agenda number two numbers one zero four six eight five one zero five five seven five consolidated people versus ratio smith at all it's columns may proceed when you're ready decisions from the fourth division of the first district appellate court the first of those decisions people vs the ratio smith is a published opinion in which the appellate court found that the circuit court had abused its discretion in reviews refusing defendants requests to tender separate verdict forms in the multi county murder indictment what the appellate court did was reverse and vacate the consecutive term entered by the circuit court and in replacement substituted a concurrent term on the murder charge and the felony attempt armed robbery charge the appellate court in a ratio smith did this without vacating the judgment on the intentional murder count and without finding the proofs on that count in farm the second decision that we appealed from people versus adam titus followed suit exclusively citing to the smith decision and again did the exact same thing did not vacate the judgment on the intentional murder count but instead simply ordered that the sentences run consecutive or excuse me concurrent rather than mandatorily consecutive the only justification given by the appellate court for what it did in this case for such an unwarranted departure from settled law was and i'll quote from the smith opinion if defendant had been found guilty of felony murder predicated on attempted armed robbery and not guilty of both intentional and knowing murder the resulting sentences would have been different the entire premise for what the appellate courts did in this case was based on a mere possibility and neither appellate courts in either of these cases discussed how legitimate that possibility  i think my argument starts with it should be left up to circuit courts discretion because the circuit court has the role in trial to determine the type of verdict forms and the type of charges excuse me that the instructions provided to the murder counts there was an intentional and unknowing count there was also two separate felony charges predicates for the felony murder counts if the appellate court is correct in what was warranted and if the circuit court had actually abused her discretion in this case a judge lam could have used her discretion what the public court suggest she should have done is provided eight separate verdict forms on just the murder charge with an additional four separate verdict forms on the felony counts for a total of twelve verdict forms in this case i would suggest to your honor's that that would be a completely confusing adventure for the jury it would add a layer of complexity unnecessary in the case and would in fact the absolutely unwarranted and potentially risking dissension among the jurors and a hung jury that's absolutely unnecessary and unwarranted under either constitutional decision or common law so i think your honor it is our position that this is a decision best left up to the trial court and what the appellate courts have done in this case and what the defendants are suggesting that this court do is under these circumstances make it basically up to the defense counsel if he asks for it he gets it and if he doesn't get it he's actually absolved from a mandatory consecutive term that that latter portion of the decision is quite amazing considering that what the poet court did in both of these cases actually and to avoid judgments presumably what they intended to do was have the judgment be entered on the felony murder count but that's not what the appellate courts did and this particular  effect is i think all the more unusual and unwarranted in the case of the ratio smith because in that case defendant had been found guilty will certainly charged with with two different felony counts have been found guilty following a general verdict had also been found guilty of two separate felony charges the attempt armed robbery and the armed robbery which means that even if the appellate court was correct even if judgment had not been entered on the intentional count but had been entered on the felony murder count judgment on the felony murder based on armed robbery count the attempt on robbery charge that still viable that doesn't merge into it under any kind of says would still carry a mandatory consecutive term because that's a class one felony and obviously there was serious bodily injury here the victim was killed so i think all of these kind of point out the flaws inherent in the analysis of the appellate courts in this case beyond that however what their decisions have done is basically up ended decades if not centuries of common law and jurisprudence in the state with respect to general verdicts has essentially reversed the one good count in its corollary rules about how general verdicts result or the assumption in presumption is that in a general verdict every single count presented to the jury to which the proof  conforms has been found guilty and also upsets the very clear requirement that a court entered judgment on the most serious charge that's what the appellate courts have done in these cases presumably all under the rubric of giving defendant the benefit because he asked for it but we have to get right back to the beginning to find out if there's error in this case and we have to look to see that if it's error for a circuit court to refuse separate verdict forms and i do not think anywhere in the law we can point to a decision or a principle that says that it is in fact we have just the opposite we have the statutes which i prefer general verdict forms we have the i i which says you don't have to do it but if you want to you can and it's interesting if we take a look at the committee comments to the i p i it references a very fairly analyze case people versus travis i believe it hundred eight case out of the appellate court it also references an article i believe it was unhappy birthday illinois one good count rule is unconstitutional as written by a professor i believe it can't interestingly enough that committee comment which says circuit courts you can do it but you don't have to give separate forms this all occurred prior to the decision from the u s supreme court in shatt the basis for the are the call about how illinois one good count rule is unconstitutional have a basis was actually rejected by a plurality of the united states supreme court unanimity is not required that seems that that that call for unanimity that seems to be the basis for why p i said you might want to do it in certain circumstances but you don't have to but how does a good count will come into play when the defendant has worth it it's simply it doesn't really come into play at that point it doesn't justify what the court did write what the appellate court did is reverse that one could count rule and say we're not going to apply it if the defendant asks for it there's there's no corollary there no requirement and there's actually no decision or case law again or statute that says that defendant has to have what he wants when he asks for it and in fact multiple decisions from this court not the least of which is people versus cardona but there's other decisions you know in the in the capital realm we have tompkins and scott and while temple decisions in fact from the eighty's and ninety's where this court appeared to struggle with some of these very issues that encourage or that if i didn't ask for no but in court on and talking to this court did not make the decision that it was not error not remedy will simply based on the fact that he didn't ask for it that did not alluded to a constitutional dimension when it when it mentions shadd and perhaps unanimity principles but if defendants are correct that this is a constitutional requirement that they get these these separate verdict forms it shouldn't that that constitutional right that they seem to be suggesting exists doesn't come into existence and is an animated simply by a request either it's there or it's not and certainly if they're right that this is somehow constitutionally mandated in all no i i would suggest that this would open not only the floodgates but we would have all kinds of parallel and corollary questions with respect to retroactivity ineffective assistance of counsel if your lawyer doesn't ask for it the problem with all of those parade of horrors that could result is we don't have to worry about those because defendants are absolutely incorrect there is no constitutional dimension to single offense to import lesser included offense analysis which of course by necessity contemplates more than one statute more than one offense into the context of a single offense absolutely has no basis in is completely illogical not the least of which even you know it would you would up and undo years and decades of this court struggle with the construct of lesser included offenses and finally clarified recently in people vs carlton but even if th a court order to consider something analogous to a lesser included which defendants i believe it's adam titus makes the analogous to a lesser included offense argument it can't be even analogous lesser included offense first of all felony murder doesn't have a lesser mental state in fact it's a misnomer to say felony murder doesn't carry a mental state it carries a specific mental state that of the predicate felony so in this case while there's an intent to commit murder knowledge that your acts might cause or create great bodily harm the felony murder mental state is the specific intent in these cases to commit armed robbery or the specific intent attempt armed robbery helps if i may for a moment sure  consequences play any part in this analysis there was a time when this week this was such an easy issue because the consequences of being convicted of any one of these offenses was precisely the same and the prosecutor argue to the curious happened here i think we have to find him guilty to felony murder there would be no problem but we have come up with because of special legislation with all these different little nuances of statutory nuance  where you hear out you are harsher consequence based upon what you're actually convicted of because that should that play any part in deciding whether we should modify our rule on in general for you know it should not i thought there was going to be your answer i'd like you to explain it a little ok the sentencing consequence we're not diminishing that it has a practical fact on the defendant but we also realize that deeply rooted in the common law understanding of consecutive sentencing in this state is that it does not increase the range of punishment it does not impact the discrete sentences served on the individual offenses it merely is the manner in which those offenses are to be served this court has  multiplications both prior to and subsequent to the apprentice decision made note of that very fact and still to this day this court has refused to apply for any type principals within the concept of consecutive sentencing and that is an appropriate decision and i believe that the u s supreme court itself when asked to determine with respect to a jury trial write a defendant who was found or could potentially serve consecutive small prison terms on petty offenses whether that in the aggregate qualified him for a jury trial right the u s supreme court said no it did not because the aggregate of the punishment does not mean that the individual offense and the individual sentence is higher itself it does not increase the range of punishment so to make this suggestion or to base the ruling today on the fact that he's exposed potentially expose we have to remember in this case to and aggregate consecutive charm that in of itself has no constitutional a fact nor should it have an effect on the decision making process of the circuit court would it ever be proper to look at the evidence to determine whether or not the proofs are adequate to the to the to solve the case or you look at the evidence yes the evidence supports felony murder yes the evidence supports intentional murder i think that would be absolutely proper under under many circumstances and in fact i've suggested i believe in my briefs that this is one of those situations if defendants really felt that what we do is we just would be judged too if we decided that  that establish the one of the three three or four charges of murder that was facing i think the judge at that point has a number of things to do the most prudent course perhaps would at the close of the evidence or at least prior to or during the instruction conference after noticing that the proofs on the intentional knowing counts for very slight the court may want to provide at that juncture separate verdict forms at the very least two or at the very least to prevent a potential for unfairness to the defendants that they would actually be having judgment entered against them on account that they were not found guilty of potentially i think the court always has its says it's just as a lot of motion on a director finding the grant of that if the proofs are inadequate it closes the state's case there's a number of options a circuit court hands at that the neither of these defendants however and i think that that that is a very significant portion of this case neither of these defendants have attempted to suggest that the the intentional or knowing counts was somehow infirm and therefore the court's entrance of judgment on the most serious count after the return of a general verdict was somehow your own yes that is the bell wark protection against what the defendants are complaining happened to them the court in this case the appellate court provided a remedy undeserved by the defendant's unwarranted in illinois law unjustified by constitutional principles essentially in doing so removed the necessary discretion from the circuit court in this case for these reasons and other reasons discussed in our brief we would ask this court reversed the judgment of the appellate court and affirm the judgment and sentences entered by the circuit courts in these cases thank you good afternoon your honor is my name is katherine donahoe and i represent adam tied as i intend to speak for mr and mr titus his behalf or the first ten minutes and then turn the argument over to chris buckley who will be arguing on behalf of liberationist smith  the state noted mr titus was convicted of first degree murder and armed robbery and he is serving consecutive sentences for these offenses however mr titus contends that the general verdicts in this case were not sufficiently specific to author separate convictions and sentences for murder and armed robbery if mr titus had only been charged with the different theories of murder we would not be here today because the court could have entered judgment on any one of the murder theories and it would not have made a difference  titus however because the state also tried mr titus for armed robbery there were vastly different sentencing consequences depending on whether the jury found intentional unknowing murder on the one hand or felony murder on the other hand because a felony murder finding would preclude a separate conviction and sentence for armed robbery and mr titus is counsel anticipated this ambiguity and actually requested the separate verdict forms but the state objected and the court denied the request the state did argue all three theories at trial and they specifically emphasized to the jury in closing that they could convict mr titus of murder it even if they only found murder based on the armed robbery they said and i quote even for a split second if you don't believe it was his original intention to kill him but he didn't have the intent to kill him it doesn't matter does the state told the jury that they should convict mr titus of murder even if they only found him guilty because of his participation in the armed robbery and at sentencing the state asked the court to enter judgment on intentional murder so that at trial the state got to argue the theory that was the easiest to prove which is spelling murder based on the armed robbery but it's sentencing they asked for a judgment and sentence on the most serious count which was intentional murder and they got multiple convictions and consecutive sentences in this respect the state got to have it both ways and this is not consistent with the long standing principle that the sentencing court has to look at the judgment and sentence authorized by the jury's verdict the state argues that having specificity in the verdicts would violate the well settled law about j nobody but this court should note that in the supreme court case in chad the defendant was tried with different theories of murder but the court specifically noted that there were no risks of different punishment because he was charged with a felony murder but not the underlying felony so in this case for example because there is no different effect on mr titus if he's convicted of intentional only knowing murder we can put those in one category together to  oil we distinguish them from filing a murder that the i p i instructions do provide for cases where there is a need to get specificity in the verdicts and to distinguish we don't have to use a general verdict in every case when it's not appropriate and for example the sample instructions in twenty seven point zero five illustrate how the verdict forms can ask a jury to distinguish between a murder on the one hand which could be intentional knowing murder and take the murder on the other hand which could be felony murder and this is a practice that is used when a defendant is charged with multiple theories of murder and there's also an instruction on second degree murder because second degree murder cannot apply to felony murder and just like here and under robbery conviction won't work when there's a felony murder conviction additionally contrary to the state's assertion the error in this case was not harmless beyond a reasonable doubt the state does not argue that mr titus was the shooter in this case the state argues his guilt by way of his accountability for the actions of demetrius fifth's but there is evidence that the shooting may have been accidental there was only one shot fired and there's no evidence about the circumstances of the shooting because the only witness had her back to the scene and was walking away when she heard the gunshot so she didn't see the shooting mr titus said in his video statement that he didn't see the shooting there's no gunshot residue test mr fitz was not a trial because he had separately pled guilty to felony murder so the error was not harmless beyond reasonable doubt the only thing that can be derived from the general verdict in this case is sufficient certainty is that the jury found mr tate is guilty of some type of first degree murder and armed robbery they're not sufficiently specific to authorize the separate convictions and sentences and mr titus asked this court to vacate his armed robbery conviction and sentence  necessary for you to feel that we abandon the one good cop absolutely not because our position is that the presumption in favor of a judgment on intentional murder that is supported by the cases from illinois should not apply when there adverse sentencing consequences in that case the longer carol applies when the jury necessarily found every single theory that it was presented with or when there are no sentencing consequences but in this case because there are sentencing consequences the presumption should not apply good afternoon your honor so my name is chris buckley i represent the appellee ratio smith we are asking this court to adopt a very simple rule separate verdict forms should be allowed when the state's different charging theories have different sentencing consequences if the general verdict for an offense is to carry with it the presumption that the state that the jury found the found guilty under all the state's different charging theories then the defendant needs an opportunity to rebut that presumption when doing so would decrease his sentence the only way of doing so is separate verdict forms if the state objects the separate verb forms earth the trial profit refuses the good with a separate verdict forms then that presumption underlying a general verdict should not be applied in this case the state pursued three different charging theories for first  intentional murder knowing murder and felony murder intentional murder and knowing murder required a mandatory contract or sentence felony murder cannot relational smith argued as trial that he was not guilty of any murder he said he wasn't the offender and he didn't know the offense was being committed but his alternative defense theory was if you do find me guilty of murder it was only felony murder and that way he could avoid a mandatory consecutive not and i would separate them and give a specific instruction for some offenses and not others and then said something like you need to think about is there anything in the record that's it would tell us and what the results of the came back the next day for the next jury instructions conference and the state objects and the state says this was such a bad precedence and there's no need for separate verdict forms and then the judge agreed that is for all we have on the record as to why the judge refused to separate verdict forms the judge said there's only one offense of first degree murder in illinois and that's why i'm only going to give one general verdict form for first jury murder now it may be true that sometimes felony murder needs separate verdict forms from knowing an intentional murder and i've held treating those completely differently even though murder is still one offense in illinois the state also wise on the one good count roll one count was based on this presumption that the jury under general verdict has found the defendant guilty of all the different charging theories the only way  tly or probably convicted your client on the basis of attentional murder and perhaps other cases you know some of the results this court can look at the evidence we are arguing that the just felony murder the defense theory needs to separate verdict form so the jerk jury can register their agreement with the defense on that point so the evidence is relevant to determining vacating the sentence for the predicate felony at issue here a new trial is also an option but a new trial would be not the most equitable and practical remedy here a new trial would be limited to  just submitting separate verdict forms and having the jury decide which of these different fair areas of first rumor is he really guilty of it wouldn't be a whole complete new trial were not submitting that the evidence was insufficient on at any of these  murder offenses the other states that have dealt with this issue have found that the proper remedy is sentencing also vindicate the defense's right to present their defense theory is there anything about the fact that the defendant here has no contention that the evidence would not support they don't have the contention that the evidence doesn't support knowing or intentional murder there's any type of hermanus error analysis apply if we were to agree with your position that if you asked for the verdict form in this nor in your intentional murder the error could only be harmless hair if no driver to rationally find felony murder could find in favor of the defense theory even though a rational joy could also find knowing murder or intentional murder can find the greater you would have to say no rational drug could ever agree with it affects and just like an electric included offense case you could say no rational joe could agree with that lesser included offense approach you can't to say oh some jerk could also find the greater offense your position is the state should have chosen if they wanted to not to proceed under a felony murder the yes they could've easily taken away this issue by doing that by proceeding just on you know intentional murder or knowing murder and taken felony murder off off the table they are the ones who  at trial i want to make certain i didn't misunderstand something you said a few moments ago what i heard was the judge may determine the verdict forms based upon an evaluation the evidence that's correct just as in a lesser included offense case you decide to that's why we did a judge make this determination the the evidence in this case would support a guilty verdict of of any any one of the under any one of the theories and using i our position is that if the evidence could support a family murder theory in addition to intentional knowing murder and there's a different sentencing consequence attached then you need to give separate verdict forms because then you need to know which theory does a jury agree with which theory does the jury find the defendant guilty of so without the source the jury could find that that's quite possible  too if the jury doesn't you know similarly unanimously agree on intentional or knowing murder if some are devout if they're divided if some find felony murder then you can't impose sentence on intentional or knowing murder that's our position if there is not an agreement on exactly what aries all the jurors subscribe to you follow up and some of those questions and something you said earlier your theory is that if you're a juror or jurors would find the defendant guilty of felony murder then we should reverse and start over a gives can we look at the evidence and determine that no rational  would find the defendant not guilty of intentional murder i think you have to find that no rational that's another way of saying no rational jerk could ever find felony murder no i don't think so i think if we is journals that they could find the defendant guilty of all three possibly but if weeks if we look at the evidence and if can we do this and say that no rational juror in this under the facts and circumstances i'm not asking whether a juror find the defendant guilty of felony murder i'm asking whether if we find in reviewing the evidence that we could say can we do this and we find that note your history with this evidence would find a defendant not guilty of intentional murder we are asking for a jury to make that determination already asking the reviewing court to do is to see is there sufficient evidence to support separate for the for way this court does when it considers a lesser included offenses they don't go on to say that oh the greater offense could a church fight just that offense that's why we make this analogy to the last one could offense because it's one of the clear ways of understanding this kind of issue if there are no further questions i would ask your audience too if the sentencing relief as our preferred romany and if just briefly your honour's i have to make the point over and over again there's no error in this case that's that's the reason that defense counsels are struggling to try to define why they are entitled to the request and remedy that they're seeking since there's no error this certainly would be the case for the ordering of a new trial the jury verdict even though as a general verdict was sound the jury instructions told the jury that they had to find every necessary element beyond a reasonable doubt it would be an absolute illogic to send a case like this back for a new trial when there is no error when there is only the merest possibility a suspect or in fact is what defendants are alluding to the mere possibility that this jury might have found either of these defendants guilty of felony murder they don't play the necessary corollary to the remedy they're seeking they completely downplay the fact that in order for them to get the remedy that they're seeking and the remedy afforded by the appellate court it's not just that they could be found guilty of felony murder it's that they can only be found guilty of felony murder by necessity their very argument is that unless the jurors found me not guilty of first degree murder intentional not guilty of first degree murder knowing and guilty only a felony murder that's the danger in this case that's what the defendants are defining the problem with a verdict forms on all the various counts or maybe a type a type b situation so assuming that the jurors returned guilty of intentional knowing guilty of felony murder obviously judgment would be entered on the intentional and knowing counts and the separate verdict form on that so so obviously wouldn't encounter a king problem with respect to consecutive sentencing and again that's another problem in this case the defendants don't want to discuss first of all we know that general verdicts are not const the specific projects are not constitutionally required there's no constitutional impediment to the use of general verdicts they've been around for centuries and they are deeply rooted in the common law as is the illinois statutes definition of murder as a single offense what defendants want to do by constitutional izing this issue is to make it i require meant that a general verdict is somehow ambiguous and therefore cannot stand for the entrance of judgment on a serious consequence where do we have to do it justice kerr merriest there's this court here to review and make a determination that this defendant based on the evidence had to be convicted of either knowing or intentional murder both because the comment that was made earlier by justice fitzgerald there there are repercussions if indeed this defendant was the jury only found him guilty of felony murder right then the armed robbery portion with eighteen years or the differences eighteen years in this particular case rate right anyone on the other so do we make it is i understood your argument your first argument as collins was that the trial judge uses exercises his or her discretion in determining whether or not there's a separate verdict form a knowing murder rate right so now we're looking at it after the fact that we have to assess all the evidence and determine that this particular defended had to be convicted asking this court to find harm they are defining the harm themselves as i am facing a potential consecutive term when it's not warranted now by defining the harm and defining the so called error under those circumstances these defendants are by necessity pointing out that something is wrong with the use of the one good count rule something is wrong with the use of the general verdicts and they define that wrong as  necessarily agree with that everybody seems to suggest that felony murder is the easiest charge to prove we still have to prove the specific intent for the underlying felony we have to prove every single one of those elements we have to show that it was done in the course of conduct and unaccountability i do not think felony murder in all cases investors here are the easiest to prove i think that it has sometimes a benefit i think that it was in this case referred to by the attorneys and the prosecutors a closing argument but it was by no means the first thing they referred to and in fact the quote that defendant for adam titus referred to in closing argument was the last the very last sentence in a very long exposition about how adam titus was guilty of knowing murder intentional murder and in fact if i could just talk about the facts for even one second o neither and the reason i say that i agree with you ok i do i still think that this court should do neither of those particular options because of a harmless error argument and in fact the the the relief requested by the defendant and the harm the defendant suggest occurred is directly refuted by the records in these cases where the proof from the intentional count was overwhelming also  because you see it all comes back to one good out most absolutely and in fact i think that example illustrates something that also isn't from and a possibility of confusion with respect to separate verdict forms we may be in a situation where we're dealing with the defendant's argument on appeal that the verdict forms are inconsistent that by virtue of the entrance of judgment on the felony murder count we have now an inconsistency with respect to whether or not they can be sentenced on the underlying felony and we have differing mental states at the same time that the jury has found both knowledge and intent that the mental state element in the felony murder case wouldn't be inconsistent with intent or or knowledge but knowledge and intent potentially would be inconsistent and i think i think what that does is it points up precisely why these are decisions that are best left to the circuit court and i think also it points up why this case there is no harm and there was nothing erroneous what what the circuit courts that the question of whether separate verdict forms should be given whether it's a better practice not whether it's legally warranted but whether it's better practice shouldn't be decided within the vacuum of this individual case those types of decisions should be left to an ip i committee were all our participants all litigants and jurists themselves could weigh in on the struggles that they face on a daily basis with respect to verdict forms since these verdict forms are not warranted under the common law of decisional case law this court's case law specifically and because the constitution does not demand separate verdict forms this court should not find error in this case for the first time ever in contravention of decades of case law from this court but again like a suggested if it is something under consideration and serious consideration from this court this is not the brand new to do so because no harm resulted in no error occurred and for these reasons and again others expressed in our place we would ask that the appellate court judgments be reversed and the circuit court judgments and sentences be affirmed in this case