## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Suprem e Court

People v . Bailey , 2013 IL 113690

Caption in S upreme Court: THE PEOPL E OF T HE STATE OF I L L I NOI S, Appellee
, v. DARIUS BA I L EY, Appe llant.

Docke t No. 113690

Filed Marc h 21, 2013

Held ( Note : This syl l abus

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed by the Repo r t er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) Where the jury in a capital case returne d a g ener al verdic t of guilt of first deg ree murder afte r the denial of a defe nse re q u es t for specia l verdic t forms for felony murder, which, along with other offe nses, had also been char g ed, thi s was error that was not harmless because it had sentenci n g conseque nces, and the trial court’s life s entence, imposed as one of the alternat i v es available at t he capital sentenc ing hearing at which it acte d

as trier of fac t, w as vacated, with a rema nd for rese ntencing to a term of
y ear s within the applicable se ntencing rang e for felony murder.

Dec ision Under Review Appea l from the Appellate Court for the First District; hear d in that court

on appea l from the Circuit C o u rt of Cook County
, the Hon. Fr ank Z elezinski, J udg e, pre siding.

J udg ment Appellate c ourt judg ment reve rsed in par t. Circuit court judg ment vacated in part.
Cause re manded.Counsel on

Appea l Michae l J

. Pelletie r, State Appellate Def ender
, Alan D. Goldberg
, Deputy Def ender
, and Heidi L inn L ambros, Assistant Appellate Def ender
, of the Offic e of the State Appellate D efe nder, of Chicag o, for a

ppellant

L isa Madigan, Attorney Gene ral, of Springf ield, and Anita Alvare z, State’s Attorney
, of Chicag o (Alan J

. Sp el l berg
, Annette Colli ns and Doug las P. Har

vath, Assistant State’s Attorney s, of counsel), for the People.

J ustices J USTI CE GARMAN delivere d the judgme nt of the court, with opinion.
Chief J ustice Kilbride and J ustices Fr eema n, Thomas, Kar

meier, Bur

ke, and The is concurr ed in the judg ment and opinion.

OP INION

¶ 1 De fe n d an t Da ri u s Ba i l ey was char g ed in the circ uit court of Cook County with intentional, knowing, a

nd felony murder ( 720 I L CS 5/ 9-1(a )(1) , (2), ( 3) (West 2006)), a nd with the predic ate crimes of home invasion (720 I L C S 5 / 12-11(a )(3) (West 2006)), and robber y of an individual 60 y ear s of ag e or older (720 I L CS 5/18-1(a ), (b) (West 2006) ), in

connec tion with the death of 80-y ear -old Robert Wint er. After the State announce d its intent
to seek the death pe nalty , defe ndant elec ted to have the trial court determine his elig ibilit y for the death sentence

. At trial, his reque st for separate verdict forms on the t wo co u n ts of felony murder was denied. The jury found him guilty of first deg ree murder, home invasion, and robber

y

. The trial court found h i m elig ible for the death penalty
, but sentenc ed him instead to concur

rent terms of natura l life, 30 y ear s, and 15 y ear s respe ctively

. The appellate court found that the circ uit c ourt err ed by ref using de fenda

nt’s reque st for sepa

rate felony

murder verdic t forms, but that he was proper ly sentenc ed to a term of natura l life without the possibili ty of parole

. 2011 I L App (1st) 090074-U. This court g rante d his petition for leave
to appea l pursuant to Supreme Court Rule 315 (I ll. S. Ct. R. 315 (eff. Fe b. 26, 2010)), to deter mine whether the err or in ref using the separ ate verdic t forms
, i f an y , require s that defe ndant be r esente nced to a term of year s.

¶ 2 BA CKGROUND ¶ 3 Whil e he was walking along 144th Street in Riverdale, defe ndant was stopped by a police detec tive who informed him that he was wanted for q u es tioning by the Dolton, I llinois
, police depar

tment in conne ction with a burg lary

. The detec tive took him into custody and

sear ched him befor e placing him in a squad car

. Def endant was found to be in possession of

a chec kbook bear ing the name Robert Wint er. The addre ss on the chec ks was 102 E. 144th St., R iverda le. Def

endant wa s also car

rying a set of key s, which we re r eturne d to him.

-2-¶ 4 As defe ndant was being transporte d to the police station, the office r who was drivingthe

squad ca r hea rd hi m drop an object on the floor of t he car. A sear ch of de fenda nt upon his

arr ival at the police station reve aled that he no longe r had the key s. The office r sear ched the

car and found the key s underne ath the driver’ s seat. When shown the key s, defe ndant stated
t h at t h ey belong ed to his aunt and had fallen out of his pocket. One of the key s was lat er deter mined to be Winter’s ca

r key ; another w as the ke y to Wi nter’s house

. ¶ 5 The detec tive who made the initial stop telephoned Wint er, but did not g et an answe r. He
went to the address g iven on the checks and found t he decea sed 80-y ea r- o ld victim on the floor, cover ed with a blanket. An elec trical cord, which had been remove d from a lamp above the television, was wra

pped around one of his buttocks and one thigh, then around his chest and one a rm. The c ord wa s wrappe d twice a round the victim’s nec k and double knotted. ¶ 6 Investig ators found no evidenc e of forc ed entry

. The victim’s pants pockets wer e turned
out. Two bedrooms wer e i n d i s ar ra y , with dresse r draw ers and closet doors open and
persona l belong ings sc attere d on the bed a nd floor. I n the living room, a china cabine t and

a trumpet case wer e open and their contents strewn on the floor. Next to the body they found the contents of a wallet, including an insurance car d and a plastic insert. Fur ther investigation of the crime scene reve aled a latent fing erpr int on a draw er pull in Wint er’ s bedroom and a latent palm print on a plastic wa llet sleeve ne ar the body . Both prints matche d defe ndant. ¶ 7 After che ck i n g W inter’s g ara g e and finding his car missing, the detec tive called for a

sear ch for the car

. I t was found at 144th Street and Wentworth, sever al blocks from Wint er’ s home and approximately 75 fee t from the spot wher e the defe ndant had been take n into custody

. ¶ 8 When questioned, defe ndant initially denied any involvement in the murder. He claimed
to have found the chec kbook and key s o n t h e gro und just befor e he was stopped by the detec tive. L ater , he said that he had found these items the day befor e and went to the victim’s house to r eturn them, but the n decide d to take the ca r. F inally , he stated that he enter ed the house throug h the back door to find money or something else to steal. He was looking throug h the bedr o o m d rawers when Wint er came up from the baseme nt and caught him. They “tus s l ed” and he eventua lly tied Wint er up with an elec trical cord that he took from

near the television and c overe d him with a jacket. As he left, he took Winter’s che ckbook, key s, and ca

r. He denied intendingto kill W inter. ¶ 9 The cause of death was deter mined to be manual and ligature strangulation. The medical examiner conc luded t hat t he victim was first manually choked and t hen st rang led wit h the elec trical c ord. He was a live when the c ord wa s used. Ther e we re no de fensive w ounds. ¶ 10 Be fore trial, the State filed a notice of intent to seek the death penalty alleg ing e ligibility under two statutory fac tors: felony murder (720 I L CS 5/9-1(b)( 6) (West 2006)), and murder of a victim over the ag e of 60 resulting from excep t i o n al l y brutal and heinous conduct i n d i cative of wanton crue lty (720 I L CS 5/9-1(b)( 16) (West 2006)). Def endant waived h i s rig ht to a jury for both phases of his capital sentenc ing hear ing if he should be convicted of first deg ree murder. ¶ 11 Def

endant’ s videotaped statement was play ed at trial. He took the stand and repudiated the ear lier statement. He testified that he was acqua inted with Wint er and that he used to do

-3-odd jobs for the older man, whom he considere d a mentor. On the date of his death, Wint er

allowed defe ndant to borrow his car

. The chec kbook was in the car and defe ndant had it with him beca use he planned to return it to Wint er. He stated that he was “shocke d and confuse d” when h e wa s t o ld by the detec tive that Wint er was dead. He made the incriminating
statements beca

use the detec tive threatened him and told him what to say

. He felt pressure d, so he told the offic er a

“bunch of

things.” ¶ 12 At t h e j u ry i nstruction confe renc e, defe ndant reque sted that the jury be g iven sepa rate verdic t f orms for the felony -murder char g es. The trial court denied the reque st, stating that beca use th e jury would not be involved in sentenc ing, it was not nece ssary

. The jury was g iven a g ener al verdic t form on the three murder char g es. The jury returne d verdic ts of g uilty of first degree murder, home invasion, and robbe ry

. ¶ 13 At the death penalty elig ibilit y hear ing, the parties stipulated that defe ndant was 20 y ear s old at the time of the offe nse. The court took “judicial notice of the verdic ts taken by the jury” and found “beyond a reasonable doubt that the s tatutory ag g ravating factors do exis t and that the murder was committed during the course of th e fe l o n i es .” After finding defe ndant elig ible for the death penalty and hear ing evidenc e and arguments in ag g ravation and mitigation, the trial court imposed concur rent sentenc es of natura l life in pr ison f or the murder, 30 year s for home inva sion, and 15 y ear s for robbe ry “of a senior citizen.” ¶ 14 Relying on this court’s opinion in People v. Smith
, 233 I l l

. 2 d 1 (2 0 0 9 ), the appe llate
court found that the trial court’s denial o f d ef en dant’s reque st to g ive the jury a separ ate felony -murder verdic t form was an abuse of discretion. The court further found that the
natura l life sentence was proper beca use t he “jury ’s fa i l u re t o specific ally find that he had committed intentional murder[ ] did notrende r him ineligible f or t he death penalty .” 2011 I L App (1st) 090074-U, ¶ 38. Be cause the court was the finder of fac t in the elig ibilit y hear ing an d was entitl ed to make its own assessment of defendant’ s mental s tate based on the evidenc e pre sented at trial, defe ndant was pr operly found elig ible for the de ath penalty under section 9-1(b) (6) of the Criminal Code of 1961 and, there fore
, fo r the alterna tive
sentenc e of natura l life i n prison pursuant to section 5-8-1(a) (1)(b ) o f t he Unified Code of Correc tions (730 I L CS 5/5-8-1(a )(1) (b) (West 2006)). 2011 I L App (1st) 090074-U, ¶¶ 39- 41. The appell at e co u rt also vacated the conviction and sentenc e for home invasion and reduc ed the c onviction for robbe ry from a Class 1 to a C lass 2 felony
, rese ntencinghim to
seven year s on this conviction. Id. ¶ 47.

¶ 15 ANALYSI S ¶ 16 The defe ndants in the consolidated case s in Smith wer e char g ed with first degree murder and predic ate felonies in multicount indictments. Both defe ndants reque sted separ ate verdic t forms on the fe lony -murder counts and both we re denied. Both de fenda nts were convicted of first deg ree murder and g iven consec utive sentenc es for the underly in g felonies. Smith
, 233 I ll. 2d at 5. ¶ 17 The State conce ded that the sentenc ing conseque nces for th e defe ndants would have be en differ ent if they had been found guilty of felony murder and not guilty o f intentional or knowing murder. Id. at 18. Be cause the predic ate felo n y u n d er lying a charg e of felony

-4-murder is a lesser- included o ff en s e of the murder, the felony cannot support a separ ate conviction or sentenc e. Id. at 17

. Ho we v er , if such a defe ndant wer e found guilty of intentional or knowing murder, a separ ate conviction and sentenc e could be imposed for the predic ate felony and the sentenc e fo r t h at fe lony would be imposed consec utively to the
sentenc e for

murder. Id. at 18. ¶ 18 This court held t h at wh er e “specific finding s by the jury with reg ard to the offe nses charged co u ld result in differ ent sentenc ing conseque nces, favor able to the defe ndant, specific verdic t forms must be provided upon re quest and the f ailure to provide them is an abuse of discretion.” Id. at 23. ¶ 19 Fur

ther, when it is not possible to deter mine from a g ener al verdic t whether the defe ndant

was actua lly found guilty of eac h count and when this lack of specific ity has adver se

s en t encing conseque nces for a defe ndant whose reque st for separ ate verdic t forms was ref used, the err or is not harmless. Id. at 25. The appropr iate reme dy in such a case is to “interpr et the g ener al verdic t as a finding on felony murder” only

. Id. at 28. As a result, the defe ndants’ convictions and sentenc es for murder wer e aff irmed, but the conv i ct i o n s and
sentenc es for

the pre dicate f

elonies we re va cate d. Id. at 29. ¶ 20 In Smith
, the connec tion betwee n the verdic t forms and senten ci n g wa s cl ea r. I f the defe ndants had been found guilty of felony murder only
, the pred i ca t e felonies could not have b ee n sentenc ed consec utively
, but if they had been found guilty of intentional or knowing murder as well as felony murder, the sentenc es for the predic ate felonies could run

consec utively

to the sentenc es for

first degree murder. ¶ 21 The link betwee n the verdic t forms and sentenc ing is not as clea r-c ut in the prese nt c ase. Def endant’ s argument is that if the jury had been asked to rende r specific verdic ts rathe r than
a gene ral verdict, i t might have convicted h i m of felony murder only and acquitted him of intentional or knowing murder. Had he been acquitted by the jury of intentional or knowing murder, the defe ndant could not have been found elig ible for the death penalty under section 9-1(b) (6), which require s a finding that the defe ndant either int en d ed t o k i ll the victim or knew that his acts cause d a strong probability of death or great bodily harm. 720 I L CS 5/9- 1(b)( 6) (West 2006). That is, felony murder serve s as an elig ibilit y fac tor only if the murder

was committed with intent or knowledg e. As a result, use of specific verdic t forms could have prec luded the application of section 9-1(b) (6). Finally
, defe ndant argues that if he had
not been found elig ible for the death penalty
, he could not have been sentenc ed to a term of
natura l life

. 730 I L CS 5/5-8-1( a)( 1)(b) (West 2006). The proper sentenc e would have been
a ter m of 20 to 60 y ear s. 730 I L CS 5/ 5-8-1( a)( 1)(a ) (West 2006). ¶ 22 This court anticipated such a situation in Smith in its discussion of the “one g ood count rule” and the use of g ener al verdict forms. After not ing that first deg ree murder is a si ng le offe nse and that “a g ener al verdic t need not rest on a unanimous finding of a particula r theory of murder,” we observe d that “ther e may be differ ent sentenc ing conseque nces based on the specific theory of murder proven.” Smith
, 233 I ll. 2d at 17. We g ave the example of the death penalty
, wher e “ther e are sever al ag grava ting fac tors, applicable only to murders committed intentionally or knowing ly ,” and stated that a defe ndant convicted of felony murder could
not be found elig ible for the death penalty under section 9-1(b) (6) unless it wer e proven that

-5-he not only killed the victim, but also “intended to kill or knew that his acts cause d a strong

probability

of death or g reat bodily

harm.” Id. ¶ 23 T h e p re s en t ca s e re q u i re s us to consider this exact situation, but with the ad d ed circ umstance that the defe ndant elec ted to have the trial court, rathe r than the jury
, deter mine his eligibility

for the de ath pena lty

. ¶ 24 The issues raised by the parties require u s t o ad d re s s a series of questions: (1) Was defe ndant found elig ible for the death penalty under section 9-1(b) (16) as well as section 9- 1(b)( 6), thus making the Smith qu estion moot? (2) Did the verdic t forms reque sted by defe ndant implicate Smith ? (3) I s the rule of Smith applicable in the prese nt c ase wher e the trial court, not the jury
, made the finding of intent or knowledg e? and (4) I f it wa s err or for the trial court to ref

use defe ndant’s reque st for a specific v er d i ct fo rm for felony murder, what re medy

must be g iven? ¶ 25 As we stated in Smith
, while decisions reg arding jury i n structions are g ener ally within the discretion of the trial court, the court must exercise its discretion within the bounds of the law. Id. at 15. B eca

use these issues a

re que stions of law, our re view is de novo

. Id.

¶ 26 Ba sis for Findingof Elig ibilit y for De ath Penalty ¶ 27 Under the applicable law at the time of d ef en d an t ’s t ri al
, an i n d ividual who was convicted of first deg ree murder was sentenc ed to a term of “not less than 20 y ear s and not

more than 60 y ear s” (73 0 I L C S 5/5-8-1(a )(1) (a) (West 2006)), unless the “trier of fac t [found] beyond a rea sonable doubt that the murder was acc ompanied by exceptionally brutal

or heinous behavior indicative of wanton crue lty ” or any of the ag g ravating fac tors listed in section 9-1(b) of the Criminal Code wer e prese nt, in which case “the court may sentenc e the defe ndant to a term of natura l life imprisonment” (730 I L CS 5/5-8-1(a )(1) (b) (West 2006)). ¶ 28 Section 9-1(b)
, at that time, listed 21 ag g rava ting fac tors under which an individual over the ag e of 18 who was convicted of first degree murder could be found elig ible for the death penalty

. The State asser

ted two of these fac tors in the prese nt case : (1) that defe ndant killed 1 the victim in the course of another felony while acting “with the intent to kill the murdere d individual or with the knowledg e that his a cts cre ated a strong probability of death or g reat bodily harm to the murdere d individual” and that the other felony was an “inher ently violent crime” (720 I L CS 5/9-1(b)( 1) (W est 2006)); and (2) that “the murdered individual was 60
y ear s of ag e or o l d er and the death resulted from exceptionally brutal or heinous behavior indicative of w anton cr

uelty” (720 I L CS 5/ 9-1(b) (16) ( West 2006)). ¶ 29 Thus, if defe ndant in the prese nt case was prope rly found elig ible for the de ath pena lty under section 9-1(b) (16) of the Criminal Code, based o n the victim’s ag e and the brutal
nature of the crime, the natura l life sentenc e imposed by the trial court is proper beca use the
reque sted specia l verdic t forms could not have resulted in a verdic t that would have neg ated such a f inding.

T he deat h penal ty was abol is hed in I ll ino is by Publ ic Act 96- 1543 , § 1 0, eff ect ive Ju ly 1, 1 2011 , co dif

ie d at 725 I LCS 5/ 119-1 (We st 201 0).

-6-¶ 30 The State argues that althoug h the trial court at the elig ibilit y hear ing did not expressly

state that the murder was exceptionally brutal and heinous, the trial court “nec essar ily made this finding ” based on its stateme nt that the State had proven the exis tence of “ag g ravating fac tors,” plural, rathe r t han “an ag g ravating f actor ,” singular. The State g oes on t o rec ount the d et ai l s o f the crime, arguing that the evidenc e was sufficie nt for such a finding
, concluding that the “viciousness, brutality and crue lty of this murder cannot be overstate d.” ¶ 31 Whil e we ac k n o wl edge defe ndant’s viol ent and crue l betra y al of an elderly

g entleman who had befr iended him and that the evidenc e might indeed have supported such a conclusion, we are not r eviewing a findingof fa ct under

the standar d for sufficie ncy of the evidenc e. See People v. Evans
, 209 I ll. 2d 194, 209 (2004) (whe n revie wing a challeng e to the sufficie ncy o f t h e evidenc e, a revie wing court considers whether the evidenc e is so improbable, unsatisfac tory , or inconclusive that it cre ates rea son a b le d o u b t o f th e d e f

e n d ant’s
guilt). We are revie wing the re cord to de termine whe ther the trial court, as the t rier of fac t at t he elig ibilit y stag e, actua lly found that “the murder was acc ompanied by exceptionally brutal and heinous behavior indicative of wanton crue lty ,” making defe ndant elig ible for the death pe nalty

. ¶ 32 We find nothing in the rec ord t o s up p o rt s u ch a co n cl u s i o n

. The words “br utal,” “heinous,” and “cr

uelty” wer e not spoken at the elig ibilit y hear ing. After asking the court to take judicial notice of the verdic ts, the State’s entire arg ument consisted of a statement that “the defe ndant qualifies for the death penalty based upon the fac t that he had rea ched the ag e of 18 at the time of the offe nses and he was convicted of offe nses that would make him death elig ible.” In announcing its finding s, the trial court stated that it “finds beyond a rea sonable doubt that the defe ndant was 18 year s of ag e or older at the time of the murder for which he

was convicted in this case , and finds beyond a rea sonable doubt that the statutory fac tors do exis t and that the murder was committed during the cour se of the felonies, being home invasion and robbe ry .” ¶ 33 Clearly
, by noting the “off enses” that defe ndant committed, both the State and the trial
court wer e ref

err ing to the predic ate felonies of home invasion and robber y that implicated the fe lony -murder

ag g ravating f

actor , section 9-1( b)(6)

. ¶ 34 The State also emphasizes the court’s use of the plural “fa ctors,” but this word choice is likely a ref

ere nce to the two predic ate felonies, both of which the trial cour t s p ec ifically mentioned. When such enormous conseque nces would flow from such a finding
, we will not infer a finding of brutal and heinous conduct from the mere fac t that the trial court used the plural “f actor s.” ¶ 35 We conclude that the rec ord does not support the State’s as s er t i o n that the trial court found defe ndant elig ible for the death penalty under section 9-1(b) (16). Fur ther, we will not

acc ept the State’s invitation to eng ag e in o u r o wn assessment of the fac ts to deter mine whether a natura l life sentenc e is proper under section 5-8-1( 1)(b) of the Code of Correc tions beca use “the murder was acc ompanied by exceptionally brutal and heinous behavior indicative of w anton cr

uelty .” This is not the proper role of a revie wingcourt. ¶ 36 Thus, defe ndant was proper ly sentenc ed to a term of natura l life under section 5-8- 1(1)( b) of the Code of Correc tions only if he was proper ly found elig ible for the death penalty under

-7-section 9-1( b)(6) of the Criminal Code.

¶ 37 Requested Ve rdict F orms ¶ 38 The State argues that even if the reque sted felony -murder verdic t f orm had been g iven,
t h e re s u l t i ng verdic t would not have clar ified whether the jury found defe ndant guilty of felony murder alone o r felony murder in addition to intentional or knowing murder. The State points to defe ndant’s lack of objection to the use of pattern verdic t forms 26.05, “Guilty of First Degree Murder ,” and 26.02, “Not Guilty of First Degree Murder .” In fac t, the State

asser ts, defe ndant expressly re quested that the felony -murder forms be g iven “as well as” these two forms. Thus, the jury would not ha ve been g iven the option to specific ally acquit him of intentional or knowing murder. In eff ect, the State’s position is that defe ndant has not proper ly prese rved this issue for appea l beca use he did not reque st verdic t forms for eac h of the three forms of f

irst deg ree murder. ¶ 39 Def

endant responds that bec ause his re quest for a separ ate felony -murder verdic t form

was denied, the trial court most cer tainly would have denied a req u es t for specific verdic t forms dealing wi t h i ntent and knowledg e as well. Def endant also notes that in Smith
, defe ndant Smit h asked for separ ate verdic t forms only for the felony -murder counts ( Smith
, 233 I ll. 2d at 8 -9 ), wh i l e defe ndant Ti tus asked for “separa te verdict forms for eac h of t he
counts of murder char g ed” ( id. at 13). This court did not distinguish betw een the two defe ndants, but rather

found er ror in both ca ses. ¶ 40 Our revie w of the rec ord reve als that defe nse counsel replied “No objection” when asked whether he objected to the “manne r and form”of the g ener al verdic t forms prese nted by the State. Immediately thereafter
, defe nse counsel ref err ed to a previous discussion “in chambe rs” reg ardi n g v erdic t forms. His attempt to explain the request for separate verdict fo rm s was interrupted by the trial court’s asking if the State wished to respond. The S t at e objected “to brea

king it down to differ ent ty pes of murder,” and the trial court denied defe ndant’s re quest. ¶ 41 We note that the appellate court did not discuss this question, perha ps beca use the State is raising it here for the first time. In any event, we are not inclined to find the issue forf eited based on the rec ord befor e us. The trial court’s appar ent ref usal to utiliz e a separ ate felony

murder verdict form at an ea rl ier “in chambe rs” meeting forec losed all discussion of what other verdic t forms would have been appropr iate. The defe ndant’s reque st on the rec ord for

a separ ate verdic t form was clea rl y intended to document a ruling that had alre ady been made. Thus, we conclude that the defe ndant’s reque st to have t he jury instructed on and
g iven separ ate verdic t forms for eac h of the differ ent mental states is sufficie ntly documented to preser ve this issue on appea l.

¶ 42 Applicability of Smith When the Trial Court Dete rmines Eligibility

for the D eath Pena lty ¶ 43 Un d er t h i s co urt’s decision in Smith
, if a jury finding of not guilty on co u n t s o f intentional or knowing murder would have sentenc ing conseque nces for the d ef en d ant

-8-convicted of felony murder, he is e ntitled to separ ate ve rdict for ms upon request. Id. at 23. ¶ 44 The State argues that the rule of Smith does not apply in the prese nt case beca use the trial court, not the jury
, was deter mining elig ibilit y for the death penalty and was entitled to make i t s o wn assessment of the fac ts. The State asser ts that beca

use the elig ibilit y ph as e o f a capital sentenc ing hear ing is independe nt of the guilt phase and b ec au s e t h e defe ndant’s waiver of a jury for the elig ibilit y phase made the trial court the independe nt f inder of fac t, the trial court’s consideration of defe ndant’s mental state is not limit ed by the jury ’s verdic t, citing People v. Shatner
, 174 I ll. 2d 133, 149-51 (1996) (trial court proper ly found defe ndant elig ible for death penalty wher e g ener al verdic t of guilty of first degree murder encompa ssed

nece ssary finding of intent and sentenc ing judge hear d the overwhelming evidenc e at trial). The rema inder of the State’s discussion of this issue relates to the proper reme dy for a Smith

err or, not to whether

an er ror a ctually

occur red. ¶ 45 Def

endant squarely prese nts t h e q u es tion that frames the i ssue under Smith : If the jury had been g iven separ ate verdic t forms as he re q u es t ed and if the jury had found him not guilty of intentional and knowing murder, could the trial court have made a finding of intent

or knowledg e under section 9-1(b) (6)? He argues that the trial court could not have made a fac tual finding at the elig ibilit y stag e that was direc tly contra ry to a jury verdic t of acquittal. Thus, he asserts, the exact nature of the err or was that the g ener al verdic t form failed to

reve al whether he was acquitted of intentional or knowing murder, which woul d have fore closed application of section 9-1(b) (6). He points t o B eck v. Alabama
, 447 U.S. 625 (1980), a nd Bullington v. Missouri , 451 U.S. 430 (1981), in support of his position. ¶ 46 In Bec k
, the defe ndant was convicted of murder committed during the course of a robbe ry

an d was sentenc ed to death. Under Alabama law at that time, felony murder was a lesser

included offe nse of the capital crime of “robbe ry -intentional killing.” Bec k
, 447 U.S. at 628. In addition, the death sentenc e was mandatory up o n co n v i ction of a capital offense unless the court ref

used to impose it based on mitigating circ umstances, in which case the defe ndant

was sentenc ed to life in prison without the possibili ty of parole

. Id. at 629. Stat e l aw also prohibited the g iving of a jury instruction on a lesser- included offe nse in a capital trial. Thus, the jury had only two options—convict the defe ndant of capital murder or let him walk fre e. Id. at 628-29. State law to t al l y fo re closed the possibili ty of convicting the defe ndant of a lesser of fense and imposing a

lesser se ntence

. ¶ 47 T h e S up reme Court held that the death penalty could not be imposed un d er t h es e circ umstances. Id. at 628. Specific ally : “[W ]hen the evidenc e unquestionably establishes that the defe ndant is guilty of a serious, violent offe nse—but leave s some doubt with respe ct to an element that would justify

conviction of a

capital offense —the failure t o g ive t he jury the ‘thi rd option’ of convicting on a lesser included offe nse would seem inevitably to enhanc e the risk of a

n unwar rante d conviction.
Such a risk cannot be tolerate d in a case in which the defe ndant’s life is at stake.” Id. at 637. ¶ 48 Bec k does not dictate the result in the prese nt case beca use, in I llinois
, felony murder is
not a lesser- included offe nse of first deg ree murder. As we noted in Smith
, while our statute

-9-descr ibes three “ty pes” of murder, first deg ree murder is a single offe nse. Smith
, 233 I ll. 2d
at 16. The th re e theories, eac h of which require s a mental state or conduct that must

acc ompany the act that cause s the death of the victim, mere ly descr ibe differ ent way s to commit the crime of first deg ree murder. Id. Thus, it is constitutionally permissible for jurors
to return a g ener al verdic t of guilty even i f t here is no juror unanimity with reg ard to the

means by which the murder was committed or the mental state of the killer. Id. (citing Schad v. Arizona , 501 U.S. 624, 631-32 (1991))

. ¶ 49 Fur

ther, Bec k does not require a s ep ar at e jury instruction or verdict form upon request by a defenda

nt. See, e.g. , People v. Tenner
, 157 I ll. 2d 341, 373-74 (1993) (distinguishing Bec k v. Alabama and holding that defe ndant’s tender ed instructions on s e c o n d deg ree murder

wer e proper ly ref

used beca

use they wer e not supported by th e ev idence ). Indeed, the Supreme Court later

explained its holding in Bec k, saying that “due pr ocess r equire s that a lesser incl u d ed offe nse instruction be g iven only when the evidenc e war rants such an instruction. The jury ’s discretion is thus channe lled so that it may convict a defe ndant of any crime fairly supported by the evidenc e.” (Emphasis in orig inal.) Hopper v. Evans
, 456 U.S. 605, 611 (1982). ¶ 50 T

en n er an d Hopper do not make Bec k irrele vant to our analy sis. Whil e i t m ay b e unlikely
, g iven the cause and manner of the victim’s death and defe ndant’s confe ssion, that the jury would have acquit t ed defe ndant of intentional or knowing murder, we cannot say that a jury

could not have f

ound defe ndant guilty

of fe lony murder only

. ¶ 51 Bec k is instructive on the point raised by defe ndant. As in Bec k
, the lack o f a s ep arate jury instruction on felony murder made it impossibl e for the jury in the prese nt case to utiliz e the “third option” (

Bec k
, 447 U.S. at 637) of acquitting defe ndant of intentional or knowing

m urder while convicting him of felony murder. We find the rea soning of Bec k pers u as i v e that a defe ndant’s reque st for separ ate instructions and verd i ct forms on felony murder should be provided when their prese nce could aff ect the defe ndant’s elig ibilit y for the death penalty and for a life se ntence if death is not i mposed. ¶ 52 Def

endant also relies on Bullington
, in which the Supreme Court held that the State could
not seek the death penalty in a retria l afte r the jury in the first trial reje cted the death penalty

. In Missouri, proce eding s in a capital case wer e bifurcated into a guilt phase and a sentenc ing phase, with the same jury at both stag es. Bullington
, 451 U.S. at 433-34. The defe ndant was found guilty of capital murder and a sentenc ing hear ing was held the next day

. Id. at 435. The jury reje cted the death penalty and fix ed defe ndant’s sentenc e at life imprisonment without elig ibilit y for parole for 50 y ear s. Id. at 435-36. Ther eaf ter, the conviction was reve rsed on g rounds related to jur

y selec tion. Id. The State announce d its int ent to ag ain see k the death penalty and the trial court g rante d the defe ndant’s m o t i o n t o strike. Id. In an interlocutory
appea l, the Missouri Supreme Court, in a divided opinion, held that allowing the prosec ution
to seek the death penalty at a second trial did n o t violate the double jeopar dy clause
, the eig hth amendme n t , o r due proce ss, and would not chill a defe ndant’s eff ort to seek a new trial based on constitutional violations at his first trial. Id. at 437 (citing State ex rel. W estfall v. Mason , 594 S.W .2d 908 (1980))

. ¶ 53 The Supreme C o u rt re v er s ed on the g rounds that the sentenc e of life imprisonment

-10-imposed by the jury in the first trial meant that “ ‘the jury has alre ady acquitted the defe ndant

of whateve r was nece ssary to impose the death sentenc e.’ ” Id. at 445 (quoting W estfall
, 594 S.W .2d at 922 (B ardg ett, C.J
., dissenting) ). Allowing the State to seek the death penalty under these ci rc umstances would violate the prohibition ag ainst double jeopar dy
, beca use “[h] aving rec eived ‘one fair opportunity to offe r whateve r proof it coul d assemble,’ [citation]
t h e S t ate is not entitled to another .” Bullington
, 451 U.S. at 446 (quoting Burks v. United States , 437 U.S. 1, 16 (1978)). ¶ 54 Ag ain, Bullington does not direc tly addre ss the question in the prese nt case beca use the
proce dural postures of the two case s are differ ent. I t does, howeve r, stand for the proposition that once a jury has acquitted a defe ndant of an offe nse, an element of which is nece ssary to the imposit ion of the death penalty
, a subsequent fac t f inder—whe ther judge or jury —may not make a c ontradictory

finding

. Id. ¶ 55 These c ases, take n toge ther with our holding in Smith
, sug g est that if a jury in a capital

case has re ndere d a ver dict in the guilt phase that contra dicts a fa ct nec essar y for a finding of elig ibilit y at the sentenc ing phase, a contra dictory finding cannot be made. For example, if a jury wer e given separa te v erdic t forms for intentional and knowing murder and felony murder and we re to find the defe ndant guilty of knowing murder, but not guilty of felony murder a nd the pre dicate f

elony , the State could not therea fter a ssert sec tion 9-1(b)(6) as a basis for death elig ibilit y

. This would be true whether the jury or the trial court was making the elig ibil i t y deter

mination. Once acquitted of felony murder and the char g ed predic ate felony
, the defe ndant could be found death- elig ible under one of the other elig ibilit y fac tors, but application of sec tion 9-1(b)(6) would be absolutely fore closed. ¶ 56 Simi larly
, in the prese nt case , if the jury had been g iven separ ate verdic t f orms and had acquitted defe ndant of intentional or knowing murder, a p p li cation of section 9-1(b) (6) would have been fore closed beca use the verdic t would have neg ated an essential element of this elig ibilit y fac tor. The State’s argument that the fac tual deter minations made during the g uilt phase and the elig ibilit y phase are “mutually exclusive” is mistaken and is inconsistent with Supreme Court pre cede nt. ¶ 57 We, there fore
, ag ree with th e ap p el l at e court that the trial court err ed by ref using to provide the jury with separ ate verdic t forms upon reque st wher e a general verdic t would make it impossibl e to deter mine whether the jury acquitted defe ndant o f i n t entional or knowing murder, when that deter mination had sentenc ing conseque nces for the defe ndant. We rea ffirm our holding in Smith that “w h er e, as here
, specific finding s by the jury with
reg ard to the offe nses char g ed could result in differ ent sentenc ing conseque nces, favor able
to th e d ef endant, specific verdic t forms must be provided upon reque st and the failure to provide them is an a

buse of discr etion.” Smith , 233 I ll. 2d at 23. ¶ 58 Having rea ched this conclusion, we acknow ledg e the State’s conce rn with the eff ect this holding might have on the body of l aw gove rning gen er al verdicts of guilty of first deg ree murder. I f separ ate verdic t forms are used, it is possible that 12 jurors may find the defe ndant
guilty of murder, but they may be divided on the specific theory o f m u rder

. We leave for another day the question of how such a divided verdic t sh o u l d be treated. Howeve r, it

rema ins true that first deg ree murder is a single offe nse and that a conviction of this offe nse

-11-“nee d not rest on a unanimous finding of a par ticular theor

y of m urder .” Smith
, 233 I ll. 2d
at 17. I t is also true that the issue raised in the prese nt case will not rec ur beca use I llinois no longe r has the death penalty

. Thus, application of S mi t h in future case s would seem to be l i m ited to the question of consec utive or concur rent sentenc ing for char g ed pred i ca t e felonies.

¶ 59 Remedy for Smith Violation ¶ 60 Having found err or in Smith
, this court considere d whether such an err or may be deeme d harmless. Id. at 25. We conclu d ed that this question cannot be resolved by considering whether the evidenc e was su fficient to support a guilty verdic t for intentional or knowing murder. Rather, the err or is harmless “only if the jury ’s finding s may be asce rtained from the
g ener al ver dicts entere d.” Id. ¶ 61 In the prese nt case , althoug h the evidenc e may have been sufficie nt to support a ver dict of intentional or knowing murder, t he gene ral verdict of guilty of first degree murder doe s not reve al whether the jury actua lly found defe ndant guilty of intentional or knowing murder

or only of felony murder. Specific verdic t forms would have made the jury ’s fac tual finding s clea r. T h ere fore
, the err or was not harmless and it may not be presumed that the jury

co n v i cted defe ndant of intentional or knowing murder. Id. at 27-28. In such a case , “the
appropr iate reme dy is to interpre t the g ener al verdic t a s a finding on felony murder” and to impose sentence acc ording ly

. Id. at 28. ¶ 62 T h e a

p p e ll a te c o u r t conclude d that the “trial court’s decision to sentenc e defe ndant B ailey
to natura l life imprisonment for felony murder was proper ,” beca use the “evide nce supported a finding bey ond a re asonable doubt that, while commi tting the offe nse of home i nvasion, defe ndant B ailey

acte d with intent to kil l *** or knew that his a ctions *** cre ated a strong probability of death or gre at bodi ly harm.” 2011 I L App (1st) 090074-U, ¶ 41. In rea ching this conclusion, the appellate court applied the standard that t h e trial court’s decision to impose a life sentenc e wi ll not be disturbed unless “the evidenc e is so unrea sonable, improbable or unsatisfac to ry that it does not provide proof of the finding s beyond a

rea sonable doubt.” (Interna l quotation marks omitted.) Id. (quoting People v. Ree d
, 405 I ll. App. 3d 279, 287 (2010))

. ¶ 63 As noted above, howeve r, the appli ca b l e s t an d ar d is not whether the evidenc e wa s sufficie nt to support a fi nding of intentional or knowing murder had the jury been g iven verdic t forms that direc tly prese nted that question. The standard under Smith is whether the
sentenc e imposed by the trial court can stand when the g ener al verdic t is interpre ted as a findingon felony

murder a nd sentenc e is imposed acc ording ly

. Smith , 233 I ll. 2d at 28. ¶ 64 Be cause we find err or under S mi t h and beca

use Smith
, when rea d in conjunction with Bec k and Bullington
, require s that the verdic t b e i nterpre ted not only as a conviction of felony murder, but also as an acquittal of intentional or knowing murder, the appellate court’s analy sis is flawed. When the g ener al verdic t is viewed, as it must be, as an acquittal on the
counts of intentional and knowing murder, the trial court’s finding of elig ibilit y for the death
sentenc e cannot stand, despite the evidenc e that might have supported such a finding

. Simpl y stated, the trial court was fore closed from making its own deter mination of defe ndant’s

-12-mental state beca use the Smith err or require s that the g ener al verdic t of guilty of first deg ree murder be t reated as a verdict of guilty of felony murder an d an ac qu i t tal of i ntentional or knowing murder. As a result, the State was barr ed from seeking a finding of elig ibilit y under section 9-1( b)(6)

. ¶ 65 Thus, beca

use defendant was not proper ly found eligible for the death p en al t y , he wa s not elig ible for a senten ce o f natura l life without parole under section 5-8-1(b) (730 I L CS 5/5-8-1(a )(1) (b) ( West 2006)), which may be imposed whe n the cour t elects not to impose the death penalty on a death- elig ible defe ndant. The proper sentenc ing rang e for a defe ndant convicted of felony murder but acquitted of intentional or knowing murder is 20 to 60 y ear s. 730 I L CS 5/ 5-8-1( a)( 1)(a ) (West 2006). ¶ 66 We are not persua ded by the State’s arg uments to the contra

ry

. The State asser

ts, without citation to authority
, that this c ourt “has expressly held that even wher e a defe ndant is only char g ed with felony murder *** and not intentional or knowing murder *** he may still be found elig ible for the deat h p en al t y

. ” This may be true. When I llinois still had the death penalty
, an individual might have been char g ed with felony murder only and convicted of that crime and the State might have there afte r prese nted evidenc e of intent at the elig ibilit y phase. In such a case , the absenc e of a conviction o f i n t en t i o nal murder would not have barr ed such a finding at the elig ibilit y stag e. Howeve r, a p re v i o u s ac q uittal of intentional murder would have fore closed that possibili ty

. In the prese nt case , the jury ’s verdic t must be interpre ted as a

n acquittal of intentional or know ing mur der. Smith , 233 I ll. 2d at 28. ¶ 67 The State also argues that defe ndant has alre ady rec eived the r emedy

set forth in

Smith beca use the trial court imposed the sentenc es for the predic ate felonies concur rent to the life
sentenc e. This is indeed the reme dy applied in Smith
, but it is an incomplete re medy in the
prese nt case beca

use the lac k of sepa

rate verdic t forms not only aff ecte d the sentenc ing on the predic ate felonies, but also the deter mination of elig ibilit y for the death penalty
, which, in turn, made the de fenda nt eligible f

or a life sentenc e. ¶ 68 In addition, the State argues that Smith require s only th at t h e gen er al v er d i ct b e i n t erpreted as a guilty verdic t on the felony-murder count, not that it be interpre ted as an acquittal of the intentional and knowing murder counts. We have al re ad y rejected this
argument as inconsistent with the Supreme Court’s holdings in Bec k and Bullington and with this court’s re asoningin Smith

. ¶ 69 The State char acte rizes this as a repudiation of the “o n e go o d count rule,” which we

rea ffirme d in Smith

. See id

. at 15-21. Whil e our decisions in Smith and the prese nt case may result in the “one g ood count rule” being applied less fre quently
, we do not repudiate the rule. The rule is applicable in a case wher e a g ener al v erdic t of guilty has been proper ly rende red. The rule of Smith applies only wher e the defe ndant has reque sted separ ate verdic t forms, wher e the lack of separ ate verdic t for ms could have adver se sentenc ing conseque nces, and whe re the trial court de nies the def endant’ s reque st.

¶ 70 CONCLUSI ON ¶ 71 We, there fore
, hold that the trial court err ed by deny ing defe ndant’s reque st for se parate verdic t forms and the proper reme dy for this err or is to vacate the defe ndant’s sentenc e of life

-13-imprisonment and to rema nd to the trial court for sentenc ing pursuant to section 5 -8 -1 (a ) (730 I L CS 5/5-8-1(a) (West 2006)). As a result, it is unnece ssary to rea ch defe ndant’s claims of collate ral e stoppel or double jeopa rdy

. ¶ 72 For the reas o n s s t at ed
, t h at p ar t of the appellate court’s judgme nt which af firmed defe ndant’s natura l li fe s entence is reve rsed, the circ uit court’s sentenc e of natura l life is

vacated, and the c ause is re manded to the c ircuit court f or fur ther proc eeding s.

¶ 73 Appellate c ourt judg ment reve rsed in par t. ¶ 74 Circuit court judg ment vacated in part. ¶ 75 Cause re manded.

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