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Docket No. 83722-Agenda 4-January 1999.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. ERIC D. DANIELS, Appellant.

Opinion filed June 17, 1999.

JUSTICE McMORROW delivered the opinion of the court:

Defendant Eric Daniels has been tried twice in the circuit court of Champaign County for the murder, armed robbery andsexual assault of Michelle Davis. At his first trial, a jury convicted defendant of first degree murder, armed robbery andaggravated criminal sexual assault. Thereafter, the trial court sentenced him to death. This court reversed defendant'sconvictions and sentence on procedural grounds and remanded the cause for a new trial.

Following his second trial, a jury acquitted defendant of armed robbery and could not reach a verdict on the remainingcounts. Because the jury was unable to reach a verdict on the remaining counts, the trial court, without objection fromdefendant, declared a mistrial as to all counts except the armed robbery. Defendant was discharged on the armed robberycount.

Facing a third trial, defendant moved the trial court to dismiss the felony-murder charges that formed a partial basis for thefirst degree murder counts alleged by the State. Defendant also moved to bar any death penalty sentencing hearing thatdepended on felony murder as a statutory eligibility factor. Defendant maintained that a retrial and resentencing based onfelony murder would violate the bar against double jeopardy. The trial court denied defendant's motions and motions toreconsider.

Defendant filed a notice of appeal pursuant to Illinois Supreme Court Rule 604(f), which allows appeals to the appellatecourt from orders denying a motion to dismiss based on "grounds of former jeopardy." 145 Ill. 2d R. 604(f). The State thenmoved this court to order the appeal transferred from the appellate court to the supreme court, as a matter of "public interestrequir[ing] prompt adjudication by the Supreme Court" (134 Ill. 2d R. 302(b)). We granted the motion.

BACKGROUND

In a 10-count indictment filed on August 5, 1993, the State charged defendant with the first degree murder, aggravatedcriminal sexual assault and armed robbery of Michelle Davis. Counts I and II of the indictment alleged that defendantmurdered Davis intentionally; counts III, IV and V asserted that defendant knowingly performed the acts causing Davis'death. Counts VI and VII stated two theories of felony murder: first, that defendant shot Davis during the course of anaggravated criminal sexual assault (count VI) and second, that defendant shot Davis during the course of an armed robbery(count VII).

In count VIII of the indictment, the State accused defendant of committing a criminal sexual assault aggravated by thedisplay of a shotgun. Count IX also alleged the commission of an aggravated criminal sexual assault, but the aggravatingfactor was the commission of an armed robbery. Lastly, in count X, the State charged defendant with the commission of anarmed robbery.

At defendant's first trial, the jury returned verdicts finding defendant guilty of armed robbery and aggravated criminalsexual assault, and a general verdict finding defendant guilty of first degree murder. After a separate sentencing proceeding,the trial court found defendant eligible for the death penalty based on the single factor that defendant murdered Michelleduring the course of a felony. 720 ILCS 5/9-1(g) (West 1996). The trial court sentenced defendant to death on the firstdegree murder conviction and sentenced defendant to 60 years' imprisonment on the other convictions. People v. Daniels,172 Ill. 2d 154 (1996).

On direct appeal, this court held that the trial court denied defendant the proper number of peremptory challenges duringjury selection. Daniels, 172 Ill. 2d at 168. It reversed defendant's convictions and sentences and remanded the cause for anew trial. Daniels, 172 Ill. 2d at 169. Significant to the instant appeal, in that decision this court also stated that theevidence of record adequately supported the convictions and sentences. Daniels, 172 Ill. 2d at 168.

Before the commencement of the second trial, defendant moved to dismiss counts VI, VII and IX of the indictment.Defendant maintained that in the first trial, the State tendered jury instructions concerning intentional and knowing murder(720 ILCS 5/9-1(a)(1), (a)(2) (West 1996)), but neglected to submit any instructions concerning felony murder, as chargedin counts VI and VII of the indictment. 720 ILCS 5/9-1(a)(3) (West 1996). Similarly, the State failed to tender instructionsdirecting the jury to decide whether defendant committed criminal sexual assault during the course of an armed robbery(720 ILCS 5/12-13(a)(1), 12-14(a)(4) (West 1996)), as alleged in count IX of the indictment. Defendant posited that theState's failure to submit those jury instructions warranted an "acquittal"on counts VI, VII and IX, because, absent thoseinstructions, counts VI, VII and IX were not submitted to the jury for decision. Thus, defendant's argument continues,double jeopardy barred reprosecution of defendant for these alleged crimes.

Defendant also moved to bar the State from asserting felony murder as an eligibility factor at a future capital punishmenthearing. 720 ILCS 5/9-1(g) (West 1996). According to defendant, the bar against double jeopardy prohibited the State fromagain arguing felony murder as a factor for entry of a capital sentence against defendant. The circuit court denieddefendant's motion.

At his second trial, the jury acquitted defendant of the armed robbery charge (count X). The jury could not reach a verdicton the remaining counts, and the trial court declared a mistrial. No capital sentencing proceeding occurred.

Post-trial, defendant renewed his motion to dismiss count VI, the count which charged that defendant shot Davis during thecourse of an aggravated criminal sexual assault, count VII, the count which charged defendant with felony murdercommitted during the course of an armed robbery, and count IX, which charged defendant with a criminal sexual assaultcommitted during the course of an armed robbery. Defendant repeated the double jeopardy arguments he asserted on the eveof the second trial. Additionally, defendant urged that his acquittal of armed robbery in the second trial necessitateddismissal of counts VII and IX. Defendant argued that in his second trial, as in the first trial, the State chose not to tender aninstruction to the jury to determine whether defendant committed criminal sexual assault during the course of an armedrobbery, as alleged in count IX of the indictment.

Further, defendant renewed his motion to bar the introduction of felony murder as a statutory eligibility factor at anysubsequent death penalty hearing. Defendant insisted that his implicit "acquittal" of felony murder because of the State'sfailure to submit the appropriate jury instructions-thus removing those counts from determination by the jury-at the firsttrial precluded another capital sentencing proceeding grounded on felony murder.

Defendant also raised a new argument to preclude another death penalty hearing. He argued that, absent a unanimousverdict by the trier of fact in favor of a capital sentence, a criminal defendant may not be put to death. See 720 ILCS5/9-1(g) (West 1996). Defendant deduced that the hung jury at the second trial indicated that the jury reached a"nonunanimous" finding on all counts, except armed robbery. In other words, at least one juror voted to acquit defendant onall counts except armed robbery. According to defendant, this "nonunanimous" result at the guilt/innocence phase foretold a"nonunanimous" verdict by the jury regarding defendant's eligibility for the death penalty, as well. Therefore, because thejury could not have returned a unanimous verdict finding defendant eligible for the death penalty based on the commissionof a felony murder, the court should bar the State from asserting felony murder as a basis to sentence defendant to death inany future trial.

The trial court ruled that defendant's acquittal of armed robbery (count X) necessitated dismissal of counts VII and IX,since each count depended on armed robbery as its underlying felony. However, the court denied defendant's motion as tocount VI (murder committed during the course of a criminal sexual assault), and refused to bar the State from seeking thedeath penalty in any future trials based on defendant's alleged complicity in a felony murder.

Defendant now appeals the circuit court's order.

STANDARD OF REVIEW

When, as here, the issues raised are purely issues of law, we review the record de novo. In re Lawrence M., 172 Ill. 2d 523,526 (1996).

ANALYSIS

A. Whether the Bar Against Double Jeopardy Precludes a Third Trial for Defendant on the Charge of Felony Murder

As best we can discern from his briefs, defendant's theory of the case is as follows: defendant asserts that the State's failureto tender jury instructions at defendant's first trial concerning counts VI and VII, charges of felony murder, constituted anabandonment by the State of those counts. Defendant's argument is based on the fact that since neither instructions norverdicts on the felony-murder counts were submitted by the State, the jury was denied the opportunity to reach a verdict onthe felony-murder allegations. Defendant reasons that the jeopardy that attached after the jury was empaneled in the firsttrial "terminated" once the court discharged the jury. Because jeopardy terminated without a resolution of the felony-murder counts, defendant maintains, defendant was "acquitted" of felony murder "by operation of law." Alternatively,defendant argues that the State's failure to tender felony-murder instructions and verdicts operated as a nolle prosequi of thefelony-murder counts, which, in turn, constituted an acquittal of defendant on the allegations found in counts VI and VII.Therefore, defendant contends that double jeopardy principles should have barred the second trial on both the thresholdquestion of defendant's guilt or innocence of felony murder, as well as another death penalty proceeding grounded on thestatutory eligibility factor of felony murder. 720 ILCS 5/9-1(b)(6) (West 1996).

At defendant's second trial, the jury could not reach a verdict on any count except count X, which charged defendant witharmed robbery. The trial court declared a mistrial on the remaining counts, including the felony-murder counts, renderingdefendant eligible for a third trial. Defendant successfully moved the trial court to dismiss count VII, the felony-murdercharge grounded in armed robbery, but count VI, the felony-murder charge grounded in criminal sexual assault, remainsviable. Accordingly, defendant now renews his double jeopardy arguments, seeking to preclude a third trial on count VI.Defendant argues that a third trial on the felony-murder allegations of count VI would violate (1) the double jeopardyclauses of the state and federal constitutions, and (2) the Criminal Code of 1961.

The fifth amendment to the United States Constitution states in pertinent part:

"[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb ***." U.S. Const.,amend. V.

The same protections are also embodied in the Illinois Constitution. Ill. Const. 1970, art. I,