Appeal from the Circuit Court of Du Page County. No. 99--CF--2570 Honorable Kathryn E. Creswell, Judge, Presiding.
The opinion of the court was delivered by: Justice Bowman
A jury convicted defendant, Artarius Jett, of first degree murder (720 ILCS 5/9--1(a) (West 2000)). Defendant received a sentence of natural life in prison. On appeal, defendant challenges the charging instrument and the jury instructions, arguing that they improperly included, as an element of first degree murder, "that the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty." Defendant further contends that he received ineffective assistance of counsel. We affirm.
On October 4, 1999, Michelle Monachello, defendant's former girlfriend and the mother of his child, was stabbed, doused with gasoline, and set on fire while she was still alive. She died later that day. On October 27, 1999, defendant was charged by indictment with seven counts of first degree murder, two counts of armed robbery, and one count of arson, all arising from Monachello's death. In an effort to comply with the United States Supreme Court's opinion in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), the State filed additional indictments on September 28, 2000, alleging that the aforementioned offenses were accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty. Defendant moved to dismiss the indictments on speedy trial grounds, and the trial court denied his motion. Defendant's trial ensued. As the evidence presented at trial is well known to the parties and defendant raises no evidentiary issues on appeal, we will dispense with a detailed recitation of the trial testimony and refer to relevant evidence as our discussion demands.
At the instructions conference, the State proposed to provide the jury with an issues instruction for first degree murder and a separate instruction asking the jury to decide whether defendant's actions constituted exceptionally brutal or heinous behavior indicative of wanton cruelty. The court disagreed and expressed its belief that the instructions would be clearer to the jury if the "brutal and heinous" instruction were included in the issues instruction. Defense counsel agreed with the court. Consequently, the jury received an instruction directing it, if it found that the State had proved the elements of first degree murder beyond a reasonable doubt, to "continue [its] deliberations to determine whether or not the State has proven beyond a reasonable doubt that the murder was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty." The jury was provided with three verdict forms: "not guilty," "guilty of first degree murder which was not accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty," and "guilty of first degree murder which was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty." The verdict form signed by the jury stated as follows:
"We, the jury, find the defendant, Artarius Jett, guilty of First Degree Murder and that the murder was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty."
Defendant argues on appeal that including the "brutal and heinous" factor in the indictments and the jury instructions effectively added an element to the first degree murder offense, thereby creating a new offense. To facilitate our analysis of this issue, a brief synopsis of the relevant statutes and case law is in order.
Section 9--1 of the Criminal Code of 1961 defines first degree murder as follows:
"A person who kills an individual without lawful justification commits first degree murder if, in performing the acts which cause the death:
(1) he either intends to kill or do great bodily harm to that individual or another, or knows that such acts will cause death to that individual or another; or
(2) he knows that such acts create a strong probability of death or great bodily harm to that individual or another; or
(3) he is attempting or committing a forcible felony other than second degree murder." 720 ILCS 5/9--1(a) (West 2000).
The sentence for first degree murder shall be not less than 20 years and not more than 60 years (730 ILCS 5/5--8--1(a)(1)(a) (West 2000)), but a defendant may be eligible for an enhanced sentence if certain factors apply. In June 2000, the United States Supreme Court, in Apprendi, held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi, 530 U.S. at 490, 147 L. Ed. 2d at 455, 120 S. Ct. at 2362-63. Consequently, the legislature amended section 5--8--1(a)(1)(b) of the Unified Code of Corrections to provide that a defendant convicted of first degree murder may receive an enhanced sentence of natural life in prison "if a trier of fact finds beyond a reasonable doubt that the murder was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty." 730 ILCS 5/5--8--1(a)(1)(b) (West 2000).
Following Apprendi, the legislature also amended section 111--3 of the Code of Criminal Procedure of 1963 to allow the State to amend the charge at any time before trial to include those facts that would increase a defendant's sentence beyond the statutory maximum term. 725 ILCS 5/111--3(c-5), (d) (West 2000). This statute was ...