People v. Tucker , 2021 IL App (5th) 190099-U ( 2021 )


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  •             NOTICE
    
    2021 IL App (5th) 190099-U
    NOTICE
    Decision filed 10/28/21. The
    This order was filed under
    text of this decision may be
    NO. 5-19-0099                Supreme Court Rule 23 and is
    changed or corrected prior to
    the filing of a Petition for                                            not precedent except in the
    Rehearing or the disposition of               IN THE                    limited circumstances allowed
    the same.                                                               under Rule 23(e)(1).
    APPELLATE COURT OF ILLINOIS
    FIFTH DISTRICT
    ________________________________________________________________________
    THE PEOPLE OF THE STATE OF ILLINOIS,        )     Appeal from the
    )     Circuit Court of
    Plaintiff-Appellee,                   )     St. Clair County.
    )
    v.                                          )     No. 92-CF-181
    )
    ANTHONY B. TUCKER,                          )     Honorable
    )     Julie K. Katz,
    Defendant-Appellant.                  )     Judge, presiding.
    ________________________________________________________________________
    JUSTICE VAUGHAN delivered the judgment of the court.
    Justices Welch and Moore concurred in the judgment.
    ORDER
    ¶1       Held: The circuit court did not err in denying defendant’s motion for leave to file a
    successive postconviction petition where People v. Smith, 
    233 Ill. 2d 1
    (2009), and People v. Bailey, 
    2013 IL 113690
    , are inapplicable to defendant’s
    case.
    ¶2       Defendant appeals from the denial of his motion for leave to file a successive
    postconviction petition, which argues the trial court denied defendant due process by
    failing to provide separate verdict forms for each theory of murder. For the following
    reasons, we affirm.
    1
    ¶3                                 I. BACKGROUND
    ¶4     On February 17, 1992, defendant was charged with first degree murder (Ill. Rev.
    Stat. 1991, ch. 38, ¶ 9-1(a)(1)) in that he, without lawful justification and with the intent to
    kill or do great bodily harm, stabbed Margaret Pfeiffer with a knife in the chest, causing
    her death. About a year later, on May 5, 1993, the State filed notice of its intent to seek the
    death penalty under section 9-1(b)(6) of the Criminal Code of 1961 (Criminal Code) (id.
    ¶ 9-1(b)(6)), because defendant committed the murder while in the course of another
    felony.
    ¶5     On June 15, 1993, defense counsel filed several motions in response to the State’s
    notice of intent to seek the death penalty, which included a motion to bar the death penalty
    sentence hearing and imposition of the death penalty. The motion alleged that grounds for
    an enhanced penalty must be alleged in the indictment, and the State failed to allege any of
    the aggravating factors under section 9-1(b). In its response, the State argued that the cases
    defendant cited to support his position were inapplicable and did not refer to the applicable
    death penalty statute.
    ¶6     Defense counsel also filed a motion for bill of particulars and discovery, requesting
    the court to order the State to identify the felonies allegedly committed by defendant. In its
    response to the motion, the State argued that there was no obligation to give notice to
    defendant of its intent to seek the death penalty, and therefore, it had no greater obligation
    to give defendant notice of the specific felonies which made defendant eligible for the death
    penalty. The State further asserted that the discovery it provided indicated the felonies
    2
    defendant committed included, but were not limited to, home invasion, residential burglary,
    burglary, armed robbery, robbery, and theft.
    ¶7     On July 6, 1993, defense counsel filed a motion to require the sentencing jury to
    make specific findings. Defense counsel argued that unless the sentencing jury was directed
    to make specific findings in writing, a reviewing court would not be able to determine if
    improper factors were relied upon, whether the rehabilitative potential of defendant was
    considered, and could not prevent the death penalty from being applied capriciously.
    ¶8     On July 15, 1993, the trial court denied defendant’s motion for bill of particulars
    and discovery, noting that the State furnished a sufficient response. On the same day, it
    also denied defendant’s motion to bar the death penalty sentence hearing and imposition
    of the death penalty and defendant’s motion to require the sentencing jury to make specific
    findings.
    ¶9     On November 1, 1993, defense counsel challenged the imposition of the death
    sentence again by filing a motion to preclude consideration and imposition of the death
    sentence. The motion asserted that the State seeking the jury to consider that the killing
    occurred during the commission of a felony offense both as an element of the offense and
    as an aggravating factor was improper double enhancement.
    ¶ 10   On March 29, 1994, the State filed notice of its intent to instruct the jury on multiple
    theories of murder, including intentional, knowing, and felony murder. At a subsequent
    pretrial hearing, defense counsel informed the court that—in response to the State’s motion
    to instruct on alternative murder theories—it would file another motion for a bill of
    particulars. The court found its denial of the defense’s previous motion for a bill of
    3
    particulars was dispositive of whether the State must further “illuminate the defense of the
    way—of the nature they’re going to proceed,” and that any instructions issue was not ripe.
    ¶ 11   Trial began on April 11, 1994. The State presented evidence that defendant entered
    his girlfriend’s apartment that was shared with Margaret Pfeiffer, stabbed Pfeiffer multiple
    times, causing her death, and then took Pfeiffer’s bank and credit cards. Defense counsel
    presented the theory that defendant was under the influence of cocaine and alcohol, and
    defendant’s voluntary intoxication rendered him incapable of having the intent required to
    commit murder. The defense also argued there was insufficient evidence.
    ¶ 12   At the jury instruction conference, defense counsel again raised an objection to
    instructing the jury on the theories of felony murder because it was “unduly prejudicial to
    [defendant] to have to fend off these different theories at this juncture.” The court held that
    the instructions were proper.
    ¶ 13   Ultimately, the court provided the jury with an instruction that stated:
    “A person commits the offense of first degree murder when he kills an
    individual if, in performing the acts which cause the death,
    he intends to kill or do great bodily harm to that individual;
    or
    he knows that such acts will cause death to that individual;
    or
    he knows that such acts create a strong probability of death or great
    bodily harm to that individual;
    or
    4
    he is committing any one of the following offenses: Home Invasion,
    Residential Burglary or Armed Robbery.”
    ¶ 14   The court also provided instructions on the offenses of home invasion, residential
    burglary, and armed robbery, as well as the voluntary intoxication defense. The jury found
    defendant guilty of first degree murder under a general murder verdict form that stated:
    “We, the jury, find [defendant] Guilty of the offense of First Degree Murder.”
    ¶ 15   The case then proceeded to the first stage of sentencing where the jury would
    determine whether defendant was eligible for the death penalty. The State sought the death
    penalty based on the aggravating factor under section 9-1(b)(6) of the Criminal Code (Ill.
    Rev. Stat. 1991, ch. 38, ¶ 9-1(b)(6)). Accordingly, the court instructed the jury that to be
    eligible for the death penalty, the State must prove:
    “FIRST PROPOSITION That the defendant was 18 years old or older at the time of
    the commission of the murder of which he was found guilty at the trial of this case
    and
    SECOND PROPOSITION That one or more statutory aggravating factors exist
    The murdered person was killed in the course of another felony if
    the murdered person was actually killed by the defendant;
    and
    in performing the acts which caused the death of the murdered person,
    the defendant acted with the intent to kill the murdered person or with
    the knowledge that his acts created a strong probability of death or
    great bodily harm to the murdered person;
    5
    and
    the other felony was one or more of the following: armed robbery
    and/or residential burglary and/or home invasion.”
    ¶ 16   The court also instructed the jury on home invasion, armed robbery, and residential
    burglary. The jury found defendant eligible for the death penalty. At the second phase of
    the death penalty hearing, however, the jury determined that a sentence other than death
    should be imposed.
    ¶ 17   Defense counsel filed a posttrial motion, arguing, inter alia, that the court erred in
    denying defense’s motion to preclude the death penalty, motion for a bill of particulars,
    and motion to require the sentencing jury to make specific findings. The court denied the
    motion.
    ¶ 18   At the sentencing hearing, the State argued for the imposition of a natural life
    sentence, under Ill. Rev. Stat. 1991, ch. 38, ¶ 1005-8-1, based on the jury’s previous finding
    that defendant was eligible to receive the death penalty or, alternatively, because 24 stab
    wounds met the definition of brutal or heinous behavior. Defense counsel argued that
    defendant lacked a criminal history and “mental health, emotional, and drug-induced
    reasons” caused the murder. Consequently, defense counsel requested the court impose a
    sentence of less than 60 years’ imprisonment. After considering the aggravating and
    mitigating factors, the court sentenced defendant to a term of natural life imprisonment
    without parole. This court affirmed defendant’s conviction and sentence on direct appeal.
    People v. Tucker, No. 5-94-0409 (1997) (unpublished order under Illinois Supreme Court
    Rule 23).
    6
    ¶ 19   On May 11, 1998, defendant filed a postconviction petition, arguing, inter alia, that
    defendant was denied due process by the State’s failure to notify defendant prior to trial
    that his indictment for first degree murder was based on felony murder, which prejudiced
    defendant from preparing a sufficient argument for his defense, and that appellate counsel
    was ineffective for failing to raise the issue. On March 20, 2000, following an evidentiary
    hearing, defendant’s petition was denied. On appeal from his postconviction petition,
    defendant cited to Apprendi v. New Jersey, 
    530 U.S. 466
     (2000), and argued “that his
    natural life sentence must be reduced because the Illinois life imprisonment statute violates
    due process by subjecting a defendant to increased penalties without providing notice of
    the qualifying facts in the charging instrument.” This court affirmed defendant’s sentence
    and found that because the jury unanimously found the aggravating factor that the
    sentencing court relied on to impose natural life imprisonment, the sentencing court did
    not violate Apprendi. People v. Tucker, 
    322 Ill. App. 3d 1058
     (2001) (table) (unpublished
    order under Supreme Court Rule 23).
    ¶ 20   On December 20, 2018, defendant filed a motion for leave to file a successive
    postconviction petition, arguing the trial court’s denial of defendant’s motion to require the
    jury to make specific findings during the death eligibility phase violated defendant’s due
    process rights. Defendant explained that under People v. Smith, 
    233 Ill. 2d 1
     (2009), and
    People v. Bailey, 
    2013 IL 113690
    , a trial court errs in denying a defendant’s request for
    individual verdict forms for various theories of murder where the sentencing consequences
    would differ under a general verdict form. Therefore, according to defendant, the general
    verdict form for first degree murder must be interpreted as a finding of guilty for felony
    7
    murder and an acquittal of intentional and knowing murder. Defendant contended, as a
    result, he was not eligible for the death penalty nor a term of natural life imprisonment
    because there was no specific finding by the jury regarding intent. The motion also argued
    that under this reasoning, defendant was actually innocent of intentional or knowing
    murder. As to cause for failing to raise the issue earlier, defendant asserted that the issue
    was not available to him at the time of his trial.
    ¶ 21   On January 8, 2019, the circuit court denied defendant’s motion for leave to file a
    successive postconviction petition. The court determined that defendant failed to establish
    cause. In its order, the circuit court explained that while defendant explained why he did
    not raise the defense at the time of his trial, he failed to explain why he did not raise the
    issue in his initial postconviction proceeding, as required by Post-Conviction Hearing Act
    (725 ILCS 5/122-1(f) (West 2018)).
    ¶ 22   On February 12, 2019, defendant filed a motion to reconsider, contending that he
    never raised the separate verdict issue before because the claim was not available until—
    at the earliest—2009 when Smith was decided or 2013 when Bailey was decided. The
    circuit court denied the motion as untimely and noted that the motion failed to set forth any
    valid basis for reconsideration. This court subsequently granted defendant leave to file a
    late notice of appeal pursuant to Illinois Supreme Court Rule 606(c) (eff. July 1, 2017).
    ¶ 23                                 II. ANALYSIS
    ¶ 24   On appeal, defendant argues that the circuit court erred in denying his motion for
    leave to file a successive petition because his motion showed the required cause and
    prejudice, and also properly alleged actual innocence. Defendant contends, under Smith
    8
    and Bailey, the trial court violated his due process rights by failing to provide separate
    verdict forms for each theory of murder. He claims that counsel sufficiently made the trial
    court aware of the need for separate murder verdict forms through counsel’s (1) motion to
    require the sentencing jury to make specific findings; (2) motion to preclude the
    consideration and imposition of the death penalty because the State seeking felony murder
    as an element of the offense and as an aggravating factor was improper double
    enhancement; and (3) objection to the felony murder jury instructions based on counsel’s
    pretrial motion for bill of particulars and discovery that argued the State’s failure to identify
    the felonies allegedly committed prejudiced defendant by preventing the defense from
    being adequately prepared to defend those accusations. According to defendant, because
    the court failed to provide separate verdict forms, his general verdict must be interpreted
    at a finding of guilt on the felony murder and he was not subject to a death sentence under
    section 9-1(b)(6) of the Criminal Code (Ill. Rev. Stat. 1991, ch. 38, ¶ 9-1(b)(6)) or a natural
    life imprisonment (id. ¶ 1005-8-1). Based on this conclusion, defendant further contends
    he was actually innocent of intentional murder.
    ¶ 25   The Post-Conviction Hearing Act (Act) provides a statutory method for criminal
    defendants to assert that “in the proceedings which resulted in his or her conviction there
    was a substantial denial of his or her rights under the Constitution of the United States or
    of the State of Illinois or both.” 725 ILCS 5/122-1(a)(1) (West 2018). The Act contemplates
    the filing of only one postconviction petition. 
    Id.
     §§ 122-1(f), 122-3; People v. Edwards,
    
    2012 IL 111711
    , ¶ 22. A defendant, however, may obtain leave of court to file a successive
    postconviction petition “ ‘when fundamental fairness so requires.’ ” People v. Coleman,
    9
    
    2013 IL 113307
    , ¶ 81 (quoting People v. Pitsonbarger, 
    205 Ill. 2d 444
    , 458 (2002)); see
    725 ILCS 5/122-1(f) (West 2018).
    ¶ 26   The statutory bar against successive petitions will be relaxed under two
    circumstances. The first is where defendant can satisfy the “cause-and-prejudice test.” 725
    ILCS 5/122-1(f) (West 2018). To establish “cause” defendant must identify “any objective
    factor, external to the defense, which impeded the [defendant’s] ability to raise a specific
    claim in the initial post-conviction proceeding.” Pitsonbarger, 
    205 Ill. 2d at 462
    ; 725 ILCS
    5/122-1(f) (West 2018). The “prejudice” prong is met where defendant shows that the
    constitutional error “so infected the entire trial that the resulting conviction or sentence
    violates due process.” Pitsonbarger, 
    205 Ill. 2d at 464
    ; 725 ILCS 5/122-1(f) (West 2018).
    ¶ 27   The second exception to the rule of filing one postconviction petition is a claim of
    actual innocence. Coleman, 
    2013 IL 113307
    , ¶ 83. To establish this claim, a defendant
    “must present new, material, noncumulative evidence that is so conclusive it would
    probably change the result on retrial.” Id. ¶ 96.
    ¶ 28   In addressing a motion for leave to file a successive postconviction petition, the
    court conducts “a preliminary screening to determine whether defendant’s pro se motion
    for leave to file a successive postconviction petition adequately alleges facts demonstrating
    cause and prejudice.” People v. Bailey, 
    2017 IL 121450
    , ¶ 24. The motion need only to
    make a prima facie showing of cause and prejudice. 
    Id.
     “[W]hen it is clear from a review
    of the successive petition and supporting documents that the claims raised fail as a matter
    of law or are insufficient to justify further proceedings,” defendant’s motion should be
    denied. People v. Dorsey, 
    2021 IL 123010
    , ¶ 33. The sufficiency of a motion for leave to
    10
    file a successive postconviction petition presents a question of law that we review de novo.
    
    Id.
    ¶ 29   The circuit court found defendant failed to establish a claim under either exception.
    With respect to the cause-and-prejudice test, the court found that, while defendant
    explained why he did not raise his claim at the time of trial, he failed to explain why he did
    not raise the argument in his initial postconviction petition. Accordingly, the court found
    that defendant failed to establish cause.
    ¶ 30   On appeal, defendant contends because Smith and Bailey created a new substantive
    rule and Smith was decided 11 years after his initial postconviction petition, he established
    cause. To the contrary, the State argues—inter alia—that Smith and Bailey did not create
    a substantive rule. According to the State, defendant consequently failed to establish the
    cause necessary for leave to file a successive postconviction petition. We decline to
    determine whether Smith and Bailey created a new substantive rule, because we agree with
    the State’s alternative argument that Smith and Bailey do not apply to this case. See People
    v. Burchell, 
    2018 IL App (5th) 170079
    , ¶ 9 (where the question on appeal regards the
    correctness of the result, rather than the reasoning upon which that result was reached,
    “[w]e may affirm the ruling of the trial court on any basis supported by the record”).
    ¶ 31   A jury may return a general verdict of guilty for first degree murder “even if there
    is no juror unanimity with regard to the means by which the murder was committed.”
    (Emphasis in original.) People v. Smith, 
    233 Ill. 2d 1
    , 16 (2009). Where a defendant is
    convicted under a general verdict form and the indictment charged multiple counts of
    murder based on different theories, it is presumed that defendant was convicted of the most
    11
    serious offense—intentional murder—and the convictions on the other theories of murder
    are vacated. 
    Id. at 21
    . Although the use of a general verdict form, under such circumstances,
    is constitutionally permissible (id. at 14), the sentencing consequences of a conviction
    under a general verdict may prejudice defendant. 
    Id. at 23
    . This is so because a general
    verdict fails to provide the necessary specification. 
    Id.
    ¶ 32   For example, because “the predicate felony underlying a charge of felony murder is
    a lesser-included offense of felony murder,” a defendant convicted of felony murder, but
    not intentional or knowing murder, may not be convicted of the underlying felony. 
    Id. at 17
    . However, there is no such limitation if defendant is found guilty of intentional or
    knowing murder. 
    Id. at 17-18
    . Therefore, in a case where defendant is charged with
    intentional, knowing, and felony murder, as well as the underlying predicate felony, the
    use of separate verdicts on each theory of murder would afford the opportunity for the jury
    to find defendant guilty of only felony murder, which precludes a conviction and sentence
    of the underlying felony. See 
    id.
     Whereas a conviction under a general verdict would
    presume the jury found defendant guilty of the more serious intentional murder, which
    allows a conviction and sentence on the underlying predicate felony. See 
    id. at 18
    .
    ¶ 33   Accordingly, in Smith, the Illinois Supreme Court held that it is an abuse of
    discretion for a court to deny defendant’s request for specific verdict forms where specific
    findings by the jury regarding the offenses charged could result in differing sentencing
    consequences. 
    Id. at 23
    . It reasoned that a court violates due process when it “[denies] a
    defendant the opportunity to have the jury decide his theory of defense” and allows the
    12
    presumption from a conviction under a general verdict—in that defendant was convicted
    of the most serious offense—to substitute the jury’s actual findings. 
    Id.
    ¶ 34   Later, in Bailey, the Illinois Supreme Court reaffirmed its Smith holding. Bailey,
    
    2013 IL 113690
    , ¶ 57. Bailey addressed a situation—similar to the case at hand—where
    defendant was charged with three theories of murder, the jury returned a general verdict of
    guilty, and defendant was found eligible for the death penalty under section 9-1(b)(6) of
    the Criminal Code (720 ILCS 5/9-1(b)(6) (West 2006)). Id. ¶¶ 1-13. The court determined
    that “if the jury had been given separate verdict forms and had acquitted defendant of
    intentional or knowing murder, application of section 9-1(b)(6) would have been
    foreclosed because the verdict would have negated an essential element of this eligibility
    factor,” i.e., intent. Id. ¶ 56. As such, it held the trial court erred in refusing defendant’s
    request for separate verdict forms because the theory upon which defendant was found
    guilty had differing sentencing consequences. Id. ¶ 57.
    ¶ 35   The court, however, has clarified that Smith “did not establish a rule that the court
    must act sua sponte to give a specific verdict form.” People v. Davis, 
    233 Ill. 2d 244
    , 273
    (2009). On appeal, defendant does not contend the court here should have acted sua sponte
    but claims that counsel’s pretrial motions sufficiently signaled to the court the need for
    separate verdict forms. He argues that Bailey supports this position. We disagree.
    ¶ 36   In Bailey, the State argued that defendant failed to preserve a Smith error where
    defense counsel requested a separate felony murder verdict form in chambers but failed to
    object to the use of a pattern general verdict form. Bailey, 
    2013 IL 113690
    , ¶ 38. The court
    disagreed and noted that counsel stated “ ‘No objection,’ ” then immediately referred to the
    13
    previous in-chamber discussion regarding verdict forms and attempted to explain his
    request for separate verdict forms before the court interrupted counsel. Id. ¶ 40. “The State
    objected ‘to breaking it down to different types of murder,’ and the trial court denied
    defendant’s request.” Id. The court found that the trial court’s previous refusal to use a
    separate felony murder verdict form foreclosed any future request for other verdict forms
    and the record demonstrated counsel clearly intended to document that ruling. Id. ¶ 41.
    ¶ 37   Bailey is distinguishable because, here, there was no request for a felony murder
    verdict form or separate verdict forms at any time. Defense counsel neither objected to the
    general verdict form nor provided a verdict form that indicated a need to make specific
    findings regarding the separate theories of murder.
    ¶ 38   Defense counsel’s pretrial motions also did not sufficiently raise a request or
    indicate a need for separate verdict forms. The defense’s motion to require the sentencing
    jury to make specific findings concerned matters that occurred after defendant was found
    guilty, not whether the jury should make specific findings regarding the charged offenses
    when determining guilt. Similarly, defense counsel’s motion to preclude consideration and
    imposition of the death sentence—arguing the State seeking felony murder as an element
    of the offense and as an aggravating factor is improper double enhancement—also did not
    relate to separate verdict forms. “Double enhancement occurs when a factor already used
    to enhance an offense or penalty is reused to subject a defendant to a further enhanced
    offense or penalty” (People v. Thomas, 
    171 Ill. 2d 207
    , 223 (1996)) and thus presents a
    separate issue from Smith and Bailey, which concerns whether the use of separate verdict
    forms could have resulted in the jury negating an essential element of eligibility for a
    14
    specific sentence (Bailey, 
    2013 IL 113690
    , ¶¶ 56-57). Counsel’s objection to the felony
    murder instructions, at the instruction conference, also did not indicate a need for separate
    verdict forms where the objection reiterated counsel’s argument—presented in his pretrial
    motion requesting a bill of particulars—that defendant was prejudiced by the State’s
    untimely identification of the predicate felonies for felony murder because he was
    prevented from adequately preparing a defense for those accusations.
    ¶ 39   We decline to find that a few pretrial motions that attacked the charge of felony
    murder based on untimely notice, challenged the imposition of the death sentence on
    double enhancement grounds, or concerned aggravating factors in sentencing, sufficiently
    raised a request for separate verdict forms. Due to defendant’s failure to request separate
    verdict forms, Smith and Bailey do not apply to this case. The circuit court therefore did
    not err in finding defendant failed to meet the cause-and-prejudice test.
    ¶ 40   Defendant also argues that the circuit court erred in denying his petition with respect
    to his actual innocence claim that is based on an alleged Smith error. Because we find Smith
    and Bailey do not apply to these set of facts, defendant’s actual innocence claim also fails.
    Accordingly, we affirm the circuit court’s denial of defendant’s motion for leave to file a
    successive postconviction petition.
    ¶ 41                               III. CONCLUSION
    ¶ 42   For the reasons stated above, we affirm the circuit court’s denial of defendant’s
    petition for leave to file a successive postconviction petition.
    ¶ 43   Affirmed.
    15
    

Document Info

Docket Number: 5-19-0099

Citation Numbers: 2021 IL App (5th) 190099-U

Filed Date: 10/28/2021

Precedential Status: Non-Precedential

Modified Date: 7/30/2024