concurring in part and dissenting in part:
I, like my colleagues, believe that defendant’s convictions must be affirmed; however, I am unable to conclude, as they do, that defendant’s death sentence must also be affirmed. I specifically take issue with the majority’s decision to hold, as waived, defendant’s arguments concerning the errors associated with the death eligibility verdict form and jury instructions. In my opinion, our precedents compel a different resolution to this issue from the one the court reaches today. Accordingly, I respectfully dissent from that portion of the opinion.
I
The dispositive question raised with respect to this issue is whether defendant’s failure to object to these errors at trial and his failure to include the issue in his post-trial motion bar review of the matter in this direct appeal. To answer this question, one must consider both the constitutional and statutory backdrop against which these errors occurred. The Illinois death penalty statute lists several aggravating factors which serve a constitutionally necessary function — to narrow the death eligible class. See 720 ILCS 5/9 — 1(b) (West 1992); People v. Lewis, 88 Ill. 2d 129, 145 (1981). Under the statute and the court decisions interpreting it, the State is required to prove, beyond a reasonable doubt, the existence of an aggravating factor, that is, a factor that makes the defendant subject to a death sentence in the first place. See 720 ILCS 5/9 — 1(f) (West 1992); People v. Simms, 143 Ill. 2d 154 (1991); Stewart v. Peters, 958 F.2d 1379 (7th Cir. 1992). Once the State has met this burden of proving an aggravating factor beyond a reasonable doubt, the sentence hearing moves to a second stage in which “a weighing of aggravating and mitigating factors presented by the State and defendant is to occur, and the State has no burden of proving that the weight of these factors is such that a death penalty should be imposed.” People v. Bean, 137 Ill. 2d 65, 138 (1990). This court has recognized that, by virtue of this second stage of the hearing, our death penalty statute places upon the defendant a burden of persuasion to dissuade the jury from imposing a sentence of death. However, both this court and the Seventh Circuit Court of Appeals have found that the imposition of such a burden of persuasion upon the defendant passes constitutional muster “because at this point in the hearing the prosecution has already proven beyond a reasonable doubt that a statutory aggravating factor exists [which] mak[es] the defendant eligible for the death penalty.” Bean, 137 Ill. 2d at 139; Silagy v. Peters, 905 F.2d 986, 998 (7th Cir. 1990). Thus, the existence of aggravating factors and the State’s burden of proof during the eligibility phase of the hearing serve as important constitutional safeguards within the framework of our death penalty statute.
In this case, the State sought to establish defendant’s death eligibility on the basis that the murder was committed in the course of another felony. Under our death penalty statute, however, it is not enough that the murder occurred during an armed robbery, a burglary or a residential burglary for the existence of this aggravating factor to be proved. The State must also prove that defendant “acted with the intent to kill the murdered individual or with the knowledge that his acts created a strong probability of death or great bodily harm to the murdered individual or another.” 720 ILCS 5/9— 1(b)(6)(b) (West 1992). Thus, at the eligibility stage of a death sentence hearing, the State “ shoulder[s] the burden all over again” that defendant really did intend to kill his victim or create a strong probability of death. Stewart v. Peters, 958 F.2d at 1387. The importance of this mens rea requirement cannot be minimalized. As the United States Supreme Court has recognized:
“A critical facet of the individualized determination of culpability required in capital cases is the mental state with which the defendant commits the crime. Deeply ingrained in our legal tradition is the idea that the more purposeful is the criminal conduct, the more serious is the offense, and, therefore, the more severely it ought to be punished.” Tison v. Arizona, 481 U.S. 137, 156, 95 L. Ed. 2d 127, 143, 107 S. Ct. 1676, 1687 (1987).
The problem in this case stems from the fact that defendant’s sentencing jury was never instructed that it had to find “all over again” that defendant intended to kill his victim or that defendant acted with the knowledge that his conduct created a probability of death or great bodily harm. Nor was it asked to evaluate the purposefulness of defendant’s conduct in order to establish the individualized determination required in capital cases. See 183 Ill. 2d at 149-50 (setting forth text of issues instruction given to the jury). Instead, the jury was told that it could find defendant eligible for the death penalty if it found that the murdered individual was actually killed by the defendant and the other felony was armed robbery, residential burglary, or burglary. This instruction, without more, tells the jury that the defendant’s mens rea is not relevant to its eligibility decision. But, as the previously cited case law makes clear, a defendant’s mens rea is indeed relevant to the trier of fact’s determination during the eligibility phase of a capital sentence hearing. Moreover, the State’s burden of proving this element beyond a reasonable doubt is also relevant for purposes of satisfying constitutional requirements inherent to capital sentencing. For these reasons, this court has held that where an essential element that the State is required to prove in order to establish the existence of an aggravating factor is omitted from the jury’s instruction, the subsequent death sentence must be vacated. People v. Ramey, 151 Ill. 2d 498, 545 (1992).
My colleagues do not dispute that under our decision in Ramey, a defendant’s death sentence must be vacated where “[a]n essential element which the State was required to prove in order to establish the existence of the sixth aggravating factor — a culpable mental state— was not included in the instruction to the jury.” 183 Ill. 2d at 151. Moreover, they admit that the complained-of instruction here, when compared with our death penalty statute and the appropriate Illinois Pattern Jury Instruction, clearly “did not contain the requisite language regarding the defendant’s culpable mental state.” 183 Ill. 2d at 150. Under the majority’s view, however, vacatur of defendant’s death sentence is unnecessary because defendant here, unlike defendant Ramey, failed to preserve the issue for appellate review. My colleagues, having found this issue waived, next conclude that our plain error rule (134 Ill. 2d R. 615(a)) does not operate to excuse the waiver because the evidence of defendant’s guilt is “overwhelming” (183 Ill. 2d at 151) and because “the sentencing jury was instructed on the issue of the defendant’s intent at the guilt phase of the trial” so that the error did not deprive defendant of a fair trial. (Emphasis in original.) 183 Ill. 2d at 152.
Although the majority chooses to evaluate defendant’s procedural default under Rule 615(a) (see 134 Ill. 2d R. 615(a) (allowing excusal of waiver in cases where (i) the evidence is closely balanced or (ii) where the error deprived defendant of a substantial right)), I believe that the instructional error at issue here and condemned by this court in Ramey falls within the category of errors to which the waiver doctrine cannot apply and which are specifically excused under Supreme Court Rule 451(c) (134 Ill. 2d R. 451(c)). Rule 451(c) provides that “substantial defects” in jury instructions “are not waived by failure to make timely objections.” This rule provides a remedy for “grave” errors with regard to instructions in the same manner as Rule 615(a) does with respect to errors generally. See People v. Keene, 169 Ill. 2d 1, 31 (1995). Under Rule 451(c), a procedural default will not bar review of an error in jury instructions involving a substantial right if to enforce the bar would work fundamental unfairness. Keene, 169 Ill. 2d at 31; People v. Roberts, 75 Ill. 2d 1, 12-14 (1979); People v. Jenkins, 69 Ill. 2d 61, 66 (1977). In discussing Rule 451(c), this court has stated that the waiver rule “ ‘will not operate to deprive an accused of his constitutional rights of due process.’ ” People v. Roberts, 75 Ill. 2d at 14, quoting People v. Burson, 11 Ill. 2d 360, 370 (1957). In my view, the instructional error at issue satisfies the “substantial defect” requirement contained in Rule 451(c) and mandates vacatur of defendant’s death sentence in this case.
As the majority readily acknowledges, this court in Ramey concluded that the omission from death eligibility jury instructions of an essential element which the State was required to prove constituted an error serious enough to warrant vacatur of the death sentence. In reaching this holding in Ramey, we rejected several arguments made by the State, which the majority inexplicably resurrects today to form the basis of its holding that the components of the plain error rule have not been met. This court’s rationale for dismissing the State’s contentions in Ramey, however, demonstrates (i) the constitutional magnitude of the complained-of error and (ii) the reason why the error cannot be the subject of a procedural default. Therefore, I will address each seriatim.
Relying on People v. Thompkins, 121 Ill. 2d 401 (1988), the State in Ramey first maintained that the jury’s return of a general verdict on the murder charge raised a presumption that the jury found that defendant intentionally murdered the victim. My colleagues today also rely on Thompkins for their conclusion that the general verdict raised the presumption that the jury found that defendant committed the most serious crime alleged, i.e., intentional murder, simply because the jury was instructed on the issue of intent during the guilt phase of the trial. See 183 Ill. 2d at 152. However, as we pointed out in Ramey, our decision in Thompkins in no way supports such a conclusion. In Thompkins, a jury returned a general verdict of guilty after being instructed as to intentional, knowing, and felony murder during the guilt phase of the trial. At sentencing, the trial judge, sitting as the trier of fact, found defendant eligible for the death penalty after determining that defendant intentionally killed the victims. This court held that the jury’s return of a general verdict did not preclude the death penalty. Thompkins, 121 Ill. 2d at 456. In Thompkins, the circuit court, sitting as the trier of fact during sentencing, did in fact make the mental culpability finding required under the death penalty statute, whereas in both Ramey and the case at bar, the sentencing jury, sitting as the trier of fact, never found that the defendant acted intentionally or knowingly with respect to death eligibility. For this reason, Thompkins is as inapposite to the facts in this case as it was to the facts in Ramey.
Nevertheless, my colleagues use Thompkins to conclude that defendant was not substantially prejudiced by the complained-of errors. However, I find the rationale for their conclusion, i.e., that the erroneous instructions during the eligibility phase and the tendered general verdict form “did not deprive defendant of a fair trial” because the jury received instructions concerning the defendant’s intent and returned a general verdict during the guilt phase (183 Ill. 2d at 152), to be untenable. A general verdict returned by the jury in the guilt phase of the trial does nothing to diminish the amplitude of the instructional error at sentencing because the two stages of the proceedings address two very different questions. During the guilt phase of the trial, the trier of fact must determine whether the State has satisfied its burden of proving defendant guilty of the commission of the crime beyond a reasonable doubt. At the death eligibility stage of the proceedings, the trier of fact is concerned solely with determining whether the State has proved defendant eligible for the death penalty beyond a reasonable doubt. In this case, the fact remains that the sentencing jury was not instructed to consider, in any way, defendant’s mental state during the eligibility phase of the trial. Moreover, the jury was not asked to make the requisite culpability finding in its verdict. Stated differently, the given instructions failed to inform the jury that the State was required to “shoulder” its burden on defendant’s mental culpability “all over again.” Although the jury received instructions during the guilt phase of the trial as to intentional, knowing, and felony murder, its general verdict cannot imply unanimity as to any one count or theory. See People v. Sims, 143 Ill. 2d 154, 170 (1991). The existence of the general verdict rendered in the guilt phase of the trial does not “make up” for the failings of the eligibility instructions during the sentencing phase of the proceedings. Given the constitutional ramifications of this error and the framework of our death penalty statute, I cannot but conclude that the complained-of errors were substantial enough and grave enough to have deprived defendant of a fair sentence hearing.
As I stated previously, I would invoke Rule 451(c) to excuse defendant’s procedural default in this case even though my colleagues elect to use the more general plain error rule in considering this same question. Nevertheless, defendant’s procedural default would still be excused under our plain error rule, notwithstanding my colleagues’ conclusion to the contrary. According to the majority, the first prong of the plain error rule, i.e., whether the evidence is closely balanced, is not satisfied in this case. I question the relevance of such an inquiry given the nature of the erroneous instruction. That the State adduced evidence of the requisite intent is immaterial if the trier of fact was never asked to make a finding as to the sufficiency of that evidence. I note that the State in Ramey specifically argued that the court’s failure to instruct the jury on the subject of intent did not require reversal because under People v. Jones, 81 Ill. 2d 1 (1979), defendant’s intent “was manifest from the evidence.” Ramey, 151 Ill. 2d at 546. We rejected this argument due, in large part, to the fact that, in Jones, defense counsel conceded that the intent to commit murder was blatantly evident and because the error was minimized by a correct instruction. None of these factors were present in Ramey. For this reason, we concluded that “the error in the eligibility instructions cannot be considered harmless.” Ramey, 151 Ill. 2d at 546-47. Notwithstanding this precedent, my colleagues hold that “the evidence of the defendant’s guilt is overwhelming” and that “[i]t is clear from the record that the defendant intended to kill his victim.” (Emphasis in original.) 183 Ill. 2d at 151. That may well be, but presenting evidence in and of itself is not the same as instructing the jury that it must find, from that evidence, that defendant possessed a certain type of mens rea before declaring him eligible for the death penalty. My colleagues seemingly suggest that because the record contains evidence which could support a finding of intent to kill, this court can simply affirm the jury’s finding of death eligibility even though the instructions did not require the jury to consider the question of defendant’s mental culpability. Such an approach amounts to nothing more than directing a verdict for the prosecution, which, in my view, is impermissible under these circumstances.
I should also point out that the majority finds that the requisite intent to kill was present in this case despite the fact that this court in Ramey specifically declined the State’s request that this court make the necessary intent finding itself and affirm defendant Ramey’s death sentence. See Ramey, 151 Ill. 2d 547. In rejecting the State’s invitation, we noted that
“[w]hile this court independently evaluates the record when a death sentence has been imposed [citation], this court acts as a court of review and, as such, we defer to the findings made in the trial court when there is ample support in the record. [Citation.] According to the death penalty statute, the trial court or the jury has the responsibility of deciding whether the defendant is eligible for a death sentence. [Citation.]” Ramey, 151 Ill. 2d at 549-50.
While I may agree with my colleagues that the evidence of defendant’s intent to kill his victim is overwhelming, I must emphasize that this conclusion is not mine to make in the first instance. Illinois law requires the State to prove the requisite culpable mental state for death eligibility beyond a reasonable doubt, and the law also entitles the defendant, if he or she so chooses, to have a jury make that finding. Defendant here elected to have a jury do just that. Thus, the question is one exclusively reserved to the jury in which defendant has a protected liberty interest. See Ramey, 151 Ill. 2d at 547. As a result, due process concerns are implicated. See Ramey, 151 Ill. 2d at 547-49. In my view, Ramey compels the conclusion that the instructional errors in this case cannot be barred from review by the waiver doctrine because the errors are of a fundamental and substantial nature.
II
The majority’s treatment of this issue today also runs counter to this court’s decision in People v. Mack, 167 Ill. 2d 525 (1995). In Mack, the State sought to establish defendant’s eligibility for the death penalty on the basis that the murder was committed in the course of another felony. As in this case, the verdict form failed to specify that the defendant acted with the requisite mental state or knowledge as required under section 9 — 1(b)(6)(b) of the Criminal Code of 1961. Mack, 167 Ill. 2d at 529-30. Unlike this case, however, the jury in Mack was given a proper issues instruction which specifically mentioned the need to find that defendant possessed the requisite mental culpability before eligibility could be found. Defendant Mack did not challenge the sufficiency of the jury’s eligibility stage verdict in his direct appeal; however, he included the issue in his subsequent post-conviction petition, claiming that appellate counsel’s failure to raise the issue deprived him of his constitutional right to effective assistance of counsel. Mack, 167 Ill. 2d at 530. As a result, we considered the verdict form error on its merits and concluded that counsel’s error constituted deficient performance. In so holding, we stated the following:
“This court has emphasized that a culpable mental state of intent to kill or knowledge of a strong probability of death or great bodily harm is an essential element of the particular statutory aggravating factor upon which defendant’s eligibility for the death penalty was ostensibly based. [Citations.] Moreover, this court has specifically held that an attorney’s apparent misunderstanding of this mental state requirement fell outside the range of competence demanded of attorneys in criminal cases. [Citation.] Notwithstanding the absence of case law involving the precise defect at issue here, we believe that a competent attorney would have recognized the fundamental importance of a legally sufficient eligibility-stage verdict representing a finding on all essential elements of the statutory aggravating factor at issue. In our view, appellate counsel’s failure to seek reversal of defendant’s death sentence on the basis of the defective eligibility-stage verdict was patently erroneous.” (Emphasis added.) Mack, 167 Ill. 2d at 533.
Implicit in this holding is the recognition that this type of error is not one that is readily apparent to the average criminal defendant and that therefore it is incumbent upon defendant’s attorneys, not to mention the trial judge, to guard against it. In my view, the tenor of these statements indicates that this court has, at least up until today, deemed the omission of the requisite mental state language from the death eligibility jury verdict form to be an error of “fundamental” proportion.
Moreover, given the above characterization of the error, it is not surprising that this court had little trouble in finding that defendant Mack established prejudice from counsel’s failure to raise the error. See Mack, 167 Ill. 2d at 538. We concluded that had appellate counsel included the issue in the direct appeal, a reasonable probability existed that the death sentence would have been reversed. Mack, 167 Ill. 2d at 534-39. In reaching this conclusion, we acknowledged the constitutional implications concerning the question of the sufficiency of the sentencing jury’s verdict. See Mack, 167 Ill. 2d at 534 (and federal cases cited therein). Moreover, we rejected the State’s assertion that the error was cured by the inclusion of the requisite mental state in the issue instruction given to the jury, stating that “the interpretative process should not become a speculative attempt to reconstruct the jury’s deliberations and divine its unexpressed conclusions.” Mack, 167 Ill. 2d at 536-37. If, during post-conviction proceedings, this court views appellate counsel’s failure to raise this issue on direct review as ineffective assistance of counsel, then surely the same error, on direct appeal, can only be viewed as “substantial” enough to excuse its procedural default at trial. Moreover, I find it telling that a majority of this court in Mack deemed the error in the verdict form alone serious enough to mandate vacatur of the death sentence, notwithstanding the inclusion of the requisite mental state language in the instructions. I am puzzled, therefore, by my colleagues’ refusal to excuse defendant’s procedural default in the instant case where both the issues instruction and the jury’s verdict form omitted the requisite language.
Our decision in Mack also instructs us that, contrary to the majority’s holding, this court lacks the ability to glean the requisite intent for a finding of death eligibility from the evidence adduced during the course of the trial. As I stated previously, my colleagues today hold that “[i]t is clear from the record that defendant intended to kill his victim.” (Emphasis in original.) 183 Ill. 2d at 151. This court specifically concluded in Mack that such an eligibility verdict could not withstand scrutiny and stated that:
“[i]n reaching our decision, we are not unaware of the strength of the evidence relative to defendant’s state of mind when he killed [the victim]. Indeed, in the opinion in defendant’s direct appeal, this court remarked that defendant’s testimony at the aggravation/mitigation stage of sentencing that the fatal shot was accidental was ‘impossible to accept in view of the other evidence in the case.’ [Citation.] However, *** the State has limited its argument to the sufficiency of the jury’s verdict. The State has not argued that an insufficient verdict could be deemed harmless error based on the strength of the evidence, and the availability of a harmless error analysis in this setting is doubtful at best. Review under the harmless error rule presupposes an actual verdict. ‘The inquiry *** is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error.’ (Emphasis in original.) Sullivan v. Louisiana (1993), 508 U.S. 275, 279, 124 L. Ed. 2d 182, 189, 113 S. Ct. 2078, 2081 (where constitutionally defective instruction on definition of reasonable doubt vitiated the jury’s verdict, the harmless error rule did not apply); see also Williams v. Calderon (9th Cir. 1995), 52 F.3d 1465, 1477 (citing Sullivan in support of conclusion that error in instruction which omitted an element of statutory aggravating factor was not cured by State court’s determination that evidence was so overwhelming that no rational, properly instructed jury could have failed to find the omitted element).” (Emphasis added and in original.) Mack, 167 Ill. 2d at 538-39.
These statements amply illustrate why my colleagues’ finding that the evidence was not closely balanced in this case (see 183 Ill. 2d at 151) is wholly irrelevant in the context of this particular type of error. Rather, the inquiry must focus solely on whether the instructional error was substantial enough to fall within the purview of either Supreme Court Rule 451(c) or the second prong of the plain error rule. In my opinion, this court’s decision in Mack compels the conclusion that it does.
Ill
My research reveals that, in the past, this court has not hesitated to vacate a death sentence when the jury’s eligibility verdict is legally insufficient and when the jury has not been instructed on the mental culpability required to prove the existence of a statutory aggravating factor during the eligibility phase of the hearing. Today’s decision marks a radical departure from these precedents, not on the basis of better reasoning, but solely on the principle of ipse dixit — it is so because the majority says it is so. I, for one, do not see any principled distinction between this case and Ramey, waiver notwithstanding. Nor do I see any consistency in holding as we did in Mack that an attorney’s failure to raise this issue on direct review constitutes ineffective assistance of counsel and in holding today that the same error does not rise to “plain error” when procedurally defaulted at trial. Although appellate counsel here properly based their arguments in this direct appeal on our decision in Ramey, it would now appear that counsel, in so doing, may have done defendant a grave disservice because any relief seemingly available under Mack may now be jeopardized by principles of res judicata. Accordingly, I respectfully dissent from the majority’s decision to affirm defendant’s death sentence.
JUSTICE McMORROW joins in this partial concurrence and partial dissent.