specially concurring:
Defendant contends that, pursuant to People v. Mack, 167 Ill. 2d 525 (1995), his death-eligibility verdict forms were legally insufficient. I reject this argument for the reasons explained below.
Mack is distinguishable from this case. In Mack, the defendant was found guilty of murder and armed robbery at a bench trial. A jury was empaneled for the death penalty hearing. The jury was properly instructed to determine whether the defendant was eligible for the death penalty solely on the basis of the statutory aggravating factor of murder in the course of another felony (see Ill. Rev. Stat. 1979, ch. 38, par. 9 — 1(b)(6)). The jury returned a verdict finding the defendant eligible for the death penalty. The eligibility verdict form read: “ ‘We, the jury, unanimously find beyond a reasonable doubt that the following aggravating factor exists in relation to this Murder: Larry Mack killed Joseph Kolar in the course of an Armed Robbery.’ ” Mack, 167 Ill. 2d at 529-30. The defendant alleged in his post-conviction petition that appellate counsel was ineffective for not raising on direct appeal that the death-eligibility verdict was legally insufficient. The defendant argued that the jury failed to find that the statutory aggravating factor was proven given that the eligibility verdict form omitted the culpable mental state required to establish murder in the course of a felony. The trial court found appellate counsel ineffective and vacated the defendant’s death sentence.
A majority of this court affirmed and held that appellate counsel was ineffective for failure to seek reversal of the defendant’s death sentence on the basis of the defective eligibility verdict. Mack, 167 Ill. 2d at 533-38. In so holding, we found appellate counsel’s performance to be deficient for failing to recognize the fundamental importance of a legally sufficient eligibility verdict, which must include a finding on all essential elements of the statutory aggravating factor at issue. Mack, 167 Ill. 2d at 533. In support, we pointed out 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 the defendant’s eligibility for the death penalty was based, namely, murder in the course of a felony. Mack, 167 Ill. 2d at 533. Next, we found that, had appellate counsel raised the issue of the defective eligibility verdict, there is a reasonable probability that the defendant’s death sentence would have been reversed. Mack, 167 Ill. 2d at 533-38. We based this finding on a determination that the meaning of the jury’s eligibility verdict could not be determined clearly and without speculation from the record, which included a discrepancy between the jury instructions and the verdict form at the eligibility phase. Mack, 167 Ill. 2d at 535-37. This court therefore concluded that appellate counsel was ineffective for failing to raise on direct appeal the issue that the death-eligibility verdict was legally insufficient because the jury had not found the mental state necessary for finding the defendant eligible for the death penalty. Mack, 167 Ill. 2d at 538.
Here, as in Mack, the State relied on the section 9 — 1(b)(6) statutory aggravating factor of murder in the course of a felony to establish defendant’s eligibility for the death penalty. To be eligible for the death penalty under section 9 — 1(b)(6), a defendant must have “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) (West 1996). In addition, the State here relied on the section 9 — 1(b)(3) statutory aggravating factor of murder of two or more individuals to establish defendant’s eligibility for the death penalty. To be death eligible under section 9 — 1(b)(3), the deaths must have been 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.” 720 ILCS 5/9 — 1(b)(3) (West 1996). Also, as in Mack, the jury in this case was properly instructed at the eligibility phase as to the grounds for finding defendant eligible for the death penalty under sections 9 — 1(b)(6) and 9 — 1(b)(3), including the aforementioned mental states. The verdict returned by the jury as to defendant’s eligibility for the death penalty under section 9 — 1(b)(6) stated:
“We, the jury, unanimously find beyond a reasonable doubt that the defendant, Maynard McCallister, Jr., is eligible for a death sentence under the law. We unanimously find beyond a reasonable doubt that:
(1) the defendant was 18 years old or older at the time of the murders for which he was convicted in this case; and
(2) the following statutory aggravating factor exists: the murdered person(s) was killed in the course of another felony, armed robbery.”
The section 9 — 1(b)(3) eligibility verdict is identical, but with the last line stating: “The defendant has been convicted of killing two or more persons.”
Although these death-eligibility verdict forms are similar to the death-eligibility verdict form found deficient in Mack, there are significant differences in the circumstances surrounding the respective jury verdict forms. As noted, in Mack, the defendant was found guilty at a bench trial but was found eligible for the death penalty by a jury. Consequently, the sentencing jury in Mack had not made a determination at the guilt phase of the trial regarding the defendant’s mental state while committing the murder. Thus, the jury’s decision as to whether the State proved the defendant’s mental state for purposes of finding the defendant eligible for the death penalty under the murder in the course of a felony aggravating factor could not be ascertained from the record. See Mack, 167 Ill. 2d at 537 (explaining that all parts of the record will be searched and interpreted together in determining the meaning of a verdict).
In the case at bar, however, the same jury that found defendant eligible for the death penalty had previously found defendant guilty at trial of the intentional or knowing murders of Stanley Williams, Ernestine McCoy and Orlando McCoy. See 720 ILCS 5/9 — 1(a)(1), (a)(2) (West 1996). Given that the jury returned these guilty verdicts indicating defendant’s mental state at the time of the murders, there can be no doubt that the jury found that defendant acted with the mental state required under sections 9 — 1(b)(6) and 9 — 1(b)(3). I note too that, at the eligibility phase, the jury in this case was properly instructed as to the mental states required for finding defendant eligible for the death penalty under sections 9 — 1(b)(6) and 9 — 1(b)(3). Therefore, under these circumstances, I would hold that the jury’s eligibility verdicts were sufficient to affirm defendant’s eligibility for the death penalty under sections 9 — 1(b)(6) and 9 — 1(b)(3).
Parenthetically, I would also affirm a jury’s eligibility verdict where the jury had been properly instructed during the guilt phase of trial on intentional, knowing and felony murder; the jury returned a general verdict finding defendant guilty of the offense of first degree murder; and the jury was properly instructed at the eligibility phase as to the culpable mental state required under section 9 — 1(b)(6), as was the case in People v. Williams, 193 Ill. 2d 1 (2000) (Bilandic, J., specially concurring). As noted in my special concurrence in Williams, a general verdict raises the presumption that the jury found that defendant committed the most serious crime alleged, there, that being intentional murder. See Williams, 193 Ill. 2d at 53 (Bilandic, J., specially concurring); People v. Armstrong, 183 Ill. 2d 130, 151-52 (1998); see also People v. Cardona, 158 Ill. 2d 403, 411 (1994); People v. Johnson, 149 Ill. 2d 118, 157 (1992). Consequently, when that presumption is considered along with the fact that the jury received the proper instructions as to the requisite mental state at both the guilt phase and the eligibility phase, there is no speculation that the jury found that the defendant possessed the requisite mental state.
As to the case at bar, the meaning of the eligibility verdicts and the intention of the jury is clear, and also requires no speculation on the part of this court. Therefore, the death-eligibility findings by the sentencing jury are valid. This case should not turn on the mere fact that the jury here returned specific verdicts, rather than general verdicts, at the guilt phase of the trial.
I join the majority opinion in all other respects.