{ "id": 5101380, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MELVIN GOLDEN, Defendant-Appellant", "name_abbreviation": "People v. Golden", "decision_date": "1993-04-16", "docket_number": "No. 1\u201492\u20140456", "first_page": "908", "last_page": "920", "citations": [ { "type": "official", "cite": "244 Ill. App. 3d 908" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "522 N.E.2d 1306", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "168 Ill. App. 3d 855", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3514697 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/168/0855-01" ] }, { "cite": "542 N.E.2d 1127", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "186 Ill. App. 3d 255", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2656256 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/ill-app-3d/186/0255-01" ] }, { "cite": "587 N.E.2d 1199", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "225 Ill. App. 3d 286", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5246584 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/ill-app-3d/225/0286-01" ] }, { "cite": "576 N.E.2d 293", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "216 Ill. App. 3d 185", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5287571 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/216/0185-01" ] }, { "cite": "368 N.E.2d 882", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "68 Ill. 2d 149", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5809665 ], "opinion_index": 0, "case_paths": [ "/ill-2d/68/0149-01" ] }, { "cite": "412 N.E.2d 541", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "82 Ill. 2d 268", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5476013 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/ill-2d/82/0268-01" ] }, { "cite": "564 N.E.2d 221", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "206 Ill. App. 3d 428", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2560914 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/ill-app-3d/206/0428-01" ] }, { "cite": "577 N.E.2d 1215", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "217 Ill. App. 3d 909", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5283853 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/ill-app-3d/217/0909-01" ] }, { "cite": "578 N.E.2d 1090", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "218 Ill. App. 3d 764", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8499304 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/ill-app-3d/218/0764-01" ] }, { "cite": "583 N.E.2d 78", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "221 Ill. App. 3d 926", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5799426 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/ill-app-3d/221/0926-01" ] }, { "cite": "97 S. Ct. 3219", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "477 U.S. 79", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6203837 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/477/0079-01" ] }, { "cite": "480 U.S. 228", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1131048 ], "weight": 3, "year": 1986, "opinion_index": 0, "case_paths": [ "/us/480/0228-01" ] }, { "cite": "432 U.S. 197", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6178111 ], "weight": 8, "opinion_index": 0, "case_paths": [ "/us/432/0197-01" ] }, { "cite": "579 N.E.2d 583", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "219 Ill. App. 3d 333", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5800666 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/219/0333-01" ] }, { "cite": "397 U.S. 358", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12054393 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/397/0358-01" ] }, { "cite": "421 U.S. 684", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 541415 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/421/0684-01" ] }, { "cite": "526 N.E.2d 141", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "pin_cites": [ { "page": "145" } ], "opinion_index": 0 }, { "cite": "123 Ill. 2d 184", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5550970 ], "weight": 3, "pin_cites": [ { "page": "196" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/123/0184-01" ] }, { "cite": "561 N.E.2d 335", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "pin_cites": [ { "page": "341" } ], "opinion_index": 0 }, { "cite": "203 Ill. App. 3d 525", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2582489 ], "weight": 4, "pin_cites": [ { "page": "533" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/203/0525-01" ] }, { "cite": "521 N.E.2d 873", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "121 Ill. 2d 491", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3201594 ], "opinion_index": 0, "case_paths": [ "/ill-2d/121/0491-01" ] }, { "cite": "383 N.E.2d 161", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "73 Ill. 2d 184", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5441281 ], "opinion_index": 0, "case_paths": [ "/ill-2d/73/0184-01" ] }, { "cite": "264 N.E.2d 557", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "130 Ill. App. 2d 623", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2826785 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/130/0623-01" ] } ], "analysis": { "cardinality": 1048, "char_count": 28653, "ocr_confidence": 0.774, "pagerank": { "raw": 7.101917104579826e-08, "percentile": 0.42679245006176036 }, "sha256": "fe3c0fc344e85347a34ffeae0354a1cba52bba9b8a54894caf924a4ae22289ff", "simhash": "1:bb5068da2a24050a", "word_count": 4809 }, "last_updated": "2023-07-14T19:27:37.423199+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MELVIN GOLDEN, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE McNULTY\ndelivered the opinion of the court:\nDefendant Melvin Golden was charged with first-degree murder. Codefendant Vincent Williams was also charged with first-degree murder on an accountability theory. After a joint bench trial, Golden was convicted of second-degree murder and sentenced to 12 years in the penitentiary. Williams was acquitted on a motion for directed finding. Golden has timely appealed his conviction and sentence pursuant to Supreme Court Rule 603 (134 Ill. 2d R. 603).\nThe three following issues are presented for review: (1) whether the court properly found defendant guilty of second-degree murder upon finding that due to mitigating circumstances the State had not proved defendant guilty of first-degree murder; (2) whether the murder statute satisfies due process constitutional principles by requiring defendant to prove by a preponderance of the evidence that his belief in self-defense was unreasonable; and (3) whether the court abused its discretion in sentencing defendant to 12 years\u2019 imprisonment.\nOn February 16, 1990, defendant Melvin Golden shot and killed Anthony McGruder. Defendant asserted that he had shot McGruder in self-defense. The State presented three occurrence witnesses: Mervin Douglas, Trina Steward (deceased\u2019s sister) and Ronie Brown. Defendant and Pamela Williams (codefendant Williams\u2019 sister) testified for the defense.\nMervin Douglas testified that on February 26, 1990, between 6:30 and 7:30 p.m., he was walking east on Washburne Street in Chicago, Illinois, toward his aunt\u2019s house. It was dark out but there were streetlights.\nAs Douglas approached 1942 West Washburne Street, he saw the deceased, codefendant Williams, and defendant on the sidewalk in front of Williams\u2019 house. He was on the same side of the street as they were. Douglas was 16 years old and had known Williams and the deceased for over five years, but had known defendant for less than two months. Defendant and Williams were two to three feet apart, facing west on Washburne toward Damen Avenue.\nDouglas further testified that Williams, Golden and the deceased were arguing. There was shouting, but he could not tell who was doing the shouting. There were at least seven people on the porch of Williams\u2019 house on Washburne Street. In a blue car double-parked in the street were Trina Steward, Andrew Howard, Simmy McGruder and another man Douglas did not recognize. Trina Steward was sitting in the driver\u2019s seat. He stopped about 10 or 12 feet away and listened, but could not understand what the three men were saying, except for hearing the deceased mention his cousin DeWayne McGruder. He denied on cross-examination that he heard the deceased say, \u201cMy cousin is too little for you, and if anything happens to him I\u2019ll get you.\u201d It was, however, stipulated that Douglas made the statement to a detective investigating the homicide of Anthony McGruder.\nThe three men walked away from each other and then walked back toward each other. Codefendant Williams then pushed the deceased on the upper part of his body. At that point, to avoid involvement, Douglas testified that he got off the sidewalk, went around a red car parked at the curb, walking onto the street. He stopped and looked. He was then a few feet from the blue car in which Steward, Howard and Simmy McGruder sat. He stopped, looked and saw shots from a gun which he described as two sparks of \u201cfire jumping out of a gun.\u201d He did not see who was holding the gun but saw that the shots came from defendant. The deceased\u2019s back was to Douglas and only defendant faced Douglas. He did not know the number of shots fired. Defendant, however, at that point stood beside codefendant Williams, about four or five feet from the deceased.\nAfter seeing the two sparks from the gun, Douglas lay down in the street beside the red car. He heard more gunshots and eventually got up from the ground. He looked around and saw that Williams and Golden were gone. He watched the deceased run around the rear of the red car and into the street, where he collapsed. Simmy McGruder and Andrew Howard picked up the deceased, put him in the blue car, and rode away. Douglas testified that he did not see the deceased with a gun at any time.\nA few moments later Douglas saw defendant; defendant stumbled, but did not fall down. Douglas asked defendant if he had been shot. Defendant said, \u201cNo, get away from me,\u201d and pointed a gun at Douglas.\nDeceased\u2019s sister, Trina Steward, also testified. She was 25 years old at the time of the trial. She had known codefendant Williams for over 10 years, but had known defendant for less than two months. At about 7 p.m. Trina was driving her car. In the car with her were the deceased, Ronie Brown and Andrew Howard. On direct examination she stated that Simmy McGruder was not in the car, but on cross-examination she stated that Simmy was in the car, but got out at some point. Trina double-parked her car two houses from Williams\u2019 house at 1942 West Washburne, and the deceased got out of the car. Williams was standing in front of his house. The deceased and Williams talked for about 15 minutes, but Trina could not hear what they said. She was talking to Ronie Brown and the car radio was playing. Then codefendant Williams and the deceased raised their voices and began arguing. At that point Trina turned the radio volume down and began watching them. She saw Williams push deceased in the chest. At some point defendant came out from \u201cby the hallway\u201d and stood down the street about 15 feet away from Williams. Williams was facing Trina. Deceased was wearing a coat and had his back towards her. Before Williams pushed the deceased, defendant had not argued with the deceased. After Williams pushed the deceased, defendant said something, after which Trina heard about two gunshots that came from where defendant stood. On cross-examination she testified she heard a total of four shots. She immediately turned around and saw defendant shooting from about 15 feet away. At the time she heard the gunshots she could not see the deceased\u2019s hands, although she saw him make a hand motion. His back was to her during the shooting but she never saw him with a gun while she was at the scene. After the shooting Trina saw the deceased run toward her car, falling down. He yelled that he had been shot. Howard got out of the car first, followed by Trina and Brown. Howard and Brown picked up the deceased and put him in the car. Trina did not see the deceased with a gun. She saw no one shooting that night except defendant. She saw that the deceased was injured and drove him to the hospital. On cross-examination she acknowledged that there was \u201cbad blood\u201d between her family and defendant.\nThe last witness for the prosecution was Ronie Brown, who had been at the scene of the shooting as a passenger in Trina\u2019s car. He had known the deceased for about five years and the deceased was his good friend. He had known codefendant Williams for about one year. He testified that he saw Williams and the deceased talking. He then heard their voices get louder and asked Trina to turn the car radio down, which she did. Brown then heard someone say, \u201cI\u2019m not afraid to die,\u201d but did not know who made the statement. Then Brown saw codefendant push the deceased. Neither Williams nor the deceased had anything in his hands. He heard two gunshots. He did not see another person with codefendant and the deceased, but he saw the gun and the hand that held it. The hand with the gun was behind codefendant, between him and the house at least three to four feet behind and at an angle to codefendant. After he heard the two gunshots, Brown ducked and then heard two or three more shots but did not know where they came from.\nWhen he got up, Brown saw some people running through a vacant lot, but did not know who they were or how many there were. No one remained on the sidewalk or on the porch of Williams\u2019 house. The deceased was running toward the car. Howard got out of the car and went up to the deceased, who said he had been hit. Howard and Brown helped deceased into the car and drove to the hospital. Brown testified that the deceased did not have a gun when he helped him into the car.\nThe parties stipulated that if Dr. Tae Lyong, a forensic pathologist who examined Anthony McGruder\u2019s body, were called he would testify that Anthony McGruder\u2019s death was caused by the gunshot wounds he received.\nAt the close of the State\u2019s case, codefendant Williams\u2019 motion for a directed finding was granted and a similar motion by defendant was denied.\nPamela Williams, codefendant\u2019s sister, testified for the defense. She stated that she had lived with her brother Vincent and other family members at 1942 West Washburne, on the second floor, for a period of six years. In January or February 1990, defendant, who is her cousin, came to live with them.\nShe testified about an incident that took place in January 1990, before the shooting that occurred on February 26, 1990. On that unspecified date in January, she was alone on the front porch of her house when she saw a mob of people following her brother Vincent Williams and cousin Melvin Golden to their house. One of the mob had a shovel, one had an axe and others had sticks in their hands. She recognized four of the group as Trina McGruder (also known as Trina Steward), Martha McGruder, DeWayne McGruder and Calvin McGruder. The deceased was not among them. They were cursing Williams and Golden, who were returning the epithets. Williams and defendant had no weapons. She told Williams and defendant to \u201cjust come on and leave it alone.\u201d Christopher McGruder, the deceased\u2019s brother, stopped the hostilities and sent his sisters and nephews home.\nPamela further testified that on the date of the shooting she was at home. She looked out the window and saw her brother Vincent, her cousin Melvin, the deceased, Anthony McGruder, and Andrew Howard standing on the sidewalk. Williams and the deceased were arguing. She came downstairs and joined two cousins who were standing on the porch. Defendant was standing next to Williams. Andrew was standing to the right of Anthony, the deceased. She saw Trina\u2019s car in the street with Ronie Brown in it.\nShe walked within a foot of the deceased and asked what was happening, but no one answered. Pamela then testified that the deceased was wearing a coat but it was unzipped. She then saw a black gun in the deceased\u2019s waistband and said she was going to call the police. As she was walking away she heard shots and ran next door to call the police. She made the call but did not see the shooting. After the shooting, defendant and Williams disappeared, and she had not seen defendant since the night of the shooting.\nOn cross-examination Pamela testified that she told Detective Harris that she saw the deceased with a gun when Harris came to her grandmother\u2019s home at 1948 West Washburne about two months after the shooting.\nFinally, defendant testified in his own behalf. He corroborated Pamela\u2019s testimony about the hostile incident that occurred in January 1990 between him, his cousin Vincent and several of the McGruders. However, he also stated, as did Pamela, that the deceased was not among the group. He further testified to another hostile confrontation with some McGruders at a neighborhood basketball center, but stated that the deceased was not in that group either. However, he testified that he and one of the McGruders got into a fist fight on that occasion.\nHe testified about a third incident in which he and Williams and a third person were fired upon by a group of men as they were on their way to a tavern. He did not call the police, but he got a gun.\nDefendant\u2019s version of the shooting which occurred on February 26, 1990, was materially different than that testified to by the prosecution witnesses. He testified that he was at the neighborhood basketball center where he met some of the McGruders. No hostilities occurred and the exchange of words was conciliatory in nature. Later, codefendant Williams arrived at the center and he and defendant went home together.\nAs they approached the house, a car pulled up to defendant\u2019s right. He got up on the porch of the building where he and Williams lived, but Williams was off the porch. A woman was driving the car. The deceased got out of the car with some other people. Defendant testified that although he had not had problems with the deceased in the past, he focused his attention on the deceased in particular because he saw a gun when the deceased opened his coat.\nThe deceased walked up and said he planned to talk to codefendant about a fight with his cousin. The deceased then put a finger up to Williams\u2019 head and Williams knocked it off. Defendant then testified that the deceased, whose jacket was open, reached for a gun. Defendant saw the butt of the gun sticking out of the deceased\u2019s pants. Williams then pushed the deceased back and the deceased grabbed the gun, saying, \u201cI\u2019ll kill you and your cousin [sic].\u201d Defendant was then closer than six to seven feet from the deceased. As the deceased grabbed his gun, defendant reached for his own gun. The deceased fired at defendant and defendant returned the fire. The deceased fired again, defendant covered his face with his left hand. Defendant then fired two shots, and the deceased fired two or three shots. Defendant testified that he was trying to hit the deceased\u2019s gun arm, but he could not see the deceased because of the sparks from the deceased\u2019s gun. Defendant did not get hit by a bullet, but the deceased was shot in the face and chest. After the shots were fired, both defendant and the deceased turned around and tried to run. Defendant saw the deceased stumble a little, but kept running until he could not see the deceased any more.\nDefendant further testified that he ran through a vacant lot where he dropped the gun. He then started up an alley when he saw codefendant Williams come out of a gangway. Williams fell and defendant asked him if he had been shot. Williams said he was all right, and each man then ran in opposite directions.\nA man was following defendant. Defendant fell and the man stopped and asked defendant if he was shot. Defendant got up and ran away. He concluded his testimony by stating that at the time he fled the scene he did not know that Anthony had been killed or even hit. Much later in July of 1990, he turned himself in to the police when he found out that Anthony McGruder had died and that codefendant Williams had been arrested for the shooting.\nAfter hearing closing arguments by both sides, the court found defendant not guilty of first-degree murder, but guilty of second-degree murder. After conducting a sentencing hearing including evidence and argument in aggravation and mitigation, and defendant\u2019s statement in allocution, the court sentenced defendant to 12 years\u2019 imprisonment. This appeal followed.\nI\nDefendant contends that because the court made a finding that first-degree murder had not been proved, defendant was entitled to an acquittal. His theory is as follows: second-degree murder requires proof of all the elements of first-degree murder, plus additional proof of one of two mitigating factors, the one relevant to this case being unreasonable belief in the necessity to use deadly force in self-defense. Once the court found that first-degree murder had not been proved, an essential element to the finding of second-degree murder was therefore absent, thus entitling him to an outright acquittal. This argument misperceives the court\u2019s finding and the necessary elements of proof required for a conviction of second-degree murder.\nFirst, the court found that defendant intentionally fired the weapon that caused the death of Anthony McGruder on February 26, 1990. That finding contained all the necessary elements of first-degree murder. However, the court went on to say that on the preponderance of the evidence presented, a mitigating circumstance existed that would warrant a finding of guilty of second-degree murder rather than first-degree murder. The State\u2019s witnesses all testified that the deceased did not have a gun at the time of the shooting. Defendant and his witness testified to the contrary that Anthony McGrunder had a weapon at the time of his quarrel with codefendant Williams and defendant. The court\u2019s finding was obviously predicated upon its determination that the State\u2019s witnesses who testified that the deceased had no weapon were more credible than defense witnesses who testified that he had one. Therefore, the court properly concluded that defendant\u2019s belief that it was necessary to use deadly force to defend himself and his cousin was unreasonable, but nevertheless a mitigating factor sufficient to reduce his culpability to second-degree rather than first-degree murder.\nThe State, however, carried its entire burden of proving beyond a reasonable doubt the existence of each of the elements of first-degree murder and the absence of circumstances at the time of the killing that would justify or exonerate the killing under principles stated in article 7 of the Illinois Criminal Code of 1961. Ill. Rev. Stat. 1989, ch. 38, par. 9 \u2014 2.\nThe evidence presented by the State and the defense in addition established by a preponderance of the evidence the mitigating factor of defendant\u2019s subjective but unreasonable belief in the need to use deadly force in self-defense thus resulting in the finding of guilty of second-degree murder.\nIllinois law presumes that a judge conducting a bench trial understands and follows the law. (People v. Stewart (1970), 130 Ill. App. 2d 623, 264 N.E.2d 557.) However, this presumption is rebutted when the record affirmatively demonstrates the contrary. (People v. Francis (1978), 73 Ill. 2d 184, 383 N.E.2d 161.) Defendant contends that the judge failed to follow the law by failing to first determine whether the State disproved beyond a reasonable doubt that defendant acted in self-defense before considering whether mitigation existed that would reduce the offense to second-degree murder. The record does not support this argument. The statute requires that the State prove beyond a reasonable doubt each element of first-degree murder and, when appropriately raised, i.e., by the defendant or the State\u2019s own evidence, the absence of circumstances that would justify or exonerate the killing. The State presented evidence that the deceased was unarmed which the court found sufficient to prove beyond a reasonable doubt that there were no circumstances existing at the time of the killing which justified defendant\u2019s use of deadly force in defense of himself and his cousin. The fact that defendant presented contrary evidence that the deceased had a firearm at the time was a conflict resolved by the trier of fact against defendant. Defendant\u2019s contention that the court failed to consider defendant\u2019s self-defense argument is belied by the record and the court\u2019s own finding. It accepts defendant\u2019s contention that he acted in self-defense but rejects the argument that it justified or exonerated the killing because the evidence established beyond a reasonable doubt that defendant\u2019s use of deadly force was unreasonable.\nII\nDefendant next argues that the second-degree murder statute violates his due process rights because it precludes a trier of fact from finding a defendant who is charged with first-degree murder and claims self-defense to be guilty of second-degree murder. Contrary to defendant\u2019s contention, he was found guilty in this case of second-degree murder and thus lacks standing to challenge the constitutionality of the statute because he has not been directly injured or in immediate danger of direct injury by the statute\u2019s enforcement. People v. Esposito (1988), 121 Ill. 2d 491, 521 N.E.2d 873.\nEven if defendant had standing to challenge the constitutionality of the statute, his constitutional argument is not persuasive. Defendant is not required to prove a mitigating factor. A conviction is reduced from first-degree to second-degree murder when a preponderance of the evidence establishes a mitigating factor. (People v. Buckner (1990), 203 Ill. App. 3d 525, 561 N.E.2d 335.) This evidence could be provided by the defendant, but it could be established as well by the State. Pattern jury instructions for determining first-degree or second-degree murder state that a defendant is not required to present evidence of a mitigating factor and direct the jury to consider all the evidence to determine the existence of a mitigating factor. Illinois Pattern Jury Instructions, Criminal, Nos. 2.03A, 7.06A (2d ed. Supp. 1989).\nDefendant\u2019s analogy to the pattern jury instructions found erroneous in People v. Reddick (1988), 123 Ill. 2d 184, 526 N.E.2d 141, is inapt. In Reddick, the instructions stated that the State was required to prove mitigating circumstances to reduce murder to manslaughter whereas the applicable law required the State to disprove mitigating factors. Since this case was a bench trial and not a jury trial, instructions were not involved. It is clear from the record, however, that the trial court correctly applied the law in finding defendant guilty of second-degree murder and thus defendant\u2019s due process rights were not violated.\nDefendant\u2019s final due process attack on the statute alleges that it relieves the State of its constitutional burden of proving all elements of first-degree murder by requiring a defendant to prove a mitigating mental state. In support of his argument he relies on Mullaney v. Wilbur (1975), 421 U.S. 684, 44 L. Ed. 2d 508, 95 S. Ct. 1881. In Mullaney, the Supreme Court struck down the Maine murder statute because it required a defendant to prove that he killed with provocation, or malice, an element of the crime under Maine law that was im-\nplied. The court held that this statutory scheme was a violation of the due process principles set forth in In re Winship (1970), 397 U.S. 358, 25 L. Ed. 2d 368, 90 S. Ct. 1068, because absence of provocation was a part of the definition of malice and thus an element of the crime.\nThe Illinois murder statute does not require the defendant to prove a less culpable mental state to reduce first-degree murder to second-degree murder. (People v. Newbern (1991), 219 Ill. App. 3d 333, 579 N.E.2d 583.) Both degrees of murder require intent to kill or knowledge that one\u2019s act will cause death or great bodily harm or knowledge that one\u2019s act will create a strong probability of death or great bodily harm. (Ill. Rev. Stat. 1989, ch. 38, pars. 9 \u2014 1, 9 \u2014 2.) The State must prove this element beyond a reasonable doubt. This statute is similar to the New York statute approved by the Supreme Court in Patterson v. New York (1977), 432 U.S. 197, 53 L. Ed. 2d 281, 97 S. Ct. 2319. In Patterson the State had to prove all the required elements of the crime charged including the mental state. Only then did the statute shift the burden to the defendant to prove by a preponderance of the evidence an affirmative defense of extreme emotional disturbance to reduce the crime to manslaughter from murder. Patterson, 432 U.S. 197, 53 L. Ed. 2d 281, 97 S. Ct. 2319.\nThe murder statute in Illinois meets the constitutional requirements that the State must prove all the essential elements of the crime. It is not unconstitutional for the legislature to require a defendant to prove a mitigating factor that would reduce the crime from first- to second-degree murder. Martin v. Ohio (1987), 480 U.S. 228, 94 L. Ed. 2d 267, 107 S. Ct. 1098; McMillan v. Pennsylvania (1986), 477 U.S. 79, 91 L. Ed. 2d 67, 106 S. Ct. 2411; Patterson, 432 U.S. 197, 53 L. Ed. 2d 281, 97 S. Ct. 3219.\nFurthermore, the Illinois Supreme Court and numerous appellate court opinions have stated that the murder statute requires the State to prove the essential elements of first-degree under the law now in effect. (People v. Reddick (1988), 123 Ill. 2d 184, 526 N.E.2d 141; People v. Mitchell (1991), 221 Ill. App. 3d 926, 583 N.E.2d 78; People v. Wright (1991), 218 Ill. App. 3d 764, 578 N.E.2d 1090; People v. Willis (1991), 217 Ill. App. 3d 909, 577 N.E.2d 1215; People v. Jerome (1990), 206 Ill. App. 3d 428, 564 N.E.2d 221; People v. Buckner (1990), 203 Ill. App. 3d 525, 561 N.E.2d 335.) The Illinois Supreme Court stated in Reddick that mitigating factors which reduce the crime from murder to manslaughter are not elements of the offense, but are affirmative defenses that do not bear upon the ultimate burden of proof. Reddick, 123 Ill. 2d at 196, 526 N.E.2d at 145.\nWhen a defendant is charged with first-degree murder he may choose to present evidence of mitigating factors sufficient to reduce his degree of culpability. The State must still prove all the elements of the crime. Failure to do so exonerates the defendant regardless of whether he presents mitigating evidence, but if he does so, the State must disprove those factors beyond a reasonable doubt. Buckner, 203 Ill. App. 3d at 533, 561 N.E.2d at 341.\nA defendant charged with second-degree murder is not required to prove anything. The State is required to prove all the elements of first-degree murder and concede the mitigating factors. Buckner, 203 Ill. App. 3d 525, 561 N.E.2d 335.\nFor the reasons set forth above, the murder statute is constitutional.\nIll\nFinally, defendant argues that his sentence of 12 years\u2019 imprisonment was excessive. Imposition of sentence is a matter within the sound discretion of the trial court. (People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541.) A reviewing court may reduce a sentence imposed by the trial court only when the record affirmatively shows that the trial court abused its discretion. People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.\nDefendant was convicted of second-degree murder, a Class I felony with a maximum sentence of 15 years\u2019 imprisonment. The trial court carefully considered the mitigating factors, such as defendant\u2019s age of 19 at the time of his arrest for this offense and his lack of a prior serious criminal record.\nAggravating factors were also present and were considered by the court in the case at bar. Defendant and his cousin Vincent Williams had experienced ongoing difficulties with certain members of the Mc-Gruder family. Instead of seeking peaceful solutions, defendant\u2019s response was to arm himself with a gun. The argument that led to Anthony McGruder\u2019s death began as a quarrel between the deceased and defendant\u2019s cousin Vincent into which defendant injected himself with tragic consequences. There was no prior history of trouble between defendant and Anthony McGruder. The court recognized a mitigating factor by finding defendant guilty of second-degree murder, based upon defendant\u2019s unreasonable belief that the use of deadly force was necessary in defense of himself and his cousin Vincent. Although defendant claimed Anthony McGruder was armed, the prosecution witnesses all testified that Anthony had no weapon and the trial court resolved this conflict against defendant. Under such circumstances the use of deadly force was neither mature nor responsible. An important factor that a court must consider in sentencing a defendant is the necessity to deter others from committing similar criminal conduct. (Ill. Rev. Stat. 1989, ch. 38, pars. 1005 \u2014 5\u20143(a), (f); People v. Burrett (1991), 216 Ill. App. 3d 185, 576 N.E.2d 293.) A sentence of 12 years or more has been given in other cases of second-degree murder or voluntary manslaughter. (People v. Murillo (1992), 225 Ill. App. 3d 286, 587 N.E.2d 1199; People v. Fisher (1989), 186 Ill. App. 3d 255, 542 N.E.2d 1127; People v. Gaurige (1988), 168 Ill. App. 3d 855, 522 N.E.2d 1306.) A sentence of 12 years\u2019 imprisonment was appropriate to show those who witnessed the violence in this case as well as others that arming oneself with a gun as a means to settle disputes will receive a serious societal response.\nFor the reasons set forth above, defendant\u2019s conviction and sentence are affirmed. As part of our judgment, we grant the State\u2019s request and assess defendant $50 as costs for this appeal.\nAffirmed.\nGORDON, P.J., and COUSINS, J., concur.", "type": "majority", "author": "JUSTICE McNULTY" } ], "attorneys": [ "Rita A. Fry, Public Defender, of Chicago (Tina Liebling, Assistant Public Defender, of counsel), for appellant.", "Jack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb, Barbara L. Jones, Kelly S. Caner, and Jason H. Payne, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MELVIN GOLDEN, Defendant-Appellant.\nFirst District (5th Division)\nNo. 1 \u2014 92\u20140456\nOpinion filed April 16, 1993.\nRita A. Fry, Public Defender, of Chicago (Tina Liebling, Assistant Public Defender, of counsel), for appellant.\nJack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb, Barbara L. Jones, Kelly S. Caner, and Jason H. Payne, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0908-01", "first_page_order": 928, "last_page_order": 940 }