People v. Mack

Annotate this Case
People v. Mack, No. 82869 (5/21/98)


Docket No. 82869--Agenda 4--March 1998.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. LARRY MACK,
Appellant.
Opinion filed May 21, 1998.

JUSTICE MILLER delivered the opinion of the court:
Defendant, Larry Mack, was convicted in the circuit court of Cook County of
the offenses of murder (Ill. Rev. Stat. 1979, ch. 38, par. 9--1(a)) and armed robbery
(Ill. Rev. Stat. 1979, ch. 38, par. 18--2). He was sentenced to 25 years' imprisonment
on the armed robbery charge and to death on the murder charge. We affirmed the
murder conviction and death sentence on direct appeal. People v. Mack, 105 Ill. 2d 103, 137 (1984). In a subsequent post-conviction proceeding, the circuit court vacated
defendant's death sentence and ordered a new sentencing hearing. The State appealed
and we affirmed. People v. Mack, 167 Ill. 2d 525, 539 (1995). Defendant has now filed
a motion in the circuit court seeking to bar the imposition of the death penalty at his
second sentencing hearing based upon double jeopardy grounds. The trial judge denied
this motion. Defendant appeals to this court pursuant to Supreme Court Rules 603 and
604(1). The State asks that we take this appeal pursuant to Supreme Court Rule 302(b).
We granted leave to appeal and affirm.

BACKGROUND
We provide only the facts relevant to this appeal, more detailed facts can be
found in Mack, 105 Ill. 2d at 108-11. At a bench trial, defendant was found guilty of
murder and armed robbery. A jury was empaneled and the case proceeded to an
eligibility hearing for the death penalty phase of the trial. The State attempted to
establish defendant's eligibility for the death sentence under section 9--1(b)(6) of the
Criminal Code of 1961. That section states:
"(b) Aggravating Factors. A defendant who at the time of the
commission of the offense has attained the age of 18 or more and who has
been found guilty of murder may be sentenced to death if:
* * *
6. the murdered individual was killed in the course of another felony if:
(a) the murdered individual was actually killed by the defendant and not
by another party to the crime or simply as a consequence of the crime; and
(b) the defendant killed the murdered individual intentionally or with the
knowledge that the acts which caused the death created a strong probability of
death or great bodily harm to the murdered individual or another; and
(c) the other felony was one of the following: armed robbery ***." Ill.
Rev. Stat. 1979, ch. 38, par. 9--1(b)(6).
The jury returned its findings on a form supplied to it by the court which
stated: "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." After hearing testimony in aggravation and
mitigation, the jury determined that there were no factors sufficient to preclude
imposition of the death penalty and defendant was sentenced to death.
On defendant's direct appeal to this court, we affirmed his murder conviction
and death sentence. Mack, 105 Ill. 2d at 137. We also resolved issues regarding
defendant's other convictions and sentences which are not relevant here. The United
States Supreme Court ordered reconsideration in light of its decision in Griffith v.
Kentucky, 479 U.S. 314, 93 L. Ed. 2d 649, 107 S. Ct. 708 (1987) (applying Batson v.
Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986), retroactively to cases
pending on direct review or not yet final). Mack v. Illinois, 479 U.S. 1074, 94 L. Ed. 2d 127, 107 S. Ct. 1266 (1987). We remanded the cause to the circuit court for a
Batson hearing. On remand, the circuit court found that no Batson violation occurred.
We affirmed. People v. Mack, 128 Ill. 2d 231, 253 (1989).
Defendant next filed a petition in the circuit court under the Post-Conviction
Hearing Act (Ill Rev. Stat. 1989, ch. 38, par. 122--1 et seq.). Defendant claimed that
his death sentence was improper because the jury's eligibility verdict did not specify
that defendant acted with the requisite mental state. Defendant claimed that his death
sentence was unconstitutional in the absence of a proper jury determination that a
statutory aggravating factor existed. Defendant also claimed that he received ineffective
assistance of counsel in that his counsel did not raise this issue on direct appeal. The
trial court allowed the petition, vacated defendant's death sentence, and ordered a new
sentencing hearing. On the State's direct appeal of the post-conviction proceeding to
this court, we found that the verdict "attempted to set forth a statutory aggravating
factor, but failed to do so completely and omitted an essential element." People v.
Mack, 167 Ill. 2d 525, 538 (1995). We affirmed the decision to vacate the death
sentence and to hold a new sentencing hearing. Mack, 167 Ill. 2d at 538-39.
Defendant then filed a motion in the trial court seeking to preclude a second
capital sentencing hearing on double jeopardy grounds. Defendant argued that the
verdict returned by the jury at the first death penalty hearing should act as an acquittal
of his eligibility for the death penalty. The trial judge denied this motion.
Defendant appealed the denial of the motion directly to this court pursuant to
Supreme Court Rules 603 and 604(1). Because this is not an appeal from a judgment
of the circuit court imposing the death sentence, defendant does not have a direct
appeal to this court as a matter of right under Rule 603. 134 Ill. 2d R. 603. Nor do we
have a Rule 604(1) which would apply to this appeal. Paragraph (f) of Rule 604, the
only section of Rule 604 relevant to this appeal, allows a defendant an interlocutory
appeal to the appellate court when double jeopardy motions are denied. 145 Ill. 2d R.
604(f). We assume defendant intended to appeal to this court pursuant to Rule 604(f).
The State, asserting that the public interest requires an expeditious
determination of this issue by this court, requests that we assume jurisdiction pursuant
to Supreme Court Rule 302(b). 134 Ill. 2d R. 302(b). Rule 302(b) provides in relevant
part: "After the filing of the notice of appeal to the Appellate Court in a case in which
the public interest requires prompt adjudication by the Supreme Court, the Supreme
Court or a justice thereof may order that the appeal be taken directly to it." 134 Ill. 2d
R. 302(b). Although the filing of a notice of appeal to the appellate court is normally
required as a condition precedent to our granting an appeal pursuant to Rule 302(b),
we have consistently decided death penalty issues in this court. The advantages of this
are clear. See, e.g., People v. Lewis, 105 Ill. 2d 226, 232 (1984) ("If we were to allow
appeals from post-conviction hearings in death cases to go to the appellate court, those
cases might not receive a uniform review"); People v. Gaines, 105 Ill. 2d 79, 99 (1984)
("Statewide review, in this court, of post-conviction cases involving the death penalty
will further the governmental interest in uniform and expeditious review of death
sentences"). Because the public interest requires an expeditious determination of this
issue in this court, we excuse defendant's failure to first file a notice of appeal to the
appellate court under Rule 604(f) and allow the appeal to this court pursuant to our
supervisory authority and Rule 302(b).

ANALYSIS
Defendant argues here that double jeopardy protections preclude a second
capital sentencing hearing. The verdict returned by the jury did not include as a part
of the statutory aggravating factor the element that the murder was either intentional
or done with knowledge that the acts created a strong probability of death or great
bodily harm to the victim. Defendant argues that the flaw in the verdict form returned
by the jury served as an acquittal of the culpable mental state needed for death penalty
eligibility. Thus, defendant argues, the verdict was an acquittal of defendant's death
penalty eligibility.
A death penalty acquittal bars the State from seeking the death penalty again
on that conviction. See Arizona v. Rumsey, 467 U.S. 203, 211, 81 L. Ed. 2d 164, 171,
104 S. Ct. 2305, 2310 (1984); Bullington v. Missouri, 451 U.S. 430, 446, 68 L. Ed. 2d 270, 284, 101 S. Ct. 1852, 1862 (1981). Thus, defendant argues that the defective
eligibility verdict returned by the jury prevents the State from seeking the death penalty
on resentencing because of double jeopardy.
We must first examine what constitutes an acquittal for death penalty purposes.
In determining whether double jeopardy precludes a second capital sentencing hearing,
the Supreme Court in Poland v. Arizona, 476 U.S. 147, 154, 90 L. Ed. 2d 123, 131,
106 S. Ct. 1749, 1754 (1986), stated that: "the relevant inquiry *** is whether the
sentencing judge or the reviewing court has `decid[ed] that the prosecution has not
proved its case' for the death penalty and hence has `acquitted' petitioners." Quoting
Bullington, 451 U.S. at 443, 68 L. Ed. 2d at 282, 101 S. Ct. at 1860. This court has
also examined the question of when a second capital sentencing hearing is barred on
double jeopardy grounds. In People v. Page, 155 Ill. 2d 232, 273 (1993), we stated that
a second capital sentencing hearing is precluded on double jeopardy grounds "if the
sentencer in the original hearing concluded that the prosecution had not proved its case
that death was the appropriate punishment--grounds tantamount to an acquittal--or if
the reviewing court vacated the death sentence for corresponding reasons." In People
v. Davis, 112 Ill. 2d 78, 83 (1986), this court followed the "well-established rule that
reversal of a judgment for trial error, rather than evidentiary insufficiency, will not bar
*** a second capital sentencing hearing. [Citations.]" Based on these cases, acquittal
for purposes of a second capital sentencing hearing occurs when the prosecution fails
to prove its case due to insufficient evidence. Thus, our inquiry here is whether the
verdict returned by the jury which failed to completely set forth a statutory aggravating
factor amounts to trial error, or to an acquittal on the merits based on insufficiency of
the evidence.
We believe that the flawed verdict form returned by the jury amounts to trial
error and does not go to the sufficiency of the evidence relating to defendant's
eligibility for the death sentence. First, the jury was properly instructed as to the
mental state requirement for death penalty eligibility in both the oral and written
instructions. Further, the jury was given only two verdict forms, one finding the
defendant eligible for the death penalty, the other finding him not eligible. Even though
the verdict form finding the defendant eligible for the death penalty lacked the intent
requirement, the jury returned the verdict form supplied to it which found an
aggravating factor to exist. The jury did not return the verdict form finding defendant
ineligible for the death penalty. Additionally, after aggravation and mitigation
testimony, the jury unanimously found the death sentence appropriate. We do not
believe that the jury would have recommended the death sentence had it not first
believed that defendant possessed the requisite mental state to be eligible for that
offense. As this court observed in our opinion on direct appeal: "[Defendant's
testimony that the fatal shot was accidental] is impossible to accept in view of the
other evidence in the case." Mack, 105 Ill. 2d at 128.
These facts indicate that trial error caused the jury to be supplied with and to
return an erroneous verdict form. Further, the facts support the conclusion that the jury
intended to find the defendant death sentence eligible and believed that the State
proved its case. The facts do not support the conclusion that the jury found the
evidence insufficient to find defendant eligible for the death sentence because it
believed that he did not possess the requisite mental state. We do not believe that the
first verdict acquitted defendant of death sentence eligibility. Thus, there are no
constitutional bars that preclude the State from seeking the death sentence against
defendant in his second capital sentencing hearing on grounds of double jeopardy.
Defendant further argues that a second death penalty eligibility hearing is barred
by section 3--4(a) of the Criminal Code of 1961 (720 ILCS 5/3--4(a) (West 1996)).
Section 3--4(a) bars a prosecution if the defendant was already prosecuted for the same
offense and based on the same facts if the first prosecution: "(1) [r]esulted in either a
conviction or an acquittal or in a determination that the evidence was insufficient to
warrant a conviction; or *** (3) [w]as terminated improperly after the jury was
impaneled and sworn *** but before findings were rendered by the trier of facts ***."
720 ILCS 5/3--4(a)(1), (a)(3) (West 1996). We have already found that there was not
an acquittal in the death penalty proceedings. Further, allowing a second capital
sentencing hearing based on an error in a verdict form is a continuation of the
proceedings and does not constitute a new prosecution. Section 3--4(a) is inapplicable
and does not bar a second capital sentencing hearing for defendant.


CONCLUSION
For the foregoing reasons, the circuit court's ruling denying defendant's motion
to bar a second capital sentencing hearing based on double jeopardy grounds is
affirmed.

Affirmed.