                           ILLINOIS OFFICIAL REPORTS
                                         Supreme Court




                                People v. Bailey, 2013 IL 113690




Caption in Supreme         THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. DARIUS
Court:                     BAILEY, Appellant.



Docket No.                 113690


Filed                      March 21, 2013


Held                       Where the jury in a capital case returned a general verdict of guilt of first
(Note: This syllabus       degree murder after the denial of a defense request for special verdict
constitutes no part of     forms for felony murder, which, along with other offenses, had also been
the opinion of the court   charged, this was error that was not harmless because it had sentencing
but has been prepared      consequences, and the trial court’s life sentence, imposed as one of the
by the Reporter of         alternatives available at the capital sentencing hearing at which it acted
Decisions for the          as trier of fact, was vacated, with a remand for resentencing to a term of
convenience of the         years within the applicable sentencing range for felony murder.
reader.)


Decision Under             Appeal from the Appellate Court for the First District; heard in that court
Review                     on appeal from the Circuit Court of Cook County, the Hon. Frank
                           Zelezinski, Judge, presiding.



Judgment                   Appellate court judgment reversed in part.
                           Circuit court judgment vacated in part.
                           Cause remanded.
Counsel on               Michael J. Pelletier, State Appellate Defender, Alan D. Goldberg, Deputy
Appeal                   Defender, and Heidi Linn Lambros, Assistant Appellate Defender, of the
                         Office of the State Appellate Defender, of Chicago, for appellant

                         Lisa Madigan, Attorney General, of Springfield, and Anita Alvarez,
                         State’s Attorney, of Chicago (Alan J. Spellberg, Annette Collins and
                         Douglas P. Harvath, Assistant State’s Attorneys, of counsel), for the
                         People.


Justices                 JUSTICE GARMAN delivered the judgment of the court, with opinion.
                         Chief Justice Kilbride and Justices Freeman, Thomas, Karmeier, Burke,
                         and Theis concurred in the judgment and opinion.



                                           OPINION

¶1        Defendant Darius Bailey was charged in the circuit court of Cook County with
      intentional, knowing, and felony murder (720 ILCS 5/9-1(a)(1), (2), (3) (West 2006)), and
      with the predicate crimes of home invasion (720 ILCS 5/12-11(a)(3) (West 2006)), and
      robbery of an individual 60 years of age or older (720 ILCS 5/18-1(a), (b) (West 2006)), in
      connection with the death of 80-year-old Robert Winter. After the State announced its intent
      to seek the death penalty, defendant elected to have the trial court determine his eligibility
      for the death sentence. At trial, his request for separate verdict forms on the two counts of
      felony murder was denied. The jury found him guilty of first degree murder, home invasion,
      and robbery. The trial court found him eligible for the death penalty, but sentenced him
      instead to concurrent terms of natural life, 30 years, and 15 years respectively. The appellate
      court found that the circuit court erred by refusing defendant’s request for separate felony-
      murder verdict forms, but that he was properly sentenced to a term of natural life without the
      possibility of parole. 2011 IL App (1st) 090074-U. This court granted his petition for leave
      to appeal pursuant to Supreme Court Rule 315 (Ill. S. Ct. R. 315 (eff. Feb. 26, 2010)), to
      determine whether the error in refusing the separate verdict forms, if any, requires that
      defendant be resentenced to a term of years.

¶2                                     BACKGROUND
¶3         While he was walking along 144th Street in Riverdale, defendant was stopped by a police
      detective who informed him that he was wanted for questioning by the Dolton, Illinois,
      police department in connection with a burglary. The detective took him into custody and
      searched him before placing him in a squad car. Defendant was found to be in possession of
      a checkbook bearing the name Robert Winter. The address on the checks was 102 E. 144th
      St., Riverdale. Defendant was also carrying a set of keys, which were returned to him.

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¶4          As defendant was being transported to the police station, the officer who was driving the
       squad car heard him drop an object on the floor of the car. A search of defendant upon his
       arrival at the police station revealed that he no longer had the keys. The officer searched the
       car and found the keys underneath the driver’s seat. When shown the keys, defendant stated
       that they belonged to his aunt and had fallen out of his pocket. One of the keys was later
       determined to be Winter’s car key; another was the key to Winter’s house.
¶5          The detective who made the initial stop telephoned Winter, but did not get an answer. He
       went to the address given on the checks and found the deceased 80-year-old victim on the
       floor, covered with a blanket. An electrical cord, which had been removed from a lamp above
       the television, was wrapped around one of his buttocks and one thigh, then around his chest
       and one arm. The cord was wrapped twice around the victim’s neck and double knotted.
¶6          Investigators found no evidence of forced entry. The victim’s pants pockets were turned
       out. Two bedrooms were in disarray, with dresser drawers and closet doors open and
       personal belongings scattered on the bed and floor. In the living room, a china cabinet and
       a trumpet case were open and their contents strewn on the floor. Next to the body they found
       the contents of a wallet, including an insurance card and a plastic insert. Further investigation
       of the crime scene revealed a latent fingerprint on a drawer pull in Winter’s bedroom and a
       latent palm print on a plastic wallet sleeve near the body. Both prints matched defendant.
¶7          After checking Winter’s garage and finding his car missing, the detective called for a
       search for the car. It was found at 144th Street and Wentworth, several blocks from Winter’s
       home and approximately 75 feet from the spot where the defendant had been taken into
       custody.
¶8          When questioned, defendant initially denied any involvement in the murder. He claimed
       to have found the checkbook and keys on the ground just before he was stopped by the
       detective. Later, he said that he had found these items the day before and went to the victim’s
       house to return them, but then decided to take the car. Finally, he stated that he entered the
       house through the back door to find money or something else to steal. He was looking
       through the bedroom drawers when Winter came up from the basement and caught him.
       They “tussled” and he eventually tied Winter up with an electrical cord that he took from
       near the television and covered him with a jacket. As he left, he took Winter’s checkbook,
       keys, and car. He denied intending to kill Winter.
¶9          The cause of death was determined to be manual and ligature strangulation. The medical
       examiner concluded that the victim was first manually choked and then strangled with the
       electrical cord. He was alive when the cord was used. There were no defensive wounds.
¶ 10        Before trial, the State filed a notice of intent to seek the death penalty alleging eligibility
       under two statutory factors: felony murder (720 ILCS 5/9-1(b)(6) (West 2006)), and murder
       of a victim over the age of 60 resulting from exceptionally brutal and heinous conduct
       indicative of wanton cruelty (720 ILCS 5/9-1(b)(16) (West 2006)). Defendant waived his
       right to a jury for both phases of his capital sentencing hearing if he should be convicted of
       first degree murder.
¶ 11        Defendant’s videotaped statement was played at trial. He took the stand and repudiated
       the earlier statement. He testified that he was acquainted with Winter and that he used to do

                                                   -3-
       odd jobs for the older man, whom he considered a mentor. On the date of his death, Winter
       allowed defendant to borrow his car. The checkbook was in the car and defendant had it with
       him because he planned to return it to Winter. He stated that he was “shocked and confused”
       when he was told by the detective that Winter was dead. He made the incriminating
       statements because the detective threatened him and told him what to say. He felt pressured,
       so he told the officer a “bunch of things.”
¶ 12       At the jury instruction conference, defendant requested that the jury be given separate
       verdict forms for the felony-murder charges. The trial court denied the request, stating that
       because the jury would not be involved in sentencing, it was not necessary. The jury was
       given a general verdict form on the three murder charges. The jury returned verdicts of guilty
       of first degree murder, home invasion, and robbery.
¶ 13       At the death penalty eligibility hearing, the parties stipulated that defendant was 20 years
       old at the time of the offense. The court took “judicial notice of the verdicts taken by the
       jury” and found “beyond a reasonable doubt that the statutory aggravating factors do exist
       and that the murder was committed during the course of the felonies.” After finding
       defendant eligible for the death penalty and hearing evidence and arguments in aggravation
       and mitigation, the trial court imposed concurrent sentences of natural life in prison for the
       murder, 30 years for home invasion, and 15 years for robbery “of a senior citizen.”
¶ 14       Relying on this court’s opinion in People v. Smith, 233 Ill. 2d 1 (2009), the appellate
       court found that the trial court’s denial of defendant’s request to give the jury a separate
       felony-murder verdict form was an abuse of discretion. The court further found that the
       natural life sentence was proper because the “jury’s failure to specifically find that he had
       committed intentional murder[ ] did not render him ineligible for the death penalty.” 2011
       IL App (1st) 090074-U, ¶ 38. Because the court was the finder of fact in the eligibility
       hearing and was entitled to make its own assessment of defendant’s mental state based on
       the evidence presented at trial, defendant was properly found eligible for the death penalty
       under section 9-1(b)(6) of the Criminal Code of 1961 and, therefore, for the alternative
       sentence of natural life in prison pursuant to section 5-8-1(a)(1)(b) of the Unified Code of
       Corrections (730 ILCS 5/5-8-1(a)(1)(b) (West 2006)). 2011 IL App (1st) 090074-U, ¶¶ 39-
       41. The appellate court also vacated the conviction and sentence for home invasion and
       reduced the conviction for robbery from a Class 1 to a Class 2 felony, resentencing him to
       seven years on this conviction. Id. ¶ 47.

¶ 15                                       ANALYSIS
¶ 16       The defendants in the consolidated cases in Smith were charged with first degree murder
       and predicate felonies in multicount indictments. Both defendants requested separate verdict
       forms on the felony-murder counts and both were denied. Both defendants were convicted
       of first degree murder and given consecutive sentences for the underlying felonies. Smith,
       233 Ill. 2d at 5.
¶ 17       The State conceded that the sentencing consequences for the defendants would have been
       different if they had been found guilty of felony murder and not guilty of intentional or
       knowing murder. Id. at 18. Because the predicate felony underlying a charge of felony

                                                 -4-
       murder is a lesser-included offense of the murder, the felony cannot support a separate
       conviction or sentence. Id. at 17. However, if such a defendant were found guilty of
       intentional or knowing murder, a separate conviction and sentence could be imposed for the
       predicate felony and the sentence for that felony would be imposed consecutively to the
       sentence for murder. Id. at 18.
¶ 18       This court held that where “specific findings by the jury with regard to the offenses
       charged could result in different sentencing consequences, favorable to the defendant,
       specific verdict forms must be provided upon request and the failure to provide them is an
       abuse of discretion.” Id. at 23.
¶ 19       Further, when it is not possible to determine from a general verdict whether the defendant
       was actually found guilty of each count and when this lack of specificity has adverse
       sentencing consequences for a defendant whose request for separate verdict forms was
       refused, the error is not harmless. Id. at 25. The appropriate remedy in such a case is to
       “interpret the general verdict as a finding on felony murder” only. Id. at 28. As a result, the
       defendants’ convictions and sentences for murder were affirmed, but the convictions and
       sentences for the predicate felonies were vacated. Id. at 29.
¶ 20       In Smith, the connection between the verdict forms and sentencing was clear. If the
       defendants had been found guilty of felony murder only, the predicate felonies could not
       have been sentenced consecutively, but if they had been found guilty of intentional or
       knowing murder as well as felony murder, the sentences for the predicate felonies could run
       consecutively to the sentences for first degree murder.
¶ 21       The link between the verdict forms and sentencing is not as clear-cut in the present case.
       Defendant’s argument is that if the jury had been asked to render specific verdicts rather than
       a general verdict, it might have convicted him of felony murder only and acquitted him of
       intentional or knowing murder. Had he been acquitted by the jury of intentional or knowing
       murder, the defendant could not have been found eligible for the death penalty under section
       9-1(b)(6), which requires a finding that the defendant either intended to kill the victim or
       knew that his acts caused a strong probability of death or great bodily harm. 720 ILCS 5/9-
       1(b)(6) (West 2006). That is, felony murder serves as an eligibility factor only if the murder
       was committed with intent or knowledge. As a result, use of specific verdict forms could
       have precluded the application of section 9-1(b)(6). Finally, defendant argues that if he had
       not been found eligible for the death penalty, he could not have been sentenced to a term of
       natural life. 730 ILCS 5/5-8-1(a)(1)(b) (West 2006). The proper sentence would have been
       a term of 20 to 60 years. 730 ILCS 5/5-8-1(a)(1)(a) (West 2006).
¶ 22       This court anticipated such a situation in Smith in its discussion of the “one good count
       rule” and the use of general verdict forms. After noting that first degree murder is a single
       offense and that “a general verdict need not rest on a unanimous finding of a particular theory
       of murder,” we observed that “there may be different sentencing consequences based on the
       specific theory of murder proven.” Smith, 233 Ill. 2d at 17. We gave the example of the death
       penalty, where “there are several aggravating factors, applicable only to murders committed
       intentionally or knowingly,” and stated that a defendant convicted of felony murder could
       not be found eligible for the death penalty under section 9-1(b)(6) unless it were proven that


                                                -5-
       he not only killed the victim, but also “intended to kill or knew that his acts caused a strong
       probability of death or great bodily harm.” Id.
¶ 23        The present case requires us to consider this exact situation, but with the added
       circumstance that the defendant elected to have the trial court, rather than the jury, determine
       his eligibility for the death penalty.
¶ 24        The issues raised by the parties require us to address a series of questions: (1) Was
       defendant found eligible for the death penalty under section 9-1(b)(16) as well as section 9-
       1(b)(6), thus making the Smith question moot? (2) Did the verdict forms requested by
       defendant implicate Smith? (3) Is the rule of Smith applicable in the present case where the
       trial court, not the jury, made the finding of intent or knowledge? and (4) If it was error for
       the trial court to refuse defendant’s request for a specific verdict form for felony murder,
       what remedy must be given?
¶ 25        As we stated in Smith, while decisions regarding jury instructions are generally within
       the discretion of the trial court, the court must exercise its discretion within the bounds of the
       law. Id. at 15. Because these issues are questions of law, our review is de novo. Id.

¶ 26                     Basis for Finding of Eligibility for Death Penalty
¶ 27       Under the applicable law at the time of defendant’s trial, an individual who was
       convicted of first degree murder was sentenced to a term of “not less than 20 years and not
       more than 60 years” (730 ILCS 5/5-8-1(a)(1)(a) (West 2006)), unless the “trier of fact
       [found] beyond a reasonable doubt that the murder was accompanied by exceptionally brutal
       or heinous behavior indicative of wanton cruelty” or any of the aggravating factors listed in
       section 9-1(b) of the Criminal Code were present, in which case “the court may sentence the
       defendant to a term of natural life imprisonment” (730 ILCS 5/5-8-1(a)(1)(b) (West 2006)).
¶ 28       Section 9-1(b), at that time, listed 21 aggravating factors under which an individual over
       the age of 18 who was convicted of first degree murder could be found eligible for the death
       penalty.1 The State asserted two of these factors in the present case: (1) that defendant killed
       the victim in the course of another felony while acting “with the intent to kill the murdered
       individual or with the knowledge that his acts created a strong probability of death or great
       bodily harm to the murdered individual” and that the other felony was an “inherently violent
       crime” (720 ILCS 5/9-1(b)(1) (West 2006)); and (2) that “the murdered individual was 60
       years of age or older and the death resulted from exceptionally brutal or heinous behavior
       indicative of wanton cruelty” (720 ILCS 5/9-1(b)(16) (West 2006)).
¶ 29       Thus, if defendant in the present case was properly found eligible for the death penalty
       under section 9-1(b)(16) of the Criminal Code, based on the victim’s age and the brutal
       nature of the crime, the natural life sentence imposed by the trial court is proper because the
       requested special verdict forms could not have resulted in a verdict that would have negated
       such a finding.


               1
               The death penalty was abolished in Illinois by Public Act 96-1543, § 10, effective July 1,
       2011, codified at 725 ILCS 5/119-1 (West 2010).

                                                  -6-
¶ 30       The State argues that although the trial court at the eligibility hearing did not expressly
       state that the murder was exceptionally brutal and heinous, the trial court “necessarily made
       this finding” based on its statement that the State had proven the existence of “aggravating
       factors,” plural, rather than “an aggravating factor,” singular. The State goes on to recount
       the details of the crime, arguing that the evidence was sufficient for such a finding,
       concluding that the “viciousness, brutality and cruelty of this murder cannot be overstated.”
¶ 31       While we acknowledge defendant’s violent and cruel betrayal of an elderly gentleman
       who had befriended him and that the evidence might indeed have supported such a
       conclusion, we are not reviewing a finding of fact under the standard for sufficiency of the
       evidence. See People v. Evans, 209 Ill. 2d 194, 209 (2004) (when reviewing a challenge to
       the sufficiency of the evidence, a reviewing court considers whether the evidence is so
       improbable, unsatisfactory, or inconclusive that it creates reasonable doubt of the defendant’s
       guilt). We are reviewing the record to determine whether the trial court, as the trier of fact
       at the eligibility stage, actually found that “the murder was accompanied by exceptionally
       brutal and heinous behavior indicative of wanton cruelty,” making defendant eligible for the
       death penalty.
¶ 32       We find nothing in the record to support such a conclusion. The words “brutal,”
       “heinous,” and “cruelty” were not spoken at the eligibility hearing. After asking the court to
       take judicial notice of the verdicts, the State’s entire argument consisted of a statement that
       “the defendant qualifies for the death penalty based upon the fact that he had reached the age
       of 18 at the time of the offenses and he was convicted of offenses that would make him death
       eligible.” In announcing its findings, the trial court stated that it “finds beyond a reasonable
       doubt that the defendant was 18 years of age or older at the time of the murder for which he
       was convicted in this case, and finds beyond a reasonable doubt that the statutory factors do
       exist and that the murder was committed during the course of the felonies, being home
       invasion and robbery.”
¶ 33       Clearly, by noting the “offenses” that defendant committed, both the State and the trial
       court were referring to the predicate felonies of home invasion and robbery that implicated
       the felony-murder aggravating factor, section 9-1(b)(6).
¶ 34       The State also emphasizes the court’s use of the plural “factors,” but this word choice is
       likely a reference to the two predicate felonies, both of which the trial court specifically
       mentioned. When such enormous consequences would flow from such a finding, we will not
       infer a finding of brutal and heinous conduct from the mere fact that the trial court used the
       plural “factors.”
¶ 35       We conclude that the record does not support the State’s assertion that the trial court
       found defendant eligible for the death penalty under section 9-1(b)(16). Further, we will not
       accept the State’s invitation to engage in our own assessment of the facts to determine
       whether a natural life sentence is proper under section 5-8-1(1)(b) of the Code of Corrections
       because “the murder was accompanied by exceptionally brutal and heinous behavior
       indicative of wanton cruelty.” This is not the proper role of a reviewing court.
¶ 36       Thus, defendant was properly sentenced to a term of natural life under section 5-8-1(1)(b)
       of the Code of Corrections only if he was properly found eligible for the death penalty under


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       section 9-1(b)(6) of the Criminal Code.

¶ 37                                     Requested Verdict Forms
¶ 38        The State argues that even if the requested felony-murder verdict form had been given,
       the resulting verdict would not have clarified whether the jury found defendant guilty of
       felony murder alone or felony murder in addition to intentional or knowing murder. The
       State points to defendant’s lack of objection to the use of pattern verdict forms 26.05, “Guilty
       of First Degree Murder,” and 26.02, “Not Guilty of First Degree Murder.” In fact, the State
       asserts, defendant expressly requested that the felony-murder forms be given “as well as”
       these two forms. Thus, the jury would not have been given the option to specifically acquit
       him of intentional or knowing murder. In effect, the State’s position is that defendant has not
       properly preserved this issue for appeal because he did not request verdict forms for each of
       the three forms of first degree murder.
¶ 39        Defendant responds that because his request for a separate felony-murder verdict form
       was denied, the trial court most certainly would have denied a request for specific verdict
       forms dealing with intent and knowledge as well. Defendant also notes that in Smith,
       defendant Smith asked for separate verdict forms only for the felony-murder counts (Smith,
       233 Ill. 2d at 8-9), while defendant Titus asked for “separate verdict forms for each of the
       counts of murder charged” (id. at 13). This court did not distinguish between the two
       defendants, but rather found error in both cases.
¶ 40        Our review of the record reveals that defense counsel replied “No objection” when asked
       whether he objected to the “manner and form”of the general verdict forms presented by the
       State. Immediately thereafter, defense counsel referred to a previous discussion “in
       chambers” regarding verdict forms. His attempt to explain the request for separate verdict
       forms was interrupted by the trial court’s asking if the State wished to respond. The State
       objected “to breaking it down to different types of murder,” and the trial court denied
       defendant’s request.
¶ 41        We note that the appellate court did not discuss this question, perhaps because the State
       is raising it here for the first time. In any event, we are not inclined to find the issue forfeited
       based on the record before us. The trial court’s apparent refusal to utilize a separate felony-
       murder verdict form at an earlier “in chambers” meeting foreclosed all discussion of what
       other verdict forms would have been appropriate. The defendant’s request on the record for
       a separate verdict form was clearly intended to document a ruling that had already been
       made. Thus, we conclude that the defendant’s request to have the jury instructed on and
       given separate verdict forms for each of the different mental states is sufficiently documented
       to preserve this issue on appeal.

¶ 42                Applicability of Smith When the Trial Court Determines
                                Eligibility for the Death Penalty
¶ 43       Under this court’s decision in Smith, if a jury finding of not guilty on counts of
       intentional or knowing murder would have sentencing consequences for the defendant


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       convicted of felony murder, he is entitled to separate verdict forms upon request. Id. at 23.
¶ 44       The State argues that the rule of Smith does not apply in the present case because the trial
       court, not the jury, was determining eligibility for the death penalty and was entitled to make
       its own assessment of the facts. The State asserts that because the eligibility phase of a
       capital sentencing hearing is independent of the guilt phase and because the defendant’s
       waiver of a jury for the eligibility phase made the trial court the independent finder of fact,
       the trial court’s consideration of defendant’s mental state is not limited by the jury’s verdict,
       citing People v. Shatner, 174 Ill. 2d 133, 149-51 (1996) (trial court properly found defendant
       eligible for death penalty where general verdict of guilty of first degree murder encompassed
       necessary finding of intent and sentencing judge heard the overwhelming evidence at trial).
       The remainder of the State’s discussion of this issue relates to the proper remedy for a Smith
       error, not to whether an error actually occurred.
¶ 45       Defendant squarely presents the question that frames the issue under Smith: If the jury
       had been given separate verdict forms as he requested and if the jury had found him not
       guilty of intentional and knowing murder, could the trial court have made a finding of intent
       or knowledge under section 9-1(b)(6)? He argues that the trial court could not have made a
       factual finding at the eligibility stage that was directly contrary to a jury verdict of acquittal.
       Thus, he asserts, the exact nature of the error was that the general verdict form failed to
       reveal whether he was acquitted of intentional or knowing murder, which would have
       foreclosed application of section 9-1(b)(6). He points to Beck v. Alabama, 447 U.S. 625
       (1980), and Bullington v. Missouri, 451 U.S. 430 (1981), in support of his position.
¶ 46       In Beck, the defendant was convicted of murder committed during the course of a robbery
       and was sentenced to death. Under Alabama law at that time, felony murder was a lesser-
       included offense of the capital crime of “robbery-intentional killing.” Beck, 447 U.S. at 628.
       In addition, the death sentence was mandatory upon conviction of a capital offense unless
       the court refused to impose it based on mitigating circumstances, in which case the defendant
       was sentenced to life in prison without the possibility of parole. Id. at 629. State law also
       prohibited the giving of a jury instruction on a lesser-included offense in a capital trial. Thus,
       the jury had only two options—convict the defendant of capital murder or let him walk free.
       Id. at 628-29. State law totally foreclosed the possibility of convicting the defendant of a
       lesser offense and imposing a lesser sentence.
¶ 47       The Supreme Court held that the death penalty could not be imposed under these
       circumstances. Id. at 628. Specifically:
                “[W]hen the evidence unquestionably establishes that the defendant is guilty of a
                serious, violent offense—but leaves some doubt with respect to an element that
                would justify conviction of a capital offense—the failure to give the jury the ‘third
                option’ of convicting on a lesser included offense would seem inevitably to enhance
                the risk of an unwarranted conviction.
                    Such a risk cannot be tolerated in a case in which the defendant’s life is at stake.”
                Id. at 637.
¶ 48       Beck does not dictate the result in the present case because, in Illinois, felony murder is
       not a lesser-included offense of first degree murder. As we noted in Smith, while our statute

                                                  -9-
       describes three “types” of murder, first degree murder is a single offense. Smith, 233 Ill. 2d
       at 16. The three theories, each of which requires a mental state or conduct that must
       accompany the act that causes the death of the victim, merely describe different ways to
       commit the crime of first degree murder. Id. Thus, it is constitutionally permissible for jurors
       to return a general verdict of guilty even if there is no juror unanimity with regard to the
       means by which the murder was committed or the mental state of the killer. Id. (citing Schad
       v. Arizona, 501 U.S. 624, 631-32 (1991)).
¶ 49        Further, Beck does not require a separate jury instruction or verdict form upon request
       by a defendant. See, e.g., People v. Tenner, 157 Ill. 2d 341, 373-74 (1993) (distinguishing
       Beck v. Alabama and holding that defendant’s tendered instructions on second degree murder
       were properly refused because they were not supported by the evidence). Indeed, the
       Supreme Court later explained its holding in Beck, saying that “due process requires that a
       lesser included offense instruction be given only when the evidence warrants such an
       instruction. The jury’s discretion is thus channelled so that it may convict a defendant of any
       crime fairly supported by the evidence.” (Emphasis in original.) Hopper v. Evans, 456 U.S.
       605, 611 (1982).
¶ 50        Tenner and Hopper do not make Beck irrelevant to our analysis. While it may be
       unlikely, given the cause and manner of the victim’s death and defendant’s confession, that
       the jury would have acquitted defendant of intentional or knowing murder, we cannot say
       that a jury could not have found defendant guilty of felony murder only.
¶ 51        Beck is instructive on the point raised by defendant. As in Beck, the lack of a separate
       jury instruction on felony murder made it impossible for the jury in the present case to utilize
       the “third option” (Beck, 447 U.S. at 637) of acquitting defendant of intentional or knowing
       murder while convicting him of felony murder. We find the reasoning of Beck persuasive
       that a defendant’s request for separate instructions and verdict forms on felony murder
       should be provided when their presence could affect the defendant’s eligibility for the death
       penalty and for a life sentence if death is not imposed.
¶ 52        Defendant also relies on Bullington, in which the Supreme Court held that the State could
       not seek the death penalty in a retrial after the jury in the first trial rejected the death penalty.
       In Missouri, proceedings in a capital case were bifurcated into a guilt phase and a sentencing
       phase, with the same jury at both stages. Bullington, 451 U.S. at 433-34. The defendant was
       found guilty of capital murder and a sentencing hearing was held the next day. Id. at 435. The
       jury rejected the death penalty and fixed defendant’s sentence at life imprisonment without
       eligibility for parole for 50 years. Id. at 435-36. Thereafter, the conviction was reversed on
       grounds related to jury selection. Id. The State announced its intent to again seek the death
       penalty and the trial court granted the defendant’s motion to strike. Id. In an interlocutory
       appeal, the Missouri Supreme Court, in a divided opinion, held that allowing the prosecution
       to seek the death penalty at a second trial did not violate the double jeopardy clause, the
       eighth amendment, or due process, and would not chill a defendant’s effort to seek a new
       trial based on constitutional violations at his first trial. Id. at 437 (citing State ex rel. Westfall
       v. Mason, 594 S.W.2d 908 (1980)).
¶ 53        The Supreme Court reversed on the grounds that the sentence of life imprisonment


                                                   -10-
       imposed by the jury in the first trial meant that “ ‘the jury has already acquitted the defendant
       of whatever was necessary to impose the death sentence.’ ” Id. at 445 (quoting Westfall, 594
       S.W.2d at 922 (Bardgett, C.J., dissenting)). Allowing the State to seek the death penalty
       under these circumstances would violate the prohibition against double jeopardy, because
       “[h]aving received ‘one fair opportunity to offer whatever proof it could assemble,’ [citation]
       the State is not entitled to another.” Bullington, 451 U.S. at 446 (quoting Burks v. United
       States, 437 U.S. 1, 16 (1978)).
¶ 54        Again, Bullington does not directly address the question in the present case because the
       procedural postures of the two cases are different. It does, however, stand for the proposition
       that once a jury has acquitted a defendant of an offense, an element of which is necessary to
       the imposition of the death penalty, a subsequent fact finder—whether judge or jury—may
       not make a contradictory finding. Id.
¶ 55        These cases, taken together with our holding in Smith, suggest that if a jury in a capital
       case has rendered a verdict in the guilt phase that contradicts a fact necessary for a finding
       of eligibility at the sentencing phase, a contradictory finding cannot be made. For example,
       if a jury were given separate verdict forms for intentional and knowing murder and felony
       murder and were to find the defendant guilty of knowing murder, but not guilty of felony
       murder and the predicate felony, the State could not thereafter assert section 9-1(b)(6) as a
       basis for death eligibility. This would be true whether the jury or the trial court was making
       the eligibility determination. Once acquitted of felony murder and the charged predicate
       felony, the defendant could be found death-eligible under one of the other eligibility factors,
       but application of section 9-1(b)(6) would be absolutely foreclosed.
¶ 56        Similarly, in the present case, if the jury had been given separate verdict forms and had
       acquitted defendant of intentional or knowing murder, application of section 9-1(b)(6) would
       have been foreclosed because the verdict would have negated an essential element of this
       eligibility factor. The State’s argument that the factual determinations made during the guilt
       phase and the eligibility phase are “mutually exclusive” is mistaken and is inconsistent with
       Supreme Court precedent.
¶ 57        We, therefore, agree with the appellate court that the trial court erred by refusing to
       provide the jury with separate verdict forms upon request where a general verdict would
       make it impossible to determine whether the jury acquitted defendant of intentional or
       knowing murder, when that determination had sentencing consequences for the defendant.
       We reaffirm our holding in Smith that “where, as here, specific findings by the jury with
       regard to the offenses charged could result in different sentencing consequences, favorable
       to the defendant, specific verdict forms must be provided upon request and the failure to
       provide them is an abuse of discretion.” Smith, 233 Ill. 2d at 23.
¶ 58        Having reached this conclusion, we acknowledge the State’s concern with the effect this
       holding might have on the body of law governing general verdicts of guilty of first degree
       murder. If separate verdict forms are used, it is possible that 12 jurors may find the defendant
       guilty of murder, but they may be divided on the specific theory of murder. We leave for
       another day the question of how such a divided verdict should be treated. However, it
       remains true that first degree murder is a single offense and that a conviction of this offense


                                                 -11-
       “need not rest on a unanimous finding of a particular theory of murder.” Smith, 233 Ill. 2d
       at 17. It is also true that the issue raised in the present case will not recur because Illinois no
       longer has the death penalty. Thus, application of Smith in future cases would seem to be
       limited to the question of consecutive or concurrent sentencing for charged predicate
       felonies.

¶ 59                                Remedy for Smith Violation
¶ 60       Having found error in Smith, this court considered whether such an error may be deemed
       harmless. Id. at 25. We concluded that this question cannot be resolved by considering
       whether the evidence was sufficient to support a guilty verdict for intentional or knowing
       murder. Rather, the error is harmless “only if the jury’s findings may be ascertained from the
       general verdicts entered.” Id.
¶ 61       In the present case, although the evidence may have been sufficient to support a verdict
       of intentional or knowing murder, the general verdict of guilty of first degree murder does
       not reveal whether the jury actually found defendant guilty of intentional or knowing murder
       or only of felony murder. Specific verdict forms would have made the jury’s factual findings
       clear. Therefore, the error was not harmless and it may not be presumed that the jury
       convicted defendant of intentional or knowing murder. Id. at 27-28. In such a case, “the
       appropriate remedy is to interpret the general verdict as a finding on felony murder” and to
       impose sentence accordingly. Id. at 28.
¶ 62       The appellate court concluded that the “trial court’s decision to sentence defendant Bailey
       to natural life imprisonment for felony murder was proper,” because the “evidence supported
       a finding beyond a reasonable doubt that, while committing the offense of home invasion,
       defendant Bailey acted with intent to kill *** or knew that his actions *** created a strong
       probability of death or great bodily harm.” 2011 IL App (1st) 090074-U, ¶ 41. In reaching
       this conclusion, the appellate court applied the standard that the trial court’s decision to
       impose a life sentence will not be disturbed unless “the evidence is so unreasonable,
       improbable or unsatisfactory that it does not provide proof of the findings beyond a
       reasonable doubt.” (Internal quotation marks omitted.) Id. (quoting People v. Reed, 405 Ill.
       App. 3d 279, 287 (2010)).
¶ 63       As noted above, however, the applicable standard is not whether the evidence was
       sufficient to support a finding of intentional or knowing murder had the jury been given
       verdict forms that directly presented that question. The standard under Smith is whether the
       sentence imposed by the trial court can stand when the general verdict is interpreted as a
       finding on felony murder and sentence is imposed accordingly. Smith, 233 Ill. 2d at 28.
¶ 64       Because we find error under Smith and because Smith, when read in conjunction with
       Beck and Bullington, requires that the verdict be interpreted not only as a conviction of
       felony murder, but also as an acquittal of intentional or knowing murder, the appellate court’s
       analysis is flawed. When the general verdict is viewed, as it must be, as an acquittal on the
       counts of intentional and knowing murder, the trial court’s finding of eligibility for the death
       sentence cannot stand, despite the evidence that might have supported such a finding. Simply
       stated, the trial court was foreclosed from making its own determination of defendant’s

                                                  -12-
       mental state because the Smith error requires that the general verdict of guilty of first degree
       murder be treated as a verdict of guilty of felony murder and an acquittal of intentional or
       knowing murder. As a result, the State was barred from seeking a finding of eligibility under
       section 9-1(b)(6).
¶ 65       Thus, because defendant was not properly found eligible for the death penalty, he was
       not eligible for a sentence of natural life without parole under section 5-8-1(b) (730 ILCS
       5/5-8-1(a)(1)(b) (West 2006)), which may be imposed when the court elects not to impose
       the death penalty on a death-eligible defendant. The proper sentencing range for a defendant
       convicted of felony murder but acquitted of intentional or knowing murder is 20 to 60 years.
       730 ILCS 5/5-8-1(a)(1)(a) (West 2006).
¶ 66       We are not persuaded by the State’s arguments to the contrary. The State asserts, without
       citation to authority, that this court “has expressly held that even where a defendant is only
       charged with felony murder *** and not intentional or knowing murder *** he may still be
       found eligible for the death penalty.” This may be true. When Illinois still had the death
       penalty, an individual might have been charged with felony murder only and convicted of
       that crime and the State might have thereafter presented evidence of intent at the eligibility
       phase. In such a case, the absence of a conviction of intentional murder would not have
       barred such a finding at the eligibility stage. However, a previous acquittal of intentional
       murder would have foreclosed that possibility. In the present case, the jury’s verdict must be
       interpreted as an acquittal of intentional or knowing murder. Smith, 233 Ill. 2d at 28.
¶ 67       The State also argues that defendant has already received the remedy set forth in Smith
       because the trial court imposed the sentences for the predicate felonies concurrent to the life
       sentence. This is indeed the remedy applied in Smith, but it is an incomplete remedy in the
       present case because the lack of separate verdict forms not only affected the sentencing on
       the predicate felonies, but also the determination of eligibility for the death penalty, which,
       in turn, made the defendant eligible for a life sentence.
¶ 68       In addition, the State argues that Smith requires only that the general verdict be
       interpreted as a guilty verdict on the felony-murder count, not that it be interpreted as an
       acquittal of the intentional and knowing murder counts. We have already rejected this
       argument as inconsistent with the Supreme Court’s holdings in Beck and Bullington and with
       this court’s reasoning in Smith.
¶ 69       The State characterizes this as a repudiation of the “one good count rule,” which we
       reaffirmed in Smith. See id. at 15-21. While our decisions in Smith and the present case may
       result in the “one good count rule” being applied less frequently, we do not repudiate the
       rule. The rule is applicable in a case where a general verdict of guilty has been properly
       rendered. The rule of Smith applies only where the defendant has requested separate verdict
       forms, where the lack of separate verdict forms could have adverse sentencing consequences,
       and where the trial court denies the defendant’s request.

¶ 70                                      CONCLUSION
¶ 71      We, therefore, hold that the trial court erred by denying defendant’s request for separate
       verdict forms and the proper remedy for this error is to vacate the defendant’s sentence of life

                                                -13-
       imprisonment and to remand to the trial court for sentencing pursuant to section 5-8-1(a)
       (730 ILCS 5/5-8-1(a) (West 2006)). As a result, it is unnecessary to reach defendant’s claims
       of collateral estoppel or double jeopardy.
¶ 72       For the reasons stated, that part of the appellate court’s judgment which affirmed
       defendant’s natural life sentence is reversed, the circuit court’s sentence of natural life is
       vacated, and the cause is remanded to the circuit court for further proceedings.

¶ 73      Appellate court judgment reversed in part.
¶ 74      Circuit court judgment vacated in part.
¶ 75      Cause remanded.




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