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Docket No. 90911-Agenda 18-November 2001.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. 
ERIN N. THUROW, Appellee.

Opinion filed February 6, 2003.

CHIEF JUSTICE McMORROW delivered the opinion of thecourt:

Defendant Erin Thurow was charged, under sections 9-3(a)and (f) of the Criminal Code of 1961 (720 ILCS 5/9-3(a), (f)(West 1998)), with involuntary manslaughter of a family orhousehold member. The jury was instructed on the elements ofsimple involuntary manslaughter (720 ILCS 5/9-3(a) (West1998)), and defendant was found guilty by the circuit court of WillCounty. At sentencing, the judge determined that defendant waseligible for an enhanced sentence because the victim, MichaelMostowski, was a member of defendant's household. 720 ILCS5/9-3(f) (West 1998). In the alternative, the judge concluded thatdefendant was eligible for an extended-term sentence because ofthe tender age of the victim. 730 ILCS 5/5-5-3.2(b)(4)(i) (West1998). The court sentenced defendant to eight years in prison. Onappeal, the appellate court vacated the sentence, concluding thatit violated the Supreme Court's holding in Apprendi v. NewJersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).The appellate court remanded for a new sentencing hearing,directing that the sentence not exceed the five-year maximum forsimple involuntary manslaughter. 318 Ill. App. 3d 128. Weallowed the State's petition for leave to appeal. 177 Ill. 2d R. 315.For the reasons set forth below, we affirm in part and reverse inpart the judgment of the appellate court.

BACKGROUND

The following facts, which are essentially undisputed, aretaken from the testimony at trial and other materials of record.Defendant Erin Thurow first met Michelle Mostowski inNovember 1997 when Mostowski moved into a homeless shelterin Elgin where defendant Thurow and her three-year-old daughter,Tianna, were staying. During the next several weeks, the twowomen became friends. On December 14, defendant left theshelter and moved into an apartment in Joliet, where her daughterjoined her a few days later. At defendant's suggestion, Mostowskimoved in with defendant and her daughter on January 2, 1998. Forthe next eight months, defendant was the sole source of financialsupport for the household.

Mostowski, who had been pregnant when she entered theshelter in Elgin, gave birth to a son, Michael, on April 21, 1998.Defendant was in the delivery room with Mostowski when thechild was born. Up until this time Mostowski, who was notemployed, had taken care of defendant's child while defendantwas working. Subsequently, Mostowski watched both of thechildren.

In September 1998, Mostowski returned to work. She anddefendant were on different shifts, but for a time there was anoverlap of about four hours a day when they were both at work andneeded to hire a baby-sitter for their children. In January 1999,defendant and Mostowski adjusted their work schedules so theywere working opposite shifts and no longer needed to hire a baby-sitter. Mostowski worked from 7 a.m. to 3 p.m. at a localrestaurant, and defendant worked from 4 p.m. to midnight at adifferent restaurant. Each watched the children while the other wasat work.

Prior to February 11, 1999, the date of the victim's death,defendant had indicated to Mostowski that she thought Mostowskiwas too indulgent with Michael and was spoiling him. The twowomen occasionally argued about this, with defendant tellingMostowski that she had difficulty consoling Michael whenMostowski went to work, and Michael's constant crying frustratedher. Beginning in late 1998, unbeknownst to Mostowski,defendant had begun putting her hand over Michael's mouth tocalm him down. Defendant testified at trial that she did this a totalof about 30 to 40 times, and that it seemed to work and did notseem to hurt him.

On the morning of February 11, defendant awoke at about 6a.m. after falling asleep on the couch the night before. Mostowskileft for work that morning at about 8 a.m. Before leaving, sheplaced Michael in his walker and left him next to the couch.Defendant then went back to sleep on the couch. At about 10 a.m.she awoke when she heard Michael crying. She tried to calm himbut was unsuccessful. At about 10:30 a.m. she took him to his cribfor a nap. He was still crying, so she put her hand over his mouthto quiet him down. Defendant testified that she held her hand thereuntil he was quiet, about 15 seconds. He took a breath of air, andhis legs and arms moved. Defendant then turned him over on hisstomach, pulled his blanket up, and left the bedroom.

Defendant's boyfriend arrived at about 1:30 p.m., anddefendant borrowed his car and went shopping. According todefendant, when she returned about 45 minutes later, her boyfriendsaid he had checked on Michael while she was out, and the childwas still sleeping. Defendant's boyfriend left at about 2:45 p.m.,and at about 3 p.m. defendant went to check on Michael.

The first thing she noticed was that he did not move when shecame through the doorway. She went to the crib and discoveredthat he was cold and not breathing. Defendant telephonedMostowski at work and told her that there was an emergency andshe should come home. Defendant then telephoned her employerand stated that the baby was dead. Defendant's manager told herto call 911. She did, and the 911 operator instructed her on CPR,which she performed. Police and emergency personnel arrived, asdid Mostowski. The child was taken to the hospital, andMostowski went there as well. The police left, and defendant andher daughter remained in the apartment.

About two hours later, Joliet police detectives Jeff Allbert andRichard Raasch arrived at the apartment and questioned defendant.She told them what happened, but omitted mentioning that she hadheld her hand over Michael's mouth. Defendant and her daughterwere then taken to the police station, where police first questioneddefendant's daughter and then spoke to defendant. They tolddefendant that there were inconsistencies between her story andher daughter's. Defendant then "broke down" and again told policewhat had happened, this time including the fact that she had puther hand over Michael's mouth. She was then arrested.

Forensic pathologist Brian Mitchell, who performed anautopsy on Michael the next day, testified that, to a reasonabledegree of medical certainty, it was his opinion that Michael diedof suffocation. Mitchell's examination of Michael revealed apinpoint hemorrhage in one eye, bruising around his mouth, andswelling of the brain, all of which were consistent with death byasphyxiation. Mitchell added that he found evidence in Michael'slungs indicative of prior episodes of suffocation.

Defendant was subsequently indicted for involuntarymanslaughter with the enhancement that the victim was a familyor household member, which is a Class 2 felony. The indictment,as presented to the jury, read:

"[S]aid defendant, acting in a reckless manner,performed an act likely to cause death or great bodilyharm to some individual, in that she covered the mouthand nose of Michael Mostowski with her hand, therebycausing the death of Michael Mostowski, a family orhousehold member of the defendant."

At trial, the judge instructed the jury on the elements ofinvoluntary manslaughter:

"To sustain the charge of involuntary manslaughter, theState must prove the following propositions: Firstproposition, that the defendant performed the acts whichcaused the death of Michael Mostowski, and, secondproposition, that the defendant performed those actsrecklessly, and, third proposition, that those acts werelikely to cause death or great bodily harm."

The State offered no instruction regarding the proposition thatthe victim was a family or household member of defendant. Thedefense did not object to the proposed instruction.

Defendant was convicted on September 2, 1999. Defensecounsel moved for a new trial, and the motion was denied.

The State argued at the sentencing hearing that defendantshould be sentenced to at least 10 years in prison. Defense counselargued for probation. He noted in addition that the jury was notinstructed on the element of Michael's being a family orhousehold member of defendant. Defense counsel thus contendedthat if defendant were given a prison sentence, it could not exceedthe two-to-five-year range for simple involuntary manslaughter,which is a Class 3 felony. The judge rejected defense counsel'sarguments, finding that defendant "was a household member ofMichael Mostowski" and the 3-to-14-year enhanced sentencingrange for involuntary manslaughter therefore applied. Accordingto the statute, "household members" include "persons who shareor formerly shared a common dwelling." 725 ILCS 5/112A-3(3)(West 1998). The judge added that even if Michael were not amember of defendant's household, defendant was eligible for anextended-term sentence because of the tender age of the victim.Accordingly, defendant was sentenced to eight years in prison, aterm that is within both the 3-to-14-year enhanced sentencingrange (720 ILCS 5/9-3(f) (West 1998)) and the 5-to-10-year rangefor an extended-term sentence (730 ILCS 5/5-8-2(a)(5) (West1998)). Defendant's motion to reconsider sentence was denied.

On appeal (318 Ill. App. 3d 128), the appellate courtconcluded that defendant's sentence was imposed in violation ofApprendi v. New Jersey, 530 U.S. 466, 490, 147 L. Ed. 2d 435,455, 120 S. Ct. 2348, 2362-63 (2000), which held that "[o]therthan the fact of a prior conviction, any fact that increases thepenalty for a crime beyond the prescribed statutory maximum mustbe submitted to a jury, and proved beyond a reasonable doubt."The appellate court noted that the jury in the instant case "wasinstructed to make a finding on only the basic elements ofinvoluntary manslaughter" and "did not make a finding beyond areasonable doubt that the victim was a family or householdmember." 318 Ill. App. 3d at 134. According to the appellatecourt, because there was no jury finding as to this enhancementelement, it was improper to sentence defendant "under theenhancement provision of the involuntary manslaughter statute."318 Ill. App. 3d at 134.

The appellate court also rejected the argument that defendantwas eligible for an extended-term sentence based on the tender ageof the victim. The court noted that the question of the victim's agewas not before the jury, and it would therefore be a violation ofApprendi to impose an extended-term sentence based on thisfactor. The court concluded that the extended-term provision atissue (730 ILCS 5/5-5-3.2(b)(4)(i) (West 1998)) is"unconstitutional under Apprendi to the extent that it allows anincrease in punishment for a felony based on the age of the victimwhere that specific finding is not charged to the jury." 318 Ill.App. 3d at 135.

Accordingly, as noted above, the appellate court vacateddefendant's sentence and remanded for a new sentence not toexceed the five-year statutory maximum for the Class 3 felony ofsimple involuntary manslaughter. We allowed the State's petitionfor leave to appeal. 177 Ill. 2d R. 315.

ANALYSIS

Involuntary manslaughter is a Class 3 felony (720 ILCS5/9-3(d)(1) (West 1998)) for which the penalty is "not less than 2years and not more than 5 years" (730 ILCS 5/5-8-1(a)(6) (West1998)). However, where the victim is a family or householdmember, involuntary manslaughter is a Class 2 felony "for whicha person if sentenced to a term of imprisonment, shall besentenced to a term of not less than 3 years and not more than 14years." 720 ILCS 5/9-3(f) (West 1998). The prescribed maximumpenalty of five years thus is increased to 14 years if the victim ofinvoluntary manslaughter is a family or household member of thedefendant. Under the rule announced in Apprendi, because thisenhancement factor "increase[s] the prescribed range of penaltiesto which a criminal defendant is exposed," it is an element of theoffense and must be submitted to a jury and proved beyond areasonable doubt. Apprendi v. New Jersey, 530 U.S. 466, 490, 494,147 L. Ed. 2d 435, 455, 457, 120 S. Ct. 2348, 2363, 2365 (2000),quoting Jones v. United States, 526 U.S. 227, 252-53, 143 L. Ed.2d 311, 332, 119 S. Ct. 1215, 1228-29 (1999).

The State effectively concedes that it was a violation ofApprendi for the trial judge to enhance defendant's sentence basedon a finding that Michael was a member of defendant's household.The parties agree that the jury was not instructed as to thiselement, and, therefore, there was no jury determination withregard to this element. However, the State urges that the evidencein support of Michael's being a household member was"uncontested and overwhelming" and "no properly instructed jurywould have found otherwise." Therefore, according to the State,any failure to instruct the jury was harmless error. Defendantargues that the Apprendi violation in the case at bar "implicated ahost of her most fundamental rights" and therefore harmless-erroranalysis "would not be appropriate in this case."

The rights at issue in Apprendi were unquestionably ofconstitutional dimension. At stake were "constitutional protectionsof surpassing importance": a criminal defendant's right to a jurydetermination as to every element of the crime with which he ischarged, beyond a reasonable doubt. Apprendi, 530 U.S. at 476-77, 147 L. Ed. 2d at 447, 120 S. Ct. at 2355-56. In Apprendi, as inthe instant case, the defendant was given an enhanced sentencebased on a finding that was made by the trial judge. The defendantin Apprendi was indicted on charges stemming from his havingfired several shots into the home of an African-American familythat had recently moved into an all-white neighborhood. Thedefendant pleaded guilty, inter alia, to possession of a firearm foran unlawful purpose, an offense that carried a penalty of 5 to 10years in prison. However, under a separate "hate crime" statute,the defendant was given an enhanced 12-year sentence based ona finding by the judge that the crime was motivated by racial bias.The judge made this finding based upon a preponderance of theevidence, pursuant to the statute at issue.

The Court in Apprendi held that this procedureunconstitutionally removed from the jury the determination of afact that increased the maximum penalty to which the defendantwas exposed. Hence the holding in Apprendi: "Other than the factof a prior conviction, any fact that increases the penalty for a crimebeyond the prescribed statutory maximum must be submitted to ajury, and proved beyond a reasonable doubt." Apprendi, 530 U.S.at 490, 147 L. Ed. 2d at 455, 120 S. Ct. at 2362-63.

The Supreme Court has not determined whether a violation ofthis rule could be deemed harmless. The issue was not raised inApprendi, and it has not been dealt with in subsequent decisions.However, in United States v. Cotton, 535 U.S. ___, 152 L. Ed. 2d860, 122 S. Ct. 1781 (2002), the Court ruled on a similar question:whether an Apprendi violation to which there was no timelyobjection could be viewed as "plain error." The federal indictmentin Cotton charged the defendants with involvement in a drugconspiracy, but it made no mention of the specific drug quantitiesthat could lead to enhanced penalties. The jury found thedefendants guilty, and the district court judge then determined therelevant drug quantities. Based on these findings, the judgeimposed sentences that exceeded the statutory maximum reflectedby the jury's verdict. On appeal, the Court in Cotton applied aplain-error analysis and concluded that, although the indictment'sfailure to allege drug quantity violated Apprendi, it "did notseriously affect the fairness, integrity, or public reputation ofjudicial proceedings" and therefore did not rise to the level of plainerror. Cotton, 535 U.S. at ___, 152 L. Ed. 2d at 868-69, 122 S. Ct.at 1785-86. According to the Court, the evidence in support of thejudge's drug-quantity findings was overwhelming and essentiallyuncontroverted. The Court therefore concluded that the grand jury"surely" would have found the requisite drug amounts. Cotton,535 U.S. at ___, 152 L. Ed. 2d at 869, 122 S. Ct. at 1786.

Though plain-error analysis normally requires the same kindof inquiry as does harmless-error review, there is an "importantdifference" between the two. United States v. Olano, 507 U.S.725, 734, 123 L. Ed. 2d 508, 520, 113 S. Ct. 1770, 1778 (1993).In a harmless-error analysis, which applies where, as in the case atbar, the defendant has made a timely objection, it is the State that"bears the burden of persuasion with respect to prejudice." Olano,507 U.S. at 734, 123 L. Ed. 2d at 520, 113 S. Ct. at 1778. In otherwords, the State must prove beyond a reasonable doubt that thejury verdict would have been the same absent the error. SeeChapman v. California, 386 U.S. 18, 24, 17 L. Ed. 2d 705, 710-11, 87 S. Ct. 824, 828 (1967); Neder v. United States, 527 U.S. 1,19, 144 L. Ed. 2d 35, 53, 119 S. Ct. 1827, 1838 (1999). Thesituation is different under a plain-error analysis, which applieswhere the defendant has failed to make a timely objection. There,"[i]t is the defendant rather than the [State] who bears the burdenof persuasion with respect to prejudice." Olano, 507 U.S. at 734,123 L. Ed. 2d at 520, 113 S. Ct. at 1778. "In most cases, a court ofappeals cannot correct the forfeited error unless the defendantshows that the error was prejudicial." Olano, 507 U.S. at 734, 123L. Ed. 2d at 520, 113 S. Ct. at 1778.

Accordingly, while the decision in Cotton may be viewed assuggesting that the Court eventually will conclude that Apprendierrors can be harmless, there has been no decision on this preciseissue. In the absence of such a holding, we look to the Court'searlier decision in Neder v. United States, 527 U.S. 1, 144 L. Ed.2d 35, 119 S. Ct. 1827 (1999), where a jury instruction thatomitted an element of an offense was found amenable to harmless-error review. See, e.g., United States v. Nealy, 232 F.3d 825, 829-30 & n.4 (11th Cir. 2000).

In Neder, the defendant was indicted on a number of fraudcounts, including the charge that he filed false statements ofincome on his tax returns. In instructing the jury regarding the taxoffenses, the federal district court incorrectly informed the jurythat there was no need to consider whether the false statementswere material. Outside the presence of the jury, the district courtitself found that the statements were material. The jurysubsequently convicted the defendant. On appeal, it was agreedthat the district court erred in refusing to submit the issue ofmateriality to the jury. The Supreme Court acknowledged that theerror constituted a violation of the sixth amendment's jury trialguarantee, but nevertheless held that harmless-error analysisapplied.

In reaching this conclusion, the Court in Neder acknowledgedthat there is a limited group of errors that have been found to be"structural" and therefore beyond the scope of harmless-errorreview. Included among these are the complete denial of counsel(Neder, 527 U.S. at 8, 144 L. Ed. 2d at 46, 119 S. Ct. at 1833,citing Johnson v. United States, 520 U.S. 461, 468-69, 137 L. Ed.2d 718, 728, 117 S. Ct. 1544, 1549-50 (1997), citing Gideon v.Wainwright, 372 U.S. 335, 9 L. Ed. 2d 799, 83 S. Ct. 792 (1963))and trial before a biased judge (Neder, 527 U.S. at 8, 144 L. Ed. 2dat 46, 119 S. Ct. at 1833, citing Tumey v. Ohio, 273 U.S. 510, 71L. Ed. 749, 47 S. Ct. 437 (1927)). However, the Supreme Courthas recognized that most constitutional errors can be harmless.Neder, 527 U.S. at 8, 144 L. Ed. 2d at 46, 119 S. Ct. at 1833;Arizona v. Fulminante, 499 U.S. 279, 306, 309-10, 113 L. Ed. 2d302, 329, 331, 111 S. Ct. 1246, 1263, 1265 (1991) (opinion ofRehnquist, C.J., for the Court); see also Chapman v. California,386 U.S. 18, 21-22, 17 L. Ed. 2d 705, 709, 87 S. Ct. 824, 827(1967) (rejecting the view that a federal constitutional error in acriminal trial can never be harmless). According to the Court inNeder, the omission of an element from a jury instruction falls inthis latter group. "Unlike such defects as the complete deprivationof counsel or trial before a biased judge, an instruction that omitsan element of the offense does not necessarily render a criminaltrial fundamentally unfair or an unreliable vehicle for determiningguilt or innocence." (Emphasis in original.) Neder, 527 U.S. at 9,144 L. Ed. 2d at 47, 119 S. Ct. at 1833. The Court acknowledgedthat the failure to instruct on an element of the offense prevents thejury from rendering a complete verdict on every element of theoffense, and that this violates the sixth amendment's jury trialguarantee. However, the Court asserted that this merely establishesthat such a defective jury instruction is error; it does not answerthe question whether the error is subject to harmless-error analysis.As previously noted, the Court in Neder answered this question inthe affirmative.

This holding in Neder appears to dictate that Apprendi errorsinvolving jury instructions that omit an element of the offense maybe subject to harmless-error review. Neder has been cited byseveral courts of appeals in applying harmless-error or plain-erroranalysis to such violations. United States v. Nealy, 232 F.3d 825,829 (11th Cir. 2000) (citing Neder, 527 U.S. 1, 144 L. Ed. 2d 35,119 S. Ct. 1827, in applying harmless-error analysis to theomission of an element from a jury instruction; and concludingthat "Apprendi did not recognize or create a structural error thatwould require per se reversal"); United States v. Green, 246 F.3d433 (5th Cir. 2001); United States v. Nance, 236 F.3d 820 (7th Cir.2000); see also United States v. Adkins, 274 F.3d 444, 454 (7thCir. 2001) ("[I]t is now well established in this circuit thatApprendi errors in both the indictment and the charge to the juryare subject to harmless error analysis").

Notwithstanding the foregoing, defendant argues that, underApprendi, the statutory scheme under which her sentence wasincreased is unconstitutional on its face, and therefore void abinitio. See People v. Zeisler, 125 Ill. 2d 42, 46 (1988) (a statutethat has been held facially invalid is void ab initio; it is as thoughno such law had ever been passed). Defendant contends that thestatute in question, section 9-3(f) of the Criminal Code of 1961(720 ILCS 5/9-3(f) (West 1998)), is facially invalid and thereforedid not exist in February 1999 when the offense at issue wascommitted. Absent this statute, which authorized an increase in thepenalty if the victim was a member of defendant's household, thisparticular sentence-enhancing element did not exist, anddefendant's sentence therefore was a nullity. Accordingly,defendant contends that her sentence must be vacated.

Defendant bases her argument that section 9-3(f) is faciallyunconstitutional on two grounds. First, she contends that thestatute, in violation of Apprendi, fails to "provide for notice of thesentence enhancing facts." According to defendant, the State isrequired, under Apprendi, to charge in the indictment any fact thatincreases the penalty for the offense beyond the statutorymaximum. Second, defendant claims that section 9-3(f), again inviolation of Apprendi, does not require that the sentence-enhancing facts be proven beyond a reasonable doubt.

With regard to defendant's "notice" argument, the SupremeCourt in Apprendi specifically declined to address the indictmentquestion. See People v. Ford, 198 Ill. 2d 68, 72 n.1 (2001). TheCourt noted that the defendant, Charles Apprendi, did not assert aconstitutional claim based upon the indictment's failure to chargethe sentence-enhancement factors. Instead, the defendant reliedupon the due process clause of the fourteenth amendment, whichthe Court stated has never been construed to make the fifthamendment right to "presentment or indictment of a Grand Jury"applicable to the states. Apprendi, 530 U.S. at 477 n.3, 147 L. Ed.2d at 447 n.3, 120 S. Ct. at 2355 n.3. Indeed, Apprendi's centralholding (Apprendi, 530 U.S. at 490, 147 L. Ed. 2d at 455, 120 S.Ct. at 2362-63) makes no mention of any indictment right. Instead,as previously noted, it focuses upon the rights to trial by jury andproof beyond a reasonable doubt. We therefore reject defendant'sargument that Apprendi requires "notice of the sentence-enhancingfacts." Because no such notice is required, section 9-3(f) cannotbe unconstitutional for failure to provide for it.⁽¹⁾

As noted, defendant's other basis for claiming that section9-3(f) is facially unconstitutional is that the statute fails to requireproof beyond a reasonable doubt. Our review of the merits of thisclaim is guided by the following familiar principles. Legislativeenactments carry a strong presumption of constitutionality, and aparty challenging the constitutionality of a statute has the burdenof clearly establishing its invalidity. People v. Falbe, 189 Ill. 2d635, 639 (2000); People v. Inghram, 118 Ill. 2d 140, 146 (1987).It is our duty to affirm a statute's constitutionality if reasonablypossible, and any doubts must be resolved in favor of the validityof the challenged enactment. Falbe, 189 Ill. 2d at 639; Inghram,118 Ill. 2d at 146. A statute is facially unconstitutional only if" 'no set of circumstances exists under which the Act would bevalid.' " In re C.E., 161 Ill. 2d 200, 210-11 (1994), quoting UnitedStates v. Salerno, 481 U.S. 739, 745, 95 L. Ed. 2d 697, 707, 107S. Ct. 2095, 2100 (1987).

As previously set forth, section 9-3(f) provides:

"In cases involving involuntary manslaughter in whichthe victim was a family or household member *** thepenalty shall be a Class 2 felony, for which a person ifsentenced to a term of imprisonment, shall be sentencedto a term of not less than 3 years and not more than 14years." 720 ILCS 5/9-3(f) (West 1998).

There is no indication here as to the evidentiary standard thatis to be applied in making the household-member determination.Under section 9-3(f), this finding could be made by apreponderance of the evidence. However, it also could be madebased upon proof beyond a reasonable doubt. Under Apprendi, afinding, based upon a preponderance of the evidence, that thevictim was a member of defendant's household could not form thebasis for an enhanced sentence. As noted, such a procedure wouldbe unconstitutional. However, there is no violation if thisdetermination is made beyond a reasonable doubt. Because thislatter, constitutionally correct procedure is allowed by section9-3(f), it cannot be said that there is no set of circumstances underwhich the statute would be valid. See In re C.E., 161 Ill. 2d at 210-11. Section 9-3(f) is not unconstitutional on its face. Accordingly,we reject defendant's contention that section 9-3(f) is void abinitio.

Lacking an explicit Supreme Court holding to the contrary,we are compelled by Neder to conclude that the Apprendiviolation in the case at bar is subject to harmless-error review. Weturn then to an analysis of whether it was harmless error for thejudge and not the jury to determine that Michael was a member ofdefendant's household.

As set forth in Chapman, the test for determining if aconstitutional error is harmless is whether it appears "beyond areasonable doubt that the error complained of did not contribute tothe verdict obtained." Chapman, 386 U.S. at 24, 17 L. Ed. 2d at710, 87 S. Ct. at 828. The test enunciated in Neder, which we mustfollow, is slightly different: "Is it clear beyond a reasonable doubtthat a rational jury would have found the defendant guilty absentthe error?" Neder, 527 U.S. at 18, 144 L. Ed. 2d at 53, 119 S. Ct.at 1838. The Court in Neder found the district court's failure tosubmit the issue of materiality to the jury harmless, emphasizingthat the evidence in support of materiality was uncontested andoverwhelming. The Court explained:

"In a case such as this one, where a defendant did not, andapparently could not, bring forth facts contesting theomitted element, answering the question whether the juryverdict would have been the same absent the error doesnot fundamentally undermine the purposes of the jury trialguarantee." Neder, 527 U.S. at 19, 144 L. Ed. 2d at 53,119 S. Ct. at 1838.

In the case at bar, as in Neder, the evidence in support of theomitted element was uncontested and overwhelming. Bothdefendant and Mostowski testified to facts establishing thatMichael was a member of defendant's household. It is undisputedthat the two women lived together in the same apartment and thateach watched the children while the other was at work. Thedefinition of a household member includes "persons who share orformerly shared a common dwelling." 725 ILCS 5/112A-3(3)(West 1998). Given the evidence in support of this element, it isclear beyond a reasonable doubt that a properly instructed, rationaljury would have found defendant guilty of involuntarymanslaughter against a household member. We therefore concludethat the failure to instruct the jury as to this element was harmlesserror.

We recognize, as does the dissent, that there is tensionbetween our conclusion here and the holding in Apprendi. Theessence of the holding in Apprendi is that it is unconstitutional fora judge and not a jury to make a factual finding that increases thepenalty for a crime beyond the prescribed statutory maximum. Yetin applying harmless-error analysis here, we are engaging in thevery practice that Apprendi forbids: we, as judges, are making thefactual determination that Michael was a member of defendant'shousehold. Moreover, we are in a sense adding error upon error byrepeating the violation committed by the trial judge, who made theoriginal, erroneous determination. See Neder, 527 U.S. at 32, 144L. Ed. 2d at 61, 119 S. Ct. at 1845 (Scalia, J., concurring in partand dissenting in part, joined by Souter and Ginsburg, JJ.) ("TheCourt's decision today [in Neder] is the only instance I know of(or could conceive of) in which the remedy for a constitutionalviolation by a trial judge (making the determination of criminalguilt reserved to the jury) is a repetition of the same constitutionalviolation by the appellate court (making the determination ofcriminal guilt reserved to the jury"). Strict adherence to theApprendi rule here would avoid this situation, and would honorthe "surpassing[ly] importan[t]" constitutional protections thatentitle a criminal defendant to " 'a jury determination that [he] isguilty of every element of the crime with which he is charged,beyond a reasonable doubt.' " Apprendi, 530 U.S. at 476-77, 147L. Ed. 2d at 447, 120 S. Ct. at 2355-56, quoting United States v.Gaudin, 515 U.S. 506, 510, 132 L. Ed. 2d 444, 449, 115 S. Ct.2310, 2313 (1995); see In re Winship, 397 U.S. 358, 364, 25 L.Ed. 2d 368, 375, 90 S. Ct. 1068, 1073 (1970) ("[T]he Due ProcessClause protects the accused against conviction except upon proofbeyond a reasonable doubt of every fact necessary to constitute thecrime with which he is charged" (emphasis added)).

Undoubtedly, our application of harmless-error analysis hereis more efficient than requiring, in conformity with Apprendi, thata jury make the household-member determination. However, it isquestionable whether this increased efficiency warrants theresulting encroachment upon the jury right. As Justice Scalia notedin Apprendi:

"The founders of the American Republic were notprepared to leave [criminal justice] to the State, which iswhy the jury-trial guarantee was one of the leastcontroversial provisions of the Bill of Rights. It has neverbeen efficient; but it has always been free." Apprendi, 530U.S. at 498, 147 L. Ed. 2d at 460, 120 S. Ct. at 2367(Scalia, J., concurring).

Nevertheless, the decision in Neder says what it says, and absenta Supreme Court holding to the contrary, we are bound to followNeder.

We necessarily reject the dissent's contention that Neder neednot be followed. According to the dissent, Apprendi vitiated theprior decision in Neder. However, Apprendi is silent regarding theharmless-error issue, and it makes no mention of Neder. Wedecline to conclude, as the dissent urges, that Neder has beeninvalidated by Apprendi. See Agostini v. Felton, 521 U.S. 203,237, 138 L. Ed. 2d 391, 423, 117 S. Ct. 1997, 2017 (1997)(reaffirming rule that it is the prerogative of the Supreme Court tooverrule its own decisions).

Because of our disposition as to the household-member issue,it is unnecessary to address the propriety of the alternative basisfor defendant's sentence: the judicial finding that the victim wasof a tender age. Defendant's eight-year enhanced sentence may beupheld on the ground that Michael was a member of defendant'shousehold. While it was error for the trial court to basedefendant's enhanced sentence on the judge's finding as to thiselement, this error, as noted, was harmless.

CONCLUSION

We conclude, as did the appellate court below, that it was aviolation of Apprendi for the trial court to impose an enhancedsentence for involuntary manslaughter based on a judicial findingthat the victim was a member of defendant's household. This factshould have been proved to a jury beyond a reasonable doubt.However, given the overwhelming nature of the uncontradictedevidence in support of this element, we find this error harmless.Accordingly, we affirm the appellate court's judgment thatdefendant's enhanced sentence was imposed in error, but reversethe appellate court's vacating of the sentence and remandment fora new sentencing hearing. We thus affirm the eight-year sentenceimposed on defendant by the trial court.

Appellate court judgement affirmed

in part and reversed in part;

circuit court judgment affirmed

in part and reversed in part.

JUSTICE RARICK took no part in the consideration ordecision of this case.

I agree with the majority's conclusion that Apprendi claimsare susceptible to harmless error analysis. I cannot fully join themajority because I do not believe that Neder and Apprendi arefundamentally at odds, a point on which the majority appears-atleast to some extent-to agree with the dissent. I write separately tobriefly set out the shortcomings in the argument presented by thedissent and to clarify why Apprendi and Neder are not in conflict.

First, it is clear that Apprendi did not directly overrule Neder.Apprendi did not even mention Neder. In fact, Apprendi did noteven mention the phrase "harmless error." Moreover, Apprendiexplicitly rejected the suggestion from the decision on review thatthere was " 'rarely any doubt' " regarding the fact proof of whichwas required by the statute under review. Apprendi, 530 U.S. at475, 147 L. Ed. 2d at 446, 120 S. Ct. at 2354-55, quoting State v.Apprendi, 159 N.J. Super. 7, 25, 731 A.2d 485, 495 (1999). In sodoing, the Court removed any question of harmless error in thecase.

Because the Supreme Court has not explicitly overruledNeder, we must proceed on the assumption that case remains goodlaw. For even if Apprendi could be read as implicitly overrulingNeder-which it cannot, as I shall explain shortly-the SupremeCourt has stated:

"We do not acknowledge, and we do not hold, thatother courts should conclude our more recent cases have,by implication, overruled an earlier precedent. Wereaffirm that '[i]f a precedent of this Court has directapplication in a case, yet appears to rest on reasonsrejected in some other line of decisions, the Court ofAppeals should follow the case which directly controls,leaving to this Court the prerogative of overruling its owndecisions.' [Citation.]" (Emphasis added.) Agostini v.Felton, 521 U.S. 203, 237, 138 L. Ed. 2d 391, 423, 117 S.Ct. 1997, 2017 (1997).

Thus, the error of the dissent's conclusion is clear.

And in any event, Apprendi and Neder are not in conflict,such that Apprendi could reasonably be said to have overruled theearlier case. The majority and the dissent both question how Nederand Apprendi can be reconciled. The bases for this concern are thestatements in Apprendi that "constitutional protections ofsurpassing importance" were at stake in the case (Apprendi, 530U.S. at 476, 147 L. Ed. 2d at 447, 120 S. Ct. at 2355), and thequote which is generally cited as the holding of that case: "Otherthan the fact of a prior conviction, any fact that increases thepenalty for a crime beyond the prescribed statutory maximum mustbe submitted to a jury, and proved beyond a reasonable doubt."Apprendi, 530 U.S. at 490, 147 L. Ed. 2d at 455, 120 S. Ct. at2362-63. How, my colleagues question, can an Apprendi violationbe harmless when the Supreme Court explicitly stated that proofof certain facts beyond a reasonable doubt to a jury is required by"constitutional protections of surpassing importance"?

First, the Court immediately names the "constitutionalprotections" to which it is referring: the due process clause of thefourteenth amendment and the sixth amendment jury trialguarantee. Apprendi, 530 U.S. at 476, 147 L. Ed. 2d at 447, 120 S.Ct. at 2355. It is from these sources that the Court derives itsconclusion that the facts undergirding the sentencing range mustbe proven to the jury beyond a reasonable doubt. Thus, I submit,what the Court has truly held in Apprendi is simply that the sixthamendment jury trial guarantee-made applicable to the statesthrough the due process clause-extends to those facts necessary toestablish the precise sentencing range within which thedefendant's sentence falls. The above quote-"Other than the factof a prior conviction, any fact that increases the penalty for a crimebeyond the prescribed statutory maximum must be submitted to ajury, and proved beyond a reasonable doubt" (Apprendi, 530 U.S.at 490, 147 L. Ed. 2d at 455, 120 S. Ct. at 2362-63)-is implicitlypreceded by the phrase "The Sixth Amendment requires that." Theentirety of Apprendi is interpretation and application of the sixthamendment.

Thus, Apprendi cannot fairly be read as implicitly overrulingNeder, because the two cases are talking about related, but distinct,questions. The only subject under consideration in Apprendi is: Towhat facts does the sixth amendment jury trial right extend? Bycontrast, the question in Neder is: In the context of facts to whichwe know the sixth amendment jury trial right applies, can aviolation of that right be harmless error? In other words, thequestions addressed in the cases relate to different steps in theanalysis of a defendant's claim that his sixth amendment rightswere violated because a particular fact or facts were not proven tothe jury beyond a reasonable doubt. Apprendi relates to a thresholdquestion in such a claim: Is the fact in question one to which thesixth amendment right attaches? If so, and if that fact was indeednot proven to the jury beyond a reasonable doubt, then there is asixth amendment violation. Neder relates to a subsequent step:Given a violation of the sixth amendment jury trial right, can sucha constitutional violation be harmless? Succinctly, Apprendi dealswith the scope of the sixth amendment jury trial right, while Nederdeals with the effect of a violation of that right. Although bothcases involve the sixth amendment, I respectfully suggest thatthere is no overlap between their subject matter. Apprendiviolations are susceptible to harmless error review, in my readingof the cases, because what we label an "Apprendi violation" issimply a specific type of violation of the sixth amendment jurytrial guarantee-a violation with respect to facts establishing theapplicable sentence. Neder has already held, however, that allviolations of the sixth amendment jury trial guarantee aresusceptible to harmless error review.

In the end, perhaps all my colleagues in the majority aresaying is that it seems, for lack of a better word, peculiar for theCourt to have labeled the sixth amendment jury trial guarantee oneof "surpassing importance," in Apprendi, shortly after having heldthat a violation thereof is susceptible to harmless error review, inNeder. In such an observation I would concur. However, the casesare not in conflict. Whatever one's personal opinion might be withrespect to the correctness of the Court's decision in Neder-a 5-4decision with very strong dissents-neither Apprendi nor any othercase has overruled it. So long as it remains the law of the land weare bound to follow it, unless we determine that there is a reasonto depart lockstep and find that the Illinois constitution providesgreater protection than the federal.

I respectfully dissent from the majority because I believe thatremoving an element of the crime from consideration by the jurycan never be subject to a harmless error analysis. The case at barpresents this court with the same issue posed to the United StatesSupreme Court in Apprendi: other than the fact of a priorconviction, whether every fact necessary to increase the penalty fora crime beyond the prescribed statutory maximum must besubmitted to the trier of fact and proved beyond a reasonabledoubt. In Apprendi, the United States Supreme Court answeredthis question affirmatively. Today's decision sharply departs fromApprendi.

The majority acknowledges the State's concession that it wasan Apprendi violation for the trial judge to enhance defendant'ssentence based on a finding that the victim was a member ofdefendant's household. Slip op. at 6. The majority circumventsApprendi using United States v. Cotton, 535 U.S. ___, 152 L. Ed.2d 860, 122 S. Ct. 1781 (2002), and Neder v. United States, 527U.S. 1, 144 L. Ed. 2d 35, 119 S. Ct. 1827 (1999). Nonetheless,neither Cotton nor Neder justifies the conclusion drawn by themajority.

The United States Supreme Court's holding in Cotton is notapplicable to a harmless error analysis. In Cotton, the defendantdid not timely object to the State's failure to allege enhancementfactors in the indictment. Without a contemporaneous objection,the defendant waived his Apprendi argument. Thus, plain errorwas the only method for the Cotton defendant to invoke theApprendi holding. In Cotton, the United States Supreme Courtspecifically noted that " 'a constitutional right may be forfeited incriminal as well as civil cases by the failure to make timelyassertion of the right.' " Cotton, 535 U.S. at ___, 152 L. Ed. 2d at869, 122 S. Ct. at 1787, quoting Yakus v. United States, 321 U.S.414, 444, 88 L. Ed. 834, 859, 64 S. Ct. 660, 677 (1944). In thiscase, defendant raised and preserved his Apprendi challenge at theearliest opportunity, the sentencing hearing. Accordingly, thepresent case is distinguishable from Cotton.

Turning to Neder, I am persuaded that Justice Scalia's partialdissent in Neder (see Neder, 527 U.S. at 30-40, 144 L. Ed. 2d at60-66, 119 S. Ct. at 1844-48 (Scalia, J., concurring in part anddissenting in part, joined by Souter and Ginsburg, JJ.)) isembodied in the Apprendi holding and, thus, although Apprendidid not expressly overrule Neder, the Apprendi holding is sofundamentally inconsistent with Neder that Neder can no longerbe followed. I recognize, as does the majority and JusticeFreeman's concurring opinion, that it is the prerogative of theSupreme Court to overrule its own decisions. See Agostini v.Felton, 521 U.S. 203, 237, 138 L. Ed. 2d 391, 423, 117 S. Ct.1997, 2017 (1997). Nonetheless, that rule does not help toharmonize what Justice Freeman terms the "peculiar[ity]" betweenthe Apprendi and Neder holdings. In my mind, the holdings aremore than just peculiar. They are irreconcilable. After all, thequestion posed to the Court in both Neder and Apprendi wasessentially the same: must every element of a crime be submittedto the trier of fact and proved beyond a reasonable doubt? InNeder, the Court said "no." After Neder, in Apprendi, the Courtsaid "yes." Left with the choice to follow one of two conflictingopinions of the Supreme Court, we quite simply should follow themost recent of the two.

In this post-Apprendi case, the majority sanctions the removalof one element from consideration by the jury. What would themajority have done if, in this case, two elements had been takenaway from the jury? What about three? Four? I cannot discern how"taking one of the elements of the crime away from the jury" isdifferent from "taking all of them away-since failure to prove one,no less than failure to prove all, utterly prevents conviction."(Emphases in original.) Neder, 527 U.S. at 33, 144 L. Ed. 2d at 62,119 S. Ct. at 1845 (Scalia, J., concurring in part and dissenting inpart, joined by Souter and Ginsburg, JJ.). A directed verdictagainst a defendant would be per se reversible no matter howoverwhelming the unfavorable evidence (Rose v. Clark, 478 U.S.570, 578, 92 L. Ed. 2d 460, 471, 106 S. Ct. 3101, 3106 (1986)),and what the majority has done here is tantamount to affirming adirected verdict for the State. "[T]he fundamental meaning of thejury-trial guarantee of the Sixth Amendment is that all factsessential to imposition of the level of punishment that thedefendant receives-whether the statute calls them elements of theoffense, sentencing factors, or Mary Jane-must be found by thejury beyond a reasonable doubt." Ring v. Arizona, 536 U.S. __, __,153 L. Ed. 2d 556, 578, 122 S. Ct. 2428, 2444 (2002) (Scalia, J.,concurring, joined by Thomas, J.).

There are some constitutional errors that involve rights sobasic to a fair trial that their infraction can never be subject toharmless error analysis. See Chapman v. California, 386 U.S. 18,23, 17 L. Ed. 2d 705, 710, 87 S. Ct. 824, 827-28 (1967); Arizonav. Fulminante, 499 U.S. 279, 308, 113 L. Ed. 2d 302, 330, 111 S.Ct. 1246, 1264 (1991). I believe that an Apprendi violation is thetype of error that defies harmless error review. For these reasons,I would remand the cause for a new sentencing hearing. Therefore,I respectfully dissent.

1. ¹In the instant case, as previously set forth, the indictment includedthe fact that the victim was a family or household member of thedefendant.