The opinion of the court was delivered by: Justice McMORROW
Defendant Eric Daniels has been tried twice in the circuit court of Champaign County for the murder, armed robbery and sexual assault of Michelle Davis. At his first trial, a jury convicted defendant of first degree murder, armed robbery and aggravated criminal sexual assault. Thereafter, the trial court sentenced him to death. This court reversed defendant's convictions and sentence on procedural grounds and remanded the cause for a new trial.
Following his second trial, a jury acquitted defendant of armed robbery and could not reach a verdict on the remaining counts. Because the jury was unable to reach a verdict on the remaining counts, the trial court, without objection from defendant, declared a mistrial as to all counts except the armed robbery. Defendant was discharged on the armed robbery count.
Facing a third trial, defendant moved the trial court to dismiss the felony-murder charges that formed a partial basis for the first degree murder counts alleged by the State. Defendant also moved to bar any death penalty sentencing hearing that depended on felony murder as a statutory eligibility factor. Defendant maintained that a retrial and resentencing based on felony murder would violate the bar against double jeopardy. The trial court denied defendant's motions and motions to reconsider.
Defendant filed a notice of appeal pursuant to Illinois Supreme Court Rule 604(f), which allows appeals to the appellate court from orders denying a motion to dismiss based on "grounds of former jeopardy." 145 Ill. 2d R. 604(f). The State then moved this court to order the appeal transferred from the appellate court to the supreme court, as a matter of "public interest requir[ing] prompt adjudication by the Supreme Court" (134 Ill. 2d R. 302(b)). We granted the motion.
In a 10-count indictment filed on August 5, 1993, the State charged defendant with the first degree murder, aggravated criminal sexual assault and armed robbery of Michelle Davis. Counts I and II of the indictment alleged that defendant murdered Davis intentionally; counts III, IV and V asserted that defendant knowingly performed the acts causing Davis' death. Counts VI and VII stated two theories of felony murder: first, that defendant shot Davis during the course of an aggravated criminal sexual assault (count VI) and second, that defendant shot Davis during the course of an armed robbery (count VII).
In count VIII of the indictment, the State accused defendant of committing a criminal sexual assault aggravated by the display of a shotgun. Count IX also alleged the commission of an aggravated criminal sexual assault, but the aggravating factor was the commission of an armed robbery. Lastly, in count X, the State charged defendant with the commission of an armed robbery.
At defendant's first trial, the jury returned verdicts finding defendant guilty of armed robbery and aggravated criminal sexual assault, and a general verdict finding defendant guilty of first degree murder. After a separate sentencing proceeding, the trial court found defendant eligible for the death penalty based on the single factor that defendant murdered Michelle during the course of a felony. 720 ILCS 5/9-1(g) (West 1996). The trial court sentenced defendant to death on the first degree murder conviction and sentenced defendant to 60 years' imprisonment on the other convictions. People v. Daniels, 172 Ill. 2d 154 (1996).
On direct appeal, this court held that the trial court denied defendant the proper number of peremptory challenges during jury selection. Daniels, 172 Ill. 2d at 168. It reversed defendant's convictions and sentences and remanded the cause for a new trial. Daniels, 172 Ill. 2d at 169. Significant to the instant appeal, in that decision this court also stated that the evidence of record adequately supported the convictions and sentences. Daniels, 172 Ill. 2d at 168.
Before the commencement of the second trial, defendant moved to dismiss counts VI, VII and IX of the indictment. Defendant maintained that in the first trial, the State tendered jury instructions concerning intentional and knowing murder (720 ILCS 5/9-1(a)(1), (a)(2) (West 1996)), but neglected to submit any instructions concerning felony murder, as charged in counts VI and VII of the indictment. 720 ILCS 5/9-1(a)(3) (West 1996). Similarly, the State failed to tender instructions directing the jury to decide whether defendant committed criminal sexual assault during the course of an armed robbery (720 ILCS 5/12-13(a)(1), 12-14(a)(4) (West 1996)), as alleged in count IX of the indictment. Defendant posited that the State's failure to submit those jury instructions warranted an "acquittal"on counts VI, VII and IX, because, absent those instructions, counts VI, VII and IX were not submitted to the jury for decision. Thus, defendant's argument continues, double jeopardy barred reprosecution of defendant for these alleged crimes.
Defendant also moved to bar the State from asserting felony murder as an eligibility factor at a future capital punishment hearing. 720 ILCS 5/9-1(g) (West 1996). According to defendant, the bar against double jeopardy prohibited the State from again arguing felony murder as a factor for entry of a capital sentence against defendant. The circuit court denied defendant's motion.
At his second trial, the jury acquitted defendant of the armed robbery charge (count X). The jury could not reach a verdict on the remaining counts, and the trial court declared a mistrial. No capital sentencing proceeding occurred.
Post-trial, defendant renewed his motion to dismiss count VI, the count which charged that defendant shot Davis during the course of an aggravated criminal sexual assault, count VII, the count which charged defendant with felony murder committed during the course of an armed robbery, and count IX, which charged defendant with a criminal sexual assault committed during the course of an armed robbery. Defendant repeated the double jeopardy arguments he asserted on the eve of the second trial. Additionally, defendant urged that his acquittal of armed robbery in the second trial necessitated dismissal of counts VII and IX. Defendant argued that in his second trial, as in the first trial, the State chose not to tender an instruction to the jury to determine whether defendant committed criminal sexual assault during the course of an armed robbery, as alleged in count IX of the indictment.
Further, defendant renewed his motion to bar the introduction of felony murder as a statutory eligibility factor at any subsequent death penalty hearing. Defendant insisted that his implicit "acquittal" of felony murder because of the State's failure to submit the appropriate jury instructions-thus removing those counts from determination by the jury-at the first trial precluded another capital sentencing proceeding grounded on felony murder.
Defendant also raised a new argument to preclude another death penalty hearing. He argued that, absent a unanimous verdict by the trier of fact in favor of a capital sentence, a criminal defendant may not be put to death. See 720 ILCS 5/9-1(g) (West 1996). Defendant deduced that the hung jury at the second trial indicated that the jury reached a "nonunanimous" finding on all counts, except armed robbery. In other words, at least one juror voted to acquit defendant on all counts except armed robbery. According to defendant, this "nonunanimous" result at the guilt/innocence phase foretold a "nonunanimous" verdict by the jury regarding defendant's eligibility for the death penalty, as well. Therefore, because the jury could not have returned a unanimous verdict finding defendant eligible for the death penalty based on the commission of a felony murder, the court should bar the State from asserting felony murder as a basis to sentence defendant to death in any future trial. The trial court ruled that defendant's acquittal of armed robbery (count X) necessitated dismissal of counts VII and IX, since each count depended on armed robbery as its underlying felony. However, the court denied defendant's motion as to count VI (murder committed during the course of a criminal sexual assault), and refused to bar the State from seeking the death penalty in any future trials based on defendant's alleged complicity in a felony murder.
Defendant now appeals the circuit court's order.
When, as here, the issues raised are purely issues of law, we review the record de novo. In re Lawrence M., 172 Ill. 2d 523, 526 (1996).
A. Whether the Bar Against Double Jeopardy Precludes a Third Trial for Defendant on the Charge of Felony Murder
As best we can discern from his briefs, defendant's theory of the case is as follows: defendant asserts that the State's failure to tender jury instructions at defendant's first trial concerning counts VI and VII, charges of felony murder, constituted an abandonment by the State of those counts. Defendant's argument is based on the fact that since neither instructions nor verdicts on the felony-murder counts were submitted by the State, the jury was denied the opportunity to reach a verdict on the felony-murder allegations. Defendant reasons that the jeopardy that attached after the jury was empaneled in the first trial "terminated" once the court discharged the jury. Because jeopardy terminated without a resolution of the felony-murder counts, defendant maintains, defendant was "acquitted" of felony murder "by operation of law." Alternatively, defendant argues that the State's failure to tender felony-murder instructions and verdicts operated as a nolle prosequi of the felony-murder counts, which, in turn, constituted an acquittal of defendant on the allegations found in counts VI and VII. Therefore, defendant contends that ...