The Honorable Justice Harrison delivered the opinion of the court.
The opinion of the court was delivered by: Harrison
The Honorable Justice HARRISON delivered the opinion of the court:
Defendant, David Smith, was convicted following a jury trial in the Cook County circuit court of first degree murder, aggravated criminal sexual assault and home invasion arising from the March 17, 1987, stabbing death of Lisa Ferguson. At a separate sentencing hearing, the same jury found defendant eligible for the death penalty and found that there were no factors in mitigation sufficient to preclude imposition of the death sentence. Accordingly, the trial court sentenced defendant to death for the murder conviction and to concurrent terms of 30 years each for the aggravated criminal sexual assault and home invasion convictions.
On review, this court affirmed defendant's convictions, but found that the trial court's refusal to "life-qualify" the jury amounted to a violation of defendant's due process rights requiring vacation of the death sentence and a remand of the cause for a new sentencing hearing. People v. Smith, 152 Ill. 2d 229, 178 Ill. Dec. 335, 604 N.E.2d 858 (1992). The evidence presented at defendant's trial and original sentencing hearing is set forth in that opinion in detail. Therefore, only the facts necessary for understanding and adjudicating the issues in the present appeal will be discussed.
On remand, the trial court, after a new sentencing hearing, reimposed the death penalty for defendant's murder conviction. The sentence of death has been stayed pending direct review by this court. Ill. Const. 1970, art. VI, § 4(b); 134 Ill. 2d Rs. 603, 609(a). Defendant argues on appeal that numerous errors committed during both the eligibility and penalty phases of his capital resentencing deprived him of the right to a fair sentencing hearing. We first address those he cites that are associated with the eligibility phase.
Defendant initially contends that his waiver of a jury for purposes of sentencing was not knowing, intelligent or voluntary because he was not specifically advised that he was entitled to have a jury determine his eligibility for the death penalty. The record shows that, prior to the sentencing hearing, the trial court admonished defendant as follows:
"THE COURT: *** [Defendant], you understand that you have a right to have a jury make a determination as to the sentencing in this case.
Q. And you may, if you so choose, give that *** right up and have a judge, in this case that would be myself [ sic ], make that determination.
Q. In other words, that would be the difference between having a jury of twelve people hearing the facts of this case, hearing these matters, and then deciding all of them, twelve to zero, whether-with regards [ sic ] to the death penalty, whether that sentence should be imposed.
Q. That right cannot be taken away from you. You must knowingly waive that right.
Q. Do you wish to have a jury make that determination, or do you wish to have a judge decide?
A. I wish at this time to have the judge decide."
Defendant also executed a written waiver of jury sentencing.
Defendant argues that despite these oral and written precautions, his waiver of his right to a jury was not knowing, intelligent or voluntary because the trial court did not admonish him as this court recommended in People v. Albanese, 104 Ill. 2d 504, 85 Ill. Dec. 441, 473 N.E.2d 1246 (1984). We disagree. It is true that the Albanese court stated:
"We suggest to trial judges that it would be preferable if, before accepting a jury waiver at a capital sentencing hearing, they would inform defendants that a sentencing jury would have to unanimously decide that the State has proved beyond a reasonable doubt the existence of a statutory aggravating factor and that there are not sufficient mitigating factors established to preclude the death sentence." Albanese, 104 Ill. 2d at 536.
However, it is sufficient for a valid jury waiver that the trial court explain to the defendant that he is waiving his right to have a jury consider the capital sentencing issues and that the sentencing decision would, therefore, be made by the court alone. People v. Haynes, 174 Ill. 2d 204, 252, 220 Ill. Dec. 406, 673 N.E.2d 318 (1996); People v. Ramey, 152 Ill. 2d 41, 59, 178 Ill. Dec. 19, 604 N.E.2d 275 (1992).
Although it is "preferable" for the court to admonish a defendant regarding the specific rights he is waiving at each stage of capital sentencing, this court ultimately held in Albanese that the sixth amendment requires no precise formula for determining whether a waiver has been knowingly and intelligently made, and that each case will turn on its own facts and circumstances. Albanese, 104 Ill. 2d at 535-36; see also People v. Strickland, 154 Ill. 2d 489, 517, 182 Ill. Dec. 551, 609 N.E.2d 1366 (1992) (there is no fixed formula that must be recited by the court prior to receiving a defendant's valid jury waiver at a capital sentencing hearing). Here, the record shows the trial court admonished defendant that he had a right to have a jury make the sentencing determination, that, after hearing "these matters," the jurors would have to decide unanimously whether the death sentence should be imposed, and that if defendant chose to give up that right, a judge would make the sentencing determination. Defendant stated that he understood the consequences of his waiver. Additionally, we find it significant that defendant had originally been convicted of murder and sentenced to death by a jury, and thus was familiar with the jury's function in a capital sentencing hearing. See Albanese, 104 Ill. 2d at 536. Therefore, we are satisfied that the facts and circumstances of this case demonstrate that defendant's waiver was knowing, intelligent and voluntary.
Defendant next argues that he was denied effective assistance of counsel at his sentencing hearing because defense counsel misunderstood the eligibility issue and accordingly did not contest defendant's eligibility for the death penalty. In a related argument, defendant contends that the trial court improperly found him eligible for the death penalty where the State did not prove and the court did not find the element of intent as required under section 9-1(b)(6) of the Criminal Code of 1961 (720 ILCS 5/9-1(b)(6) (West 1994)).
At resentencing, the State asked the court to take judicial notice that the jury had convicted defendant of murder, aggravated criminal sexual assault and home invasion, and that, given his birth date of June 26, 1963, defendant was over the age of 18 at the time of the offenses. The State requested that "based on those two findings," defendant be found eligible for the death penalty. The following colloquy then occurred:
"THE COURT: Do you have any objection to me taking judicial notice of those facts?
[DEFENSE COUNSEL]: Judge, my understanding of the opinion is that the sentencing-or the eligibility is not an issue. It's merely the sentencing."
The court then took judicial notice of those facts and found, "pursuant to the provisions of the statutes, [defendant] is eligible for the death penalty."
We agree with defendant that his counsel evidently believed, incorrectly, that the resentencing ordered by this court based upon Morgan v. Illinois, 504 U.S. 719, 119 L. Ed. 2d 492, 112 S. Ct. 2222 (1992), was limited to the second phase of the proceeding. In People v. Johnson, 159 Ill. 2d 97, 134-35, 201 Ill. Dec. 53, 636 N.E.2d 485 (1994), we held that there was no distinction between the two stages of sentencing for purposes of the Morgan doctrine, because "the jury involved in any aspect of the death sentencing procedure must be fair and impartial." Thus, on remand, defendant clearly had a right to both stages of the hearing. However, we find that under the circumstances present herein, counsel's mistake as to the law did not deny defendant a fair sentencing hearing, because the trial court properly determined defendant's eligibility and the outcome of the hearing would not have differed had defense counsel contested the point.
"For the purposes of imposing the death sentence, it is incumbent upon the sentencer to determine whether an aggravating factor exists." People v. Johnson, 149 Ill. 2d 118, 156, 171 Ill. Dec. 401, 594 N.E.2d 253 (1992). Section 9-1(b)(6) sets forth the elements of the statutory aggravating factor of murder in the course of another felony, and includes the requirement that the defendant acted with the intent to kill or with the knowledge that his acts created a strong probability of death or great bodily harm. 720 ILCS 5/9-1(b)(6)(b) (West 1994); Johnson, 149 Ill. 2d at 156. Defendant argues, as did the defendant in Johnson, 149 Ill. 2d at 156, that the trial court failed to make any finding that he, in performing the acts which caused the victim's death, acted with the necessary intent. Specifically, defendant argues that proof that he was convicted of murder, aggravated criminal sexual assault and home invasion and that he was over 18 at the time of the murder is insufficient to establish his eligibility for the death penalty. However, defendant was indicted and proceeded to trial on, inter alia, two counts of first degree murder alleging the mental states of intent or knowledge (Ill. Rev. Stat. 1987, pars. 9-1(a)(1), (a)(2)), and the jury returned a general verdict of guilty on the murder charge. See People v. Thompkins, 121 Ill. 2d 401, 117 Ill. Dec. 927, 521 N.E.2d 38 (1988) (where an indictment contains several counts arising out of a single transaction and a general verdict is returned the effect is that the defendant is guilty as charged in each count). In Johnson, under strikingly similar facts, we reasoned:
"The jury was charged with instructions which included intentional murder, and a general verdict was returned. That raised the presumption that the jury found the defendant guilty of intentional murder. During the sentencing hearing, the trial judge took judicial notice of the jury's verdict. Since the verdict encompassed the necessary finding of intent, there was no omission on the part of the trial judge, and defendant's argument must fail." Johnson, 149 Ill. 2d at 157.
We believe Johnson to be controlling here, and hold that the trial court made the requisite finding of intent under the statute, where the court took judicial notice of the jury's verdict.
Defendant cites People v. Ramey, 151 Ill. 2d 498, 545-50, 177 Ill. Dec. 449, 603 N.E.2d 519 (1992), wherein this court found that a jury's general verdict would not support imposition of the death penalty because use of the presumption that the jury found the defendant intentionally murdered the victim would deny the defendant his right to have his eligibility for the death penalty decided by a trial court or jury. Defendant's reliance on Ramey is misplaced. In Ramey, the instructions given the jury at the first stage of sentencing failed to specify that there must be a finding that the defendant acted with the intent required under section 9-1(b)(6)(b). Thus, this court declined to find ...