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10/19/95 PEOPLE STATE ILLINOIS v. LARRY MACK

October 19, 1995

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,
v.
LARRY MACK, APPELLEE.



Appeal from the Circuit Court of Cook County, the Hon. James Schreier, Judge, presiding.

The Honorable Justice Nickels delivered the opinion of the court:

The opinion of the court was delivered by: Nickels

JUSTICE NICKELS delivered the opinion of the court:

The State appeals from an order of the circuit court of Cook County granting the petition of defendant, Larry Mack, for relief under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1989, ch. 38, par. 122-1 et seq.). The circuit court vacated defendant's death sentence and ordered a new sentencing hearing on the basis that the sentencing jury failed to return a legally sufficient verdict finding the existence of an aggravating factor making defendant eligible for the death penalty. Because the post-conviction proceedings involve a judgment imposing the death penalty, the State's appeal lies directly to this court. (134 Ill. 2d R. 651.) For the reasons set forth below, we affirm.

BACKGROUND

Defendant was found guilty of murder (Ill. Rev. Stat. 1979, ch. 38, par. 9-1(a)) and armed robbery (Ill. Rev. Stat. 1979, ch. 38, par. 18-2) following a bench trial in the circuit court of Cook County. After a bifurcated death penalty hearing conducted before a jury, defendant was sentenced to death. The following evidence was adduced at trial and sentencing. According to an eyewitness (whose testimony was partially corroborated by photographs from security cameras) on November 23, 1979, defendant entered a bank located at 500 West 119th Street in Chicago and walked up to the bank's security guard, Joseph Kolar. Defendant pointed a gun at Kolar, and when Kolar tried to push the gun away defendant fired a shot, which struck Kolar's right arm. At that point, defendant grabbed Kolar by the back of hisshirt collar, walked him over to a window, and pushed him to the ground. Defendant then straddled Kolar and shot him in the chest. Kolar died as a result of the second gunshot. While defendant was straddling Kolar, two accomplices entered the bank, climbed over a barrier to the teller cages, and stuffed money into bags. All three were apprehended by Chicago police officers immediately after they left the bank.

After defendant was found guilty at the bench trial, a jury was empaneled for a bifurcated death penalty hearing. At the first stage of the hearing, the State sought to establish defendant's eligibility for the death penalty solely on the basis of the statutory aggravating factor set forth in section 9-1(b)(6) of the Criminal Code of 1961, which provided as follows during the relevant time frame:

"(b) Aggravating Factors. A defendant who at the time of the commission of the offense has attained the age of 18 or more and who has been found guilty of murder may be sentenced to death if:

***

6. the murdered individual was killed in the course of another felony if:

(a) the murdered individual was actually killed by the defendant and not by another party to the crime or simply as a consequence of the crime; and

(b) the defendant killed the murdered individual intentionally or with the knowledge that the acts which caused the death created a strong probability of death or great bodily harm to the murdered individual or another; and

(c) the other felony was one of the following: armed robbery ***." (Emphasis added.) Ill. Rev. Stat. 1979, ch. 38, par. 9-1(b)(6).

The verdict form supplied to and returned by the jury in connection with this aggravating factor stated, "We, the jury, unanimously find beyond a reasonable doubt that the following aggravating factor exists in relationto this Murder: Larry Mack killed Joseph Kolar in the course of an Aimed Robbery." The verdict failed to specify that defendant acted with the requisite ...


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