specially concurring:
I write separately to express my views regarding the sufficiency of the evidence of defendant’s death penalty eligibility.
Defendant maintains that the State failed to prove him eligible for the death penalty beyond a reasonable doubt because there was no evidence from which one could find that he had either the intent to kill any person or that he performed any act which he knew would cause death or create a strong possibility of death or great bodily harm to any person, as is statutorily required. According to defendant, “absent an individualized finding of intent to kill or alternatively separate acts which he knew would cause death or strong possibility of death or great bodily harm, his accountability for the murders does not make him eligible for death as a punishment.”
The Illinois death penalty statute provides that at the eligibility phase of a capital sentencing hearing, the State has the burden to prove that a defendant is eligible for the death penalty beyond a reasonable doubt. Specifically, the State must show that the defendant was at least 18 years of age at the time of the commission of the offense and that at least one statutory aggravating factor exists. People v. West, 187 Ill. 2d 418 (1999) (and cases cited therein). In this case defendant’s eligibility for the death penalty was predicated upon the statutory aggravating factor set out in section 9 — 1(b)(3) of the Criminal Code of 1961. Ill. Rev. Stat. 1989, ch. 38, par. 9 — 1(b)(3). That section authorizes the imposition of the death penalty where “the defendant has been convicted of murdering two or more individuals” and “the deaths were the result of either an intent to kill more than one person or of separate acts which the defendant knew would cause death or create a strong probability of death or great bodily harm to the murdered individual or another.” Ill. Rev. Stat. 1989, ch. 38, par. 9 — 1(b)(3). This court has held that section 9 — 1(b)(3) allows the death penalty to be imposed where the defendant acted with knowledge that his acts would result in death or great bodily harm, or with the intent to kill. People v. Davis, 95 Ill. 2d 1, 31-36 (1983). This means that, at the eligibility phase of the hearing, the State is required to prove beyond a reasonable doubt not only defendant’s conviction for two or more murders, but also a culpable mental state, i.e., intent or knowledge at the time of those crimes. People v. Edgeston, 157 Ill. 2d 201, 224 (1993). This court has ruled that the “ ‘conviction’ element” of section 9 — 1(b)(3) is satisfied where there is proof that a trial judge has entered judgment on a verdict of guilty of murder. People v. Hope, 168 Ill. 2d 1, 37 (1995). However, whether “the defendant acted with the requisite mental state is a separate issue.” Hope, 168 Ill. 2d at 37.
I note that, at the conclusion of the guilt phase of defendant’s trial, the jury was instructed based on theories of intentional, knowing, and felony murder and on accountability. The jury returned a general verdict of guilty with respect to first degree murder. Therefore, we do not know beyond a reasonable doubt that the jury agreed unanimously on the question of defendant’s mens rea. Nevertheless, the jury’s verdict, when viewed in conjunction with all of the evidence adduced at the trial which the trial judge heard, can form the basis for affirming, on appeal, the trial judge’s specific finding of death eligibility at sentencing. I reach this conclusion because, in this case, the trial judge, and not a jury, served as the trier of fact during the sentencing hearing. See People v. Johnson, 149 Ill. 2d 188 (1992); People v. Woolley, 178 Ill. 2d 175 (1997). The trial judge knew of the specific elements required under section 9 — 1(b)(3) for a finding of death eligibility. Moreover, the judge, as the trier of fact, may infer the intent to take a life from a defendant’s acts and the circumstances surrounding the commission of the offense. People v. Garcia, 97 Ill. 2d 58, 85 (1983).
This court has previously held that the death penalty may be constitutionally imposed for murder convictions based on accountability. Ruiz, 94 Ill. 2d at 263. Even though defendant may not have been the actual shooter, the evidence shows that, at the very least, he planned and actively participated in the crimes at issue. Although there was no direct evidence that it was defendant who shot the victims, I believe that the proof adduced at trial was sufficient to sustain the sentencing judge’s finding of death eligibility under the principle of accountability. This conclusion is amply supported by the evidence heard by the trial judge that was adduced during the guilt phase of the proceedings (see People v. Bull, 185 Ill. 2d 179, 208-09 (1998), citing People v. Harris, 182 Ill. 2d 114, 163-64 (1998) (Freeman, C.J., specially concurring)), as I explain in detail below.
The evidence adduced at trial established that defendant first met his codefendant, Aguilar, while both were imprisoned at Stateville several years earlier. They became reacquainted in January 1989 and met on two occasions between January 1989 and the time of the murders on February 24, 1989. It was during this period that defendant informed his girlfriend, Patty, that he wanted to get a gun. The night before the murders, defendant and Aguilar met at a lounge, and, afterward, they both went to Patty’s apartment, where defendant had been living. Aguilar spent the night at the apartment. The next day, Aguilar and defendant walked to the jewelry store, which was close in proximity to Patty’s apartment. Defendant told police that he and Aguilar had to be “buzzed” in and out of the store because the door was locked electronically. Defendant stated that the sole purpose of this visit was to “case” the store, that is, to look for security and to see whether it was easy to rob. After examining some jewelry, both Aguilar and defendant left, but returned a short time later with the intention to commit a robbery. Defendant told police that as they entered the store, Aguilar told him to “keep [his] eyes open,” which meant to defendant that something was going to happen. Defendant further admitted that while Aguilar was examining a piece of jewelry, defendant stayed at the front of the store, acting as a lookout. Defendant stated that he then heard a pop and saw that Aguilar had shot the male victim and was chasing the female victim to the back of the store. Defendant was alongside Aguilar when Aguilar first attempted to shoot the woman, but the gun jammed. Aguilar cleared the gun and successfully shot the woman a few moments later. Defendant and Aguilar then took numerous trays of jewelry and left the store through a rear door, removing barricades to do so. They returned to Patty’s apartment, where they emptied the trays onto a bed. Soon thereafter, Patty returned to home and, upon seeing the jewelry, told defendant and Aguilar to leave the premises. Defendant stated that he then went to Patty’s car, which she had parked in front of the jewelry store. According to defendant, the area was swarming with police activity, and he approached a police officer and asked “What’s going on?” The officer replied that a robbery had taken place, and defendant asked “Was anyone hurt?” The officer replied that he did not know. Defendant told police that he then drove himself and Aguilar to the home of defendant’s sister, where the men spent the night. Aguilar gave defendant his share of the jewelry there. Patty testified that about a month after the crimes, defendant called her and she asked him if he committed the robbery and murders. Defendant responded that she should not ask him any questions. Defendant never told her that he was afraid of Aguilar or that he had nothing to do with the crimes.
With respect to the mens rea required for death eligibility under section 9 — 1(b)(3), the intent to take a life may be inferred from a defendant’s acts and the circumstances surrounding the commission of the offenses. Ruiz, 94 Ill. 2d at 263. Applying this rule to the facts of this case, the proof adduced at the guilt phase of the trial is sufficient to sustain the sentencing judge’s finding of death eligibility under the principle of accountability. The can be no question that defendant was a principal actor in a common enterprise bent upon committing acts of violence upon the victims. After becoming reacquainted with Aguilar, defendant expressed the desire to get a gun. Defendant and Aguilar planned to rob the store and, to this end, “cased” the premises to see what type of security devices were present. It is uncontradicted that the store’s door was electronically locked, and that the only apparent way to enter or exit the premises was to be “buzzed” in or out by the store’s owners. This fact supports the inference that, once defendant and Aguilar departed the store after casing the premises, they intended to use lethal force, or, at the very least, had knowledge that lethal force would have to be employed to escape after robbing this particular location. It is difficult to conceive that the owners of the jewelry store, after having been robbed, would have freely and voluntarily buzzed defendant and Aguilar out of their store without threat of lethal force. In addition, defendant testified that despite being informed by Aguilar to “keep [his] eyes open” upon entering the store (meaning that something was about to happen), defendant neither protested nor withdrew from their common enterprise. To the contrary, defendant went along with the plan and acted as a lookout.
Further, defendant testified that after the first victim was shot, defendant helped Aguilar chase the second victim into the back room and watched as Aguilar attempted to shoot her. Even though the gun jammed, providing defendant with an opportunity to protest Aguilar’s actions or withdraw from any further involvement, defendant chose to remain at Aguilar’s side as he cleared the gun and then shot the victim on his second attempt. Defendant then helped Aguilar take trays of jewelry from the store to Patty’s apartment. When she told them to leave, defendant retrieved Patty’s car, which was parked in front of the jewelry store. During this time, defendant engaged a police officer in conversation. Although the conversation presented defendant with the opportunity to admit his involvement in the crimes and to seek protection from Aguilar because of defendant’s fear for his own safety, he did not do so. Rather, the evidence reveals that defendant, on his own initiative, suggested that both he and Aguilar seek refuge at the home of defendant’s sister. If, as defendant suggests here on appeal, he was unaware that Aguilar would use lethal force, it is highly unlikely that defendant would subject his sister and her family to possible harm by bringing Aguilar, who was still armed, into their home. Finally, the evidence reveals that two men split the robbery proceeds as soon as they had successfully evaded police.
Under section 9 — 1(b)(3), the sentencing judge had to find, beyond a reasonable doubt, that the deaths were “the result of either an intent to kill more than one person or of separate acts which the defendant knew would cause death or create a strong probability of death or. great bodily harm to the murdered individual or another.” The evidence that I have outlined above, at the very least, establishes that defendant knew that the acts would cause death or create a strong probability of death or great bodily harm. This conclusion is especially true under the standard of review here, which requires that the evidence be examined in a light most favorable to the prosecution.
I believe the foregoing analysis is more responsive to defendant’s sufficiency of the evidence claim than that offered by the court today. The court rejects defendant’s mens rea contention, noting that, at the conclusion of the guilt phase, the jury returned a general verdict finding defendant guilty of the murders of Chang and Myung Choi. According to the court, these general verdicts raise a presumption that the jury found defendant guilty of intentional murder. Therefore, “since the jury’s verdict encompassed the necessary intent to find defendant eligible for the death penalty under the multiple murder aggravating factor, the trial court was not required to make additional findings regarding defendant’s mental state when it entered defendant’s jury verdict forms into evidence, and trial counsel was not ineffective for failing to raise this issue because defendant suffered no prejudice as a result.” 195 Ill. 2d at 461.
I find the court’s use of the presumption, as described above, troublesome on many levels. As an initial matter, it now appears that every general verdict returned by a jury at the conclusion of the guilt phase is, for purposes of death penalty eligibility, automatically transmuted into a finding that the defendant is guilty of intentional murder. This type of practice in cases in which the death penalty has been imposed is, in my view, unwise. Where the ultimate penalty is to be imposed, this court should not be satisfied of proof beyond a reasonable doubt by resort to a presumption. In this case, the most that can be said is that the general verdict returned by the jury, on its face, fails to reveal whether the jury found defendant guilty of felony murder or guilty of intentional or knowing murder based on accountability for the action of Aguilar. The verdict does not prove, beyond a reasonable doubt, the existence of the mens rea required under section 9 — 1(b)(3).
In my view, by employing the presumption to defeat defendant’s sufficiency of the evidence challenge, the court renders the eligibility phase of a capital sentencing hearing a relatively meaningless exercise. In enacting the Illinois death penalty statute, the General Assembly ereated a two-phase capital sentencing scheme. At the first, eligibility, stage of the hearing, the State is required to prove the elements of the aggravating factor, including, where applicable, the mens rea necessary for death eligibility. The statute allows for a defendant to present evidence during this phase of the hearing. Therefore, the fact that a defendant may present evidence on the question suggests that a general verdict of guilty, in the context of section 9 — 1(b)(3), does not create an irrebuttable presumption of death eligibility. I must point out that the death penalty statute does not speak in terms of presumptions. It places a burden of proof upon the State to prove the elements required for death eligibility beyond a reasonable doubt. The court today seemingly forgets that the issues to be decided at the culpability trial differ from those to be decided for death eligibility. Not all those convicted of murder may be found eligible for the death penalty. The court, by allowing a presumption alone to satisfy proof beyond a reasonable doubt, minimizes the very real fact that the State bears anew the burden of proving the required mens rea at the first stage of the capital sentencing hearing.
I also believe the court’s use of the presumption, as set forth in its discussion, raises constitutional issues that are best avoided. This court has noted that the United States Supreme Court has warned against the use of presumptions that absolve the State of proving the question of intent beyond a reasonable doubt because of the due process concerns involved. See People v. Watts, 181 Ill. 2d 133 (1998) (and federal cases discussed therein). Moreover, as I mentioned previously, the issues to be decided at the guilt phase of the trial differ from those to be decided for death eligibility, and not all those convicted of murder may be found eligible for the death penalty. A capital sentencing scheme must provide a “ ‘meaningful basis for distinguishing the few cases in which [the penalty] is imposed from the many cases in which it is not.’ ” Gregg v. Georgia, 428 U.S. 153, 188, 49 L. Ed. 2d 859, 883, 96 S. Ct. 1909, 2932 (1976), quoting Furman v. Georgia, 408 U.S. 238, 313, 33 L. Ed. 2d 346, 392, 92 S. Ct. 2726, 2764 (1972) (White, J., concurring). The United States Supreme Court has recognized that the eligibility phase of a death sentence hearing plays a “constitutionally necessary” function by “circumscribing] the class of persons eligible for the death penalty.” Zant v. Stephens, 462 U.S. 862, 878, 77 L. Ed. 2d 235, 250-51, 103 S. Ct. 2733, 2743 (1983). This phase of the hearing safeguards against arbitrary and capricious sentencing because it reasonably justifies the narrowing of the class of persons convicted of murder who are eligible for the death penalty. Zant, 462 U.S. at 874-77, 77 L. Ed. 2d at 248-50, 103 S. Ct. at 2741-42. In the past this court, too, has echoed these same concerns by noting that “ [aggravating factors serve as necessary prerequisites without which the death sentence cannot be imposed; they delineate the borderline between those cases in which death is a possible punishment and those in which it cannot be considered.” People v. Lewis, 88 Ill. 2d 129, 145 (1982); see also People v. Ramey, 151 Ill. 2d 498, 544 (1992); People v. Simms, 143 Ill. 2d 154, 170 (1991). The use of presumptions in the manner endorsed by the court today does little, in my mind, to “delineate the borderline between those cases in which death is a possible punishment and those in which it cannot be considered” and amounts to little more than appellate “rubberstamping.”
In all other respects, I concur in the opinion of the court.
JUSTICES McMORROW and RATHJE join in this special concurrence.