lucy intended to the join scuffle, and that is when defendant shot her. Defendant stated that he did not intend Lucy, to shoot got but she hit because defendant “was just shooting.” Defendant denied that he intended to kill or Lucy Hodges, and he “had nothing against the people.”
Defendant testified after leaving apartment, the went down to Reverend Poole’s office. gave gun Defendant Poole the and him told defendant had shot a Defendant also Poole person. told to call the police. Although Hodges defendant did not see either Lucy weapon, a with defendant “they something.” believed had Defendant knew he shot at Hodges three times. Little,
Larry defendant’s supervisor, testified that defendant “was an exceptional employee.” On the the morning shooting, Lucy ar- rived at work loud, “somewhat intoxicated.” was and Lit- Lucy quite tle tried to to get her leave without creating disturbance. Little had defendant try leaving. Little, to talk into Lucy According Lucy to left the cafeteria around 10 a.m. Defendant worked until 2:30 or 3 p.m. Defendant’s the reputation with students around the “ex- campus was cellent.” also testified that defendant’s Cornele and Linda Cornele
Charles in the excellent and that defendant was reputation community was upstanding.” “very gentle defendant and kind
Shirley “very Nabors testified that at afternoon be- everyone.” apartment Nabors was defendant’s was not shooting. p.m. came home around 5 fore the Defendant in a Neither Nabors appear Defendant did not bad mood. intoxicated. Shortly drink that before anything evening. nor defendant neighbor, he was going repay defendant said p.m., his mother. right going to visit would come back before Nabors, good Occasionally, “real friends.” Lucy defendant and Lucy apartment. invited to dinner Nabors’ defendant statement regarding Detective Hanson testified rebuttal Hanson, defendant shooting. According gave defendant after him, pulled defendant Hodges said that when came towards Hodges thought three times. he shot Hodges out and shot Defendant chest, once in the side. After once in the once the stomach and shot, running started towards pantry, pantry. she made it to the shot her once before “ with going about bed lying ‘shot her because she was [defendant] ” her.’ both returned murder of guilty verdicts filed motion for a nеw Delbert Powell. prove State did not among things, trial other alleging, denied, and The motion was intended kill the victims. proceeded sentencing. cause of the handi- helped that defendant some Reverend Poole testified ag- he was not complex and that capped apartment residents of *7 addition, that defendant or In Poole stated gressive argumentative. Poole noted that the residents Finally, deacon in his church. was a for defendant meeting express support a building defendant’s held com- the residents of the he had contributed the welfare of plex. that abiding wаs law testified that defendant
Charles Cornele He helped of trouble. get other out always trying people he was cafeteria, them “straightened get jobs young people others. helped that also testified Shirley out.” Nabors testified to also other witnesses who also called several of hard Defend- his record work. law-abiding nature and defendant’s he never in- stated that shooting ant remorse for expressed them harm. anyone any to kill or do tended recognized good person
The that defendant court wrong “something snapped went “something night,” The helped snaр drinking carrying gun.” [defendant] that the minimum would consid- appropriate court noted sentence be however, lack both ering defendant’s of criminal since victims history; convictions, mini- permanent injury suffered and there were two court, therefore, mum sentence be should not The imposed. imposed years’ imprisonment. concurrent sentences of 10
On appeal, defendant first contends was denied effec tive assistance of counsel because his failed to in attorney seek structions In degree second murder. order to resolve issue, this we must first determine whether such an offense at as tempted murder exists. This comparison necessitates a the voluntary between in manslaughter repealed statute which was 38, 1987 (Ill. 2) Rev. Stat. ch. par. and the second 9— murder statute which in (Ill. was enacted ch. 38, par. 2). 9— manslaughter in voluntary statute as provided pertinent part
follows:
“A person who intentionally knowingly or kills an individual commits manslaughter if at voluntary killing the time of the believes the that, existed, circumstances be such if they *** justify would (Il or exonerate the killing but his belief unreasonable.” is Rev. Stat. par. 2(b).) ch.
l. 9— The second degree murder provides statute fol- pertinent part as lows:
“A persоn commits the offense of second degree murder when he commits the offense of first degree murder as defined in paragraphs (1) (2) or 9—1 (a) subsection of Section of this Code
[(a) A person who kills an justifica- individual without lawful tion commits if, performing the acts which cause the death:
(1) He either intends HU do great or harm to that bodily individual or another or knows that such acts will cause death to that individual or another or
(2) He knows that such strong acts create a probability death or great bodily harm to that individual another Rev. Stat. l(aXl), pars. (aX2))] and either of following mitigating present: factоrs are *8 332 the killing believes circumstances
(2) At the time existed, exonerate the that, would they justify to be such 1987, Rev. Stat. killing but his belief is unreasonable.” Ill. 38, 2(aX2). par. ch. 9— court held that background, supreme our of historical By way manslaughter when attempted voluntary no offense as there was such self-defense is under an unreasonable belief that acting the defendant 238, (People Reagan v. (1983), 240.) Ill. 2d How necessary. Reagan ever, there could such acknowledged court that be even the attempt requires specific fact that our statute an offense but the not a intent crime. voluntary manslaughter specific is intent 4(a); Rеagan, 241.) 2d at The 1979, 38, ch. 99 Ill. par. 8— Reagan, is the intent re dilemma, specific real as outlined in that legal to kill justifica the intent to kill but without quired just Ill. an 240.) tion. 2d at Since one cannot intend unreasonable (99 (People v. Viser 568, 581), 2d no such offense as (1975), result Ill. upon an unreasonable belief voluntary manslaughter based attempted possible. is People v. Moore App. 204 Ill. 3d (1990),
The defendant relies 694, recognizes the offense of for the that Illinois law now proposition Moore, defendant, In the who was attempted degree second murder. degree murder, argued on attempted appеal second convicted intend a specifically there offense one cannot was no such District, Court, Third rec The passion. Appellate sudden and intense statute, in effective change July the the murder ognized prior attempted voluntary no as man 1987, there had been such offense legal justification the without slaughter, killing person which was passion a sudden and intense acting while the defendant was under Ill. Rev. ch. (See from Stat. resulting provocation. serious however, that under the Moore 2.) explained, The court par. 9— murder, the law, degree find of second present guilty а defendant elements proved the all the trier of fact must find that State has first the defendant and then must consider whether resulting prov serious passion from acted under a sudden and intense 698; (Moore, 204 Ill. 3d at Ill. Rev. Stat. App. ocation. the element is The that since intent 2(aXl).) court reasoned
par. a defendant could mitigating provocation, to the factor of unrelated Moore, 204 Ill. App. murder. convicted of second be 3d at 698. the flaw argues in this case special
The concurrence manslaughter stat- advanced in Moore voluntary is that argument elements mur- to first all rеquired prove the State ute also der. 126 Ill. 2d con (People Shumpert (1989), 351.) special position only change currence takes the substantive legislature repealing voluntary manslaughter made statute enacting realign murder statute was burden *9 of proof mitigation. ignores as to This the fact that the statute was in fact rewritten as well as renamed. completely the Moore recognize
What court did was to that under the new statute the intent element was dealt with from the separately question of thus of provocation eliminating problem the “unin tended result.” While Moore dealt with the “sudden and pas intense sion” form mitigation and expressly stated that the of un question reasonable being addressed, self-defense was not we believe that rationale for its conclusion that such an offense exists in the applies illustrate, case at bar as well. To in order for the defendant in this case to be found guilty attempted degree murder, second the jury must first find that defendant intended to kill without justifica lawful tion; in words, other the self-defense argument raised the defend by ant must be rejected order for the to kill attempt to be without lawful justification. Then the question mitigation is addressed. Al though jury rеjected the self-defense argument, it could still de termine that defendant actually thought he needed act in self-de fense but that he Thus, was mistaken. although both voluntary manslaughter and degree second murder require that the elements of first, murder be proved is, as the key observed, Moore court that murder statute requires a two-step process, rather than considering the defendant’s intent along with the applicable stat utory mitigation, as was the case with the voluntary manslaughter Therefore, statute. we conclude that the offense of attempted second degree murder based upon an unreasonable belief in the need for self- defense does exist.
While we would follow Moore and find that defendant could be convicted of attempted murder, second degree agree we with the State that defendant was not prejudiced by counsel’s failure to seek an instruction on this offense. To prevail on a claim asserting the inef fective counsel, assistance of a defendant must establish that counsel’s conduct was and, professionally deficient for the deficiency, but there is a reasonable probability the result proceeding of the would have been different. (Strickland Washington (1984), v. 466 U.S.
695-96, 80 L. Ed. 698-99, 2052, 2068-69; 2d 104 S. Ct. People v. Albanese (1984), 104 Ill. 526.) 2d Competency presumed counsel is (P eople (1984), Stewart 101 Ill. 2d 492), alleged in competence arising from a not, matter of trial tactics or strategy will (Peo assistance of counsel of the ineffective itself, a claim support by 537, 548). 2d (1988), Ill. v. Hillenbrand ple sec to have convicted jury For the find that defend murder, required it have been would ond passion and intense either a sudden motivated ant’s actions were actual, unreasonable, be or an provocation from serious resulting force as a deadly use of required the circumstances lief that 2(aXl), pars. (Ill. Rev. Stat. of self-defense. means or run could not be jump The evidence showed (aX2).) leg, of the shot in the back leg, in his he had a rod cause established in the kitchen cabinet lodged angle and the bullet fired. Based when that shot was aimed downwards that the Poole and to Reverend statements and defendant’s on this evidence wrong,” him or “does West, misuses defendant nobody Officer mistakenly believed found that defendant could jury charging force because deadly he had to use regard, in that testimony believed defendant’s at him. Had at battery, not aggravated him of convicted would have probably addition, person lying misuse of a murder. In tempted *10 in a passion an intense to excite not conduct sufficient the victim is by 66, 71- 131 Ill. 2d (1989), v. (See People Chevalier person. reasonable second de that, the attempted even had conclude 72.) We therefore proba a reasonable there is not given, murder instruction been gree of attempted convicted would have been that defendant bility murder. Since first rather than as error, ineffective alleged the his by not prejudiced 141 (1990), v. People fail Stewart (see сlaim must sistance of counsel not be reversed. conviction will 107, 118-19), 2d Ill. its discretion the trial court abused
Defendant next contends 10 years terms of to concurrent it when sentenced had died. if the victims happened have might it what when considered the court appellate 615(bX4)grants Rule Court Supreme R. Ill. 2d (134 sentence. an excessive to reduce discretionary power trial court this unless However, power will not use we 615(bX4).) v. Andrews (People defendant. sentencing its discretion abused statutory is within 451, a sentence 464.) 2d Where (1989), 132 Ill. balanced might have because we limits, merely not reduce may we different sentence. imposed differently factors sentencing 13, 19. Ill. 2d (1991), v. People Streit X felony a Class murder is
Attempted im term of mandatory carries 38, 4(cXl)), which 1989, ch. par. 8— 1989, 38, ch. Stat. (Ill. Rev. years 6 and 30 of between prisonment factors in pars. 5—3(cX2)(B), 8—l(aX3)). statutory The 1005— 1005— mitigation which here are that defendant had no applied history criminal and his character indicates that he is prior activity, unlikely to commit another crime. ch. (See pars. Ill. Rev. Stat. 5—3.l(aX7),(a)(9).) The aggravating factor found trial 1005— court was that defendant’s conduct caused serious See Ill. harm. Rev. Stat. par. 5—3.2(aXl). Although the court discussed might happened what the victims died and that defendant might eligible have been for con since shot, secutive sentences two people reading from our the record we conclude that these comments did not reflect the trial court’s basis for the sentences. The trial court considered defendant’s contributions to community and his lack of criminal history.
trial court decided to sentence defendant to a term only four years longer than the minimum because defendant shot people, two one of times, them three and caused permanent injury both of them. As above, nоted this is a proper factor to consider in aggravation. In light of circumstances, we do not believe that the sentence was the result of an abuse discretion.
The judgment of the circuit court is affirmed.
Affirmed.
BOWMAN,J., concurs. NICKELS,
JUSTICE specially concurring: I would affirm the court; however, trial I do not agree with the underlying analysis of the as to majority defendant’s ineffec alleged tive assistance of counsel. The majority relies on the decision of the Appellate Court for the Third District People (1990), Moore Ill. App. 3d recognized offense attempted second de gree murder, and proceeds to review defendant’s attornеy’s failure to request such a jury instruction to determine that omission affected the outcome of the proceeding. (See People v. Albanese (1984), 104 Ill. 2d 525-26.) However, such review is unnecessary because the Illi *11 nois Supreme Court has expressly rejected the existence of an offense of attempt based on an underlying offense of voluntary manslaughter, which is both the predecessor and, for these purposes, indistin guishable from second degree murder. People Reagan (1983), v. 99 Ill. 238, 2d 240-41.
In Reagan, the supreme court rejected the surface appeal of the argumеnt accepted in here, Moore and by majority conduct
336 dies can of second murder the victim
susceptible charges degree sur degree second murder if the victim attempted form basis of manslaugh (Reagan, 241.) voluntary 99 Ill. 2d at Just as with vives. murder, ter, must still prove degree second the State had the intent an individ specific defendant prove “kill[ ] 38, 9— (Ill. 1985, par. Stat. ch. ual without lawful Rev. justification.” 38, 1, 2; 1987, 4, 2; Reagan, ch. 99 Ill. pars. Ill. Rev. Stat. 9—8— 9— 240-41.) However, degree a of second guilty 2d at cannot, therefore, intend lawfully justified either believes himself acting strong kill under justification provoca without lawful or is too, passion, which, tion a and intense cannot be engendering sudden 38, (aX2).) Stat. ch. (See pars. 2(aXl), intended. Ill. Rev. 9— unin Thus, the lawful that results is killing justification without tended, no such offense attempt is criminal as an “[t]here Ill. 2d People (1975), achieve an unintended result.” v. Viser 62 99 Ill. 2d at bj Reagan, cited 240. of at recognized Moore is the has the offense only authority that murder; however, it with tempted degree second is direct conflict 240-41, Moore, Ill. with Reagan. (Compare Reagan, Ill. 2d degree 698.) legislature enacting 3d at The 1987 second App. manslaughter and, impor more murder statute renamed voluntary that a defendant tantly, realigned proof burden so substantively pre a prove provocation must now either or unreasonable belief evidence, State either disprove of the rather than the be ponderance (People a 126 Ill. 2d Shumpert (1989), reasonable doubt. yond the of In so the second murder statute defines 351-52.) doing, degree degree mitigat fense in terms of first murder and then considers the factors of belief or ing provocation. unreasonable change, Based Moore found par. 2(a).) solely on manslaugh degree voluntary the second murder statute transformed prove the State first specific ter into a intent crime because must murder. guilty specific of the intent crime However, manslaughter Ill. (Moore, 698.) voluntary 3d at App. of murder. prove to first each of elements required also the State Thus, changed 351.) legislature 126 Ill. 2d at neither (Shumpert, mur nature of the offense second nonspecific the essential Reagan der nor diminished the Viser. applicability fail- attorney’s of the of defendant’s effect majority’s analysis mur- “attempted request ure to instruction I in it. concur in balance is and do unnecessary, partake der” concerning issue the other raised majority regarding opinion sentence. defendant’s