{ "id": 4294102, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHRISTOPHER MOORE, Defendant-Appellant", "name_abbreviation": "People v. Moore", "decision_date": "2009-12-23", "docket_number": "No. 1\u201407\u20140410", "first_page": "555", "last_page": "580", "citations": [ { "type": "official", "cite": "397 Ill. App. 3d 555" } ], "court": { "name_abbreviation": "Ill. 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framework within which the trial proceeds,' [citation]-automatically satisfy the third prong of the [federal] plain-error test\"" } ], "opinion_index": 2, "case_paths": [ "/us/556/0129-01" ] }, { "cite": "215 Ill. 2d 167", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4060336 ], "weight": 6, "year": 2005, "pin_cites": [ { "page": "186-87" }, { "page": "186" }, { "page": "186" }, { "page": "186" }, { "page": "186-87" }, { "page": "186-87" } ], "opinion_index": 2, "case_paths": [ "/ill-2d/215/0167-01" ] }, { "cite": "548 U.S. 140", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3500367 ], "weight": 18, "year": 2006, "pin_cites": [ { "page": "148" }, { "page": "419" }, { "page": "2563-64" }, { "page": "148" }, { "page": "419" }, { "page": "2563-64" }, { "page": "148" }, { "page": "419" }, { "page": "2564" }, { "page": "148" }, { "page": "419" }, { "page": "2564" }, { "page": "149" }, { "page": "420" }, { "page": "2564" }, { "page": "148" }, { 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"provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHRISTOPHER MOORE, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE COLEMAN\ndelivered the opinion of the court:\nChristopher Moore was convicted by a jury of first degree murder and armed robbery and sentenced to consecutive 30-year and 6-year terms of imprisonment as a result. In the instant appeal, he contends that: (1) the trial court\u2019s denial of his request for a one-day continuance violated his due process right to present evidence in his defense; (2) the prosecution\u2019s improper comments and misstatements of the evidence in opening and closing argument denied him a fair trial; (3) the trial court improperly imposed a consecutive sentence on the armed robbery count on the basis of a presumption that the jury\u2019s general verdict represented a finding that he was guilty of a more culpable homicide than felony murder; and (4) his trial counsel was ineffective in failing to tender jury verdict forms specifying the basis for the murder verdict, thereby allowing an improper conviction of armed robbery in addition to a felony murder conviction based upon the same offense. We affirm.\nBACKGROUND\nTayaab Larry was attacked in a Chicago park on July 25, 2004, and died of his injuries on August 2. Khalia Wright testified that as of the night of the attack, she was involved with Moore, and that she had previously dated Larry. On the night of the attack, Wright and a friend, Jillian Griffith, agreed to go out with Larry and one of his friends, Jermaine Williams. Larry and Williams picked up Wright and Griffith in Williams\u2019 red Chevrolet, and the four eventually drove to a park. Wright testified that a group of men entered the park, that the men approached the two couples, and that the couples walked away from the men and toward the car. Wright heard a thump, turned toward the sound, and saw Larry on the ground and a man standing over him with a baseball bat. At trial, Wright identified Moore as the man with the bat. She had not mentioned Moore when first questioned by police about the incident and testified that she had not originally identified him because she had been afraid, although she also testified that Moore had not threatened her or asked her to conceal his involvement. Wright testified that she had seen Moore the day after the attack and that Moore told her that he and his friends had followed her the night before and had seen her kiss Larry in the park.\nJillian Griffith\u2019s trial testimony was similar to Wright\u2019s. She was in the park, walking away from the group of men who had approached them, when her attention was drawn to the group behind her by a loud sound. She saw Larry on the ground and a man holding a bat. Like Wright, she did not implicate Moore in the attack when first questioned by police, but identified him as the man with the bat in later questioning and at trial. Griffith also saw Moore going through Larry\u2019s pockets while Larry was on the ground.\nJermaine Williams testified that he was with Tayaab Larry, Khalia Wright and Jillian Griffith in the park when they were approached by a group of seven or eight men. Jermaine saw one of the men take a full swing with a baseball bat and strike Larry in the back of the head. Larry fell immediately, and Williams saw the attacker strike him with the bat four more times as he was on the ground. Williams testified that the bat-wielder and others in the group then attacked him, and that he was knocked down and kicked, but was able to run away from them without suffering serious injury.\nWilliams said that he owned the car that the couples rode in, but that Larry had driven to the park and kept the keys in his pocket. When Williams returned to the park after the attack, the car was gone, and he reported it as stolen. Police saw Williams\u2019 car on July 30, 2004, and stopped it. Antonio Nettles was driving the car and Dante Myles was a passenger. The police returned the car to Williams, and he found two items inside that did not belong to him: a cell phone later proved to belong to Myles and an Illinois Department of Corrections form that appeared to have been issued for Nettles.\nDante Myles testified that on the night of the incident, he saw Moore hit Larry with a baseball bat. He said that no one else present at the time had a bat. A few days later, Myles saw Moore driving a red Chevrolet that he had not seen him drive before. Myles asked if he could drive the car, Moore gave him the keys, and Myles drove the car and returned it. He later saw Antonio Nettles driving the car. Myles admitted that when he was first questioned by police, he had untruthfully denied being present at the time of the attack.\nAntonio Nettles testified that he was shooting dice in the park on the night of the incident when he was approached by Moore and a group of men. Moore said that he was planning to rob \u201chis girlfriend\u2019s new boyfriend.\u201d Nettles continued his dice game while the group left the park and then returned. He was still playing dice when he heard a loud sound from about 30 feet away. When he looked toward the source of the sound, he saw a man on the ground and Moore standing over him with a baseball bat.\nLovell Polk testified that he saw Moore in the park on the night of the incident, that Moore asked him to \u201csucker punch\u201d someone, and that Moore pointed out the intended target. Polk said that he punched the man and knocked him down and that Moore struck the man while he was on the ground. Polk further testified that Antonio Nettles gave Moore a baseball bat and that Moore hit the man with the bat three times. Polk also saw Moore search Larry\u2019s pockets.\nPolk had originally been charged with first degree murder in Larry\u2019s homicide and had denied involvement in the crime. He testified against Moore as part of an agreement that included a plea of guilty of conspiracy to commit murder and a seven-year prison sentence for that offense. Polk had claimed that he was beaten by police officers while in custody, but explained at trial that the abuse had prompted him to tell the truth about the incident and that he had withheld the facts because he had been threatened by Moore.\nAn additional witness, Frederick Louis, testified that he was in the park at the time of the incident. Louis saw Polk punch a man in the face and then saw Moore take a bat and hit the man in the head. Another witness, Milton Presley, testified that Moore, Nettles, Louis and some other men visited him at an apartment across the street from the park on the night of the attack. Presley testified that after the men left, he could see from the apartment\u2019s window that a group of people were fighting in the park. Presley said that he did not see Moore with a bat and that he did not see Moore strike anyone. The parties stipulated that Presley had given a different account of the night\u2019s events when questioned by the police. According to the stipulation, Presley had told police that Moore had come to his apartment with a bat, that Moore had said that the man who was involved with his girlfriend was in the park across the street, and that he had seen Moore hit a man three times with a bat while the man was on the ground. The stipulation further provided that Presley told police that Moore later bragged about beating Larry. Desmond Mitchell testified that Moore had come to his apartment on the night of the attack and asked him for help in fighting someone who was \u201cmessing with his girl.\u201d Mitchell did not accompany Moore, but Moore told him later that he had punched a man in a fight and knocked him out.\nMoore, who was arrested in Detroit on October 4, 2004, presented three witnesses in his defense. Patricia Felder testified that she was a friend of Moore\u2019s family and that she had known him since he was five or six years old. She said that she and Moore worked together on the renovation of an apartment in Detroit in June, July and August 2004 and that she had seen him almost daily during that period. She said that Moore was playing cards with her and her family in Detroit on the night of July 25, 2004, that they played into the next morning, and that she also saw Moore in Detroit at about 2 p.m. on July 26. Moore\u2019s mother, Crystal Thomas, testified that he had left Chicago for Detroit on June 6, 2004, and that to her knowledge, he did not come to Chicago from June to August.\nDominique Brown testified that she was Khalia Wright\u2019s friend and Moore\u2019s ex-girlfriend. She said that she was visiting Wright on July 23 or 24, and that Wright\u2019s cousin, Walt, was also present. Brown heard Wright tell her cousin that Larry was a stalker, that he would not leave her alone, and that she wanted him gone. Wright\u2019s cousin had a bat at the time, and Brown believed that he had beaten Larry at Wright\u2019s request.\nMoore sought to have the trial continued for one day to allow the testimony of Brandy Alexander. Moore\u2019s counsel advised the court that the defense had purchased an airline ticket to bring Alexander from Detroit at the end of the day on November 30, 2006, that she was scheduled to stay in Chicago overnight, and that the defense was prepared to call her to the stand on the morning of December 1. The court denied Moore\u2019s motion, and the case was submitted to the jury on November 30. The jury was instructed that it could find Moore guilty of first degree murder if it found that he intended to kill Larry or do him great bodily harm; if he knew that his actions created a strong probability of death or great bodily harm to Larry; or if he killed Larry in the course of an armed robbery. The jury returned a verdict of guilty of first degree murder on a general verdict form for that offense, and also found Moore guilty of armed robbery. The court sentenced him to a 30-year prison term for murder and a consecutive 6-year prison term for armed robbery. This appeal followed.\nANALYSIS\nI. Denial of Motion for Continuance\nMoore contends that the trial court improperly denied his motion for a continuance and that this denial violated his right under the due process clauses of the United States and Illinois Constitutions to present evidence in his defense. On Wednesday, November 29, 2006, Moore\u2019s counsel advised the court that he had witnesses prepared to testify and that he expected one of them to be present in court on Friday, December 1. The court responded, \u201cI wasn\u2019t going to do testimony on Friday. This was going to end Thursday at the latest.\u201d\nOn Thursday, November 30, before the presentation of testimony, defense counsel advised the court:\n\u201cWe have three witnesses here who are ready to testify. The problem is the fourth witness, Mr. [sic] Brandy Alexander, indicated to my investigator and to myself last week that she would be here. In anticipation that [the prosecutor] would end State\u2019s case on Thursday, Ms. Alexander arranged to be here first thing Friday morning to testify coming in on a flight tonight. We sent her a ticket. We have lodging for her. Problem is State ended yesterday, Judge. So although I am ready to go forward with three witnesses today I would be asking for the case to be held over until tomorrow so the fourth witness, Ms. Alexander, to [sic] come.\u201d\nCounsel for the prosecution commented, \u201cJudge, from the beginning of this trial when we talked to the jurors, you said on the outset Friday would be the date this trial ends on the outset.\u201d\nThe court stated:\n\u201cAs I said, at the latest we are going to\u2014if worse came to worst, we were going to argue Friday morning. I don\u2019t like to do evidence on Friday and then send them out on a Friday. So now here we are Thursday. The State I remember saying they were thinking they would be Wednesday or Thursday that they would be finished. Okay. So they finished yesterday. Everyone knew who the witnesses were and stuff. I have told the jury that now we are probably going to finish up today and argue today, so I am going to do three short witnesses and send them home for today and come back tomorrow and argue on a Friday. No, I\u2019m not going to do that. I\u2019m sorry but when I started on Monday I indicated that all we would do is argue if we had to go on Friday.\u201d\nThe court denied the motion for a continuance.\nThe defense renewed the motion after the testimony of its three scheduled witnesses. The court asked defense counsel whether Alexander would be \u201canother alibi witness to testify defendant was in Detroit,\u201d and counsel answered, \u201cYes.\u201d The court concluded, \u201cIt would be repetitive. There was plenty of notice to the trial schedule, and I am sorry. But I am not delaying the whole schedule of the trial because you failed to get your witness here.\u201d The trial court then denied a defense motion for a mistrial.\nIn our view, the desire to adhere to a predetermined schedule was not a proper basis for the denial of the brief continuance requested by Moore in the instant case. \u201cSpeedy administration of justice is desirable, but the desire for speed must not be allowed to impinge upon the constitutional requirement of a fair opportunity to defend.\u201d People v. Shrum, 12 Ill. 2d 261, 265 (1957). The trial court explicitly accepted the possibility that the proceedings would extend to Friday, December 1, for closing argument and jury instructions. The record reveals no basis for the court\u2019s refusal to allow the same extension of its schedule to permit Moore to present an alibi witness.\nHowever, our disapproval of the court\u2019s action does not compel reversal of Moore\u2019s conviction. In reviewing the trial court\u2019s denial of Moore\u2019s motion, we must consider: (1) whether the defendant was diligent in attempting to secure the presence of the witness; (2) whether the defendant has shown that the testimony of the witness was material and might have affected the verdict; and (3) whether the defendant was prejudiced by the exclusion of the testimony. People v. Ward, 154 Ill. 2d 272, 307 (1992).\nIn People v. Sargent, 184 Ill. App. 3d 1016 (1989), this court emphasized that a defendant seeking review of the denial of a motion for a continuance could not demonstrate the materiality of the witness or the prejudice from the exclusion of her testimony in the absence of an offer of proof that detailed the substance of the proposed testimony. \u201cA defendant seeking a continuance to secure the presence of a witness must make an offer of proof of that witness\u2019 proposed testimony. *** The court has no way of knowing the materiality of testimony sought to be introduced without an offer of proof, even if it is told by counsel that the proposed evidence is in the nature of corroboration of an alibi.\u201d Sargent, 184 Ill. App. 3d at 1022-23. In the instant case, Moore did not make an offer of proof. He did not specify the nature of Alexander\u2019s proposed testimony in a motion for new trial or otherwise. As a result, the record is devoid of any showing that Alexander\u2019s testimony would have been material and noncumulative or that its exclusion would have been prejudicial. In the absence of this showing, the denial of a continuance to permit her testimony cannot require reversal of Moore\u2019s conviction.\nII. Prosecution Comments\nMoore argues that various prosecution comments during opening statement and closing argument denied him a fair trial. The first such statement identified by Moore was a remark during opening that Moore gave Williams\u2019 car to Dante Myles in exchange for Myles\u2019 silence about the attack: \u201cAs you will hear, from Danta [sic] Myles, that car was given to him, just a few days after that as a gift by Christopher Moore. I have no doubt that was a gift for his silence.\u201d The prosecution returned to the subject in closing: \u201cYou heard from Dante and Antonio as well about this defendant, Chris Moore, driving around in that car and giving that car to them to Dante and Antonio a few days after that. A gift, maybe sharing in the proceeds, maybe trying to insure their silence.\u201d A defense objection interposed at this point was overruled. Moore correctly notes that there was no testimony that he gave the car as a gift or that he used it to buy the silence of Myles or Nettles. Citing People v. Linscott, 142 Ill. 2d 22, 30 (1991), Moore asserts that these comments were improper in that they overstated the evidence against him. He also argues that the prosecutor\u2019s statement of personal belief that the car was a gift was improper. See People v. Lee, 229 Ill. App. 3d 254, 260 (1992) (\u201cIt is prejudicial error for the prosecutor to express personal beliefs or opinions, or invoke the integrity of the State\u2019s Attorney\u2019s office, to vouch for the credibility of a prosecution witness\u201d).\nMoore also cites as improper the prosecution\u2019s statement that Jermaine Williams was \u201c100% sure\u201d in identifying him as the bat-wielding attacker; its claim, without apparent evidentiary support, that Jillian Griffith was so afraid of him that she moved out of the neighborhood, and its assertion that he had attacked Larry in front of \u201clike 20 people.\u201d\nProsecution comments in opening statement or closing argument do not require reversal if they do not result in \u201csubstantial\u201d prejudice. People v. Kliner, 185 Ill. 2d 81, 127-28 (1998). Moore\u2019s convictions in the instant case cannot properly be reversed in the absence of a determination that the comments at issue had a substantial impact on the jury\u2019s verdicts. We do not believe that the record supports the conclusion that the cited comments impacted the jury\u2019s verdict.\nTwo of the comments at issue made only collateral suggestions of Moore\u2019s guilt. The prosecution\u2019s statements regarding Moore\u2019s supposed gift of Williams\u2019 car to Dante Myles were apparently intended to demonstrate that Moore attempted to conceal his actions, while the assertion that Jillian Griffith relocated because of her fear of Moore portrayed him in a decidedly negative light. But neither statement related to the primary evidence of Moore\u2019s guilt: the multiple testimonials to his efforts to recruit allies in his planned attack on Tayaab Larry and the several eyewitnesses to the attack and its immediate aftermath, the majority from individuals who knew Moore prior to the incident. In light of this evidence, we cannot conclude that the jury\u2019s verdict was in any way the result of the prosecution\u2019s unfounded claims that he tried to buy the silence of one witness or that another feared him. Similarly, we do not believe that the prosecution\u2019s brief and isolated characterization of the certainty of Jermaine Williams\u2019 testimony, even if inaccurate, outweighed the jury\u2019s own assessment of that testimony. We reject the assertion that these comments resulted in prejudice to Moore.\nThe prosecution\u2019s reference to Moore\u2019s attack occurring in the presence of \u201clike 20 people\u201d is, in our view, a fair comment on the evidence presented. Jermaine Williams testified that seven or eight men approached his group of four in the park. Antonio Nettles testified that at the time of the incident, he was removed from the groups containing Larry and Moore, gambling on a dice game. Since the prosecution\u2019s comment was an explicit approximation, we conclude that it was fairly supported by the evidence of the number of people in the park at the time of the incident. In summary, we hold that none of the comments made by the prosecution in opening or closing merit reversal of Moore\u2019s conviction.\nIII. Absence of Separate Murder Verdict Forms\nThe jury was instructed that it could find Moore guilty of first degree murder if it found that he had intended to kill, if he committed acts that he knew created a strong probability of death or great bodily harm, or if Larry was killed in the course of Moore\u2019s commission of an armed robbery. The defense did not object to this instruction, nor did it offer specific murder verdict forms for submission to the jury. The jury returned a general verdict of guilty of both first degree murder and armed robbery. Moore argues that the general murder verdict cannot be presumed to represent a finding that he was guilty of either intentional or knowing murder, and that in the absence of such presumption, the jury\u2019s verdict must be considered a finding on the felony murder charge. As a result, Moore argues that his conviction and sentence for armed robbery, a lesser included offense of his murder, must be vacated. People v. Smith, 183 Ill. 2d 425, 432 (1998).\nMoore\u2019s argument ignores the long-standing \u201cone-good-count\u201d rule, which provides that a general verdict of guilty on a multiple-count indictment is interpreted to be a finding of guilt on each count. People v. Lymore, 25 Ill. 2d 305, 307-08 (1962). When, as in the instant case, the jury has been instructed on intentional, knowing, and felony murder and returns a general verdict of guilty of first degree murder, the one-good-count presumption results in a determination that the defendant has been found guilty of the most culpable mental state, intentional murder. People v. Cardona, 158 Ill. 2d 403, 411-12 (1994); People v. Thompkins, 121 Ill. 2d 401, 455-56 (1988).\nThe one-good-count rule has consistently been interpreted to permit a defendant found guilty of murder by a general verdict to receive enhanced sentencing based upon his presumed guilt of intentional murder even where the enhancement could not have been based upon a felony murder conviction. In People v. Baker, 127 Ill. App. 3d 565 (1984), the defendant was convicted of murder by a general verdict and also convicted of home invasion; he received consecutive sentences for the two offenses. 127 Ill. App. 3d at 566. The defendant contended that his home invasion conviction, as a lesser included offense of his felony murder, could not stand. 127 Ill. App. 3d at 569. This court held that the jury\u2019s general verdict was construed as a guilty verdict on the intentional murder charge, held that the defendant\u2019s home invasion conviction was not a lesser included offense of intentional murder, and affirmed the convictions and consecutive sentences for murder and home invasion. 127 Ill. App. 3d at 569,\nIn People v. Sample, 326 Ill. App. 3d 914 (2001), the defendant was found guilty of first degree murder, armed robbery, and home invasion and received consecutive sentences for each offense. 326 Ill. App. 3d at 916. The murder conviction was based upon a jury\u2019s general verdict after being instructed on intentional and felony murder, and the defendant sought vacation of his armed robbery and home invasion convictions as lesser included offenses of the felony murder. This court rejected the defendant\u2019s contention.\n\u201cIn this case, defendant was charged with and the jury was instructed on both intentional murder and felony murder. Defense counsel did not object to the submission of a general verdict form nor is there any evidence in the record that counsel tendered alternative verdict forms requiring the jury to find him guilty or not guilty of felony murder. The State\u2019s proof was applicable to both charges and the jury returned a general verdict of guilty of first degree murder. The most serious of the first degree murder charges in this case is the one with the most culpable mental state: intentional murder. Cardona, 158 Ill. 2d at 411, 634 N.E.2d at 723-24. Under Cardona, therefore, this charge was the appropriate basis for sentencing.\nAlthough defendant is correct that armed robbery and home invasion are lesser included offenses of felony murder, neither is a lesser included offense of intentional murder. Thus even if the consecutive sentences would have been inappropriate for a specific verdict on felony murder, the \u2018good count\u2019 of intentional murder renders the sentences proper.\u201d Sample, 326 Ill. App. 3d at 929, appeal denied, 198 Ill. 2d 629 (2002).\nIn People v. Griffin, 375 Ill. App. 3d 564 (2007), the defendant argued that a general verdict of guilty on a murder charge could not also support an additional sentence for armed robbery, a lesser included offense of the charged felony murder. This court rejected that argument, holding that \u201cthe most serious first degree murder charge, intentional murder, was the proper basis for sentencing.\u201d 375 Ill. App. 3d at 571-72. The court held that the defendant\u2019s convictions for murder and armed robbery required consecutive sentences; accordingly, it vacated the concurrent sentences imposed by the trial court and remanded for the imposition of consecutive sentences. 375 Ill. App. 3d at 573-74.\nMoore argues that our supreme court\u2019s recent decision in People v. Smith, 233 Ill. 2d 1 (2009), prohibits the use of a general murder verdict to support his conviction and sentence for armed robbery. In Smith, the court reviewed convictions and sentences imposed in addition to convictions of first degree murder based upon general verdicts. The court held that \u201cwhere, 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.\u201d Smith, 233 Ill. 2d at 23. Moore asserts that Smith prohibits use of the one-good-count rule where its application could result in adverse sentencing consequences for the defendant.\nWe do not share Moore\u2019s interpretation of Smith. Although portions of the Smith opinion suggest disapproval of the use of the one-good-count rule to subject a defendant to more severe sentencing, the court\u2019s discussion is clearly dependent on the case\u2019s procedural context: the trial court denied the defense request to submit separate verdict forms to the jury. The Smith court repeatedly noted this context: \u201cit is a violation of due process to deny a defendant the opportunity to have the jury decide his theory of defense\u201d (233 Ill. 2d at 23); \u201cbecause the presumption that arises from application of the \u2018one good count rule\u2019 could work a prejudice against [defendants] at sentencing, the presumption cannot substitute for the jury\u2019s actual findings, at least where defendants have requested that the jury make specific findings with regard to the degree of the offense\u201d (emphasis added) (233 Ill. 2d at 23); \u201cthe trial courts erred when they refused defendants\u2019 requests for separate verdict forms\u201d (233 Ill. 2d at 23).\nThe significance of this procedural context has been confirmed by the supreme court. In People v. Davis, 233 Ill. 2d 244 (2009), the court distinguished Smith: \u201cThe present case is a world away from Smith. Here, defendant did not object to the general verdict form and did not request a special verdict form. Again, the holding of Smith was conditioned on the trial court\u2019s 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. Additionally, defendant is challenging the validity of the one-good-count rule, something which was expressly not done in Smith.\u201d Davis, 233 Ill. 2d at 273.\nBaker, Sample, and Griffin demonstrate that the one-good-count principle has long been employed to permit enhanced sentencing, including the imposition of consecutive sentences for additional felonies, by construing a general first degree murder verdict as a finding of guilt on an intentional murder charge. We believe that this use of the principle is among the corollary rules explicitly left undisturbed by Smith. The Davis court\u2019s discussion of Smith demonstrates that the distinguishing factor entitling the defendant to relief from the application of the one-good-count principle in Smith was the request for separate verdict forms at trial, not the mere possibility that the principle would subject him to increased punishment. Accordingly, we reject Moore\u2019s argument that he is entitled to the relief granted in Smith because he, like the defendant there, received consecutive sentences, while the defendant in Davis did not. Since Moore did not request separate verdict forms in the instant case, we hold that Smith offers no support for his assertion that the general murder verdict could not support his armed robbery conviction.\nIn addition to its confirmation of the continued validity of the one-good-count principle, the Davis court also explained that even if the application of the principle were improper, any resulting error \u201cdid not amount to a structural defect that required automatic reversal.\u201d Davis, 233 Ill. 2d at 273. The court based its analysis upon the United States Supreme Court\u2019s recent opinion in Hedgpeth v. Pulido, 555 U.S. 57, 172 L. Ed. 2d 388, 129 S. Ct. 530 (2008) (per curiam). \u201cRelying upon analogous cases, the Supreme Court in Pulido easily concluded that in cases where a jury is instructed on multiple theories of guilt, one of which is improper, a harmless-error analysis is applicable. Pulido, 555 U.S. at 60, 172 L. Ed. 2d at 391, 129 S. Ct. at 532.\u201d Davis, 233 Ill. 2d at 270. The Davis court held that one-good-count issues are subject to plain error analysis on review if the defendant did not object to the use of a general verdict form at trial. Davis, 233 Ill. 2d at 273. Under plain error review, \u201cthe defendant has the burden to persuade the court that the error was prejudicial, that is, defendant must show that the evidence was so closely balanced that the error alone threatened to tip the scales of justice against him.\u201d Davis, 233 Ill. 2d at 274. The Davis court held that the evidence of the defendant\u2019s commission of intentional or knowing murder was sufficiently strong to compel the conclusion that he was not prejudiced by the failure to present separate murder verdict forms to the jury. Davis, 233 Ill. 2d at 273-74.\nThe Davis court\u2019s plain error analysis is readily applicable to the instant matter. Several witnesses testified to the premeditated nature of Moore\u2019s attack on Tayaah Larry. Two trial witnesses and one pretrial witness account reported Moore\u2019s hostility toward Larry because of their competing relationships with Khalia Wright. Four separate witnesses testified that Moore struck Larry with a bat; one of the witnesses, Jermaine Williams, specified that Moore took a full swing with the bat and struck Larry in the head. Proof of such action establishes the intent to cause death or great bodily harm necessary to support a conviction for first degree murder. People v. Foster, 119 Ill. 2d 69, 87-88 (1987). We hold that the evidence of Moore\u2019s intent to cause death or great bodily harm to Larry was clearly sufficient to permit the jury to return a guilty verdict on both intentional murder and knowing murder charges. Accordingly, we cannot conclude that the jury, if permitted to specify the basis for its murder verdict, would have returned a not guilty verdict on the intentional murder and knowing murder charges. We find that Moore has failed to demonstrate that the lack of specific verdict forms produced the verdict against him and that he has failed to make the showing of prejudice necessary for a reversal under plain error review.\nIV Ineffective Assistance of Counsel\nOur conclusion that Moore has not demonstrated the prejudicial impact of the absence of separate verdict forms also dictates our disposition of his contention that his counsel\u2019s failure to submit separate forms was impermissibly deficient. When a defendant is unable to show a reasonable probability that the correction of counsel\u2019s alleged deficiencies would have produced a different result, his ineffective assistance claims fail. People v. Enoch, 122 Ill. 2d 176, 201-02 (1988). We hold that Moore has not shown a reasonable probability that separate verdict forms would have resulted in not guilty verdicts on the intentional murder and knowing murder charges. As a result, we reject his assertion that his counsel\u2019s deficiencies require reversal of his convictions or modification of his sentences.\nCONCLUSION\nFor the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.\nAffirmed.", "type": "majority", "author": "JUSTICE COLEMAN" }, { "text": "JUSTICE QUINN,\nspecially concurring:\nI completely concur with Justice Coleman\u2019s majority opinion. I write separately because I believe that Justice Theis\u2019 dissent raises several important issues.\nAs 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\u201405\u20141523 (2007) (unpublished order under Supreme Court Rule 23) in the appellate court, I am familiar with its holding. We concluded:\n\u201c[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\u20148\u20144(a) of the Unified Code of Corrections (730 ILCS 5/5\u20148\u20144(a) (West 2004).\u201d Smith, 372 Ill. App. 3d at 771-72.\nThe supreme court affirmed. In doing so, the court considered and rejected the State\u2019s argument that the error was harmless because the evidence that the defendants were guilty of intentional murder was \u201coverwhelming.\u201d 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 \u201cthe State must prove beyond a reasonable doubt that the jury verdict would have been the same absent the error,\u201d 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\u2019s conviction, rejecting the defendant\u2019s argument that the trial court\u2019s refusal to question a jury venire regarding the fact that they could not hold a defendant\u2019s failure to testify against him, as required under Supreme Court Rule 431(b)(4) (pre-amended version) prejudiced the defendant. The court found that \u201cno rational juror would have acquitted defendant of the offenses for which he was charged\u201d and \u201c[t]he evidence of defendant\u2019s guilt is overwhelming.\u201d 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\u2019 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.\nThe Smith court explained: \u201cWhether the trial courts\u2019 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\u2019s findings may be ascertained from the general verdicts entered.\u201d Smith, 233 Ill. 2d at 25.\nAfter discussing the instructions provided to the defendants in Smith, the court held:\n\u201cWe 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\u2019s error in refusing the defendants\u2019 tender of separate verdict forms cannot be deemed harmless error.\u201d (Emphasis omitted.) Smith, 233 Ill. 2d at 27-28.\nThe dissent cites the above language and the language in Glasper characterizing the holding in Smith as an example of \u201cstructural\u201d error in support of Justice Theis\u2019 position that \u201cthe type of error involved in Smith continues to be error and continues to be an automatically reversible error not subject to harmless error analysis.\u201d 397 Ill. App. 3d at 578.\nThe above-quoted language from Smith makes it clear that \u201cthe error in Smith\u201d was the refusal of the defendant\u2019s 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\u2019s holding as being premised on the refusal of the defendants\u2019 requests for specific verdict forms. While Glasper did characterize the holding in Smith as \u201cstructural\u201d (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\u2019s holding in Davis and how that holding impacted, if at all, on the holding in Smith.\nThe reason for this is clear. As the court in Davis explained: \u201cWe find Smith inapplicable to the present case.\u201d Davis, 233 Ill. 2d at 271. Consequently, I disagree with the dissent\u2019s characterization that \u201cThe 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.\u201d 397 Ill. App. 3d at 578.\nIn addition to the language from Davis found in the majority opinion, the court also said:\n\u201cThis court in Smith affirmed the murder conviction, but vacated the conviction and sentence for attempted armed robbery. In so doing, this court\u2019s holding was narrow: \u2018where, 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.\u2019 (Emphasis added.) Smith, 233 Ill. 2d at 23.\u201d Davis, 233 Ill. 2d at 272.\nIn 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 \u201cThe 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.\u201d 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.\nAs the dissent points out, the federal courts have limited the type of errors which are considered to be \u201cstructural\u201d to \u201cthe 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.\u201d 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 \u201cstructural\u201d 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.\nThe dissent also asserts \u201cunder Smith, I would find that it was reversible error for the court to have not given the jury special verdict forms.\u201d 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 \u201cstandard of review\u201d as there is no trial court order to review in the plain error context. People v. Herron, 215 Ill. 2d 167, 184-85 (2005).\nThe dissent also asserts that \u201cDavis has altered the plain error analysis to be applied under Illinois law.\u201d 397 Ill. App. 3d at 578. I agree with this proposition to the extent that Davis adopted Hedgpeth v. Pulido\u2019s holding that \u201calternative theory error\u201d 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 \u201cstructural error.\u201d 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 \u201cunique context\u201d and that states may provide broader relief than that available through habeas proceedings. \u201c[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.\u201d Danforth, 552 U.S. at 280, 169 L. Ed. 2d at 871, 128 S. Ct. at 1041.\nI 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\u2019s 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).\nWhile 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 \u201c \u2018plain-error review\u2019\u2014involves four steps, or prongs. First, there must be an error or defect\u2014some sort of \u2018[deviation from a legal rule\u2019\u2014that 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\u2019s substantial rights, which in the ordinary case means he must demonstrate that it \u2018affected the outcome of the district court proceedings.\u2019 [Citation.] Fourth and finally, if the above three prongs are satisfied, the court of appeals has the discretion to remedy the error\u2014discretion which ought to be exercised only if the error \u2018seriously affect[s] the fairness, integrity or public reputation of judicial proceedings. [Citation.]\u2019 \u201d (Emphasis in original.) Puckett, 556 U.S. at 135, 173 L. Ed. 2d at 274-75, 129 S. Ct. at 1429.\nThe third prong of the federal plain error analysis defines \u201caffected the appellant\u2019s substantial rights\u201d as \u201caffected the outcome of the district court proceedings.\u201d This is analogous to a requirement of prejudice, which as the dissent correctly asserts, is not needed in the second prong of Illinois\u2019 plain error analysis.\nAnother difference is found in Pulido\u2019s language, \u201cNeder makes clear that harmless-error analysis applies to instructional errors so long as the error at issue does not categorically \u2018vitiat[e] all the jury\u2019s findings.\u2019 \u201d (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: \u201cthe 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\u2019 murder convictions aside. Accordingly, the problem presented here is solely one of how to interpret the verdicts for purposes of sentencing.\u201d 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.\nFurther, in Glasper, while our supreme court said \u201cwe consider that automatic reversal is only required where an error is deemed \u2018structural\u2019 \u201d (Glasper, 234 Ill. 2d at 197), they also recognized that an instructional error may be \u201cso severe that reversal is required, regardless of whether the error would be deemed structural under federal law.\u201d Glasper, 234 Ill. 2d at 199-200.\nI 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:\n\u201c[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\u20141(a)(3) (West 2006); 720 ILCS 5/2\u20148 (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).\u201d Davis, 233 Ill. 2d at 269.\nAs pointed out in the majority opinion, Davis held that \u201cthe holding of Smith was conditioned on the trial court\u2019s 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.\u201d 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.\nIn People v. Piatkowski, 225 Ill. 2d 551, 565 (2007), the court explained:\n\u201c[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\u2019s trial and challenged the integrity of the judicial process, regardless of the closeness of the evidence.\u201d\nAs 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 \u201ca clear or obvious error.\u201d The court in Davis never found any error much less \u201ca clear or obvious error.\u201d The Davis court phrased their holding by saying \u201ca 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.\u201d (Emphasis added.) Davis, 233 Ill. 2d at 274. Further, the court held: \u201ceven 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\u2019s 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.\u201d (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 \u201ca clear or obvious error.\u201d Again, no case has held that a trial court must provide specific verdict forms without being requested to do so.\nIn her dissent, Justice Theis posits that a \u201c \u2018structural\u2019 error satisfies the second prong of the plain error test,\u201d 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 \u201cstructural error,\u201d as that term is used in both the federal context and in our supreme court\u2019s recent cases, is always reversible whether it arises in the \u201charmless error\u201d or \u201cplain error\u201d 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\u2014the 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 \u201cso severe that reversal is required, regardless of whether the error would be deemed structural under federal law.\u201d Glasper, 234 Ill. 2d at 199-200.\nOur 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: \u201csubstantial defects are not waived by failure to make timely objections thereto if the interests of justice so require.\u201d 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: \u201cPlain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court.\u201d 134 Ill. 2d R. 615(a) (first adopted in 1963).\nBased 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.", "type": "concurrence", "author": "JUSTICE QUINN," }, { "text": "JUSTICE THEIS,\ndissenting:\nRegarding the final issue raised by defendant, the majority finds that the trial court\u2019s 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\u2019s 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.\nIn 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\u2019 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.\nThe supreme court agreed and held that where \u201cspecific 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.\u201d Smith, 233 Ill. 2d at 23. The court further found that the trial court\u2019s refusal to grant the defendants\u2019 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\u2019s 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\u2019 convictions and sentences for armed robbery. Smith, 233 Ill. 2d at 28-29.\nUnlike 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.\nThe 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 \u201cstructural\u201d and is subject to harmless error analysis. Davis, 233 Ill. 2d at 273. The concept of \u201cstructural\u201d error is a principle of federal error analysis.\nUnder 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: \u201ctrial errors\u201d and \u201cstructural\u201d 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 \u201c \u2018occurred during the presentation of the case to the jury\u2019 and their effect may \u2018be qualitatively assessed in the context of other evidence presented in order to determine whether [they were] harmless beyond a reasonable doubt.\u2019 \u201d 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 \u201c \u2018defy analysis by \u201charmless-error\u201d standards\u2019 because they \u2018affee[t] the framework within which the trial proceeds,\u2019 and are not \u2018simply an error in the trial process itself.\u2019 \u201d 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.\nOur supreme court in Davis relied upon the holding of Pulido, recognizing that these types of errors \u201chave 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.\u201d 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\u2019s holding, \u201cit would still not require automatic reversal of defendant\u2019s murder conviction.\u201d Davis, 233 Ill. 2d at 273.\nThe court in Davis also distinguished Smith, finding Davis to be \u201ca world away from Smith.\u201d Davis, 233 Ill. 2d at 273. The court specifically recognized that the defendant in Davis never objected to the general verdict and explained that \u201cthe holding of Smith was conditioned on the trial court\u2019s 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.\u201d Davis, 233 Ill. 2d at 273.\nThe 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.\nTo 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 \u201cstructural\u201d 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.\nAdditionally, 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 \u201cthe 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.\u201d Thus, the focus of the second alternative was the \u201cseriousness\u201d of the error.\nThen, in Davis, the supreme court imported the \u201cstructural defect\u201d 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 \u201cstructural,\u201d 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 \u201cserious.\u201d Davis, 233 Ill. 2d at 274.\nThis raises the question of whether a \u201cstructural\u201d error automatically constitutes a \u201cserious\u201d error under Illinois plain error analysis. As explained above, under federal jurisprudence, \u201cstructural\u201d 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 \u201c[p]lain error marked by fundamental unfairness occurs only in situations revealing a breakdown in the adversary process as distinguished from typical errors,\u201d and that \u201cplain error encompasses matters affecting the fairness of the proceeding and the integrity of the judicial process.\u201d Then, in Glasper, our supreme court explained that \u201cautomatic reversal is only required where an error is deemed \u2018structural,\u2019 i.e., a systemic error that serves to \u2018erode the integrity of the judicial process and undermine the fairness of the defendant\u2019s trial.\u2019 \u201d 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 \u201cthe 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\u2019s trial.\u201d Herron, 215 Ill. 2d at 186.\nBecause the second prong of the plain error test is satisfied where an error \u201cerode[s] the integrity of the judicial process and undermine^] the fairness of the defendant\u2019s trial,\u201d and a \u201cstructural\u201d error is also defined as an error that \u201cerode[s] the integrity of the judicial process and undermine[s] the fairness of the defendant\u2019s trial,\u201d I would find that a \u201cstructural\u201d 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 \u201cstructural,\u201d 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.\nIn 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 \u201cstructural\u201d error or a \u201ctrial\u201d 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\u2019s 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.\nHere, the majority failed to address whether the error was structural. It simply applied the analysis for \u201cprejudice\u201d 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 \u201cstructural\u201d 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\u2019s conviction and sentence for armed robbery. See Smith, 233 Ill. 2d at 29. For these reasons, I respectfully dissent.\nThe 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 \u201cseveral times declined to resolve whether \u2018structural\u2019 errors\u2014those that affect \u2018the framework within which the trial proceeds,\u2019 [citation]\u2014automatically satisfy the third prong of the [federal] plain-error test\u201d).", "type": "dissent", "author": "JUSTICE THEIS," } ], "attorneys": [ "Michael J. Pelletier, Patricia Unsinn, Erin E. McFeron, and Byron M. Reina, all of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Richard A. Devine, State\u2019s Attorney, of Chicago (James E. Fitzgerald, Peter D. Fischer, and Marie Quinlivan Czech, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHRISTOPHER MOORE, Defendant-Appellant.\nFirst District (3rd Division)\nNo. 1\u201407\u20140410\nOpinion filed December 23, 2009.\nMichael J. Pelletier, Patricia Unsinn, Erin E. McFeron, and Byron M. Reina, all of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nRichard A. Devine, State\u2019s Attorney, of Chicago (James E. Fitzgerald, Peter D. Fischer, and Marie Quinlivan Czech, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0555-01", "first_page_order": 571, "last_page_order": 596 }