the trial court said all right jurors go into the back room please return to the jury room the jury was dispatched to the jury room with net instructions that that point i'd rather not they were discharged for the required to keep deliberating and act as the formal jury the c of defense counsel for the state said well obviously not done deliberating i'm going to give them fresh verdict forms the jury was given fresh reforms a sense a plea by the sheriff came out an hour later and rendered their verdict of guilty unanimously and w unusual circumstance which again rarely happens the evidence in this case i did make an argument of the evidence was tested balanced considering that we had mr bailey's confession versus you know the evidence of that mr bail sure this dissenting juror goes back into the room and was isolated effectively by the trial court's actions pulling was requested and there's no case illinois that says arbitrary i'm going to stop the polling abstract should have been polled to make sure the journey before when he goes back doesn't feel pressured either by the trial court saying ok just go in the back room i mean obviously these jurors have into their brains you gather the fact they have a unanimous verdict they're going to come back to the polling room they don't know what's going on at this point the judge hasn't said please you know don't talk amongst each other we're going  figure this out so i'm sure that there is some a little bit of animosity towards judge gibson what are you doing what's going on and we don't know what happened what we do know is an hour later and if there's prejudice  i think that it could i mean i think that but what we know from the only two cases in all my lather on point around this case that when you're number for and you don't hear from the other eight you absolutely are isolated as the only one and it might have been a very different story the procedures that and have to do this all over again so had the track court done with the trial court was required to do just simply pull out twelve jurors this would be a judge gets in might not have felt the coercion of the isolation that he may have felt and again it's a court was in charge of this jury is the track was responsibility to take care of its jurors he's in control of them and a bad call alice and we just don't even you know eat lunch without the judge's permission they don't they don't do anything without the judge's permission and the bare minimum excuse and what defense council did or didn't do the trap that was in charge of this jury and should have made some type of notation to make sure that coercion didn't happen in this case and because we don't know that mr bailey is entitle to a new trial based on this issue there's no questions on argument one i'd like to turns argument to and the second at the track court committed in this case whereas mr bailey firing again before the verdicts was before instructions requested specifically requested that his jury be instructed on felony murder clearly dead took judicial notice of the general verdict and because of that taking judicial notice found the mr bailey was eligible for the death penalty early because of the aggravating factor of intentional lung murder in the course of founding now what smith tells us is when a re quest is made the request is made by a defense counsel specifically asking for a different verdict forms and it's denied smith says the buy operation what happens now is we mass treat that verdict as a verdict factor and because of that mr billy's felony murder verdict must be treated a statue and the sentencing range is now between twenty and sixty years he could have but i was of the death penalty therefore he could not have been ours or a first natural life sentence therefore he requests for sentencing t verdicts which were the general verdict from which we know now is improper because mr barry did not get the instructions he requested robbery and home invasion there was no mention of any other aggravating factor and the court found i'm finding the aggravating factor or a murder of a person under the age of travel of a police officer the factors that are separate from the natural life sentence which were not shot in this case the trial court found him eligible for the death penalty based on intentional knowing murder in the course of  review kind of calm the record for another factor but we have here is a verdict as smith tells us very clearly a felony murder there is no intentional mental state attached to this verdict because there was no intentional murder because of that and the gravity of that error and that due process violation smith tells us that now we must treat that as felony murder only which lacks any mental state because of that mr bailey is entire to what he asked for and could have gotten the benefit of the lower sentencing consequences which the smith courts even even talks about here's a represents a consequence they could stem from felony murder versus knowing intentional someone would not be eligible for the death penalty based on the the court did make the finding based on the general verdict and what we know now is that generally for the normally in death penalty cases we have a general verdict and a court is allowed to presume the higher mental state and in all the cases cited by the state you have a general rule it and unobjective to general verdict and then the court finds based on that verdict a higher knowing intentional mental state but we can't treat that smith tells us that presumption no longer exists because he was denied the right to present the felony murder that presumption just said go back to the room he didn't tell them that you know the trials all continue deliberating you can talk among yourselves freely about what you know what your your question this person the problem were a procedural default or if this had been an issue if the defendant had a racist in the trial court that the defense attorney could have asked the judge judge i'd ask you that to just so there's no confusion that may be reinspected that there  shows that they were back there for another forty one hour forty two minutes and they've actually signed those those verdict forms that were furnished to them the in the the supreme court and this very court have consistently held that plainer analysis is not appropriate in this situation i think that to suggest that the evidence in this case was anything short of overwhelming is i don't think that can be argued with a straight face this and the supreme court has said that this is not structural there so the second from the plane or does not apply and i wouldn't think to question one misstatement that the defense attorney requests to continue pulling that never happened there was no objection at the time of the polling the defense attorney never asked for  refusal to tell the jury to begin with which has been held to be a reversible error this doesn't even closely resemble an absolute refusal to poll the jury and certainly doesn't command the same result even if there was any sort of impropriety with the point  that the court has a duty to paul to continue pulling but and i think that's the same error that that the defendant has made by failing to cite the supplemental opinion and chandler which recognizes that there is no duty to continue polling there's no absolute requirement of continued polling under the supreme court's decision in kellogg but that it should be done so that at morrison says that it should be done but in those cases that defender relies on their factually they're  sentenced for felony murder and not intentional are normally work and the trial course death penalty edge of the eligibility determination was not based on a presumption that the jury convicted the defendant of intentional or knowing murder because a conviction for faster premises since the state had to prove intentional or knowing mental state at the f b i death penalty eligibility hearing the state was required to of first attain a conviction  culpability trial and i just simply isn't the case it's a separate hearing entirely the defendant is eligible for the death penalty based on any conviction for murder be it a one intentional murder eighty two knowing frankel probability murder or felony murder it's the mere fact of the murder conviction any murder conviction is simply the jurisdictional step to get to the eligibility determination which is an entirely new beyond a reasonable doubt hearing that's conducted by the trier fact in this case the judge in this case knowing that the judge himself would be the trier of fact at the separate hearing and that's what it's actually called in the statute is a separate proceeding  favorable to the defendant specific verdict forms must be provided a fine request and the feel you to provide them is an abuse of discretion i don't see why this was reason that the the defendant would remain eligible for eligible to be found eligible for the death penalty based on any conviction for murder under a one two or three and as the sentencing body who where there are there will be sentencing consequences that attach and that in those situations the defendant is entitled to have the jury given supper instruction or verdict forms felony murder and those sentencing consequences quite obvious in that case or that if the defendant were only found guilty of felony murder he couldn't be given a separate sentence and conviction conviction is that is for the predicate felonies but there's a very obvious sentencing consequence in this case that the judge and that  sentencing body in the soulfire fact of the eligibility hearing was not bound by any factual determination that arose out of the jury's verdict and i think that really points to the problem with with the defense argument and sort of with regard to what aggravating factors the state did allege they were two factors it's right in the common law record or notice of intent to seek the death penalty listed two of them felony murder and the factor based on the victim's age and that the defense was exceptionally or brutal brutally heinous indicative of wanton cruelty there were two and i think to to to suggest that the record indicates otherwise is just flat wrong there were and make the finding that the aggravating factor or factors have been proven beyond a reasonable doubt and that's precisely what the judge did in this case and he found the words factors and he used it in the plural factors with an ass the state the the truck court finds the statutory a reasonable doubt and that the murder was committed during the course of the underlying felony it's and under shatner and johnson and several other supreme court cases it's clear that the judge needs not make any additional detail  findings beyond that simple finding and i think to begin to punctuate the the problem with the defendant's argument that the defendant officially advised that these aggravating factors have to be submitted to t is just a few points regarding the second issue in order for there to be a sentence there has to be constitutionally permissible verdict other studio for hearings for judgment verdict from the jury and the death penalty is presume constitutionally permissible for which we don't have here we do not have a general verdict as we have pursuant to smith is a verdict on felony murder which is a not guilty as much as the state doesn't like that  jury had been instructed as it should have been instructed the jury would have found either guilty felony murder or guilty only intentional and the instruction forms are very clear in a subset it's also not guilty felony murder not guilty no intentional the the jury the state was required to prove this beyond a reasonable doubt and the reality is either they noticed i have to keep notice that two hundred factors however many factors it doesn't mean that just because you notice it it's the magically proving more right but who is the verdicts and what we know are contained in the verdicts only supports the finding of aggravating factor intentional knowing murder stemming from the commission of a felony well the affair or i don't know i don't know if it's a scrivener's error i don't know if he was just speaking i don't know how just talk what i do know is he followed that up with felony murder we didn't follow that up with is brutal and heinous behavior in age sixty that's what he didn't do this is a death penalty eligibility hearing i just certainly hope the trial court is going to be careful and looking i'm finding this factor and i'm finding this factor in it just didn't happen the state could have offered evidence and they didn't and they could have found it but he didn't was so we left with intentional knowing murder based on the commission of a felony which smith tells us is no longer appropriate and again in order for there to be a sentence and i agree that there are two pronged but this is essentially the state's asking this court to find us if the state notices that into first degree murder and the jury finds you guilty of second degree murder they're allowed to go with that penalty any trier of fact a judge or a jury to find this defendant guilty of intentional knowing murder and second the judge smith it was the judge to determine the sentence and smith had this before it in finding that the judge and smith specifically made a finding this murder is knowing intentional and the illinois supreme court said there is no harmless error analysis it doesn't matter this is a denial of a due process right to have your defense presented so it doesn't matter whether it's judge or jury now if it was a jury determined judge determining verdict then yes of course but here my client was denied the right to present his defense and had that lower mental state proven beyond a reasonable doubt and the effect of that is that now you must treat his verdict as felony murder only and the results of that verdict is significantly lower sentencing