of the reason for that is that we need to know the basis of a ratable jury convicted the defendant so if we need to know whether the defendant was convicted of intentionally knowing murder or and i felony murder we need to know those things because if and the state i don't think the strongest saying bad had a jury expressly acquitted mr bailey of the intentionally knowing murder states that they could have again sought the death penalty based on those mental states i'm not sure that that's what they're saying we'll find out from the smith provides him is that he should have been allowed to have his jury acquit him of these mental states and the t court recognized that the defendant would have a separate eligibility hearing unlike people versus smith there were no sentencing consequences at the guilt phase of the defendant's trial because a defendant could be eligible for the death penalty under any very specific instructions call for a type b and b instructions and those instructions specifically say you give a verdict form on the felony murder of guilty or not guilty and you give three possible up to three possible forms on the other a guilty or not guilty or if murder second degree murder is involved that would be a possible so why do you say he could never have been given a very far in the town and specifically not guilty of intentional  or right first this court has long issued multiple not guilty verdict forms and it said it is recently parker in articulated that in villareal as well multiple not guilty verdict forms foster jerk confusion they invite hung juries and in this case there's simply it's simply an entirely unnecessary because the specificity of the jury's verdict specificity with regard to a one a two or three had no sense in consequences at the guilt phase and with regard to the type a type a verdict  that are in use those are reserved exclusively for situations where a jury is instructed on second degree murder and that was the situation in villareal that is the only situation where a jury absolutely has to articulate  whether or not it's convicting a defendant undergoing an intentional murder or felony murder and that's because a conviction for felony murder cannot be the basis for a conviction for second degree a jury has to first find it was under a one or a two so that is a situation i think  not guilty knowing intention been given and the jury returned the verdict the trial court still could have found him guilty eligible knowing and intentional i think that would have of course of that would be issue preclu that expression had under that hypothetical had a prior fact at the guilt phase made a fine and actual factual finding of not guilty as you know intentional then the state would be precluded from asking for that the sentencing court to make that finding a eligibility phase so doesn't that seem that the verdict form should be given to the trier of fact well in this case absolutely not because in this case is very different from smith and smith the sentencing consequences automatically flowed from the trial court's refusal to issue separate verdict forms it was at that and that's how this case is so different is so fundamentally different from smith because in smith you didn't have a death eligibility hearing this case there was a  going to be a death eligibility hearing it was that that it said that phase where the parties litigate his eligibility and the the defendant is essentially asking to use the smith decision as a intentional knowing counts but smith doesn't provide an opportunity for an acquittal an opportunity to prevent or virt death eligibility hearing at the guilt phase the defendant is going to have the opportunity to avoid that at the death penalty eligibility hearing what the defendant is doing is not asking to simply apply smith and say smith dictates this result and smith says we have to treat it as that a guilty on felony murder only and also an implied acquittal first it didn't say anything about an applied acquittal and it didn't need to and smith and this court doesn't need to to do that in this case either so what the defendant is actually trying to do is expand smith and by adding that language to to actually treat to have this court now treat not only the conviction conviction upon a gen elderly man this was carried out in a horrendous manner and go on and on that's not in the record and people can see the judge did not make those specific findings but this court in countless decisions and all and shatner johnson not i think this situation is no different from where the i know this court has seen them where the state's asking for consecutive sentences under the statute and the judge then makes a finding consistent with the state's request are consistent with the argument that the state laid out and the judge says i agree with the state so that's the situation where the judge hasn't made any specific findings but in the agreeing with the state or agreeing with the request as laid out and and i think it bears emphasizing that the state's notice of intent to seek the penalty was very clear and succinct the state sought the death penalty under two separate aggravating factors ninety six and ninety sixteen ninety six the stallion murder murder committed in the course of a felony in ninety's sixteen is based on the age of the victim so i think it's in that respect all of the evidence that was introduced at trial in addition to all the evidence that was introduced at the eligibility hearing such as it was was sufficient to support the child judge's finding and it's  pointed to note and i think justice thomas pointed this out this is a separate hearing it's a separate hearing entirely and this court has used different phrases as it's where the state shoulders the burden all over again or we start from a clean slate in the state has to prove all these verdict of the guilt food only as to the felony murder rate so they were he was acquitted is to knowing an intentional murder that would not preclude even under that circumstance that would not preclude  the second the culpable stage that was rendered by the judge would not preclude bed judge from finally knowing and got it under your example if you're so you're saying if the jury had specifically acquitted the defendant under knowing it's right because coun said there was no way then a judge would ever render at the eligibility phase knowing an intentional i mean i think that would have a precludes of effect had but i don't think that's i think it's our position  that would never there would never be a separate not guilty verdict form for knowing intentional murder under the circumstances of this case so even had to had the defendant's request been granted and had separate verdict forms for felony murder murder been issued that doesn't it does not follow that separate not guilty verdict forms for knowing an intentional murder would have been issued and i think that's consistent with this court's precedent and in most most notably the parker decision where multiple not guilty verdict forms are not appropriate and they wouldn't be given they would not have been given in this case it's also important to note that the defendant at trials and the argument isn't with the second here you're just saying they're not entitled the defendant isn't entitled to the multiple forms that's where you're talking and i don't think you really get into your sword versus shield argument but that's we're talking about their use in innocence or right that that's that's exactly right your honor it's i  but to then use it as a sword to avoid to avert to preempt and eligibility hearing at the guilt stage that's an attack that is that's so the defendant says he was denied an opportunity for an acquittal he wasn't entitled to an opportunity for an counts he was entitled under smith he was entitled to a jury's determination with regard to his guilt on felony murder but he was not entitled under that authority to use that case to avoid a death penalty eligibility hearing  it's it smith decision is a shield against the unfair application of the one good count role that's what it is it's not this this court did not suggest in any manner that that decision should be used to  o avoid a death and penalty eligibility eligibility hearing is there something in here very wrong with giving the specific guilty specific not guilty verdict form or intentional annoying so that so while on one hand a jury is instructed in murder cases and the state's attorneys always argue when they argue those issues instructions you don't have to agree on which theory you don't have to agree that it was intentional that he meant to kill the victim that he knew about it or that it was committed during the course of course of a felony you only have to prove one of these and you all don't have to agree well two for make these separate not guilty verdict forms for intentional knowing murder would be telling the  something entirely different they would be you know in their the jury room agreeing that the defendant beyond a reasonable doubt no doubt he's a he's guilty of first degree murder but they can't agree on which theory so the jury's going to be hung  and that's and it's i think that the biggest problem with that is that it's wholly unnecessary to to make that situation a reality in illinois with how these juries need to be instructed and it's for this reason because in this case cases involving an eligibility hearing or for what for here on out will be an aggravating factors hearing since we don't have the death penalty but it's unnecessary because the jury does we don't need to still it can be eligible for the death penalty under ninety six so even if he's charged with felony murder and even if he only pleads guilty to felony murder on a multi count indictment as was the case in smith the state can still proceed in eligibility here and to prove new whether or not it was an intentional or knowing murder the the defendant has has consistently said that while the judge made a presumption in this case otherwise he couldn't have i think it's justice thomas pointed out he was only the judge in this case only entered a sentence a conviction on felony murder and then in the end only entered the sentence on felony murder so in essence that the defendant received the remedy of smith which is that he didn't get a separate consecutive did the trial judge did not say that i said i am finding that the victim was eighty years old that this was acceptable on his no i can see that those statements are not in the record but neither are any other facts  specific facts and again under ball and shatner and other cases the judge made the requisite findings and the the proof regarding the the victim's age in this case is is amply proven the record i mean a life death witness said he was eighty the post morning report is indicates his date of birth showing that he was eighty and of course the facts of this case the next brutality in the the viciousness of this case cannot be  case the point i think the main point the defenders trying to do is expand smith and i think that's contrary to this court's decision certainly and davis would actually use the word narrow to describe the decision in smith it's it is a narrow decision this court in that case expressly up held the validity of the one good count rule it just said that the one good can't help will cannot be used to defend its detriment when sentencing consequences will differ depending on the specificity of the guilty verdict and in this case the specificity of the guilt phase verdicts had nothing to do with whether or not the defendant would eventually be fun or could be found eligible for the death penalty and i would like to finally remark about the impl that an implied acquittal only exists where the jury convicts the defendant of a lesser included offense in a silent as to the greater war in this case the defendant was convicted of the only charged offense the single offense the first three murder in this court has long referred to first we murder as recently as smith itself it's a single offense in the defendant's reply brief refers to felony murder as a lesser included offense of first femur of knowing an intentional murder that is that is simply not true it is one single affects  acquittal and applied acquittal implies the actual rejection the actual resolution in a defendant's favor of an of a particular issue and that simply would not have been the case at the conclusion of the guilt phase so for all those reasons if forms run for intentional knowing and one for felony murder he's entitled to those verdict forms if the sentencing consequences would have been favorable to him the state admits the central point of this entire case that had mr bailey jury acquitted him of the intentional consequences that's a direct quote from smith that's exactly what mr bailey is asking for and for this court to apply to a circumstance only discussed in smith which is eligibility and again i think the state moses and the fact that it's it would have been