{ "id": 5410160, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHARLES HOOKER, Defendant-Appellant", "name_abbreviation": "People v. Hooker", "decision_date": "1993-06-30", "docket_number": "No. 1\u201491\u20143241", "first_page": "394", "last_page": "406", "citations": [ { "type": "official", "cite": "249 Ill. App. 3d 394" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "561 N.E.2d 335", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "203 Ill. App. 3d 525", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2582489 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/203/0525-01" ] }, { "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": "584 N.E.2d 477", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "222 Ill. App. 3d 896", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5261429 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/ill-app-3d/222/0896-01" ] }, { "cite": "586 N.E.2d 636", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "224 Ill. App. 3d 393", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5251710 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/ill-app-3d/224/0393-01" ] }, { "cite": "578 N.E.2d 1090", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "218 Ill. 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App. 3d", "case_ids": [ 8499463 ], "weight": 4, "pin_cites": [ { "page": "896-97" }, { "page": "897" }, { "page": "896" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/218/0890-01" ] }, { "cite": "583 N.E.2d 78", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1991, "opinion_index": 0 }, { "cite": "221 Ill. App. 3d 926", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5799426 ], "weight": 4, "year": 1991, "pin_cites": [ { "page": "931" }, { "page": "930-31" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/221/0926-01" ] }, { "cite": "576 N.E.2d 1242", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "217 Ill. App. 3d 299", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5283567 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/217/0299-01" ] }, { "cite": "577 N.E.2d 1215", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "217 Ill. App. 3d 909", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5283853 ], "weight": 2, "pin_cites": [ { "page": "926" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/217/0909-01" ] }, { "cite": "581 N.E.2d 38", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "220 Ill. App. 3d 406", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5274528 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/ill-app-3d/220/0406-01" ] }, { "cite": "583 N.E.2d 64", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "221 Ill. App. 3d 1023", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5797317 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/ill-app-3d/221/1023-01" ] }, { "cite": "580 N.E.2d 1381", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "220 Ill. App. 3d 732", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5274143 ], "pin_cites": [ { "page": "745" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/220/0732-01" ] }, { "cite": "575 N.E.2d 538", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "143 Ill. 2d 435", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5591446 ], "pin_cites": [ { "page": "442" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/143/0435-01" ] }, { "cite": "526 N.E.2d 141", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "123 Ill. 2d 184", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5550970 ], "weight": 2, "pin_cites": [ { "page": "197" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/123/0184-01" ] }, { "cite": "513 N.E.2d 1092", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "160 Ill. App. 3d 1089", "category": "reporters:state", "reporter": "Ill. 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CHARLES HOOKER, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE GREIMAN\ndelivered the opinion of the court:\nFollowing a bench trial, defendant Charles Hooker was convicted of first degree murder for the shooting death of Kiwana Allen.\nOn appeal, defendant asserts that (1) he either acted in self-defense or should have been guilty of only second degree murder; (2) the second degree murder statute is unconstitutional because it requires a defendant to prove that his belief in the need for self-defense was unreasonable; and (3) the second degree murder statute unconstitutionally shifts the burden of proving a certain mental state to the defendant.\nFor the reasons which follow, we affirm defendant\u2019s conviction for first degree murder and find that the second degree murder statute is constitutional.\nThe victim, Kiwana Allen, died from multiple gunshot wounds which he sustained about 7:30 a.m. on August 19, 1989, in front of an apartment building at 2910 South Dearborn, a Chicago Housing Authority unit with nine floors.\nAt trial the State presented the testimony of two eyewitnesses, Tobias Hall and Randall Jones, and two police officers, Victor Roden and Gary Butler, who investigated Allen\u2019s murder.\nTobias Hall observed the victim and defendant talking in front of 2910 South Dearborn and also saw Bobby Williams near the building. Hall heard defendant say \u201cWhy ya\u2019ll put my woman in this?\u201d and heard the victim say \u201cYour woman ain\u2019t got nothing to do with this.\u201d\nHall then saw defendant reach into his jacket, remove a gun, point the gun at the victim\u2019s head, and fire. At that time, the victim and defendant were about one foot apart from each other. After the shot, the victim attempted to turn and run but defendant kept firing his weapon. When the victim fell to the ground, Hall saw defendant run into the building behind him. Hall never saw the victim or anyone else, except defendant, in the area with a gun and denied that Bobby Williams picked up a gun next to the victim after the shooting. Hall testified that he had never seen the victim with a gun nor to his knowledge did the victim own one.\nRandall Jones, the second occurrence witness, corroborated the testimony of Hall. Jones lived in the 2910 South Dearborn building and knew both defendant and the victim. While looking out the sixth-floor window of 2910 South Dearborn, Jones saw defendant and the victim talking to each other but was unable to hear any part of their conversation. Jones also saw defendant reach into his jacket and remove a gun. The victim then took a step back, raised his hands, and began to turn away. Defendant aimed and fired his gun at the victim\u2019s head. Defendant continued to shoot about three or four times at the victim and then shot once at Hall, who was standing behind defendant at that time. The victim did not have a gun nor did the victim reach for anything on his body.\nJones was aware that defendant and the victim had previous arguments concerning Cindy Wade Hooker, the then girlfriend of defendant, who later married defendant, but had never personally heard them argue. Jones also had never seen the victim with a gun either before or at the time of the shooting. Jones did not know Bobby Williams and only saw three people at the scene of the shooting, i.e., defendant, the victim and Hall.\nBoth eyewitnesses, Hall and Jones, testified that they were not members of the Mickey Cobra street gang, although the victim was.\nVictor Roden testified that he was one of the police detectives assigned to investigate this case. Roden stated that Hall identified defendant as the shooter on the morning of the shooting. When Roden interviewed Cindy Wade Hooker, she stated she had no personal knowledge of the shooting but had heard about it.\nGary Butler, a police officer, testified that he interviewed Cindy Wade Hooker on the day of the murder at her apartment at 2920 South State, which is the building next to 2910 South Dearborn. Cindy took the officer to two different houses in an unsuccessful search for defendant. Cindy then took the officer to another apartment in her building where they recovered a .38-caliber revolver which defendant had brought to her a few minutes after the shooting of the victim.\nThe defense presented three witnesses, Joshua Taylor (defendant\u2019s younger brother), Cindy Wade Hooker (defendant\u2019s wife), and Charlotte Bush (a next-door neighbor of defendant\u2019s wife Cindy for 15 years).\nJoshua Taylor, the younger brother of defendant, was 11 years old at the time of the shooting and 13 years old at the time of trial. At the time of the murder, Joshua lived in the 2910 South Dearborn building with his mother and sister while defendant, his. brother, lived in Woodridge.\nOn the morning of the murder, defendant and his girlfriend, Cindy, arrived at the building to go to Great America with Joshua and other people. From inside the building, Joshua saw defendant talking to the victim and also saw Bobby Williams sitting outside the building when Tobias Hall arrived.\nJoshua heard defendant and the victim accuse each other\u2019s friends of \u201cshooting at\u201d the other. According to Joshua, the victim then took about five steps back from where he was standing, pulled up the back of his shirt and took out a gun. Defendant then pulled out his gun, aimed it at the victim, and \u201cpopped one time.\u201d The victim \u201cwas clicking the trigger\u201d so defendant shot two more times. Then the victim started backing up, Bobby Williams shot about four times at defendant, and Hall also fired a gun of a different caliber about 12 or 13 times.\nLater that same day, Joshua told the police that defendant had first only fired in the air when actually Joshua saw defendant aim his gun at the victim. At trial Joshua testified that he had told a series of lies to the police when he was first interviewed and that he knew defendant, his brother, was a murder suspect. During a second interview, Joshua admitted that he had changed his story.\nJoshua also testified that the victim was backing up even before defendant pulled out his gun and that he lied to the police about defendant firing a shot into the air. Joshua stated that defendant fired three times at the victim, striking him only in the leg, and that Bobby Williams shot the victim in the head.\nJoshua identified the victim, Tobias Hall, Randall Jones, and Bobby Williams as members of the Mickey Cobra street gang and stated that the Mickey Cobras dominate the buildings at 2910 South Dearborn and 2920 South State. Joshua identified the initials \u201cMCK\u201d located on the side of defendant\u2019s gun as meaning Mickey Cobra Killer.\nCindy Hooker, formerly Cindy Wade before her marriage to defendant on June 1, 1990, testified that before July 1989 she lived with her mother at 2920 South State. Cindy did not see the shooting.\nCindy knew the victim all of her life and was his girlfriend until May 16, 1989. Cindy testified that the victim was a member of the Mickey Cobra street gang and carried a gun every day she was dating him.\nIn June or July of 1989, Cindy was with defendant near the 2930 building when Randall Jones, the victim, and Lawrence Carter began shooting at defendant. Cindy and defendant moved to Woodridge because she was tired of the victim bothering her. Prior to their move, Cindy had filed about five complaints against the victim and had appeared in court against the victim about three times.\nShortly before 7 a.m. on the morning of the incident, Cindy arrived with defendant from Woodridge to 29th and State to go to Great America. Cindy then went alone to her sister\u2019s house at 2920 South State and upon arriving heard five or six gunshots. Defendant then appeared at Cindy\u2019s sister\u2019s house and gave Cindy his gun. Subsequently, Cindy called a police detective she apparently knew and furnished him defendant\u2019s gun.\nCharlotte Bush testified that she did not actually see the shooting. Charlotte lived next door to Cindy Hooker for about 15 years but they were not exactly good friends. Although Charlotte and the victim were close friends, she did not know the victim to be a member of a gang.\nCharlotte was looking out a window from her apartment on the morning of the murder and could see the 2910 building. She observed the victim, Hall, Bobby Williams, and a fourth person who looked like defendant. Her attention was diverted from the scene when she heard three shots and ducked. After a minute, Charlotte looked outside, saw the victim bent over, and saw Hall and Williams walking toward 2910. Charlotte ducked again when she heard four more shots which sounded different than the first series of gunshots. When she looked out the window again, Charlotte observed the victim on the ground and Hall and Williams were trying to help the victim. The fourth person was now gone.\nHall and Williams then came under Charlotte\u2019s window and they were crying. Williams told Charlotte that he didn\u2019t do it and that the victim was his best friend. Charlotte saw Williams holding something resembling a gun and she called the police.\nCharlotte never saw defendant\u2019s brother (Joshua) or defendant but saw someone resembling defendant. Charlotte never saw Hall with a gun nor could she positively say that Williams had a gun.\nIn rebuttal, the State called Victor Roden, a police detective, who conducted three interviews with Joshua Taylor. Roden testified that during the course of interviews, Joshua had told approximately three versions of the events that transpired and kept changing his story.\nThe parties stipulated that the medical examiner would testify that the cause of death was multiple gunshot wounds, that four gunshot wounds were visible, that one bullet recovered from the victim\u2019s skull was small caliber and another recovered bullet was medium caliber, and that the bullets were all deformed.\nThe parties further stipulated that two evidence technicians would testify that the recovered gun revealed that three bullets had been discharged and three live bullets remained in the gun.\nFollowing closing arguments, the trial court found defendant guilty of first degree murder.\nOn appeal, defendant first asserts that he was not proven guilty of first degree murder beyond a reasonable doubt because he acted in self-defense against a gang-related attack from the victim and other members of the Mickey Cobra street gang. Alternatively, defendant maintains that even if his belief that his life was in imminent danger was unreasonable, a conviction for second degree murder would have been appropriate.\nThe State contends that the evidence (1) proved beyond a reasonable doubt that defendant committed first degree murder, (2) rebutted defendant\u2019s claim of self-defense, and (3) established that defendant\u2019s actions did not qualify under the statute to reduce the crime to second degree murder.\nWhere a criminal defendant challenges the sufficiency of evidence on appeal, the conviction will be overturned only if the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of the defendant\u2019s guilt. (People v. Schott (1991), 145 Ill. 2d 188, 203, 582 N.E.2d 690.) The relevant inquiry on review is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Schott, 145 Ill. 2d at 203; People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.\nThe crime of first degree murder occurs when a person kills an individual without lawful justification and he either intends to kill or do great bodily harm to that individual, or knows that such acts will cause death to that individual, or knows that such acts create a strong probability of death or great bodily harm to that individual. Ill. Rev. Stat. 1989, ch. 38, pars. 9 \u2014 1(a)(1), (a)(2).\nSelf-defense is an affirmative defense (Ill. Rev. Stat. 1989, ch. 38, par. 7 \u2014 14) which is raised when (1) force is threatened against a person; (2) the person threatened is not the aggressor; (3) the danger of harm is imminent; (4) the person threatened must actually believe (a) that a danger exists, (b) the use of force is necessary to avert the danger, and (c) the kind and amount of force which he uses is necessary; and (5) the above beliefs are reasonable (People v. Guzman (1990), 208 Ill. App. 3d 525, 531, 567 N.E.2d 500).\nSelf-defense, once raised, places the burden upon the State to disprove it beyond a reasonable doubt. (People v. Woods (1980), 81 Ill. 2d 537, 542, 410 N.E.2d 866.) The State carries its burden of proof to refute the defense of self-defense where it is able to negate even one of these elements. People v. Tucker (1988), 176 Ill. App. 3d 209, 216, 530 N.E.2d 1079.\nThe issue of self-defense is always a question of fact determined by the trier of fact. (People v. Felella (1989), 131 Ill. 2d 525, 534, 546 N.E.2d 492.) Specifically, the reasonableness of a defendant\u2019s subjective belief that he was justified in using deadly force is a question of fact. (People v. Sawyer (1986), 115 Ill. 2d 184, 193, 503 N.E.2d 331.) Moreover, where, as in the present case, the testimony of the witnesses conflicts, the trial judge, as the trier of fact in a bench trial, must determine the credibility of the witnesses, weigh their testimony, draw reasonable inferences, and resolve conflicts in the evidence. (Felella, 131 Ill. 2d at 534.) We will not substitute our judgment for that of the trial court where the evidence is conflicting (Felella, 131 Ill. 2d at 534) because it is not the function of a reviewing court to retry a defendant when considering a challenge to the sufficiency of the evidence of his guilt (People v. Furby (1990), 138 Ill. 2d 434, 455, 563 N.E.2d 421).\nIn the present case, Tobias Hall and Randall Jones testified that they were not members of the Mickey Cobra street gang but the victim was, they actually witnessed the murder, defendant fired multiple shots at the victim even after the victim attempted to flee or retreat, and they had never seen the victim with a gun. Detective Roden testified that on the morning of the murder, Hall identified defendant as the shooter. Officer Butler testified that while interviewing Cindy Wade Hooker on the day of the murder, she retrieved the gun which defendant gave to her a few minutes after the victim was shot.\nTwo of the three defense witnesses, Cindy Wade Hooker and Charlotte Bush, made no claim that they had witnessed the shooting incident. Moreover, the trial judge discounted Cindy\u2019s and Charlotte\u2019s testimony. As to Cindy Hooker, the trial judge found that she \u201cdoesn\u2019t know too much about anything other than the defendant brought her the gun.\u201d In addition, the trial judge noted that she \u201cmust take into consideration [Cindy\u2019s] credibility, she\u2019s the Defendant\u2019s wife.\u201d However, Cindy provided evidence of the victim\u2019s antagonism toward defendant and a prior course of aggressive conduct because of the relationship she previously maintained with the victim. In considering the testimony of Charlotte Bush, the trial judge noted that she observed very little and never told the police the story she testified to \u201cfrom the witness box.\u201d\nJoshua Taylor, the brother of defendant, was the only witness who testified that the victim had a gun but also admitted at trial that he had told a series of lies to the police and that the victim was backing up even before defendant pulled out his gun. The trial judge specifically found that the testimony of Joshua was \u201ctotally unbelievable.\u201d The trial judge also noted that Joshua had told \u201ctotally different stories while he was on the bench\u201d and when he was interviewed by the police.\nRegarding the physical evidence, the parties stipulated that two evidence technicians found three discharged cartridges and three live shells, all .38-caliber bullets, in defendant\u2019s gun after the shooting. The parties also stipulated that the medical examiner observed four visible gunshot wounds. Only two bullets, however, were recovered from the victim\u2019s body, one bullet located in the back of the victim\u2019s neck and one bullet discovered in the back of the victim\u2019s head. The medical examiner would describe one recovered bullet \u201cas a small caliber, deformed, lead bullet\u201d and the other bullet \u201cas a medium-caliber bullet.\u201d\nThis evidence, according to defendant, leads to the inevitable conclusion that someone other than defendant fired a bullet into the victim because three bullets cannot cause four gunshot wounds and the recovered bullets were of different calibers.\nThe record, however, also reveals that the medical examiner \u201cobserved an entry gunshot wound to the victim\u2019s calf portion of his left leg, with a corresponding exit wound to the front portion of the left leg.\u201d The bullet which accounted for these two wounds, the entry and the exit wounds, was not recovered. These two wounds would account for the medical examiner\u2019s count of four wounds even though only three bullets struck the victim. Accordingly, the three bullets missing from defendant\u2019s gun would correspond with the number of wounds sustained by the victim.\nAs to the apparent difference in the caliber of the two recovered bullets, the medical examiner would also testify that each bullet was \u201cdeformed when he found them in the skull.\u201d The trial judge also observed that \u201cthe bullets are pretty well smashed.\u201d Detective Roden testified that a .38-caliber revolver, the standard issue for the police department and the type of gun recovered from defendant, would be considered a medium caliber weapon. Roden testified that deformed bullets are not always capable of being identified as a certain caliber. From his observation of the two recovered bullets, Roden testified that one bullet was unidentifiable because it had \u201cno shape to it whatsoever.\u201d Roden surmised, but could not state with certainty due to its incomplete form, that the other bullet was a .38-caliber. Accordingly, the caliber of the two bullets recovered from the victim's body was not established with certainty except that the medical examiner and Roden agreed that one of them was a medium-sized, .38-caliber bullet.\nFrom our review of the evidence, in the light most favorable to the prosecution, we find that a rational trier of fact could have found that the essential elements of first degree murder were established beyond a reasonable doubt and that the State sufficiently refuted the defense of self-defense.\nDefendant alternatively asks this court to find that he acted on the unreasonable belief that deadly force was necessary because his life was in danger from three antagonistic gang members, i.e., the victim, Tobias Hall and Bobby Williams. Based on this unreasonable belief, defendant asks this court to reduce his conviction to second degree murder.\nSecond degree murder occurs when the defendant commits the offense of first degree murder while believing that the circumstances at the time of the killing would legally justify or exonerate the killing but the defendant\u2019s belief was unreasonable. Ill. Rev. Stat. 1989, ch. 38, par. 9 \u2014 2(a)(2).\nSecond degree murder is distinguished from self-defense only in terms of the nature of defendant\u2019s belief at the time of the killing. (Felella, 131 Ill. 2d at 534.) If the defendant\u2019s belief as to the use of force was reasonable, self-defense may apply. If the defendant\u2019s belief was unreasonable, a conviction of second degree murder may be appropriate.\nSupreme Court Rule 615(b)(3) empowers a reviewing court to reduce the degree of the offense of which a defendant was convicted. (134 Ill. 2d R. 615(b)(3).) This power, however, should be used with extreme caution and only in rare instances. People v. Williams (1991), 222 Ill. App. 3d 129, 138, 582 N.E.2d 1158.\nThe power to reduce the degree of the offense is. available where a lesser-included offense is involved, where there is an evidentiary weakness with regard to an element of the offense charged, and where the trial judge has expressed dissatisfaction with imposing the mandatory minimum sentence. (Williams, 222 Ill. App. 3d at 138-39.) Specifically, the power to reduce a conviction of first degree murder to second degree murder should be cautiously exercised. People v. Greene (1987), 160 Ill. App. 3d 1089, 1098, 513 N.E.2d 1092.\nWe find no evidentiary weakness in the present case to suggest that we should reduce the first degree murder conviction. The evidence sufficiently established that defendant, and only defendant, had a gun and repeatedly fired it at the victim as he sought to retreat. The evidence was neither closely balanced nor insufficient to find defendant guilty of first degree murder beyond a reasonable doubt. Moreover, defendant does not contest his sentence nor does the record indicate any reluctance on the part of the trial court to impose a sentence within the mandatory range. Accordingly, we find that the offense for which defendant was convicted should not be reduced.\nDefendant next challenges the constitutionality of the second degree murder statute on the grounds that the second degree murder statute requires the defendant to prove that his belief in self-defense was unreasonable and that the unreasonableness of a defendant\u2019s belief will always be proved, if at all, by the State. This statutory scheme, defendant argues, creates a \u201creverse\u201d Reddick error, referring to People v. Reddick (1988), 123 Ill. 2d 184, 526 N.E.2d 141, and violates due process.\nIn Reddick, the Illinois Supreme Court held that the pattern jury instructions regarding murder and. voluntary manslaughter misstated the State\u2019s burden of proof by incorrectly informing the jury that the State was required to prove the conditions which would reduce murder to manslaughter. The jury instructions should have placed the burden on the State to disprove the mental conditions that reduce the offense of murder to manslaughter. Reddick, 123 Ill. 2d at 197; see also People v. Shields (1991), 143 Ill. 2d 435, 442, 575 N.E.2d 538.\nThe present case was a bench trial. Thus, no jury instructions were given and defendant\u2019s reliance on Reddick, a case involving the validity of jury instructions, is misplaced. As conceded by defendant at oral arguments, a trial court is presumed to follow the law correctly. People v. Blount (1991), 220 Ill. App. 3d 732, 745, 580 N.E.2d 1381.\nAs to the merits of defendant\u2019s contention, we observe that numerous appellate courts have considered and rejected arguments which maintained that the second degree murder statute violates due process. (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\u2019s constitutional rights to due process of law, we decline to expound at length on the present defendant\u2019s analogous argument.\nDue 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 \u201cthe burden of proof remains on the State to prove beyond a reasonable doubt each of the elements of first degree murder.\u201d Ill. Rev. Stat. 1989, ch. 38, par. 9 \u2014 2(c).\nFollowing Patterson v. New York (1977), 432 U.S. 197, 53 L. Ed. 2d 281, 97 S. Ct. 2319, this court specifically held that \u201cit is constitutional to require the defendant to prove [mitigating factors] by a preponderance of the evidence in order to reduce the first degree murder charge to second degree murder.\u201d Brown, 218 Ill. App. 3d at 897.\nWe recognize the unique dichotomy presented by the interplay between the affirmative defense of self-defense predicated on a reasonable belief in self-defense (Ill. Rev. Stat. 1989, ch. 38, par. 7 \u2014 1) and the mitigating factor of second degree murder based on an unreasonable belief in self-defense as enunciated in section 9 \u2014 2(a)(2) (Ill. Rev. Stat. 1989, ch. 38, par. 9 \u2014 2(a)(2)).\nWe acknowledge the curiousness of any rule that requires a person to show that he acted unreasonably. However, shifting this burden to the defendant does not impair his right to a fair trial or deny him due process.\nFinally, defendant asserts that the second degree murder statute is unconstitutional because it places upon the defendant the burden of proving that he lacked the requisite mental state for first degree murder by proving the existence of one of the statutory mitigating factors enunciated in the second degree murder statute (Ill. Rev. Stat. 1989, ch. 38, par. 9 \u2014 2), relying on Mullaney v. Wilbur (1975), 421 U.S. 684, 44 L. Ed. 2d 508, 95 S. Ct. 1881. We disagree.\nDefendant concedes that appellate courts have previously rejected this argument. This court has found that the Illinois second degree murder statute is substantially the same as the statute at issue in Patterson (432 U.S. 197, 53 L. Ed. 2d 281, 97 S. Ct. 2319), rather than the statute in Mullaney which our courts have distinguished. (Mitchell, 221 Ill. App. 3d 926, 583 N.E.2d 78; Brown, 218 Ill. App. 3d 890, 578 N.E.2d 1168.) The statute held unconstitutional in Mullaney required the defendant to disprove an element of murder before the charge would be reduced to manslaughter. In contrast, the Patterson court held that it is constitutional to require the defendant to prove by a preponderance of the evidence an affirmative defense which is a mitigating factor to reduce murder to manslaughter. Mitchell, 221 Ill. App. 3d at 930-31; Brown, 218 Ill. App. 3d at 896.\nThis court specifically rejected the defendant\u2019s argument that the Illinois murder statute is constitutionally infirm by requiring a defendant to prove a mitigating mental state. People v. Wright (1991), 218 Ill. App. 3d 764, 776-77, 578 N.E.2d 1090.\nMoreover, this court and other appellate courts have repeatedly found that under the statute, the State has the burden of proving the essential elements of the crime of first degree murder and no constitutional violation arises from requiring the defendant to prove a mitigating factor to reduce the offense to second degree murder. People v. Smallwood (1991), 224 Ill. App. 3d 393, 586 N.E.2d 636; People v. Manley (1991), 222 Ill. App. 3d 896, 584 N.E.2d 477; Mitchell, 221 Ill. App. 3d 926, 583 N.E.2d 78; Wright, 218 Ill. App. 3d 764, 578 N.E.2d 1090; Willis, 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.\nFor all the foregoing reasons, we affirm the conviction of first degree murder and find the second degree murder statute constitutional.\nJudgment affirmed.\nRIZZI and CERDA, JJ., concur.", "type": "majority", "author": "JUSTICE GREIMAN" } ], "attorneys": [ "Rita A. Fry, Public Defender, of Chicago (Lester Finkle and Tina Liebling, Assistant Public Defenders, of counsel), for appellant.", "Jack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb, Barbara L. Jones, Kelly S. Caner, and Michael R. Slovis, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHARLES HOOKER, Defendant-Appellant.\nFirst District (3rd Division)\nNo. 1\u201491\u20143241\nOpinion filed June 30, 1993.\nRita A. Fry, Public Defender, of Chicago (Lester Finkle and Tina Liebling, Assistant Public Defenders, of counsel), for appellant.\nJack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb, Barbara L. Jones, Kelly S. Caner, and Michael R. Slovis, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0394-01", "first_page_order": 412, "last_page_order": 424 }