dissenting:
Regarding the final issue raised by defendant, the majority finds that the trial court’s failure to submit separate verdict forms to the jury for the different theories of first degree murder with which defendant was charged was not plain error. I respectfully disagree. I would find that the error here was the same as the error in Smith and that the error was a structural, serious error, which requires the court to vacate defendant’s conviction and sentence for armed robbery, even though the issue was not raised below. I will also address the relationship between Davis and Smith, and the effect of Davis on Illinois plain error analysis.
In Smith, the defendants were convicted of first degree murder and armed robbery and sentenced to consecutive terms of imprisonment for the crimes. Smith, 233 Ill. 2d at 5. The juries were instructed on intentional or knowing murder, felony murder predicated upon armed robbery, and armed robbery. Smith, 233 Ill. 2d at 5. The defendants requested separate verdict forms to distinguish the juries’ findings on first degree murder, but the trial court denied their requests. Smith, 233 Ill. 2d at 5. On appeal, the defendants argued that the trial court abused its discretion when it denied their requests for special verdict forms because those forms were necessary to ensure that the defendants were sentenced properly. Smith, 233 Ill. 2d at 14. Specifically, the defendants pointed out that if the jury had found them guilty of felony murder, instead of intentional or knowing murder, they could not be convicted and sentenced for armed robbery. Smith, 233 Ill. 2d at 15.
The supreme court agreed and 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.” Smith, 233 Ill. 2d at 23. The court further found that the trial court’s refusal to grant the defendants’ requests for special verdict forms could never be harmless error. Smith, 233 Ill. 2d at 27-28. The court explained that because it was impossible to tell from the verdict whether the jury had convicted the defendants of intentional murder, and because the defendants were sentenced on the presumption that they were, the trial court’s error in refusing the separate verdict forms that would have resolved this issue prejudiced the defendants. Smith, 233 Ill. 2d at 27-28. The court accordingly interpreted the verdict as finding the defendants guilty of only felony murder and, therefore, vacated the defendants’ convictions and sentences for armed robbery. Smith, 233 Ill. 2d at 28-29.
Unlike Smith, in which the defendants were essentially challenging only their armed robbery convictions, the defendant in Davis challenged his first degree murder conviction. Specifically, in Davis, the defendant was convicted of first degree murder only. Davis, 233 Ill. 2d at 247. The jury was instructed on intentional or knowing murder and felony murder predicated on aggravated battery, and the jury returned a general guilty verdict of first degree murder. Davis, 233 Ill. 2d at 252-53. The defendant never requested a special verdict form. On appeal, the defendant contended 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 253. The defendant further argued that the one-good-count presumption, under which it was presumed that the general guilty verdict was one for intentional murder, was unconstitutional and should not apply. Davis, 233 Ill. 2d at 265.
The supreme court disagreed and found that any error in instructing the jury was harmless. Davis, 233 Ill. 2d at 265. The court explained that the United States Supreme Court had recently resolved this issue in Pulido, 555 U.S. at 61, 172 L. Ed. 2d at 391, 129 S. Ct. at 532, and concluded that where a jury returns a general guilty verdict after being instructed on alternative theories of guilt, but one of the alternative theories upon which the verdict could have been based was invalid, the error in so instructing the jury is not “structural” and is subject to harmless error analysis. Davis, 233 Ill. 2d at 273. The concept of “structural” error is a principle of federal error analysis.
Under federal criminal jurisprudence, not all constitutional errors require reversal. Pulido, 555 U.S. at 60, 172 L. Ed. 2d at 391, 129 S. Ct. at 532, citing Chapman v. California, 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967). The Court divides constitutional errors into two different categories: “trial errors” and “structural” errors. United States v. Gonzalez-Lopez, 548 U.S. 140, 148, 165 L. Ed. 2d 409, 419, 126 S. Ct. 2557, 2563-64 (2006). Trial errors are those errors that “ ‘occurred during the presentation of the case to the jury’ and their effect may ‘be qualitatively assessed in the context of other evidence presented in order to determine whether [they were] harmless beyond a reasonable doubt.’ ” Gonzalez-Lopez, 548 U.S. at 148, 165 L. Ed. 2d at 419, 126 S. Ct. at 2563-64, quoting Arizona v. Fulminante, 499 U.S. 279, 307-08, 113 L. Ed. 2d 302, 330, 111 S. Ct. 1246, 1264 (1991). Most constitutional errors fall into the trial error category. Gonzalez-Lopez, 548 U.S. at 148, 165 L. Ed. 2d at 419, 126 S. Ct. at 2564. In contrast, structural errors “ ‘defy analysis by “harmless-error” standards’ because they ‘affee[t] the framework within which the trial proceeds,’ and are not ‘simply an error in the trial process itself.’ ” Gonzalez-Lopez, 548 U.S. at 148, 165 L. Ed. 2d at 419, 126 S. Ct. at 2564, quoting Fulminante, 499 U.S. at 309-10, 113 L. Ed. 2d at 330-31, 111 S. Ct. at 1264. Structural errors include 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. Gonzalez-Lopez, 548 U.S. at 149, 165 L. Ed. 2d at 420, 126 S. Ct. at 2564. Thus, in Pulido, the Court found that the type of error claimed by the defendant in Davis was not a fundamental error and was subject to harmless error analysis. Pulido, 555 U.S. at 61, 172 L. Ed. 2d at 391, 129 S. Ct. at 532.
Our supreme court in Davis relied upon the holding of Pulido, recognizing that these types of errors “have now been specifically held by the United States Supreme Court to be subject to a harmless-error analysis and are not structural defects that require automatic reversal.” Davis, 233 Ill. 2d at 273. The court thus held that even if it were to find that an error occurred in instructing the jury, in light of Pulido’s holding, “it would still not require automatic reversal of defendant’s murder conviction.” Davis, 233 Ill. 2d at 273.
The court in Davis also distinguished Smith, finding Davis to be “a world away from Smith.” Davis, 233 Ill. 2d at 273. The court specifically recognized that the defendant in Davis never objected to the general verdict and explained that “the holding of Smith was conditioned on the trial court’s refusal to grant such a request and did not establish a rule that the court must act sua sponte to give a specific verdict form.” Davis, 233 Ill. 2d at 273.
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. Indeed, the majority states that sentencing consequences were not the dispositive factor in Smith and goes on to rely upon preSmith cases such as Baker, Sample, and Griffin.
To the contrary, I would find that the possibility that a defendant could be subjected to increased punishment based upon the application of the one-good-count rule continues to be error, even after Davis. I believe that Davis does not overrule Smith but, rather, distinguishes it. Indeed, in its more recent decision in People v. Glasper, 234 Ill. 2d 173, 192 (2009), the supreme court emphasized the continued validity of Smith. However, the court also made clear that the type of error involved in Smith was very specific. Glasper, 234 Ill. 2d at 192. The court also stated that contrary to the type of error involved in Davis, the error in Smith was a structural error. Glasper, 234 Ill. 2d at 192-93. The court explained that the error in Smith was that the defendant was denied his sixth amendment right to have a jury, rather than a judge, determine his guilt. Glasper, 234 Ill. 2d at 192. Such an error was not subject to harmless error analysis for two reasons: (1) because there was no actual jury verdict to review for harmless error; and (2) because the deprivation of the right to a jury verdict qualifies as a “structural” error. Glasper, 234 Ill. 2d at 192. Thus, 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.
Additionally, I would find that Davis has altered the plain error analysis to be applied under Illinois law. In People v. Herron, 215 Ill. 2d 167, 186-87 (2005), our supreme court definitively held that “the plain-error doctrine bypasses normal forfeiture principles and allows a reviewing court to consider unpreserved error when either (1) the evidence is close, regardless of the seriousness of the error, or (2) the error is serious, regardless of the closeness of the evidence.” Thus, the focus of the second alternative was the “seriousness” of the error.
Then, in Davis, the supreme court imported the “structural defect” standard of federal constitutional harmless-error analysis into Illinois plain error analysis. See Davis, 233 Ill. 2d at 273-74. Once the court in Davis concluded that the error in instructing the jury was not “structural,” in conducting its plain error analysis, the court considered only whether the evidence was closely balanced. Davis, 233 Ill. 2d at 274. It did not address whether the error was “serious.” Davis, 233 Ill. 2d at 274.
This raises the question of whether a “structural” error automatically constitutes a “serious” error under Illinois plain error analysis.1 As explained above, under federal jurisprudence, “structural” errors are so intrinsically harmful that they require automatic reversal; they are not subject to harmless error analysis. See, e.g., Neder v. United States, 527 U.S. 1, 7, 144 L. Ed. 2d 35, 46, 119 S. Ct. 1827, 1833 (1999). In People v. Lewis, 234 Ill. 2d 32, 47 (2009), our supreme court explained that “[p]lain error marked by fundamental unfairness occurs only in situations revealing a breakdown in the adversary process as distinguished from typical errors,” and that “plain error encompasses matters affecting the fairness of the proceeding and the integrity of the judicial process.” Then, in Glasper, our supreme court explained that “automatic reversal is only required where an error is deemed ‘structural,’ i.e., a systemic error that serves to ‘erode the integrity of the judicial process and undermine the fairness of the defendant’s trial.’ ” Glasper, 234 Ill. 2d at 197-98, quoting Herron, 215 Ill. 2d at 186. In Herron, the court used this same definition to describe the type of errors that would constitute plain error under the substantial rights prong of the test. Herron, 215 Ill. 2d at 186. The court specifically stated that “the substantial rights prong [of the plain error test] guards against errors that erode the integrity of the judicial process and undermine the fairness of the defendant’s trial.” Herron, 215 Ill. 2d at 186.
Because the second prong of the plain error test is satisfied where an error “erode[s] the integrity of the judicial process and undermine^] the fairness of the defendant’s trial,” and a “structural” error is also defined as an error that “erode[s] the integrity of the judicial process and undermine[s] the fairness of the defendant’s trial,” I would find that a “structural” error satisfies the second prong of the plain error test and is always reversible. This conclusion is further supported by the fact that when the supreme court in Davis found the error was not “structural,” it did not engage in any other analysis regarding whether the error would have satisfied the second prong of the plain error test. See Davis, 233 Ill. 2d at 273.
In summary, I would find that Smith, Davis, and also Glasper have changed Illinois error analysis in the following manner. First, regardless of whether the error was preserved or not, the court must ask whether there was, in fact, an error. See, e.g., Davis, 233 Ill. 2d at 273. Second, if there was error, the court must determine whether it was a “structural” error or a “trial” error. See Gonzalez-Lopez, 548 U.S. at 148, 165 L. Ed. 2d at 419, 126 S. Ct. at 2564. If the error was structural, then the court must automatically reverse. See Glasper, 234 Ill. 2d at 198; see also Smith, 233 Ill. 2d at 25 (explaining that the effect of the error in that case could not be measured by looking at the strength of the evidence). If the error was not structural, then the court’s analysis of the impact of the error will depend on whether the error was properly preserved or not. See Herron, 215 Ill. 2d at 186-87. If the error was preserved, then the court will conduct a harmless error analysis, under which the State will bear the burden to persuade the court that the error did not affect the outcome of the trial. See, e.g., Smith, 233 Ill. 2d at 25. If the error was not preserved, then the court will conduct a plain error analysis, under which the defendant bears the burden to show that the evidence was closely balanced. See Davis, 233 Ill. 2d at 274; see also Herron, 215 Ill. 2d at 186-87. In this regard, I believe that, structural errors aside, the preservation of the error affects only who has the burden of persuasion on the issue. See Davis, 233 Ill. 2d at 274.
Here, the majority failed to address whether the error was structural. It simply applied the analysis for “prejudice” under the first prong of plain error, found that the evidence was not closely balanced, and ended its analysis there. I believe that it should have found that the error was “structural” under Smith and Glasper. 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 or felony murder, which resulted in a potentially erroneous consecutive sentence for armed robbery. See Glasper, 234 Ill. 2d at 192-93. Therefore, under Smith, I would find that it was reversible error for the court to have not given the jury special verdict forms. Accordingly, I would vacate defendant’s conviction and sentence for armed robbery. See Smith, 233 Ill. 2d at 29. For these reasons, I respectfully dissent.
The United States Supreme Court has never decided whether a structural error would constitute a plain error. Puckett v. United States, 556 U.S. 129, 140-41, 173 L. Ed. 2d 266, 278, 129 S. Ct. 1423, 1432 (2009) (explaining that the Supreme Court has “several times declined to resolve whether ‘structural’ errors—those that affect ‘the framework within which the trial proceeds,’ [citation]—automatically satisfy the third prong of the [federal] plain-error test”).