THIRD DI VISI ON DECEMBER 23, 2009

No. 1-07-0410

THE PEOPL

E OF THE

STATE OFIL

LI NOI S, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Co ok Co un ty. ) v. ) No. 04 CR 29532 ) CHRISTOPHER MOORE, ) Honorab le ) John J. Fl eming, Defend ant-App ellant. ) Judge Presiding

JUSTICE COLEM AN delive

red the o pinion of t

he court : Christopher Moore was convicted by a jury of first degree murder and arme d robbery a nd sentenced to consecutive 30-y ear and 6-y

ear terms of imprisonment as a result. I n the instant appeal, he contends that: (1) the trial court's de nial of his request for a one day continuance violated his due process right to present evidence in his def ense; (2) the prosecution's improper comments a

nd misstate

ments of the eviden

ce in ope ning and closing

argume nt denied him a fair trial; (3) the trial court improperly imposed a consecutive sentence on the armed robbe ry count on the basis of a presumption that the jury's general verdict r epresented a finding that he was g uilty of

a more c ulpable homicide than felon y mu rder; a nd (4) his trial cou nsel was i neffective in fa

iling to tender jury ve

rdict forms specify

ing the basis for the murder verdict, there by allowing a

n improper conviction of armed robbery in addition to a felony murder c onviction based upon the same offense. We affirm.1-07-0410

2 BACKGROUND Tayaa b Larry was attacked in a Chicago park on July 25, 2004, and died of his injuries on August 2. Khalia Wright testified that as of the night of the a ttack, she was involved with Moore, and that she had previously dated Larry. On the night of the attack, Wright and a frie nd, Jillian Griffith, agreed to go out with Larry a nd one of his friends, Jermaine Williams. Larry and Williams picked up Wright and Griffith in Williams' red Chevrolet, and the four eventually drove to a park. Wright testified that a group of men ente red the park, that the men approached the two couples, and that the couples walked away from the men and toward the car. Wright hea rd a thump, turned toward the sound, and saw La rry on the g

round and a man standing over him with a baseball bat. At trial, Wright identified Moore as the man with the bat. She had not mentioned Moore when first q

uestione d by

police a bout the in

cident a nd testifi ed that she had not origina lly identified him because she had been afra id, although she also testified that Moore had not threatened her or asked her to conc eal his involvement. Wright testified that she had seen Moore the day af ter the attack, and that Moore told her that he and his friends ha d followed her the night before and had seen her kiss Larry in the pa rk. Jillian Griffith's trial testimony was similar to Wright's. She wa s in the park, walking away f rom the group of men who had approac hed them, when her attention was drawn to the group behind her by

a loud sound. She saw Larry on the ground and a man holding a bat. L ike Wright, she did not implicate Moore in the attack when first questioned by police, but identified him as the man with the bat in later questioning and at trial. Griffith also saw Moore going through Larr

y's poc kets while Larry

was on the ground.1-07-0410

3

Jermaine Williams testified that he was with Tayaab L arry, K halia Wright and Jillian Griffith in the park when they were approached by

a group of seven or eig

ht men. Jermaine saw one of the men take a full swing with a baseba ll bat and strike Larry

in the back of the head. L arry fell immediately, and Williams saw the attacke r strike him with the bat four more times as he was on the g round. Willi ams testif

ied that the bat-wi elder a

nd others in the gr oup then a

ttacked him, and that he was knocked down and kicked, but was able to run away f

rom them without suffering

se ri ou s i nj ur y. Williams sai d that he owned the car tha t the coup les rode

in, but tha

t Lar ry had drive n to the park and kept the keys in his pocket. When Williams returned to the park after the attack, the car was gone, and he re

ported it as stolen. Police saw Williams' car on July 30, 2004, and stopped it. Antonio Nettles was driving the car and Dante My les was a passenger. The police returned the car to Williams, and he found two items inside that did not belong to him: a cell phone later proved to belong to My

les and an Illinois Department of Corre ctions form that appeared to have been issued for Nettles. Dante Myles testified tha t on the night of the incident, he saw Moore hit L arry w ith a baseball bat. He said that no one else present at the time had a bat. A few day s later, Myles saw Moore dr iving a r ed Chevr olet that he had not s een him dr ive before. My

les aske d if he co

uld drive the car, Moore gave him the keys, and My

les drove the car and returned it. He late r saw Antonio Nettles driving the car. My les admitted that when he was first questioned by police, he had untruthfully denied be ing present at the time of the attack. Antonio Nettles testified that he was shooting dice in the park on the night of the incident when he was approached by Moore and a group of men. Moore said that he was planning to rob1-07-0410

4

"his girlfriend's new boy

friend." Nettles continued his dice game while the group left the park and then returned. He was still play ing dice when he heard a loud sound fr om about 30 feet away

. When he looked toward the source of the sound, he saw a ma n on the ground and Moore standing over him w

ith a base ball bat. Lovell Polk testified that he saw Moore in the park on the nig ht of the incident, that Moore asked him

to "suck er punch " someone, and tha t Moore po inted out the intende d targe t. Polk said that he punched the man and knocked him down and that Moore struck the man while he was on the ground. Polk further testified that Antonio Nettles gave Moor e a baseball bat, and that Moore hit the man

with the ba

t three ti mes. Polk a

lso saw Moore sear

ch La rry's pock ets. Polk had originally bee

n charged with first degre e murder in Larry 's homicide and had denied involvement in the crime. He testified against Moore a s part of an agreement that included a plea of guilty

of conspiracy

to commit murder and a seven-y ear prison sentence for that offense

. Polk had claimed that he was beaten by police officers while in custody , but explained at trial that the abuse had prompted him to te ll the trut h about the

incident and that he had with

held the f acts because he had been threate ned by Moore. An additional witness, Frederick L ouis, testified that he was in the park at the time of the incident. Louis saw Polk punch a man in the face , and then saw Moore take a bat and hit the man in the head. Another witness, Milton Presle , testified that Moore, Nettles, L ouis and some other men visited him at an apartment across the street from the park on the night of the attack. Presley testifie d that af

ter the me n left, he could see from the a

partmen t's wind ow that a g

roup of pe ople were fighting in the park. Presley said that he did not see Moore with a bat and that he did not see Moore strike any

one. The parties stipulated that Presley had given a different acc ount of the1-07-0410

5

night's events when questioned by the police. According to the stipulation, Presley had told police that Moore had come to his apartment with a bat, that Moore had said that the man who was involved with his girlfriend was in the park across the stree t, and that he had seen Moore hit a man three times with a bat while the man was on the ground. The stipulation furthe r provided that Presley told police that Moore la ter bragged about be ating Larry. Desmond Mitchell testified that Moore had come to his apartment on the night of the attack a nd asked him for help in fighting

someone w

ho was " messing

with his g irl." Mit

chell did not accompany

Moore, bu

t Moore to ld him later that he ha

d punche d a man in a

fight a nd knocke d him out. Moore, w ho was ar rested in Detroit on Octobe

r 4, 2004, present

ed three witnesse s in his defense. Patricia Felder testified that she wa s a friend of Moore's family and that she had known him since he was five or six yea rs old. She said that she and Moore worked together on the renovat ion of an a

partmen t in Detro it in June, July

and Aug ust 2004 an

d that she had seen him almost dai ly d

uring that perio d. She said that Moor

e was pla yin g cards with her

and her f amily in Detroit on the night of July 25, 2004, that they played into the next morning, and that she also saw Moore in Detroit at about 2 p.m. on July 26. Moore' s mother, Crystal Thomas, testified that he had left Chicag o for Detroit on June 6, 2004, a

nd that to her knowl edge, he did not c ome to Chicag o from June

to August. Dominique Brown testified that she was Khalia Wright's f riend and Moore's ex-girlfriend. She said that she wa s visiting Wright on

July 2 3 or 24, a

nd that Wrig

ht's cou sin, Walt, w as also present. Brown heard Wright tell her c ousin that Larry was a stalker, that he would not leave her alone, and that she wanted him gone. Wright' s cousin had a bat at the time, and Brown believed that he ha d beaten Lar ry at Wrigh t's req uest.1-07-0410

6

Moore sought to have the trial continued for one day to allow the testimony of Bra ndy Alexande r. Moore 's coun sel advis ed the co urt that the defen se had pu rchase d an airl ine ticke

t to bring Alexander from Detroit at the end of the day on November 30, 2006, that she was scheduled to stay in Chicago ove

rnight, and that the defense was prepa red to call her to the stand on the morning of December 1. The cour t denied Moore's motion, and the case was submitted to the jury on Novemb er 30. The jury was instr ucted tha t it could f

ind Moore

guilty of first d egree murder if it found that if he intended to kill Larry or do him great bodily

harm; if he knew that his actions created a strong probability of death or great bodily

harm to Larry ; or if he killed Larry in the course of an armed robbery . The jury re turned a verdict of guilty

of first degree murder on a general verdict form for tha t offense, and also found Moore guilty of armed robbery . The court sentenced him to a 30-y

ear prison term for murder and a conse cutive six-year prison term for armed robbery . This appeal followed. ANA LYSIS I. Denial of Motion for Continuance Moore contends that the trial court improperly denied his motion for a continuance, and that this de

nial viola ted his rig ht under t he due pr ocess cl auses of

the Unite d States a

nd Ill inois const itut ions to pre sent e viden ce in h is def ense. On Wed nesda y, Novemb er 29, 2006, Moore 's counsel advised the court that he had witnesses prepar ed to testify and that he e

xpected one of them to be present in court on Friday, December 1. The court responded, " I wasn't going to do testimony on Friday . This was going to end Thursday at the latest." On Thursday, Nove

mber 30, before the presentation of testimony, defense counsel advised the cour t:1-07-0410

7 "We have three witnesses here who a re ready to testify. The problem is the fourth witness, Mr. [ sic ] Brandy Alexander , indicated to my investigator a

nd to myself last week that she would be here. In anticipation that [the prosecutor] would end State's ca se on Thursday, Ms. Alexander a rranged to be here first thing Friday morning to testify coming in on a flight tonight. We sent her a ti ck et . W e h av e l od gi ng fo r h er . P ro bl em is St at e e nd ed yes te rd ay, Judge. So although I am rea dy to go for

ward with three witnesses today I would be asking for the case to be held ove r until tomorrow so the fourth witness, Ms. Alexander, to [ sic ] come." Counsel for the prosecution commented, "Judge, from the beg inning of this trial when we talked to the jurors, you said on the outset Friday would be the da te this trial ends on the outset." The court stated: "As I said, at the latest we are going to – if worse ca me to worst, we were going to arg

ue Friday morning. I don' t like to do evidence on Friday a nd then send them out on a Friday . So now here we are Thursday. The

State I remember say

ing they were thinking they would be Wednesday or

Thursday that they

would be finished. Okay. So they

finished yesterda

y. Every one knew who the witnesses were and stuff. I have told the jury that now we are probably going to finish up

today and arg ue today , so I am going to do three short witnesses an

d send the

m home for

today and come1-07-0410

8 back tomorrow and argue on a F riday. No, I'm not going to do that. I' m sorry but when I

started on Monday

I indi cated that all we

would do is argue if we h ad to go on Frida y." The court denied the motion for a continuance. The defense renewed the motion after the testimony of its three schedule d witnesses. The court asked defense counsel whether Alexander would be "another alibi witness to testify defendant was in Detroit," and counsel answe red, "Yes." The court c oncluded, "It would be repetitive. There was plenty of notice to the trial schedule, and I am sorry. B ut I am not delay ing the whole schedule of the trial because y ou failed to get y

our witness here." The trial court then denied a defense motion for

a mistria l. In our view, the desire to a dhere to a predetermined schedule wa s not a proper basis for the denial of the brief continuance requested by Moore in the instant case. "Speedy administration of justice is desirable, but the desire for speed must not be allowed to impinge upon the c onstitutional requ irement of a fai r opportuni ty to defend." People v. Shrum , 12 Ill. 2d 261, 265 (1957). Th e t ri al co ur t e xp li ci tl y ac ce pt ed th e p os si bi li ty t ha t t he pr oc ee di ng s w ou ld ex te nd to Fr id ay, Decemb er 1 for closi ng argum ent an d jury ins truct ions . The r ecord r eveals no bas is for the co urt's refusa l to allow the same extension of its sched ule to per mit Moore t

o presen t an alibi w

itness. Howev er, ou r disa pprov al of t he cou rt's ac tion does n ot com pel rev ersal of Moo re's convicti on. I

n review ing the t rial cou rt's de nial of Mo ore's m

otion, we must consid

er: (1) whether the defendant was diligent in attempting to secure the presence of the witness; (2) whether the defendant has shown that the testimony of the witness was material and might have aff ected the1-07-0410

9

verdict; and (3) whether the defenda nt was prejudiced by

the exclusion of the testimony. People v. Ward , 154 Ill. 2d 272, 307 (1992). In People v. Sargent , 184 Ill. App. 3d 1016 (1989), this court emphasized that a defe ndant seeking review o f the den

ial of a motion for a

continua nce cou ld not demonstrate t

he mater iality of the witness or the prejudice from the exclusion of her testimony in the absence of an offer of proof that detailed the substance of the proposed testimony . "A defendant seeking a continuance to secure the presence of a witness must make a n offer of proof of that witness' proposed testimony. *** The court has no wa y of knowing

the materiality of testimony sought to be introduc ed withou

t an offe r of proo f, even i f it is told by c ounsel tha t the prop osed evid

ence is i n the nature of c orroboratio n of an alibi ." Sargent , 184 Ill. App. 3d at 1022-23. I n the instant case, Moore did not make an offer of proof. He did not spec ify the nature of Alexander's proposed testimony in a motion for new trial or other wise. As a result, the record is devoid of any showing that Alexander's testimony would ha ve been material and non-cumulative, or that its exclusion would hav e been prejudic ial. I n the abse nce of th is showing , the deni al of a c ontinuanc e to perm it her testimony cannot re quire reversal of Moore's c onviction. II . Prosecu

tion Commen

ts Moore argues that various prosecution comments during opening statement and closing argument denied him a fair trial. The first such sta tement identified by Moore was a remark during opening that Moore ga ve Williams' car to Dante My les in exchange for My

les' silence about the attack: "As y

ou will hear, from Danta [ sic ] Myles, that car was g iven to him, just a few days after that as a gift b y Christopher Moo re. I have no doubt t hat was a gift fo r his silen ce." The pros ecution r

eturned to the subj ect in clo sing: " You hear d from Da

nte and A ntonio as well1-07-0410

10

about this defenda nt, Chris Mo ore, dri

ving ar ound in tha

t car an d giving that car to them to D ante and Antonio a few days after that. A gift, may be sharing in the proceeds, may be trying to insure their silence." A defense objection interpose d at this point was overruled. Moore correctly notes that there was no testimony that he gave the car as a g

ift or that he used it to buy the silence of Myles or N ettl es. Ci ting People v. Linsc ott , 142 I ll. 2d 22, 30 (1991), M oore ass erts that these comments were improper in that they overstated the evidence aga inst him. He also argues that the prosecutor's statement of personal belief tha t the car was a gift was improper. See People v. Lee , 229 Ill. App. 3d 254, 260 (1992) ("I t is prejudicial error for the prosecutor to express personal beliefs or opinions, or invoke the integrity of the state's attorney

's office, to vouch for the credibility of a prose cution witness"). Moore also cites as improper the prosecution's statement that Jermaine Williams was "100% sure" in identify

ing him as the bat-wielding attacker; its claim, without appare nt evidentiary support, that Jillian Griffith was so afr aid of him that she moved out of the neighborhood, and its assertion that he had attacked L arry in fr ont of "like 20 people." Prosecut ion comme

nts in open

ing stat ement or closing argume nt do not re quire re

versal if they do not result in "substantial" prejudice. People v. Kliner , 185 Ill. 2d 81, 127-28 (1998). Moore's convictions in the instant case cannot properly be reversed in the absence of adetermination that the comments at issue had a substantial impact on the jury's verdicts. We do not believe that the record supports the conclusion that the cited comments impacted the jury 's verdict. Two of the comments at issue made only collateral suggestions of Moore' s guilt. The prosecution's statements regarding Moore's supposed gift of Williams' car to Dante Myles were apparently intende d to demonstrate that Moore attempted to conceal his actions, while the1-07-0410

11

assertion that Jillian

Griffith reloca ted beca use of he r fear of Moore portray ed him in a

decided ly negati ve light . But nei

ther stat ement re lated to the primar y e vidence of Moore 's gui lt: the multi ple testimonials to his efforts to recruit allies in his planned attack on Tay aab Larry and the several eyewitnesse s to the attack and its immediate aftermath, the majority from individuals who knew Moore prior to the incident. In light of this evidence, we cannot conclude that the jury 's verdict was in any wa

y the result of the pr

osecution's unfounded claims that he tried to buy the silence of one witness or that another feared him. Similarly , we do not believe that the prosecution's brief and isolated characterization of the certainty of Jermaine Williams' testimony, even if inacc urate, outweig hed the ju ry's own a ssessmen

t of that te stimony . We reje ct the as sertion that these comments resulted in prejudice to Moore. The prosecution's referenc e to Moore's attack occurring in the presence of "like 20 people" is, in our view, a fair comment on the evidence prese nted. Jermaine Williams testified that seven or eight men approached his gr oup of four in the park. Antonio Nettles testified that at the time of the incident, he was removed from the groups c ontaining Larry and Moore, gambling on a dice game. Since the prosecution's comment wa s an explicit approximation, we conclude that it was fai rly s upp ort ed b y the evi den ce o f th e nu mb er o f pe opl e in th e pa rk a t t he t im e of th e in cid ent . In summary , we hold t

hat none o f the com

ments made

by t he prose cution in o

pening or closin g merit reversal of Moore's conviction. II I. Ab sence of

Separat e Murder Verdict Forms The jury wa s instructed that it could find Moore guilty of first degree murder if it found that he ha d intende d to kill, if

he committ

ed acts t hat he kne

w crea ted a strong prob ability

of death or great bodily

harm, or if Larry

was killed in the course of Moore's commission of an armed1-07-0410

12

robbery. The

defense did not object to this instruction, nor did it offer specific murder verdict forms for submission to the jury. The jury returned a general ve

rdict of guilty of

both first degree murder a nd armed robbery . Moore a

rgues t hat the g eneral

murder v erdict c annot be p resumed to represent a finding that he was g uilty of either intentional or knowing murder, and that in the absence of such presumption, the jury 's verdict must be considered a finding on the felony murder charge. As a result, Moore a rgues that his conviction and sentence for a rmed robbery , a lesser included offense of his murder, must be vacated. People v. Smith , 183 Ill. 2d 425, 432 (1998). Moore' s argument ignores the long-sta nding " one-g ood-cou

nt" rule , which pr

ovides tha

t a general verdict of g

uilty on a multiple-count indictment is interpreted to be a f inding of guilt on each count. People v. Ly more , 25 Ill. 2d 305, 307-08 (1962). When, as in the instant case, the jury has bee

n instructed on intentional, knowing, and felony murder and returns a gener al verdict of guilty of f

irst degree murder, the one-good-count presumption results in a determination that the defendant has been found guilty of the most culpable mental state, intentional murder. People v. Cardona , 158 I ll. 2d 403, 4 11-12 (19 94); People v. Thompkins , 121 Ill. 2d 401, 455-56 (1988). The one-good-count rule has consistently been interpreted to permit a defendant found guilty of murde

r by a g eneral verdict to receive enha nced sentencing based upon his presumed guilt of intentional murder even where the enha ncement could not have been based upon a fe lony murder conviction. In People v. Baker , 127 Ill. App. 3d 565 (1984), the defenda nt was convicted of murder by a

general verdict and also convicte d of home invasion; he received consecutive sentenc es for th e two off

enses. 12 7 Ill. App. 3d at 566. The d

efenda nt conten ded that h is home invasion c onviction , as a les ser inclu ded offe nse of his felony murder, could not stand. 127 Ill. App. 3d at 569. This court held that the jury's general verdict was construed as a guilty verdict on1-07-0410

13

the intentional murder charge, held that the def endant's home invasion conviction was not a lesser included offense of intentional murder, and affirme d the convictions and consecutive sentences for murder and home invasion. 127 Ill. App. 3d at 569. In People v. Sample , 326 I ll. App. 3d 914 (2001 ), the de fendant was foun d guilty of first degree murder, arme d robbery, a nd home invasion and received consecutive sentenc es for each offense. 326 Ill. App. 3d at 916. The mur der conviction was based upon a jury 's general verdict after b eing instructed

on intentional and f

elony murder, and the de fendant sought v acation

of his armed robbery

and home invasion convictions as lesser included offenses of the fe lony murder. This court rejected the defendant' s contention.

"In this case, def

endant was charged with and the jury was instructe d on both int

entional murder a nd felony murder. Defens e counsel did not object to the submission of a general verdict form nor is there any

evidence in the record that counsel tender ed alternative verdict forms requiring the jury to find him guilty or not guilty of felon y mu rder. The State' s proof w as applic able to both charg es and the

jury returne d a general ve

rdict of g uilty of first degree murder. The most serious of the f irst degree murder char

ges in this case is the one with the most culpable mental state: intentional murder. Cardona , 158 Ill. 2d at 411. Under Cardona , theref ore, t his ch arge was the ap propr iate b asis f or sen tenci ng. Althoug h defend ant is cor rect tha t armed r obbery and home invasion a

re lesse r include d offens es of fe lony murder, neither

is a1-07-0410

14 lesser included offense of intentional murder. Thus even if the

consecu tive sente nces wou ld have be en inappr

opriate for a spe cific verdict on felony

murder, the ‘good count' of intentional murder renders the se ntences prop er." Sample , 326 Ill. App. 3d at 929, appeal denied, 198 Ill. 2d 629 (2002). In People v. Griffin , 375 Ill. App. 3d 564 (2007), the defenda nt argued that a gener

al verdict of guilty

on a murder charge could not also support a n additional sentence for armed robbery, a

lesser included offense of the charged felony murde r. This court rejected that argument, holding that "the most serious first deg ree murder charge , intentional murder, was the prope r basi s for s enten cing." 3 75 Ill. A pp. 3d at 571 -72. T he cou rt hel d that the de fendan t's convictions for murder and armed robbery required consecutive sentences; acc ordingly, it vac ated the concurrent sentences imposed by the trial court and remanded for the imposition of consecutive sentences. 375 I ll. App. 3d at 573-74. Moore argues that our supreme cour t's recent decision in People v. Smith , 233 Ill. 2d 1 (2009), prohibits the use of a general murde r verdict to support his conviction and sentence for armed robbery

. In Smith , the cour t review ed convic

tions and s entence s imposed in addition to convictions of first degree murder ba sed upon general verdicts. The cour t held that "where, as here, specific findings by the jury with regard to the offenses charge d could result in different sentencing consequences, fa vorable to the defendant, specific verdict f orms must be provided upon request and the failu re to provid e them is an ab use of discret ion." Smith , 233 Ill. 2d at 23. Moore as serts tha

t Smith prohibits u se of the

one-g ood-cou

nt rule where its a

pplication could result in a dverse s entenci

ng cons equenc es for the defen dant.1-07-0410

15

We do not share Moore's interpretation of Smith . Although portions of the Smith opinion suggest disapproval of the use of the one -good-count rule to subject a defenda nt to more severe sentencing, the court's discussion is clearly dependent on the case's proce dural context: the trial court denied the defense request to submit separate verdict forms to the jury. T he Smith court repeat edly noted this

context: " it is a viola

tion of due

process to deny a defen dant the o pportunit y to have the jury

decide h is theory of defe nse" (2 33 Ill . 2d at 23) ; "because the presumption that arises from application of the ‘one good count r ule' could work a prejudice ag ainst [defendants] at sentencing, the presumption cannot substitute for the jury 's actual findings, at least whe re defendants have requested that the jury make specific findings with regard to the degree of the offense (emphasis ad ded)" (233 I ll. 2d at 23 ); "the t rial cou rts erre d when the

y r efused d efenda nts' requests for separate verdi ct forms (23 3 Ill. 2d at 23)." The si gni fic anc e of

th is pro ced ura l co nt ex t h as b een con fir med by th e su pre me c our t. In People v. Davis , 233 Ill. 2d 244 (2009), the court distinguished Smith : "The pr esent ca se is a world aw ay

from Smith . Here, defendant did not object to the gene ral verdict form and did not request a special verdict form. Ag ain, the holding of Smith was con diti oned o n the t rial c ourt's refusa l to gra nt such a r

equest a nd did not e stablish a

rule tha t the cour t must act sua sponte

to give a specific verdict form. Additionally , defendant is challenging the va lidity of the one-g oodcount rule, something which was expressly not done in Smith ." Davis , 233 Ill. 2d at 273. Baker , Sample , and Griffin demonstrate that the one-good-count principle has long been employed to permit enhanc ed sentencing, including the imposition of consecutive sentenc es for additional felonies, by construing a general first deg

ree murder verdict as a finding of guilt on an intentional murder charge. We believe that this use of the pr inciple is among the corollary rules1-07-0410

16

ex pl ic it ly l ef

t u nd is tu rb ed by Smith . The Davis court's discussion of Smith demonstrates that the distinguishing factor entitling the defendant to re lief from the application of the one-good-c ount principle in Smith

was the request for separate ver dict forms at trial, not the mere possibility that the pr incip le wou ld su bject him t o incr eased p unis hment . Accor dingl y, we reject Moore 's argument that he is entitled to the relief gra nted in Smith

because he, like the defendant there , received consecutive sentences, w hile the defendant in Davis did not. Since Moore did not request separa te verdi ct forms i

n the insta

nt case, we hold that Smith offers no suppor

t for his assertion that the general murder ve rdict could not support his armed robbery conviction. In addition to its confirmation of the continued validity of the one-good-count principle, the Davis court also explained that even if the application of the principle were improper, any resulting erro r "did not amo unt to a st ructural defect that requir ed automati c reversal." Davis , 233 Ill. 2d at 273. The court based its analy sis upon the United States Supreme Court's recent opinion in Hedgpeth v. Pulido , 555 U.S. ____, 172 L. Ed. 2d 388, 129 S. Ct. 530 (2008) ( per curiam ). "Relying upon analogous cases, the Supreme Court in Pulido easily conclude d that in cases where a jury is instructed on multiple theories of g uilt, one of which is improper, a harmless-error analysis is applicable. Pulido , 555 U.S. at ___, 172 L. Ed. 2d at 391, 1 29 S. Ct. at 532." Davis , 233 Ill. 2d at 270 (citations omitted). The Davis court held that one-good-count issues are subjec t to plain error analy sis on review if the defendant did not object to the use of a g eneral verdict form at trial. 233 Ill. 2d at 273. Under plain error review, "the defendant has the bur den to persuade the cour t that the e

rror wa s prejudi cial, tha

t is, defe ndant must

show that t

he evide nce was so closely balanced that the error alon e threatened t o tip the s cales of just ice against hi m." 233 Ill. 2d at 274. The Davis court held that the evidence of the defenda nt's commission of intentional or1-07-0410

17

knowing murder was sufficiently strong to compel the conclusion that he was not prejudiced by the failure to present separate murder verdict forms to the jury. 233 I ll. 2d at 273-74. The Davis court's plain error analy sis is readily applicable to the instant matter . Several witnesses testified to the premeditated nature of Moore' s attack on Tayaab Larry . Two trial witnesses and one pretrial witness account reported Moor e's hostility toward L

arry be cause of their competing relationships with Khalia Wright. Four separ ate witnesses testified that Moore struck Larry

with a bat ; one of the witness es, Jermai ne Williams, specifie d that Moor e took a f ull swing wi th the bat and struc k Lar ry in the hea

d. Proof o f such ac

tion estab lishes the

intent to cause death or great bodily harm necessary

to support a conviction for first degree murder

. People v. Foster , 119 I ll. 2d 69, 87 -88 (1987 ). We hold t hat the e vidence of Moore 's inten

t to cause death or great bodily

harm to Larry

was clearly

sufficient to permit the jury to re turn a guilty ve

rdict on both intentional murder and knowing murder charg es. Accordingly , we cannot conclude that the jury , if permi

tted to spe cify

the basis for its mur

der ver dict, wou ld have r eturned a not gu ilty verdict on the inte

ntional mur

der and k nowing m

urder charge s. We find that Moore has faile d to demonstrate that the lack of specific verdict for ms produced the verdict against him and that he has failed to make the showing of prejudice ne cessary for a reversal under plain err or review. IV. I neffective Assistance of Counsel Our conclusion that Moore has not demonstrated the prejudicial impact of the a bsence of separa te verdi ct forms a

lso dictat es our dis position of

his conte ntion that h

is counse l's fai lure to submit separate forms was impermissibly de ficient. When a defendant is unable to show a reasonable probability

that the correction of counsel's alleg ed deficiencies would have produced a different result, his ineffective assistance cla ims fail. People v. Enoch , 122 Ill. 2d 176, 201-021-07-0410

18

(1988). We

hold that M oore has

not shown a

reasona ble proba bility that sepa rate ve rdict for ms would have resulted in not guilty verdicts on the intentional murder and knowing murder cha rges. As a resu lt, we re ject his a ssertion t

hat his co unsel's deficie ncies re quire re

versal o f his convicti ons or modi fication of his sen

tences. CONCLUSIO

N For the foregoing r

easons, the judgment of the circuit court of Cook County is affirmed. Affirmed. QUI NN, J., spec ially

concurs . THEI S, J., dissent s.1-07-0410

19

JUS TICE QUINN, speci ally conc urrin g. I completely

concur with Justice Coleman's majority opinion. I write separately

because I believe that Justice

Theis'dissent ra

ises seve ral impor tant issue s. As a member of the panel that wrote both People v. Smith , 372 Ill. App. 3d 762 (2007) ( Smith I ), and People v. Titus , No. 1-05-1523 (2007) (unpublished order under Supreme Court Rule 23) in

the appe llate cou

rt, I am familia

r with its ho lding. We

conclude d: "[W]e hold that when a

defenda nt who is charged

with intentiona

l or knowin

g murde r and fe lony

murder r equests a separa te verdi ct form f

or felon y mu rder an d such a r equest ha s a basis in the evidence presented at trial, the separa te verdict form must be given or consecutive sentences ca nnot be imposed based on the offense underly

ing the felony

murder, pursuant to section 5-8- 4(a) of the Unifi ed Code of

Correct ions (730 I

LCS 5/5 -8-4(a

) (West 2004)." Smith , 372 Ill. App. 3d at 771-72. The su preme c ourt a ffirm ed. In do ing so , the c ourt c onsi dered a nd rej ected t he St ate's argument that the error was har mless because the evidence that the defe ndants were guilty

of intentio nal murder was "overwhelmin g." People v. Smith , 233 Ill. 2d 1, 25 (2009). I n People v. Thurow , 203 I ll. 2d 352, 3 63 (2003) , the cour t explained

the harm less err or standa rd as "t he State must prove beyond a r

easonable doubt that the jury verdict would have been the same absent the error, " citi ng Chapman v . Califor nia , 386 U.S. 18, 24, 17 L. Ed. 2d 705, 710-11, 87 S. Ct. 824, 828 (1967). In Glasper , our supreme court affirmed the defe ndant's conviction, rejecting the defendant's argument that the tr ial court's refusal to question a jury venire regarding the

fact that1-07-0410

20

they could not hold a defe ndant's failure to testify

against him, as required under Supreme Court Rule 431 (b)(4) (pre-amended version) pr ejudiced the defendant. The court found that " no rational juror would have acquitted defendant of the of fenses for which he was charged" and "[t]he evi dence of defendan t's guilt is overwhelmi ng." Glasper , 234 I ll. 2d at 20 2. By their holding in Smith , the supreme court recognized that apply ing the harmless error analy sis as defined in previous cases would not provide a basis for relief from the error in Smith

as there was no question that the

defenda nt was g uilty of both fi rst deg ree mur der and t he under lyin g forc ible felonie s. The Sta

te had obj ected to

the defe ndants'request s for sep arate v erdict f orms in both Smith and Titus and the c ircuit co urts ag reed, th us preve nting de fense c ounsel fr

om argu ing that , if the defendant was guilty of first degree murder, he was guilty only under a theory

of felony murder. This would

have pre cluded the circu it courts f rom sente ncing the defen

dants to

consecu tive sente nces on the underl

yin g forc ible felonies. The Smith

court explained: "Whether the trial courts' refusa l to submit separate verdict forms can be deemed harmless error is not a question that may be resolve d by looking at the strength of the evidence. The re fusal to submit separate verdict forms is harmless error only if the jury's findings may be ascertain ed from the general verdicts ent ered." Smith , 233 Ill. 2d at 25. After discussing the instructions provided to the defendants in Smith , the court held:

"We conc lude that

where, as here , it is imposs ible to tel l from the general verdict whe ther defendant was actually convicted on each count in the indictme

nt, it is er ror for the trial courts to make tha t presump tion. Ther

efore, in the ca ses at ba

r, beca use defendants were sentenced ba sed on the presumption that they we re1-07-0410

21 found guilty of intentional murde r, defendants were prejudiced a nd the trial court' s error

in refus ing the d

efenda nts' ten der of se parate verdict forms ca nnot be de emed har

mless err or." (E mphasis omitted.) Smith , 233 Ill. 2d at 27-28. The dissent cites the above languag e and the language in Glasper characterizing the holding in Smith

as an example of "structural" error in support of Justice Theis' position that "the type of er ror involved in Smith

continue s to be er

ror and c ontinues t

o be an a utomatica lly reversible error not subject to harmless error analysis." Slip op. at 33. The abov e quoted l angua ge from Smith

makes it clear that "the error in Smith " was the refusal of the defendant's re quest to submit separate verdict forms. This fact is also supported by the four quotes fr om Smith in the majority opinion (slip op. at 13-14), all of which re fer to Smith 's holding as being premised on the refusa l of the defendants' requests for spec ific verdict forms. While Glasper

did characterize the holding in Smith as "structural " ( Glasper , 234 Ill. 2d at 192), Glasper in no way suggested that the holding in Smith imposed a sua sponte duty on trial c ourts to provide specific verdict forms rather than a general verdict form in first deg ree murder cases. Glasper did not refer at all to the court's holding in Davis and how that holding impacted , if at all , on the holding in Smith

. The reason for this is clear. As the court in Davis explained: "We find Smith inapplic able to the presen t case." Davis , 233 Ill . 2d at 271. C onseq uentl y, I disagree w ith t he dis sent's charac terization that "T

he major ity s eems to su

gges t that Davis overrul es Smith insofar as Smith held that the refusal to allow a special verdict wher e it could result in an increased sentence for the defendant could never be harmless er ror." Slip op. at 32.1-07-0410

22

In a ddition to the langu

age fr om Davis found in the majority opinion, the court also said: "This court in Smith

affirmed the murder conviction, but vacated the convicti on and se

ntence f or attempted arme d robber y. I n so doing , this

co ur t' s h ol di ng wa s n ar ro w: 'w he re , a s h er e, sp ec if ic fi nd in gs by t he ju ry with regard to the offenses cha rged could result in different sentencing consequences, favorable to the defe ndant, specific verdict forms must be provided upon req

uest and the failure to provide them is an abuse of discretion.' (Emphasis added.) Smith , 233 Ill. 2d at 2 3." Davis , 233 Ill. 2d at 272. In discussing the holdings in Smith and Davis , the question before this co urt is a sim

ple one: which case is applicable to the facts of our c ase? The defendant in the instant case did not object to the general verdict form. This is consistent with the fac tual scenario addressed in Davis and is inapposite to the factual scenario in Smith . The dissent asserts that "The error her e was the same error as the error in Smith insofar as the defendant was denied the opportunity to have the jury determine whethe

r he was guilty of intenti onal murd

er, whic h resulte d in a pote

ntially erroneous consecutive sentence for armed robbery . See Glasper , 234 Ill. 2d at 192." Slip op. at 36. Again, the alleged err

or in this case, the failure of the trial court to sua sponte provide the jury with separate verdict forms, is not the same error a s the error in Smith , which was the refusal of the trial court to provide separate verdict forms whe n requested to do so by the de fendants. As the dissent points out, the federal courts have limited "the ty pe of errors which are considered to be 'structural' to the denial of the right to counsel, the denial of the right to selfrepresentation, the denial of a right to a public tria l, and the denial of the right to trial by jury1-07-0410

23

resulting fro m the giving of a defective reaso nable doubt instructi on." Slip op. at 3 1-32; United States v. Gonzalez-Lopez , 548 U.S. 140, 149, 165 L. Ed. 2d 409, 420, 126 S. Ct. 2557, 2564 (2006). Glasper

characterized the error in Smith as "stru ctural" under thi s last ty

pe of er ror. This means tha

t Glasper reaffirmed the holding in Smith that when the trial court refuses to provide separate verdict forms when reque sted to do so by the defenda nt, it is always reversible. The dissent also asserts "under Smith , I wo uld find that it was p lain err or for the court t

o have not given the jury

special verdict forms." Slip op. at 36. The Smith court, however, had no occasion to consider whether the second prong of plain error analysis applied since there was no plain error, the defendant having r equested the specific verdict forms. Furthe r, as explained by our supreme court, plain error is not in itself a "standar d of review" as there is no trial court orde r to review in the plain error context. People v. Herron , 215 Ill. 2d 167, 184-85 (2005). The disse nt also as serts tha

t " Davis has altered the plain error analy sis to be applied under Illinois law." Slip op. at 3 3. I a gree w ith this pro

position to t

he extent that Davis adopted Hedgpeth v. Pulido 's holding that "alternative theory error" and most other instructional errors ar e subject to a harmless error analy sis. Davis , 233 I ll. 2d at 27 0-71. Thi s is signif icant in that Pulido made cle ar that errors based on those in Stromber g v. Cali fornia , 283 U.S. 359, 75 L. Ed. 1117, 51 S. Ct. 532 (1931) and Yates v. United States , 354 U.S. 298, 1 L. Ed. 2d 1356, 77 S. Ct. 1064 (1957) are no longer automatically reversible. Hedgpeth v. Pulido , 555 U.S. ___, ___, 172 L. Ed. 2d 388, 391, 129 S. Ct. 530, 532 (2008). While Smith did rely on Strombergand Yates , in part, I do not believe that the result in Smith is now called into question. Pulido arose in the context of a review of the granting of habeas corpus relief t o the def endant f or his stat e conviction. The Ninth Circuit C ourt of Appeal s held that the jury instruct ion error was a "s tructural err or." Davis , 2331-07-0410

24

Ill. 2d a t 269 , citi ng Pulido v. Chrones , 487 F.3d 669 (9th Cir. 2007), and Pulido , 555 U.S. at ___, 172 L. Ed. 2d at 390, 129 S. Ct. at 530, In Danfor th v. Minne sota , 552 U.S. 264, ___, 169 L. Ed. 2d 859, , 128 S. Ct. 1029, 1041 (2008), the Supreme Court explained that cases involving federa l habeas relief have a "unique context" and that states ma y provide broa

der relief than that available through habeas proceedings. "[The feder al] interest in uniformity, however, doe s not outweig h the ge neral pr inciple that States a

re indep endent sovereig

ns with ple

nary authority to make and enforce their own laws as long as they do not infring e on federal constitutional guarantees." Danfor

th , 552 U.S. a

t , 169 L. Ed. 2d at ___, 128 S. Ct. at 1041. I believe that there a

re still differences between plain err or analysis in I

llinois and the federal courts. I

n People v. Herron , 215 Ill . 2d at 186, o ur sup reme co urt re jecte d the S tate's request that they e

xplicitly adopt the federal standar d for plain error, even though they noted that the cour t had ofte n employ ed it, nota bly in the ca ses findin

g that Apprendi errors

were su bject to harmless error analysis. Herron , 215 Ill . 2d at 182-8 3, cit ing People v. Crespo , 203 Ill. 2d 335, 348 (2001). Also see People v. Thurow , 203 I ll. 2d 352, 3 63 (2003) ; People v. Nitz , 219 Ill. 2d 400, 415-16 (2006). While plain-error review is similar in both the state court and federa l court contexts, there are differences. I

n Puckett v. United States , 556 U.S. ___, 173 L. Ed. 2d 266, 129 S. Ct. 1423 (2009), the United States Supreme Court explained that federal " ' plain-error review' - involves four ste ps, or prongs. Fi

rst, ther e must be a

n error or defe ct - some s ort of ' [d]eviation from a legal rule' - that has not been intentionally relinquished or abandoned, i.e. , affirmatively waived, by t he appe llant. [Cita

tion.] Second, the le gal er ror must be

clear or obvious, rather

than subje ct to

reasona ble disput e. [Citation .] Third, the error must have

affected the a

ppellant's substa

ntial rig hts,1-07-0410

25

which in the ordinary

case means he must demonstrate that it 'affe cted the outcome of the district court proceedings.' [Citation.] Fourth and finally , if the above three prongs are satisfied, the court of appeals has the discretion to remed y the error

- discre tion which

ought to b e exerci sed only if the err or 'seri ousl y affect[s ] the fairn ess, i ntegri ty or publ ic repu tati on of j udici al pro ceedin gs.' " (Emphasis in original) Puckett,556 U.S. at ___, 173 L. Ed. 2d at 274-75, 129 S. Ct. at 1429. The th ird pr ong of t he fede ral pl ain err or anal ysis defi nes "af fected the ap pella nt's substantia l rights" as "af

fected the outcome of the

district c ourt proc eeding s." This i s analog ous to a requirement of prejudice, which as the dissent cor rectly asse

rts, is not needed in the second prong o f Ill inois' pl ain err or analy sis. Another difference is found in Pulido 's language, " Neder makes clear that harmless-error analysis applies to instructional err ors so long as the error at issue does not categorically 'vitiat[e] all the jury's findings.' " Pulido , 555, U.S. at ___, 172 L. Ed. 2d at 391-92, 129 S. Ct. at 532, quot ing Neder v. United States , 527 U.S. 1, 11, 144 L. Ed. 2d 35, 48, 119, 199 S. Ct. 1827, 1834 (1999). The court in Smith held: "the general verdicts finding defendants guilty of first degree murder that the juries returned in these cases ar e entirely va

lid. There is no legal basis for setting defendants' murder convictions aside. Ac cordingly , the problem presented here is solely one of how to int erpret the verd icts for pur poses of sen tencing." Smith , 233 Ill. 2d at 28. As our supreme court refused to apply a harmless error analy

sis to the error in Smith

even though the murder verdicts were valid, the court has not adopted the holding in Neder

in all cir cumstanc es. Further, in Glasper , while ou r supreme court s aid "we

consider that auto matic re

versal is only required where an err or is deemed 'st ructural' " ( Glasper , 234 I ll. 2d at 19 7), they also1-07-0410

26

recognized that an instructional error may be "so severe that reversa l is required, regardless of whether the err or would be d eemed struct ural under fede ral law." Glasper , 234 Ill. 2d at 199-200. I believe that it is important to note that while Davis discussed plain error, the court actually did not hold that there was error committed by the trial court in that case. In Davis , the jury returne d a guilty ve

rdict for aggrava

ted battery a

nd a general verdict of g

uilty of first deg

ree murder. The jury

had been instructed on felony murder as well as intentional and knowing murder. On appeal, the defendant ar gued that it was reversible error to instruct the jur y that felony murder could be predicated upon aggravated battery because the conduct forming the basis of the aggravated batter

y was inhere

nt in the murder. Davis , 233 Ill. 2d at 247. The court first held: "[F]elon y mu rder pr edicate d on agg

ravate d batter

y is a legally existent crime in Illinois. The Code of Criminal Procedure of 1961 expressly defines fe lony murder pre dicated on aggrava ted battery as a

crime. See 720 ILCS 5/9-1(a)(3) (West 2006); 720 IL CS 5/2-8 (West 2006). Moreover, this court in People v. Viser , 62 Ill. 2d 568, 580 (1975), held that felony murder predicated on aggr avated b attery

is a valid a

nd existing

crime un der nea rly identical circumstances to the present case. Viser has never been overrul ed by

this cour t, and wa s essentia

lly r eaffir med by our most recent decision in this area in People v. Davis , 213 Ill. 2d 459, 475 (2004)." Davis , 233 Ill. 2d at 269. As pointed out in the majority opinion, Davis held that "the holding of Smith was conditioned on the trial court's refusal to gra nt a request [for a specific verdict form] and did not1-07-0410

27

establish a rule that the co

urt must ac

t sua sponte to give a specif ic verdict fo rm." Davis , 213 I ll. 2d at 273. As Davis also did not find that a trial court has a duty to sua sponte give a s

pecific verdict form, it was not error to not give one in Davis

. In People v. Piatowski , 225 Ill. 2d 551, 565 (2007), the court explained:

"[T]he pla

in-error doctrine allows a reviewi ng cour t to consider unpreserved error whe n (1) a clear or obvious error occ urs and the evidence is so closely balanced that the error alone threate ned to tip the scale s of justic e aga inst the de fendant , regardless of the seriousness of the e rror, or (2) a clear or obvious error occurs and that error is so ser ious that it affected the fairness of the defendant's trial and challeng ed the integrity of the judicial process, regard-less of the c loseness of the evidence." As can be seen, the first factor which must be pre sent before a reviewing c ourt may consider an unpreserved error under either prong of plain error is "a clear or obvious error." The court in Davis never found any error much less "a clear or obvious error." The Davis court phrased their holding by

saying " a plain-error analy sis is appropriate, assum ing arguendo that defendant is correct in his contention that a straightfor ward application of the one-good-c ount presumption would be faulty." (Emphasis added.) Davis , 233 Ill. 2d at 274. Further, the cour t held: " even if

we were to find that a constitutional due process error occurred in instructing the jury on felony

murder or that the one-good-count pre sumption is questionable, it would still not require automatic reversal of defe ndant's murder conviction. *** Accordingly we hold that the instant felony-murder

instruction, even if erroneous , was a typica l trial error that did not amount1-07-0410

28

to a structural defect that required automatic re versal. It would be analogous to the Apprendi cases that we ha

ve decid ed such a s People v. Nitz , 219 Ill. 2d 400 (2006), and People v. Thurow , 203 Ill. 2d 352 (2003), where we found that the error of not submitting every essential element of an offense to the jury

for consideration was subject to either a harmless er ror analy sis if defendant made a trial objection or a plain-error ana lysis if defendant did not object." (Emphasis added.) Davis , 233 I ll. 2d at 27 3-74. The reason t hat Apprendi errors may

amount to plain-error (note: under the first prong) is that the holding in Apprendi required that every essential element of an offense which could provide the basis for an enha nced sentence had to be submitted to the jury for consideration. Failure to do so was "a clea r or obvious error." Again, no c ase has held that a trial court must provide specific verdict forms without being reque sted to do so. In her dissent, Justice Theis posits that a " 'structural' error satisfies the second prong of the pl ai n e rr or te st ," an d t ha t t hi s c on cl us io n w as su pp or te d b y Davis only having address ed the fi

rst prong o f plain e

rror. Slip op. at 34- 35. I

believe that "str uctural error, " as tha

t term is us ed in both the federal context and in our supreme court's r ecent cases, is alway

s reversible whether it arises in the "harmless error" or " plain error" context. Illinois follows the fede ral precedents in this area as elucidated in Gonzalez-Lopez , 548 U.S. at 149, 165 L. Ed. 2d at 420, 126 S. Ct. at 2564, but also includes the type of e rror found in Smith

- the re fusal by

a trial c ourt to pr

ovide spe cific verdict forms when requested to do so by a defendant. Smith , 233 I ll. 2d at 27 -28; Glasper , 234 Ill. 2d a t 192 , citi ng Smith , 233 Ill. 2d at 25-26. Further, a n instructional error may

be "so severe that reversal is required, rega rdless of whether the error would be dee med structural under federal law." Glasper , 234 Ill. 2d at 199-200.1-07-0410

29

Our supr eme cour t has long recog nized thes e princi

ples and has codif

ied them in

Supreme Court Rule s 451(c)and 615( a). 210 I ll. 2d R. 451 (c); 134

Ill. 2 d R. 615(a

). Rule 45 1(c) pr

ovides: "substantial defects are not waived by failure to make timely obje ctions thereto if the interests of justice so require ." 210 I

ll. 2d R. 451 (c) (fi

rst effe ctive 196 9). 210 I

ll. 2d R.451 (c); 134

Ill. 2 d R. 615(a). Rule 651(a) provides: "Plain errors or de fects affecting substantial rights may be noticed althoug h they were no t brough

t to the att

ention of the trial court." 134 I ll. 2d R. 615 (a) (fi rst adopted in 1963). Based on all of the above, I believe that the holding in Davis is controlling in this case and, as the trial court had no duty to sua sponte provide specific verdict forms for the first deg ree murder charge, there

was no error in failing to do so.1-07-0410

30

JUS TICE THE IS, dis senti ng: Regarding the final issue raised by defendant, the majority

finds that the trial court’s failure to submit separate verdict forms to the jury for the different theories of first deg ree murder with which defendant was charge d was not plain error. I r espectfully disag

ree. I would find that the error here was the same a s the error in Smith and that the error was a structural, serious e rror, which requires the court to vacate defe ndant’s conviction and sentence for armed robbe ry, even though the issue was not raised below. I will also address the relationship between Davis and Smith , and the effect of Davis on Illinois plain error analy sis. In Smith , the defendants were convicted of first degree murder and arme d robbery, a nd sentenced to consecutive terms of imprisonment for the crimes. Smith , 233 Ill. 2d at 5. The juries

we re in st ru ct ed on in te nt io na l o r k no wi ng mu rd er , f el on y mu rd er pr ed ic at ed up on ar me d r ob be ry, and armed robbery

. Smith , 233 I ll. 2d at 5. The def endants r equeste d separa

te verdi ct forms t

o distinguish the juries’ findings on first degree mur der, but the trial court denied their requests. Smith , 233 Ill. 2d at 5. On appeal, the def endants argued that the trial court abused its discre tion when it de

nied thei r reque sts for spe cial ver

dict form s becaus e those f orms wer e neces sary

to ensure that the defendants were sente nced properly

. Smith , 233 Ill. 2d at 14. Specifically, the defendants pointed out that if the jury had found them guilty of felony murder, instead of intentional or knowing murder, they could not be convicted and sentenced for ar med robbery

. Smith , 233 Ill. 2d at 15. The supreme court agree d, and held that where “specific finding s by the jury with regard to the offenses charged could r esult in different sentencing consequenc es, favorable to the defenda nt, speci fic ver

dict form s must be pr

ovided up on reque st and the failure to provide

them is an abuse of discretion.” Smith , 233 Ill. 2d at 23. The court further found that the trial court’s1-07-0410

31

refusal to grant the defendants’ r equests for special verdict forms could never be harmless error. Smith , 233 Ill. 2d at 27-28. The court explained that beca use it was impossible to tell from the verdict whether the jury

had convicted the defendants of intentional murder, and be cause the defendants were sentenced on the pr esumption that they were , the trial court’s error in refusing the separate verdict forms that would have resolve d this issue prejudiced the defendants. Smith , 233 Ill. 2d at 27-28. The court accordingly interpreted the verdict as finding the def endants guilty of only felony

murder and, therefore, vaca ted the defendants’ convictions and sentences for armed robbery. Smith , 233 Ill. 2d at 28-29. Unlike Smith , in which the defendants were essentially challenging only

their armed robbery c onvictions, the defendant in Davis challenged his first degree murder conviction. Specifically, in Davis , the defendant was convicted of first deg ree murder only

. Davis , 233 Ill. 2d at 767. The jury wa s instructed on intentional or knowing murder and felony murder predicated on aggravated batter

y, and the jury

returned a general g

uilty verdict of first deg

ree murder. Davis , 233 Ill. 2d at 767. The defendant ne ver requested a special verdict for m. On appeal, the defendant contended that it was reversible er ror to instruct the jury that fe lony murder could be predicated upon aggr

avated battery

because the conduct forming the basis of the aggravated battery wa s inherent in the murder. Davis , 233 Ill. 2d at 767. The defendant f urther argued that the one-good-count presumption, under which it was pre sumed that the general guilty verdict was one for intentional murder, was unconstitutional and should not apply

. Davis , 233 Ill. 2d at 777- 78. The supreme court disagreed, a nd found that any er

ror in instructing the jury was harmless. Davis , 233 I ll. 2d at 77 6. The co urt explained that th e United S tates Supr eme Court

had rec ently resolved this issue in Pulido , 555 U.S. at ___, 172 L. Ed. 2d at 391, 129 S. Ct. at 532, and1-07-0410

32

concluded that where a jury returns a general g

uilty verdict after

being instructed on alternative theories of guilt, but one of the alternative theories upon which the verdict could have been based was invalid, the error in so instructing the jury is not “structural” and is subject to harmless error analysis. Davis , 233 Ill. 2d at 780. The concept of “ structural” error is a principle of fede ral error analysis. Under federal criminal jurisprudence, not a ll constitutional errors require reversal. Pulido , 555 U. S. at ___, 1 72 L. Ed. 2d at 3 91, 12 9 S. C t. at 5 32, ci ting Chapman v . Califor nia , 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967). The Court divides constitutional errors into two different categories: “tria l errors” and “structural errors.” United States v. Gonzalez-Lopez , 548 U.S. 140, 1 48, 165 L . Ed. 2d 409 , 419, 126 S. Ct. 2557, 25 63-64 (20 06). Tria l errors are thos e errors that “ ‘occurred during the presentation of the case to the jury ’ and their effect may ‘be qualitatively assessed in the c ontext of other evidence presented in order to determine whe ther [they were] harmless bey

ond a reasonable doubt.’ ” Gonzalez-Lopez , 548 U.S. at 148, 165 L. Ed. 2d at 4 19,12 6 S. C t. at 2 563-6 4, quo ting Arizona v. Fulminan te , 499 U.S. 279, 307-08, 113 L. Ed. 2d 302, 330, 111 S. Ct. 1246, 1264 (1991). Most constitutional errors fall into the trial error category

. Gonzalez-Lopez , 548 U.S. a t 148, 165 L . Ed. 2d at

419, 126 S. C t. at 2564. In c ontrast, structural errors “ ‘defy

analysis by

“harmless-error” standards’ be cause they ‘affec[t] the framework within

which the

trial pro ceeds,’ and are

not ‘simply

an error in the tr

ial proc ess itself.’ ” Gonzalez-Lopez , 548 U.S. at 148, 165 L. Ed. 2d at 419,126 S. Ct. at 2564, quoting Fulminan te , 499 U.S. at 309-10, 113 L. Ed 2d at 330-31, 111 S. Ct. at 1264. Structural errors include the denial of the right to counsel, the denial of the rig ht to self-representation, the denial of the right to a public trial, and the denial of the right to trial by jury resulting f

rom the giving of a defective reasonable doubt instruction. Gonzalez-Lopez , 548 U.S. at 149, 165 L. Ed. 2d at 420,1-07-0410

33

126 S. Ct. at 2564. Thus, in Pulido , the Court found that the type of e rror claimed by

the defendant in Davis was not a fundamental error and was subjec t to harmless error analysis. Pulido , 555 U.S. at ___, 172 L. Ed. 2d at 391, 129 S. Ct. at 532. Our supreme court in Davis relied upon the holding of Pulido , recognizing that these ty pes of errors “have now been spec ifically held by the United States Supreme Court to be subject to a harmless-error analy

sis and are not structural defects that require a utomatic reversal.” Davis , 233 Ill. 2 d at 781-8 2. The co

urt thus he ld that ev en if it we re to find that an e rror oc curred

in instructing the jury, in lig ht of Pulido ’s holding, “it would still not require automatic reversal of defendant’s murder conviction.” Davis , 233 Ill. 2d at 781-82. The court in Davis also distinguished Smith , find ing Davis to be “a world away from Smith .” Davis , 233 Ill. 2d at 781. The court specifica lly recog nized that the defendant in Davis never objected to the genera l verdict and explained that “the holding of Smith was conditioned on the trial court’s refusal to grant such a r equest and did not establish a rule that the court must act sua sponte

to give a specific verdict form.” Davis , 233 Ill. 2d at 781-82. The major

ity s eems to su

gges t that Davis overrul es Smith insofar as Smith held that the refusal to allow a special verdict where it could result in an increased sentence for the de fendant could never be harmless error. I ndeed, the majority state s that sentencing consequences wer e not the dispositive factor in Smith and goes on to rely

upon pre- Smith

cases su ch as Baker , Sample , and Griffin

. To the contrary

, I wo uld find that the pos sibility that a de fendant

could be s

ubjecte d to increased punishment based upon the application of the one g ood count rule continues to be error, even after Davis

. I be lieve tha t Davis does not overrule Smith but, rather, distinguishes it. Indeed, in its more rece

nt decision in People v. Glasper , No. 103937, slip op. at 12 (June 18,1-07-0410

34

2009), the supreme court emphasized the continued validity of Smith . Howeve

r, the co urt also made clear that the ty

pe of error involved in Smith was very specific. Glasper , slip op. at 12. The court also stated that contrary to the type of er

ror involved in Davis , the error in Smith was a structural error. Glasper , slip op. at 12. The court explained that the error in Smith was that the defenda nt was de nied his sixth

amendme

nt right to have a jury , rather

than a jud

ge, determine h

is guilt. Glasper , slip op. at 12. Such an error was not subject to harmless error ana lysis for two

reasons : (1) bec ause the

re was no actual

jury verdict to revie w for ha rmless er ror; and (2) bec ause the deprivation of the right to a jury verdict qualifies as a “structural” err or. Glasper , slip op. at 12. Thus, the type of er

ror involved in Smith

continues to be error and continues to be an automatically reve

rsible error not subject to harmless error analy sis. Additiona

lly, I wou ld find tha

t Davis has altered the plain error analy sis to be applied under Illinois law. I

n People v. Herron , 215 Ill. 2d 167, 186-87 (2005), our supreme c ourt definitiv ely

held that “the pla in-error doctrine by

passes normal for

feiture principle s and allows a reviewing court to consider unpreser ved error when either: (1) the evide nce is close, regardless of the seriousness of the error, or (2) the er ror is serious, regardless of the closene ss of the evidence.” Thus, the focus of the second alternative was the “ seriousness” of the error. Then, in Davis , the supreme court imported the “structural defec t” standard of federal constitutional harmless-error analysis into Illinois plain-error analy sis. See Davis , 233 Ill. 2d at 782. Once the court in Davis concluded that the error in instructing the jury was not “structural”, in conducting its pl ain-er

ror ana lys is, the co

urt consi dered on

ly w hether t he evide nce was closely balanced. Davis , 233 Ill. 2d at 782. I t did not address whether the error was “ser ious.” Davis , 233 Ill. 2d at 782.1-07-0410

1 The Unite d States Supreme Cour t has neve r decide d whethe

r a structural er

ror would constitute a plain error. Puckett v. United States , ___ U.S. ___, ___, 173 L. Ed. 2d 266, ___, 129 S. Ct. 1423, 1 432 (2009 ) (explain ing that the Supre

me Court ha s “sever

al times de clined to resolve whether ‘structural’ err ors – those that affect ‘the framework w ithin which the trial proceeds,’ [citations] – automatically satisfy the third prong of the [federal] plain-error test”)

. 35 This rais es the que stion of whether a “structu ral” er ror automaticall

y c onstitutes

a “seriou s” error under I

llinois pla in error analy sis. 1 As explained above, under federal jurisprud ence, “ structur

al” err ors are so intrinsi cally

harmful t hat they require automatic

revers al; they are not subject to harmless error analysis. See, e.g. , Neder v. United States , 527 U.S. 1, 7, 144 L. Ed. 2d 35, ___, 119 S. Ct. 1827, 1833 (1999). I n People v. Lewis , No. 106306, slip op. at 12 (July 15, 2009), our supreme court e xplained that “[p]lain error marked by funda mental unfairness occurs only

in situations revealing a breakdown in the adversa ry proce ss as distingu ished fr om ty pical er rors,” a nd that “p lain err

or encom passes ma

tters af fecting the fair ness of the proceeding and the integ rity of the judicial proce ss.” Then, in Glasper , our supreme court explained that “automatic reversal is only required where an error

is deemed ‘structural,’ i.e. , a sys temic er

ror that s erves to

‘erode the integ rity of the jud

icial pro cess and

undermine the fa

irness of the defendant’s trial.’ ” Glasper , sli p op. a t 16, quot ing Herron , 215 Ill. 2d at 186. I n Herron , the court used this same definition to describe the ty pe of errors that would constitute plain error under the substantial rights prong of the test. Herron , 215 I ll. 2d at 18 6. The co urt spec ifically stated that “the substantial rights prong [of the plain error test] gua rds against errors that erode the integrity of

the judicial process and undermine the fairness of the de fendant’s trial.” Herron , 215 Ill. 2d at 186.1-07-0410

36

Because the second prong of the plain error test is satisfied where an err or “erode[s] the integrity of

the judicial process and undermine[s] the fairness of the defendant’s tria l,” and a “structural” error is also defined as a n error that “erode[s] the integrity of the judicial process and undermine[s] the fairness of the defendant’s trial,” I would find that a “structural” error satisfies the second prong of the plain error te st and is always re versible. This conclusion is further supported by the fa

ct that when the supreme court in Davis found the error was not “st

ructura l,” it did not engage in any

other analysis re garding whether the e rror would have satisfied the second prong of the plain error test. See Davis , 233 Ill. 2d at 782. In su mmary , I wo

uld find that Smith , Davis , and also Glasper have changed Illinois error analysis in the following ma nner. First, regardless of whe ther the error was preserve d or not, the court must ask whether there was, in fact, an e rror. See, e.g. , Davis , 233 I ll. 2d at 27 3. Second , if there was error, the court must determine whe ther it was a “structural” error or a “trial” error. See Gonzalez-Lopez , 548 U.S. at 309-10, 165 L. Ed. 2d at 419, 126 S. Ct. at 2564. I f the error was structural, then the court must automatically reverse. See Glasper , slip op. at 12; see also Smith , 233 Ill. 2d at 25 (explaining that the effe ct of the error in that case could not be measure d by looking at the strength of the evidence) . If the error was not structural, then the court’s analysis of the impact of the error will depend on whether the e rror was properly

preserved or not. See Herron , 215 I ll. 2d at 18 6-87. I f the er ror was p reserv ed, then t

he court will condu

ct a har mless

error a naly sis, under

which the

State will b ear the

burden to

persuad e the cou rt that the error d id not affect the outcome of the trial. See, e.g. , Smith , 233 Ill. 2d at 25. I f the error was not preserved, then the court will conduct a plain err or analysis, under

which the defendant bears the burden to show that the evidence was closely balanced. See Davis , 233 I ll. 2d at 27 4; see al so Herron , 215 Ill. 2d at 186-87. I n this regard, I

believe that, structural errors aside, the prese rvation1-07-0410

37

of the error affects only

who has the burden of persuasion on the issue. See Davis , 233 Ill. 2d at 274. Here, the majority failed to address whether the error was structural. It simply applied the analysis for “

prejudice” under the first prong of pla in error, found that the evidence was not closely balanc ed, and ended its analy sis there. I believe that it should have found tha t the error was “structural,” under Smith and Glasper . The er

ror her e was the same er ror as the error

in Smith insofar as the defendant was denied the opportunity to have the jury de

termine whether he was guilty of

intentional murder or felony murder, which resulted in a potentially erroneous consecutive sentence for armed r obbery. See Glasper , slip op. at 12. Therefore, under Smith , I would find that it was reversible error for the cour t to have not given the jury special verdict forms. Accordingly , I would vacate def endant’s conviction and sentence for arme d robbery. See Smith , 233 Ill. 2d at 29. For these re asons, I respectfully dissent.