specially concurring:
I completely concur with Justice Coleman’s majority opinion. I write separately because I believe that Justice Theis’ dissent raises several important issues.
As a member of the panel that wrote both People v. Smith, 372 Ill. App. 3d 762 (2007) (Smith I), and People v. Titus, No. 1—05—1523 (2007) (unpublished order under Supreme Court Rule 23) in the appellate court, I am familiar with its holding. We concluded:
“[W]e hold that when a defendant who is charged with intentional or knowing murder and felony murder requests a separate verdict form for felony murder and such a request has a basis in the evidence presented at trial, the separate verdict form must be given or consecutive sentences cannot be imposed based on the offense underlying the felony murder, pursuant to section 5—8—4(a) of the Unified Code of Corrections (730 ILCS 5/5—8—4(a) (West 2004).” Smith, 372 Ill. App. 3d at 771-72.
The supreme court affirmed. In doing so, the court considered and rejected the State’s argument that the error was harmless because the evidence that the defendants were guilty of intentional murder was “overwhelming.” People v. Smith, 233 Ill. 2d 1, 25 (2009). In People v. Thurow, 203 Ill. 2d 352, 363 (2003), the court explained the harmless error standard as “the State must prove beyond a reasonable doubt that the jury verdict would have been the same absent the error,” citing Chapman v. California, 386 U.S. 18, 24, 17 L. Ed. 2d 705, 710-11, 87 S. Ct. 824, 828 (1967). In Glasper, our supreme court affirmed the defendant’s conviction, rejecting the defendant’s argument that the trial court’s refusal to question a jury venire regarding the fact that they could not hold a defendant’s failure to testify against him, as required under Supreme Court Rule 431(b)(4) (pre-amended version) prejudiced the defendant. The court found that “no rational juror would have acquitted defendant of the offenses for which he was charged” and “[t]he evidence of defendant’s guilt is overwhelming.” Glasper, 234 Ill. 2d at 202. By their holding in Smith, the supreme court recognized that applying the harmless error analysis as defined in previous cases would not provide a basis for relief from the error in Smith as there was no question that the defendant was guilty of both first degree murder and the underlying forcible felonies. The State had objected to the defendants’ requests for separate verdict forms in both Smith and Titus and the circuit courts agreed, thus preventing defense counsel from arguing that, if the defendant was guilty of first degree murder, he was guilty only under a theory of felony murder. This would have precluded the circuit courts from sentencing the defendants to consecutive sentences on the underlying forcible felonies.
The Smith court explained: “Whether the trial courts’ refusal to submit separate verdict forms can be deemed harmless error is not a question that may be resolved by looking at the strength of the evidence. The refusal to submit separate verdict forms is harmless error only if the jury’s findings may be ascertained from the general verdicts entered.” Smith, 233 Ill. 2d at 25.
After discussing the instructions provided to the defendants in Smith, the court held:
“We conclude that where, as here, it is impossible to tell from the general verdict whether defendant was actually convicted on each count in the indictment, it is error for the trial courts to make that presumption. Therefore, in the cases at bar, because defendants were sentenced based on the presumption that they were found guilty of intentional murder, defendants were prejudiced and the trial court’s error in refusing the defendants’ tender of separate verdict forms cannot be deemed harmless error.” (Emphasis omitted.) Smith, 233 Ill. 2d at 27-28.
The dissent cites the above language and the language in Glasper characterizing the holding in Smith as an example of “structural” error in support of Justice Theis’ position that “the type of error involved in Smith continues to be error and continues to be an automatically reversible error not subject to harmless error analysis.” 397 Ill. App. 3d at 578.
The above-quoted language from Smith makes it clear that “the error in Smith” was the refusal of the defendant’s request to submit separate verdict forms. This fact is also supported by the four quotes from Smith in the majority opinion (397 Ill. App. 3d at 565-66), all of which refer to Smith’s holding as being premised on the refusal of the defendants’ requests for specific verdict forms. While Glasper did characterize the holding in Smith as “structural” (Glasper, 234 Ill. 2d at 192), Glasper in no way suggested that the holding in Smith imposed a sua sponte duty on trial courts to provide specific verdict forms rather than a general verdict form in first degree murder cases. Glasper did not refer at all to the court’s holding in Davis and how that holding impacted, if at all, on the holding in Smith.
The reason for this is clear. As the court in Davis explained: “We find Smith inapplicable to the present case.” Davis, 233 Ill. 2d at 271. Consequently, I disagree with the dissent’s characterization that “The majority seems to suggest that Davis overrules Smith insofar as Smith held that the refusal to allow a special verdict where it could result in an increased sentence for the defendant could never be harmless error.” 397 Ill. App. 3d at 578.
In addition to the language from Davis found in the majority opinion, the court also said:
“This court in Smith affirmed the murder conviction, but vacated the conviction and sentence for attempted armed robbery. In so doing, this court’s holding was narrow: ‘where, as here, 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.’ (Emphasis added.) Smith, 233 Ill. 2d at 23.” Davis, 233 Ill. 2d at 272.
In discussing the holdings in Smith and Davis, the question before this court is a simple one: which case is applicable to the facts of our case? The defendant in the instant case did not object to the general verdict form. This is consistent with the factual scenario addressed in Davis and is inapposite to the factual scenario in Smith. The dissent asserts that “The error here was the same error as the error in Smith insofar as the defendant was denied the opportunity to have the jury determine whether he was guilty of intentional murder, which resulted in a potentially erroneous consecutive sentence for armed robbery. See Glasper, 234 Ill. 2d at 192-93.” 397 Ill. App. 3d at 580. Again, the alleged error in this case, the failure of the trial court to sua sponte provide the jury with separate verdict forms, is not the same error as the error in Smith, which was the refusal of the trial court to provide separate verdict forms when requested to do so by the defendants.
As the dissent points out, the federal courts have limited the type of errors which are considered to be “structural” to “the denial of the right to counsel, the denial of the right to self-representation, the denial of the right to a public trial, and the denial of the right to trial by jury resulting from the giving of a defective reasonable doubt instruction.” 397 Ill. App. 3d at 577; United States v. Gonzalez-Lopez, 548 U.S. 140, 149, 165 L. Ed. 2d 409, 420, 126 S. Ct. 2557, 2564 (2006). Glasper characterized the error in Smith as “structural” under this last type of error. This means that Glasper reaffirmed the holding in Smith that when the trial court refuses to provide separate verdict forms when requested to do so by the defendant, it is always reversible.
The dissent also asserts “under Smith, I would find that it was reversible error for the court to have not given the jury special verdict forms.” 397 Ill. App. 3d at 580. The Smith court, however, had no occasion to consider whether the second prong of plain error analysis applied since there was no plain error, the defendant having requested the specific verdict forms. Further, as explained by our supreme court, plain error is not in itself a “standard of review” as there is no trial court order to review in the plain error context. People v. Herron, 215 Ill. 2d 167, 184-85 (2005).
The dissent also asserts that “Davis has altered the plain error analysis to be applied under Illinois law.” 397 Ill. App. 3d at 578. I agree with this proposition to the extent that Davis adopted Hedgpeth v. Pulido’s holding that “alternative theory error” and most other instructional errors are subject to a harmless error analysis. Davis, 233 Ill. 2d at 270-71. This is significant in that Pulido made clear that errors based on those in Stromberg v. California, 283 U.S. 359, 75 L. Ed. 1117, 51 S. Ct. 532 (1931), and Yates v. United States, 354 U.S. 298, 1 L. Ed. 2d 1356, 77 S. Ct. 1064 (1957), are no longer automatically reversible. Hedgpeth v. Pulido, 555 U.S. 57, 60, 172 L. Ed. 2d 388, 391, 129 S. Ct. 530, 532 (2008). While Smith did rely on Stromberg and Yates, in part, I do not believe that the result in Smith is now called into question. Pulido arose in the context of a review of the granting of habeas corpus relief to the defendant for his state conviction. The Ninth Circuit Court of Appeals held that the jury instruction error was a “structural error.” Davis, 233 Ill. 2d at 269, citing Pulido v. Chrones, 487 F.3d 669 (9th Cir. 2007), and Pulido, 555 U.S. at 58, 172 L. Ed. 2d at 390, 129 S. Ct. at 530. In Danforth v. Minnesota, 552 U.S. 264, 280, 169 L. Ed. 2d 859, 871, 128 S. Ct. 1029, 1041 (2008), the Supreme Court explained that cases involving federal habeas relief have a “unique context” and that states may provide broader relief than that available through habeas proceedings. “[The federal] interest in uniformity, however, does not outweigh the general principle that States are independent sovereigns with plenary authority to make and enforce their own laws as long as they do not infringe on federal constitutional guarantees.” Danforth, 552 U.S. at 280, 169 L. Ed. 2d at 871, 128 S. Ct. at 1041.
I believe that there are still differences between plain error analysis in Illinois and the federal courts. In People v. Herron, 215 Ill. 2d at 186, our supreme court rejected the State’s request that they explicitly adopt the federal standard for plain error, even though they noted that the court had often employed it, notably in the cases finding that Apprendi errors were subject to harmless error analysis. Herron, 215 Ill. 2d at 182-83, citing People v. Crespo, 203 Ill. 2d 335, 348 (2001). Also see People v. Thurow, 203 Ill. 2d 352, 363 (2003); People v. Nitz, 219 Ill. 2d 400, 415-16 (2006).
While plain error review is similar in both the state court and federal court contexts, there are differences. In Puckett v. United States, 556 U.S. 129, 173 L. Ed. 2d 266, 129 S. Ct. 1423 (2009), the United States Supreme Court explained that federal “ ‘plain-error review’—involves four steps, or prongs. First, there must be an error or defect—some sort of ‘[deviation from a legal rule’—that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. [Citation.] Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. [Citation.] Third, the error must have affected the appellant’s substantial rights, which in the ordinary case means he must demonstrate that it ‘affected the outcome of the district court proceedings.’ [Citation.] Fourth and finally, if the above three prongs are satisfied, the court of appeals has the discretion to remedy the error—discretion which ought to be exercised only if the error ‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings. [Citation.]’ ” (Emphasis in original.) Puckett, 556 U.S. at 135, 173 L. Ed. 2d at 274-75, 129 S. Ct. at 1429.
The third prong of the federal plain error analysis defines “affected the appellant’s substantial rights” as “affected the outcome of the district court proceedings.” This is analogous to a requirement of prejudice, which as the dissent correctly asserts, is not needed in the second prong of Illinois’ plain error analysis.
Another difference is found in Pulido’s language, “Neder makes clear that harmless-error analysis applies to instructional errors so long as the error at issue does not categorically ‘vitiat[e] all the jury’s findings.’ ” (Emphasis in original.) Pulido, 555 U.S. at 61, 172 L. Ed. 2d at 391-92, 129 S. Ct. at 532, quoting Neder v. United States, 527 U.S. 1, 11, 144 L. Ed. 2d 35, 48, 119 S. Ct. 1827, 1834 (1999). The court in Smith held: “the general verdicts finding defendants guilty of first degree murder that the juries returned in these cases are entirely valid. There is no legal basis for setting defendants’ murder convictions aside. Accordingly, the problem presented here is solely one of how to interpret the verdicts for purposes of sentencing.” Smith, 233 Ill. 2d at 28. As our supreme court refused to apply a harmless error analysis to the error in Smith even though the murder verdicts were valid, the court has not adopted the holding in Neder in all circumstances.
Further, in Glasper, while our supreme court said “we consider that automatic reversal is only required where an error is deemed ‘structural’ ” (Glasper, 234 Ill. 2d at 197), they also recognized that an instructional error may be “so severe that reversal is required, regardless of whether the error would be deemed structural under federal law.” Glasper, 234 Ill. 2d at 199-200.
I believe that it is important to note that while Davis discussed plain error, the court actually did not hold that there was error committed by the trial court in that case. In Davis, the jury returned a guilty verdict for aggravated batteiy and a general verdict of guilty of first degree murder. The jury had been instructed on felony murder as well as intentional and knowing murder. On appeal, the defendant argued that it was reversible error to instruct the jury that felony murder could be predicated upon aggravated battery because the conduct forming the basis of the aggravated battery was inherent in the murder. Davis, 233 Ill. 2d at 247. The court first held:
“[F]elony murder predicated on aggravated battery is a legally existent crime in Illinois. The Code of Criminal Procedure of 1961 expressly defines felony murder predicated on aggravated battery as a crime. See 720 ILCS 5/9—1(a)(3) (West 2006); 720 ILCS 5/2—8 (West 2006). Moreover, this court in People v. Viser, 62 Ill. 2d 568, 580 (1975), held that felony murder predicated on aggravated battery is a valid and existing crime under nearly identical circumstances to the present case. Viser has never been overruled by this court, and was essentially reaffirmed by our most recent decision in this area in People v. Davis, 213 Ill. 2d 459, 475 (2004).” Davis, 233 Ill. 2d at 269.
As pointed out in the majority opinion, Davis held that “the holding of Smith was conditioned on the trial court’s refusal to grant a request [for a specific verdict form] and did not establish a rule that the court must act sua sponte to give a specific verdict form.” Davis, 213 Ill. 2d at 273. As Davis also did not find that a tidal court has a duty to sua sponte give a specific verdict form, it was not error to not give one in Davis.
In People v. Piatkowski, 225 Ill. 2d 551, 565 (2007), the court explained:
“[T]he plain-error doctrine allows a reviewing court to consider unpreserved error when (1) a clear or obvious error occurred and the evidence is so closely balanced that the error alone threatened to tip the scales of justice against the defendant, regardless of the seriousness of the error, or (2) a clear or obvious error occurred and that error is so serious that it affected the fairness of the defendant’s trial and challenged the integrity of the judicial process, regardless of the closeness of the evidence.”
As can be seen, the first factor which must be present before a reviewing court may consider an unpreserved error under either prong of plain error is “a clear or obvious error.” The court in Davis never found any error much less “a clear or obvious error.” The Davis court phrased their holding by saying “a plain-error analysis is appropriate, assuming arguendo that defendant is correct in his contention that a straightforward application of the one-good-count presumption would be faulty.” (Emphasis added.) Davis, 233 Ill. 2d at 274. Further, the court held: “even if we were to find that a constitutional due process error occurred in instructing the jury on felony murder or that the one-good-count presumption is questionable, it would still not require automatic reversal of defendant’s murder conviction. *** Accordingly we hold that the instant felony-murder instruction, even if erroneous, was a typical trial error that did not amount to a structural defect that required automatic reversal. It would be analogous to the Apprendi cases that we have decided such as People v. Nitz, 219 Ill. 2d 400 (2006), and People v. Thurow, 203 Ill. 2d 352 (2003), where we found that the error of not submitting every essential element of an offense to the jury for consideration was subject to either a harmless error analysis if defendant made a trial objection or a plain-error analysis if defendant did not object.” (Emphasis added.) Davis, 233 Ill. 2d at 273-74. The reason that Apprendi errors may amount to plain error (note: under the first prong) is that the holding in Apprendi required that every essential element of an offense which could provide the basis for an enhanced sentence had to be submitted to the jury for consideration. Failure to do so was “a clear or obvious error.” Again, no case has held that a trial court must provide specific verdict forms without being requested to do so.
In her dissent, Justice Theis posits that a “ ‘structural’ error satisfies the second prong of the plain error test,” and that this conclusion was supported by Davis only having addressed the first prong of plain error. 397 Ill. App. 3d at 579. I believe that “structural error,” as that term is used in both the federal context and in our supreme court’s recent cases, is always reversible whether it arises in the “harmless error” or “plain error” context. Illinois follows the federal precedents in this area as elucidated in Gonzalez-Lopez, 548 U.S. at 149, 165 L. Ed. 2d at 420, 126 S. Ct. at 2564, but also includes the type of error found in Smith—the refusal by a trial court to provide specific verdict forms when requested to do so by a defendant. Smith, 233 Ill. 2d at 27-28; Glasper, 234 Ill. 2d at 192, citing Smith, 233 Ill. 2d at 25-26. Further, an instructional error may be “so severe that reversal is required, regardless of whether the error would be deemed structural under federal law.” Glasper, 234 Ill. 2d at 199-200.
Our supreme court has long recognized these principles and has codified them in Supreme Court Rules 451(c) and 615(a). 210 Ill. 2d R. 451(c); 134 Ill. 2d R. 615(a). Rule 451(c) provides: “substantial defects are not waived by failure to make timely objections thereto if the interests of justice so require.” 210 Ill. 2d R. 451(c) (first effective 1969). 210 Ill. 2d R. 451(c); 134 Ill. 2d R. 615(a). Rule 651(a) provides: “Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court.” 134 Ill. 2d R. 615(a) (first adopted in 1963).
Based on all of the above, I believe that the holding in Davis is controlling in this case and, as the trial court had no duty to sua sponte provide specific verdict forms for the first degree murder charge, there was no error in failing to do so.