specially concurring:
I agree with the court that defendant’s convictions and sentence must be affirmed. I write separately, however, because I do not agree with court’s analysis concerning the omission of the mens rea from the eligibility verdict. See 194 Ill. 2d at 232-39. I, therefore, do not join in that portion of the court’s opinion.
Defendant argues that his death-eligibility verdict form contains the same defect as that found to necessitate vacatur in People v. Mack, 167 Ill. 2d 525 (1995). In Mack, the defendant was convicted of murder in a bench trial. The sentencing hearing was conducted before a jury. At the conclusion of the sentencing hearing, the jury returned a felony-murder eligibility verdict that omitted the required mens rea. This court, in examining the validity of the eligibility verdict, acknowledged the critical importance of the mental state to a finding of death eligibility. Mack, 167 Ill. 2d at 533. The court also warned that the process of interpreting a jury’s verdict “should not become a speculative attempt to reconstruct the jury’s deliberations and divine its unexpressed conclusions.” Mack, 167 Ill. 2d at 536-37. The jury in Mack never expressed a conclusion as to whether the defendant possessed the required mental state and, as a result, the eligibility verdict was legally insufficient.
In this case, the parties do not dispute that the verdict at issue attempted to set forth the statutory aggravating factor, but failed to do so completely, omitting an essential element. Therefore, pursuant to Mack, the verdict is deficient. Nevertheless, the court today rejects defendant’s claim, because, unlike the situation in Mack, “[t]he jury’s eligibility verdict, when viewed in conjunction with the evidence heard by the jury at the guilt phase of trial along with the instructions and guilty verdicts, supports the conclusion that the jury found intent at eligibility.” 194 Ill. 2d at 239. Unlike the justices in the majority, however, I do not believe that the strength of the evidence is what distinguishes this case from Mack and, hence, precludes review under plain error. As the United States Supreme Court has held, an insufficient verdict cannot be deemed harmless error based upon the strength of the evidence. Sullivan v. Louisiana, 508 U.S. 275, 124 L. Ed. 2d 182, 113 S. Ct. 2078 (1993); see also People v. Williams, 193 Ill. 2d 1, 42 (2000) (plurality opinion of McMorrow, J., joined by Freeman and Rathje, JJ.).
In the case at bar, the same jury which found defendant eligible for the death penalty also heard the evidence during the guilt phase of the trial. At the conclusion of the guilt phase of the trial, that jury was instructed on only one theory — intentional or knowing murder. Therefore, the verdict returned by the jury after the guilt phase of the trial must be viewed as a finding of guilt of either intentional or knowing murder. In other words, because of the way the jury was instructed, the general verdict leaves us without doubt that defendant was convicted on either a theory of knowing or intentional murder. As a result, we need not engage in speculation in order to interpret the verdict in this case.
Support for this analysis can be found in this court’s recent decision in People v. McCallister, 193 Ill. 2d 63 (2000). There, at the conclusion of the guilt phase of the defendant’s trial, the jury returned a specific verdict finding the defendant guilty of intentional or knowing murder. At the conclusion of the eligibility phase of the trial, the same jury returned an eligibility verdict containing the same deficiency as that in Mack. On appeal, defendant McCallister argued that Mack compelled the vacatur of his death sentence. We disagreed, stating that
“the principal concerns animating our decision in Mack are not present ***. We need not speculate as to whether the jury found that defendant acted with the requisite mens rea because the jury did, in fact, make that determination at the guilt-innocence phase of trial. Nor do we need to substitute our judgment for that of the jury to find the defendant death eligible because, again, the jury made the requisite finding regarding defendant’s mens rea. Consequently, although the omission of the mental state from the eligibility verdicts was error, we cannot say that the omission was so fundamental a defect that it amounted to plain error. People v. Childress, 158 Ill. 2d 275 (1994) (omission of mental state from felony-murder eligibility verdict not reversible error where same jury returned finding at guilt phase that defendant was guilty of knowing or intentional murder).” McCallister, 193 Ill. 2d at 106-07.
As was the case in McCallister, our “interpretive process” {Mack, 167 Ill. 2d at 536) here need not devolve into “a speculative attempt to reconstruct the jury’s deliberations and divine its unexpressed conclusions.” Mack, 167 Ill. 2d at 536-37. Unlike a general verdict returned at the conclusion of the guilt phase of the trial by a jury after being instructed on all theories of murder (intentional, knowing, and felony murder), this verdict leaves no doubt that the jury found the required mens rea beyond a reasonable doubt. As in McCallister, because the same jury heard both the guilt-innocence phase and eligibility phase of the trial, and because that jury returned an unequivocal finding of the requisite mens rea at the guilt-innocence phase of the trial, the omission of that mens rea from the eligibility verdict is not so fundamental a defect that it constitutes plain error. Thus, because the jury did, in fact, find the necessary mental state to sustain defendant’s death eligibility, there is no reasonable probability that the outcome of the eligibility hearing would have been different had trial counsel objected to the verdict forms.
In all other respects, I concur in the court’s opinion.
JUSTICE McMORROW joins in this special concurrence.