The opinion of the court was delivered by: Justice Garman
JUSTICE GARMAN delivered the judgment of the court, with opinion.
Chief Justice Kilbride and Justices Freeman, Thomas, Karmeier, Burke, and Theis concurred in the judgment and opinion.
¶ 1 Defendant Darius Bailey was charged in the circuit court of Cook County with intentional, knowing, and felony murder (720 ILCS 5/9-1(a)(1), (2), (3) (West 2006)), and with the predicate crimes of home invasion (720 ILCS 5/12-11(a)(3) (West 2006)), and robbery of an individual 60 years of age or older (720 ILCS 5/18-1(a), (b) (West 2006)), in connection with the death of 80-year-old Robert Winter. After the State announced its intent to seek the death penalty, defendant elected to have the trial court determine his eligibility for the death sentence. At trial, his request for separate verdict forms on the two counts of felony murder was denied. The jury found him guilty of first degree murder, home invasion, and robbery. The trial court found him eligible for the death penalty, but sentenced him instead to concurrent terms of natural life, 30 years, and 15 years respectively. The appellate court found that the circuit court erred by refusing defendant's request for separate felony-murder verdict forms, but that he was properly sentenced to a term of natural life without the possibility of parole. 2011 IL App (1st) 090074-U. This court granted his petition for leave to appeal pursuant to Supreme Court Rule 315 (Ill. S. Ct. R. 315 (eff. Feb. 26, 2010)), to determine whether the error in refusing the separate verdict forms, if any, requires that defendant be resentenced to a term of years.
¶ 3 While he was walking along 144th Street in Riverdale, defendant was stopped by a police detective who informed him that he was wanted for questioning by the Dolton, Illinois, police department in connection with a burglary. The detective took him into custody and searched him before placing him in a squad car. Defendant was found to be in possession of a checkbook bearing the name Robert Winter. The address on the checks was 102 E. 144th St., Riverdale. Defendant was also carrying a set of keys, which were returned to him.
¶ 4 As defendant was being transported to the police station, the officer who was driving the squad car heard him drop an object on the floor of the car. A search of defendant upon his arrival at the police station revealed that he no longer had the keys. The officer searched the car and found the keys underneath the driver's seat. When shown the keys, defendant stated that they belonged to his aunt and had fallen out of his pocket. One of the keys was later determined to be Winter's car key; another was the key to Winter's house.
¶ 5 The detective who made the initial stop telephoned Winter, but did not get an answer. He went to the address given on the checks and found the deceased 80-year-old victim on the floor, covered with a blanket. An electrical cord, which had been removed from a lamp above the television, was wrapped around one of his buttocks and one thigh, then around his chest and one arm. The cord was wrapped twice around the victim's neck and double knotted.
¶ 6 Investigators found no evidence of forced entry. The victim's pants pockets were turned out. Two bedrooms were in disarray, with dresser drawers and closet doors open and personal belongings scattered on the bed and floor. In the living room, a china cabinet and a trumpet case were open and their contents strewn on the floor. Next to the body they found the contents of a wallet, including an insurance card and a plastic insert. Further investigation of the crime scene revealed a latent fingerprint on a drawer pull in Winter's bedroom and a latent palm print on a plastic wallet sleeve near the body. Both prints matched defendant.
¶ 7 After checking Winter's garage and finding his car missing, the detective called for a search for the car. It was found at 144th Street and Wentworth, several blocks from Winter's home and approximately 75 feet from the spot where the defendant had been taken into custody.
¶ 8 When questioned, defendant initially denied any involvement in the murder. He claimed to have found the checkbook and keys on the ground just before he was stopped by the detective. Later, he said that he had found these items the day before and went to the victim's house to return them, but then decided to take the car. Finally, he stated that he entered the house through the back door to find money or something else to steal. He was looking through the bedroom drawers when Winter came up from the basement and caught him. They "tussled" and he eventually tied Winter up with an electrical cord that he took from near the television and covered him with a jacket. As he left, he took Winter's checkbook, keys, and car. He denied intending to kill Winter.
¶ 9 The cause of death was determined to be manual and ligature strangulation. The medical examiner concluded that the victim was first manually choked and then strangled with the electrical cord. He was alive when the cord was used. There were no defensive wounds.
¶ 10 Before trial, the State filed a notice of intent to seek the death penalty alleging eligibility under two statutory factors: felony murder (720 ILCS 5/9-1(b)(6) (West 2006)), and murder of a victim over the age of 60 resulting from exceptionally brutal and heinous conduct indicative of wanton cruelty (720 ILCS 5/9-1(b)(16) (West 2006)). Defendant waived his right to a jury for both phases of his capital sentencing hearing if he should be convicted of first degree murder.
¶ 11 Defendant's videotaped statement was played at trial. He took the stand and repudiated the earlier statement. He testified that he was acquainted with Winter and that he used to do odd jobs for the older man, whom he considered a mentor. On the date of his death, Winter allowed defendant to borrow his car. The checkbook was in the car and defendant had it with him because he planned to return it to Winter. He stated that he was "shocked and confused" when he was told by the detective that Winter was dead. He made the incriminating statements because the detective threatened him and told him what to say. He felt pressured, so he told the officer a "bunch of things."
¶ 12 At the jury instruction conference, defendant requested that the jury be given separate verdict forms for the felony-murder charges.
The trial court denied the request, stating that because the jury would not be involved in sentencing, it was not necessary. The jury was given a general verdict form on the three murder charges. The jury returned verdicts of guilty of first degree murder, home invasion, and robbery.
¶ 13 At the death penalty eligibility hearing, the parties stipulated that defendant was 20 years old at the time of the offense. The court took "judicial notice of the verdicts taken by the jury" and found "beyond a reasonable doubt that the statutory aggravating factors do exist and that the murder was committed during the course of the felonies." After finding defendant eligible for the death penalty and hearing evidence and arguments in aggravation and mitigation, the trial court imposed concurrent sentences of natural life in prison for the murder, 30 years for home invasion, and 15 years for robbery "of a senior citizen."
¶ 14 Relying on this court's opinion in People v. Smith, 233 Ill. 2d 1
(2009), the appellate court found that the trial court's denial of defendant's request to give the jury a separate felony-murder verdict form was an abuse of discretion. The court further found that the natural life sentence was proper because the "jury's failure to specifically find that he had committed intentional murder[ ] did not render him ineligible for the death penalty." 2011 IL App (1st) 090074-U, ¶ 38. Because the court was the finder of fact in the eligibility hearing and was entitled to make its own assessment of defendant's mental state based on the evidence presented at trial, defendant was properly found eligible for the death penalty under section 9-1(b)(6) of the Criminal Code of 1961 and, therefore, for the alternative sentence of natural life in prison pursuant to section 5-8-1(a)(1)(b) of the Unified Code of Corrections (730 ILCS 5/5-8-1(a)(1)(b) (West 2006)). 2011 IL App (1st) 090074-U, ¶¶ 39-41. The appellate court also vacated the conviction and sentence for home invasion and reduced the conviction for robbery from a Class 1 to a Class 2 felony, resentencing him to seven years on this conviction. Id.
¶ 16 The defendants in the consolidated cases in Smith were charged with first degree murder and predicate felonies in multicount indictments. Both defendants requested separate verdict forms on the felony-murder counts and both were denied. Both defendants were convicted of first degree murder and given consecutive sentences for the underlying felonies. Smith, 233 Ill. 2d at 5.
¶ 17 The State conceded that the sentencing consequences for the defendants would have been different if they had been found guilty of felony murder and not guilty of intentional or knowing murder. Id. at 18. Because the predicate felony underlying a charge of felony murder is a lesser-included offense of the murder, the felony cannot support a separate conviction or sentence. Id. at 17. However, if such a defendant were found guilty of intentional or knowing murder, a separate conviction and sentence could be imposed for the predicate felony and the sentence for that felony would be imposed consecutively to the sentence for murder. Id. at 18.
¶ 18 This court held that where "specific findings by the jury with regard to the offenses charged could result in different sentencing consequences, favorable to the defendant, specific verdict forms must be provided upon request and the failure to provide them is an abuse of discretion." Id. at 23.
¶ 19 Further, when it is not possible to determine from a general verdict whether the defendant was actually found guilty of each count and when this lack of specificity has adverse sentencing consequences for a defendant whose request for separate verdict forms was refused, the error is not harmless. Id. at 25. The appropriate remedy in such a case is to "interpret the general verdict as a finding on felony murder" only. Id. at 28. As a result, the defendants' convictions ...