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People v. Mack

May 21, 1998

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


The opinion of the court was delivered by: Justice Miller delivered the opinion of the court:

Defendant, Larry Mack, was convicted in the circuit court of Cook County of the offenses of murder (Ill. Rev. Stat. 1979, ch. 38, par. 9-1(a)) and armed robbery (Ill. Rev. Stat. 1979, ch. 38, par. 18-2). He was sentenced to 25 years' imprisonment on the armed robbery charge and to death on the murder charge. We affirmed the murder conviction and death sentence on direct appeal. People v. Mack, 105 Ill. 2d 103, 137 (1984). In a subsequent post-conviction proceeding, the circuit court vacated defendant's death sentence and ordered a new sentencing hearing. The State appealed and we affirmed. People v. Mack, 167 Ill. 2d 525, 539 (1995). Defendant has now filed a motion in the circuit court seeking to bar the imposition of the death penalty at his second sentencing hearing based upon double jeopardy grounds. The trial Judge denied this motion. Defendant appeals to this court pursuant to Supreme Court Rules 603 and 604(1). The State asks that we take this appeal pursuant to Supreme Court Rule 302(b). We granted leave to appeal and affirm.

BACKGROUND

We provide only the facts relevant to this appeal, more detailed facts can be found in Mack, 105 Ill. 2d at 108-11. At a bench trial, defendant was found guilty of murder and armed robbery. A jury was empaneled and the case proceeded to an eligibility hearing for the death penalty phase of the trial. The State attempted to establish defendant's eligibility for the death sentence under section 9-1(b)(6) of the Criminal Code of 1961. That section states:

"(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 ***." Ill. Rev. Stat. 1979, ch. 38, par. 9-1(b)(6).

The jury returned its findings on a form supplied to it by the court which stated: "We, the jury, unanimously find beyond a reasonable doubt that the following aggravating factor exists in relation to this Murder: Larry Mack killed Joseph Kolar in the course of an Armed Robbery." After hearing testimony in aggravation and mitigation, the jury determined that there were no factors sufficient to preclude imposition of the death penalty and defendant was sentenced to death.

On defendant's direct appeal to this court, we affirmed his murder conviction and death sentence. Mack, 105 Ill. 2d at 137. We also resolved issues regarding defendant's other convictions and sentences which are not relevant here. The United States Supreme Court ordered reconsideration in light of its decision in Griffith v. Kentucky, 479 U.S. 314, 93 L. Ed. 2d 649, 107 S. Ct. 708 (1987) (applying Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986), retroactively to cases pending on direct review or not yet final). Mack v. Illinois, 479 U.S. 1074, 94 L. Ed. 2d 127, 107 S. Ct. 1266 (1987). We remanded the cause to the circuit court for a Batson hearing. On remand, the circuit court found that no Batson violation occurred. We affirmed. People v. Mack, 128 Ill. 2d 231, 253 (1989).

Defendant next filed a petition in the circuit court under the Post- Conviction Hearing Act (Ill Rev. Stat. 1989, ch. 38, par. 122-1 et seq.). Defendant claimed that his death sentence was improper because the jury's eligibility verdict did not specify that defendant acted with the requisite mental state. Defendant claimed that his death sentence was unconstitutional in the absence of a proper jury determination that a statutory aggravating factor existed. Defendant also claimed that he received ineffective assistance of counsel in that his counsel did not raise this issue on direct appeal. The trial court allowed the petition, vacated defendant's death sentence, and ordered a new sentencing hearing. On the State's direct appeal of the post-conviction proceeding to this court, we found that the verdict "attempted to set forth a statutory aggravating factor, but failed to do so completely and omitted an essential element." People v. Mack, 167 Ill. 2d 525, 538 (1995). We affirmed the decision to vacate the death sentence and to hold a new sentencing hearing. Mack, 167 Ill. 2d at 538-39.

Defendant then filed a motion in the trial court seeking to preclude a second capital sentencing hearing on double jeopardy grounds. Defendant argued that the verdict returned by the jury at the first death penalty hearing should act as an acquittal of his eligibility for the death penalty. The trial Judge denied this motion.

Defendant appealed the denial of the motion directly to this court pursuant to Supreme Court Rules 603 and 604(1). Because this is not an appeal from a judgment of the circuit court imposing the death sentence, defendant does not have a direct appeal to this court as a matter of right under Rule 603. 134 Ill. 2d R. 603. Nor do we have a Rule 604(1) which would apply to this appeal. Paragraph (f) of Rule 604, the only section of Rule 604 relevant to this appeal, allows a defendant an interlocutory appeal to the appellate court when double jeopardy motions are denied. 145 Ill. 2d R. 604(f). We assume defendant intended to appeal to this court pursuant to Rule 604(f).

The State, asserting that the public interest requires an expeditious determination of this issue by this court, requests that we assume jurisdiction pursuant to Supreme Court Rule 302(b). 134 Ill. 2d R. 302(b). Rule 302(b) provides in relevant part: "After the filing of the notice of appeal to the Appellate Court in a case in which the public interest requires prompt adjudication by the Supreme Court, the Supreme Court or a Justice thereof may order that the appeal be taken directly to it." 134 Ill. 2d R. 302(b). Although the filing of a notice of appeal to the appellate court is normally required as a condition precedent to our granting an appeal pursuant to Rule 302(b), we have consistently decided death penalty issues in this court. The advantages of this are clear. See, e.g., People v. Lewis, 105 Ill. 2d 226, 232 (1984) ("If we were to allow appeals from post-conviction hearings in death cases to go to the appellate court, those cases might not receive a uniform review"); People v. Gaines, 105 Ill. 2d 79, 99 (1984) ("Statewide review, in this court, of post-conviction cases involving the death penalty will further the governmental interest in uniform and expeditious review of ...


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