People v. Bailey

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

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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

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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

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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).

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¶ 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

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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

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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

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“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

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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

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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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