People v. Davis

(No. 95614 . ILLINOIS, Appel OF OF THE STATE

THE PEOPLE DAVIS, M. lеe, Appellant. v. TAIWAN 16, 2004. Opinion December filed Kirwan, Defender, E. Deputy Joyce Daniel M. and Defender, of the Office of the State Randolph, Assistant Defender, Vernon, for and appellant, of Mt. Appellate Centralia, Davis, appellant pro se. Taiwan M. General, of Madigan, Attorney Springfield, Lisa (Gary Haine, Attorney, State’s of Edwardsville William Feinerman, General, and Linda D. Woloshin Solicitor General, Hoffmann, Attorneys Jay Paul Assistant counsel), People. for the Chicago, of opinion delivered the JUSTICE FITZGERALD court: 1, 1998, Davis was October defendant Taiwan

On degree indictment two counts first charged by I alleged degree Count first murder of Richard Skelton. (720 1(a)(2) (West 1998)), murder ILCS knowing 5/9 — predicated alleged and count II first (West 1998)). (720 1(a)(1) At on mob action ILCS 5/25 — conference, the circuit court of instructions jury give indicated it would defendant’s County Madison only as involuntary manslaughter instructions tendered I murder. The State then knowing an alternative to count I, allowed. As a count which the court moved to dismiss involuntary result, give trial court declined jury The convicted defendant manslaughter instructions. Ill. 3d 1102. App. court affirmed. 335 appellate 612(b)) (177 Ill. 2d Rs. appeal leave to granted We (1) defendant’s conviction whether address two issues: felony inher was based on a vacatеd under so that must be killing ent (2) (2001); whether Ill. 2d 404 Morgan, by refusing give trial court committed reversible error to involuntary following For the manslaughter instructions. reasons, we affirm the court. appellate

BACKGROUND 10, 1998, in evening August Late Richard Skel- recently purchased ton learned that his television set was Richard believed his and his two missing. girlfriend younger sisters had sold for crack cocaine. Richard’s brother, Fred, him called picked up at bar Wick’s with Jason, Herrin, girlfriend Richard’s son Jason’s Dawn Garrett, daughter Shelly Richard’s and Jill Walter. cars, two group drove to the block Seventh Alton, Illinois, they Street where believed the televi- may sion have been sold.

Members of the exited the cars and group began knocking asking on doors and about the television. The familiarity had some the area. their group During search, Fred met a prior acquaintance, Bruce Stewart. Fred asked Stewart about the television and then asked some men on a “if had heard of porch they any television being drugs.” set sold this area for Richard also asked individuals about the television. Dawn testified that trying Jason was to father to get his leave before started, anything refused, Richard that he saying but not going got to leave until he his television back. continued pair Timothy across the street Lee’s duplex, whеre Lee and friends on the sitting several were porch.

An argument began, get and Lee told them to off his property. that, “they Fred testified told us we were wrong neighborhood asking questions.” to even be street, turned, Fred heard door slam across the guys coming saw “several from behind Fred [him].” stated, pretty scary “It was a situation at that time when they coming Fred, started at me.” According part however, was not of either group; Shelly was able identify at that time. Fred turned around defendant back was in the head a club” and “knocked “split and with Shelly out” for to 30 seconds. testified that she was or by persons. also attacked four five he men up When Fred woke saw “ten or better” beat- it was men. ing Shelly “Every Richard. stated that They beating one of them” was Richard. kicked Richard face, head, and for about five minutes. “He ribs back,” to fight didn’t have a chance stated Fred. Accord- Fred, slurs, “They saying you know, to was shouldn’t ing area, They kick him. they’d have been in this and was like cussing yelling hollering rejoicing and and kind got Shelly he like he did.” described the whopped by stating, “They actually was each pulling situation was, and way they you laughing, other out of the know so, him, you him, ass, you kick his and hitting kick know I know, was, get I to him. everything trying was to was my similarly, that’s father.” Jason testified stat- yelling I guys “Most all the could see that was there ing, was, you know, in it fun like it participating was something, cheering to them.” crowd “was game in get and to there rooting trying them on and them on basically their friends kill him.” None help to incident, stop to ac- attempted around Richard group to cording Jason. hitting Richard more than

Shelly identified defendant a stick in times Fred defendant with six stick. saw hand, throw the stick down defendant his observed in he saw defendant he fled. testified that as Jason Richard, anyone not see with a around but did group if defendant hit Richard stick. Jason did know out of the trying get girlfriend Jason was his because of 15 or 20 Dawn Herrin did not see crowd fray. Richard, holding hit but did see defendant people join the crowd. something crossing as he was street fight away saw a Jill testified that she was a block in center, with Richard identify anyone but could not specifically beating. Each of the witnesses admit- ted that they omitted reference to their but, initial reports police, according witnesses, to the such omissions were they they because were not asked or were still emotional from the incident. police

As the were arriving, group beating Richard fled. Alton police officer Michael Bazzell was called to the scene of a fight midnight.” “around He observed a “white male laying partiаlly roadway.” Richard was not conscious and did not pulse. have a Baz- zell unsuccessfully performed cardiopulmonary resuscita- tion. He observed “the majority of his face covered with blood.” The victim arrived ambulance at the Al- ton Memorial Hospital emergency room in cardiac arrest. nurse, to a According Richard had abrasions on his forehead and bruises to both sides of his face. After at- tempts failed, revive Richard Richard pronounced was dead at August 12:50 a.m. on 1998. Raj

Dr. performed Nanduri a postmortem examina- tion on bruises, the victim. Dr. Nanduri testified to abra- sions, and scratches about Richard’s face. He stated there was a hemorrhage “massive underneath the in scalp temple region” and that the wounds were consistent with blunt force injury to the head. Dr. Nanduri did not observe fractures of the skull or intracranial hemorrhage. Richard’s chest exhibited a wound consistent with blunt- injuries force and the left fifth and sixth ribs were broken. There were injuries to the back of the neck consistent with a beating of the victim. Dr. Nanduri ad- ditionally stated that Richard had very coronary advanced and atherosclerosis a 0.183 blood-alcohol level. He determined the arrythmia cause death to be “cardiac precipitated by blunt trauma to head and chest in patient with advanced atherosclerotic cardiovascular disease” with “acute ethanol intoxication” a being significant contributing condition of death. that a stick could possible

Dr. testified it was Nanduri injuries. have some of Richard’s blunt-force caused However, he could state whether the blunt-force not Dr. caused a stick. Nanduri injuries actually were pattern can cause a which explained, “[A] stick that, And if have then object. you consistent with and measurements you can for sure take the dimensions you and body on the would injuries and stick that, all this say probability weapon able to in be particular injury.” would have caused the object similar Dr. in case. He did not find that Nanduri pattern times if hit a victim six expect would someone stick, be directly pattern then would observable on the victim. after canvassed the area soon police

Several officers Anthony Ventimiglia, the crime Officer incident. technician, after had arrived to scene Richard scene a Ford beating occurred around been removed. light A on the side of 7th Street. parked Escort south Ford just the west blue broomstick was found court, Ventimiglia Escort. identified broomstick length three and one- approximately which was feet Photographs depicted also Rich- half inch diameter. lens, wristwatch, supplies, ard’s medical eyeglass near Ford roadway” “some blood numerous severe Photographs depicted Escort. bruises Ventimiglia about head. did lacerations Richard’s on any notice blood the stick. that he first

Alton detective Scott Golike testified Haynes in a to Lisa at duplex belonging saw defendant a.m., approximately August 1118 East 7th Street at had that defendant stated that he 1998. Golike testified and did not see the incident. a witness been inside August 11, defendant statement at 2:23 a.m. on stated outside, that he heard a so he looked outside commotion through arguing Lee with Timothy the window. He saw people set, bunch of about a television but he never saw a fight because his friend’s mom told them to out of stay it.

Golike interviewed again defendant several hours later police at the being station. After advised of his rights, constitutional defendant altered story. his Accord- Golike, ing stated, a tear in eye, his fact, had, that he beaten the victim three or four times with a stick. In his written statement, at signed 7:45 a.m. on August defendant stated that he previously lied he because was scared. He stated that he had been sitting on Lisa Hayne’s porch frоnt with friends when the two pulled up. started, cars After the argument he saw a man he knew as T.A. hit Fred on the head. Fred fell to the ground. At this point, defendant ran across the street to fight, carrying broomstick that he already had in stated, his hand. He “I don’t know why, but when fight started, I got excited and I get wanted to it. don’t Iwhy know did it because this dude hadn’t done to me. But I nothing ran across street with a bunch of other people help beat him up.” Defendant’s state- continued, ment

“I think I head, hit him really twice on his but I didn’t mean to hit him there. I meant him body, to hit on his but kept moving he around and it right was hard to hit him where I wanted I’m to. sure I hit him three or four times and one or two of those just body times were on his time, somewhere. After I hit him I the last threw the stick top down on of him running and took off back to Lisa’s guy house. This older pretty was hurt bad and this was I when realized that I something wrong done I and felt bad *** about it. dude, The last time I saw the white he was still laying everybody the street running away from I him. heard later that I’ll he died. admit that I hit times, him in couple the head a I but did not mean for guy to die.” years

Defendant was 17 old at the time of his arrest 5was feet 8 inches tall and weighed 160 At pounds. trial, he the stick into swung defendant stated that twice crowd, hit that he did not hit Richard. He Bruce but police telling Defendant denied Stewart instead. trial, swung At he stated that when he othеrwise. hurt, Richard, probably get “I he stick at know would I didn’t think the man would die.” Defendant testi- but stated, any mob, he but he also part that was not fied there, I I’m involved.” “By being pretty me sure was Kathryn Haynes called Kessler and Lisa Defendant that she saw the as witnesses at trial. Kessler stated incident, stick, admit- anyone did not but but see she had. police after the incident that ted she had told during her house Haynes testified that defendant was incident, to the reported entire admitted she but that “Taiwan Davis then ran police after the incident Haynes resi- the altercation and went inside from dence.” 12, charged August 1998, the State information

On knowing degree first by information with defendant 1998)). (720 1(a)(2) (West On Septem- ILCS 5/9 — 1998, returned a indict- 3, grand jury ber three-count knowing for first against ment defendant (720 (720 1(a)(2) (West 1998)), armed violence ILCS 5/9 — (720 (West 1998)), ILCS and mob action ILCS 5/33A —2 1998)). 1(a)(1) (West super- indictment was This 5/25 — indict- two-count amended ceded the October noted above. ment above was adduced

After the evidence described defendant’s motion the trial court denied juiy, before the felony- knowing-murder on both the acquittal murder counts. conference, counsel asked defense

At the instructions manslaughter, stating, involuntary on for an instruction Davis, if what he told they Mr. believe they “If believe Defense them, involuntary manslaughter.” find they can demonstrated the evidence argued also counsel acting with the mob. The together defendant was responded State that because there was no evidence recklessness, not entitled to involun tary manslaughter instruction. The State also raised the possibility of inconsistent Defense verdicts. counsel “Well, just I replied, mean we want a verdict and we think, think that a jury just can reach verdict. And we fact, in the just verdict would be involuntary manslaugh DiVincenzo, v. People ter.” Relying on 183 Ill. 2d 239 (1998), the the involuntary manslaughter court allowed murder). instruction on count I first (knowing However, the did on court ‍‌‌‌​‌​​‌‌​​​‌‌‌​‌​‌‌​‌​‌​​‌​​​‌‌‌‌​​​‌‌‌‌​​​​​​‌‍not allow the instruction count II involuntary manslaughter because was not a lesser- included of felony offense sought

The State to I dismiss count and proceed II, on count murder. Over the objection, defense judge granted the trial the motion to dismiss count I. alia, inter jury instructed, that “a person commits the offense of action involving mob violent inflic- tion injury he, when acting together with one or more and persons authority law, without knowingly disturbs public by peace violence; the use of force and one participants in the violently mob action inflicts to the injury person of another.” The jury deliberated and found defendant guilty felony murder premised on mob action. The trial posttrial court denied defendant’s 30, 1999, On motion. trial April court sentenced years’ defendant to 20 imprisonment. appeal,

On after reviewing evidence, the appel late court concluded “[t]he trial court’s refusal to involuntary manslaughter allow instructions was use of proper its discretion where the evidence established that defendant did not act recklessly.” App. Ill. 3d at granted 1108-09. We defendant’s leave petition for to ap 612(b). peal. 177 Ill. 2d Rs.

ANALYSIS (1) argues: Defendant his conviction for reasoning forth in murder must vacated under the set be (2001); 2d Morgan, in v. 197 Ill. People our decision (2) error and the trial court committed reversible manslaughter give involuntary to instruc refusing tion.

Felony Murder argu maintains the first preliminarily The State in included defendant’s ment is waived because was not to to the appeal presented for leave nor was it petition this court released the appellate court. We note that appel argued after this case was Morgan decision and that court filed Defense opinion. late court before its Morgan to raise the is acknowledges counsel his failure or in court supplemental appellate sue brief to appeal. Supreme leave to Under Court petition 341(e)(7) to raise its 315(g), party required Rules legal authority its arguments provide citation petition appeal for leave brief and its appellate 341(e)(7); 2d 315(g); Ill. R. 188 Ill. R. avoid waiver. 177 2d Patterson, 454-55 154 Ill. see also issue, an parties’ ability limits the raise Waiver Kliner, People v. ability to consider an issue. this court’s (1998). the to address Ill. 2d We choose merits. defines the offense of

The Criminal Code of 1961 felony murder as:

“(a) kills without lawful person A who an individual if, in justification degree performing murder commits first which cause death: the acts (3) committing felony forcible other attempting he is or (West 1(a)(3) degree murder.” 720 ILCS than second 5/9 — 2002). felony” “forcible the term

The Code defines felonies, including “ag- enumerated several encompass bodily harm or resulting great battery gravated “any well as disfigurement” as disability or permanent other which the threat physical involves use or of any force or against violence individual.” 720 ILCS (West 2002). The Code at section issue here 5/2 —8 defines “mob action” force consisting “[t]he as of use of or violence the 2 more disturbing public peace by or persons acting together and authority without of law.” 1(a)(1) (West 2002). 720 ILCS Defendant no makes 5/25 — argument that the is not felony mob action a “forcible the felony” within felony-murder statute.

The lack of an intent to kill for murder it distinguishеs degree from the other forms of first murder, require prove which the State to either an (720 (West 2002)) 1(a)(1) killing intentional ILCS 5/9 — (720 (West 1(a)(2) 2002)). a knowing killing ILCS 5/9 — fact, Given this we acknowledged have concern effectively State will eliminate degree second and will proving avoid burden intentional or killing in knowing first murder cases often charging felony predicate certain because felonies tend to all accompany Morgan, murders. 2d at 197 Ill. 447; Pelt, 207 Ill. 2d This problem particularly prevalent is in cases where the same evidence is used to prove underlying as to prove killing. See, e.g., 197 Ill. 2d 404 Morgan, (predicate battery felonies of aggravated and aggravated arose from discharge also shooting which caused Pelt, killing); 207 Ill. 2d 434 (predicate felony ag gravated battery of a child arose of an throwing from infant also cases, which caused the killing). these difficult to conclude that the felony underlying the charge murder involved a purpose felonious other Pelt, than the killing of victim. 207 Ill. 2d at 442.

Thus, where the evidence of conduct underlying and the killing same, is the the felony-murder may duty statute absolve prove the State its to to the an possessed either intent fact finder that the defendant strong or of a great bodily knowledge kill or do harm to harm, thereby great allow probability bodily of death or to a a cоnviction. the State take shortcut to murder ing Morgan held in that where problem, To address this we are felonies arise from and constituting “the acts forcible itself, acts cannot inherent in the act of murder those charge murder.” serve as felonies for Pelt, Ill. at 447; Ill. see 2d Morgan, 2d at also case, the in this holding type 441. This ensured knowing killing prosecution must an intentional prove the defendant like punish the fact finder in order to to Pelt, 442. Ill. at murderer. and Pelt to Morgan the facts of illustrate

We review Morgan, 14-year-old defendant was problem. Lila eight killing grandparents, counts for his indicted on Following argument Keith between Cearlock. receiving and Keith about the defendant defendant punish school, corporal Keith detention administered at strap on defendant razor also ment retrieved Keith’s punch him. The defendant tempted to kill thereafter, intending to use himself gun shortly Instead, at gun in the the defendant fired bathroom. exited the on the a bottle bathtub. screaming. Lila Keith had threatened to find bathroom life he him, kill so he feared for his when past The defendant shot angry how Keith had become. saw reaching Keith from approached prevent Keith as he tried to flee him. He then shot Lila the back as she each Regarding Ill. 2d at 411-12. Morgаn, house. victim, degree with first charged defendant was (720 1(a)(1) (West 1994)), intentional murder ILCS 5/9 — (720 1(a)(2) degree knowing ILCS first 5/9 — (720 (West ILCS 1994)), degree felony first 5/9— 1994)) 1(a)(3)) (West battery aggravated predicated on (720 4(a) (West 1994)), and first ILCS 5/12 — predicated aggravated discharge murder on of a firearm (720 1.2(a)(2)(West 1994)).Morgan, ILCS 197 Ill. 5/24 — guilty degree 2d at 444. The defendant was found of first degree murder of Lila and second murder of Keith. argued appeal The defendant on that he could not be guilty degree felony found of first murder of Lila because charged predicate independent the felonies were not killing. Morgan, agreed the 197 Ill. 2d at 444-45. and We instructing jury held that the trial court erred in the on felony Morgan, murder. 197 Ill. 2d at 447-48. notedWe that defendants cannot be convicted of murder predicate the when felonies “arose from and inher were Morgan, ent the murders.” Ill. 2d at 447-48. guilty Pelt, v. the defendant was found aggravated battery child, son, of a his infant and first degree felony predicated aggravated battery on of a child. The evidence showed that the defendant threw injuries causing the infant into a dresser to which led aggravated battery improp death. infant’s erly We held that predicate Pelt, served as the Following analysis Ill. 2d at 442-43. the same we created Morgan, ag we focused on whether “defendant’s gravated battery in, was an act that was inherent and killing of, Pelt, arose out of the infant.” 207 Ill. 2d at throwing 442. Wefound that the act of the infant formed aggravated battery the basis of the conviction and that it underlying killing. Pelt, was also the same act 207 Ill. predicate 2d at could 442-43. We not conclude that the felony underlying charge murder involved purpose conduct with a felonious other than the conduct Pelt, which killed the infant. 207 Ill. 2d at 442-43. This apprehension permit case demonstrated our that to such “ felony-murder charge nature would ‘eliminate prove knowing the need for the State to an intentional or ” killing Morgan, in most murder cases.’ 197 Ill. 2d at quoting People Morgan, App. 307 Ill. to find the defendant be improper It was degree was predicate first murderer when failed to killing the State had inherent when jury. form of prove another first at 442. Pelt, 207 Ill. 2d mind, turn to the facts precedents these we

With trial demonstrates The evidence at of the instant case. in, act was inherent conduct was not an defendant’s of, Simply of Richard Skelton. killing and arose out stated, prove both the the same evidence was used murder. The follow- felony, action, mob joined the at trial. Defendant ing evidence adduced to defen- began. According the argument crowd after head, in statement, hit аnd he Richard twice dant’s he body. testified that or on the Defendant once twice Richard, The did not hit him. swung twice at but to defendant’s hitting, according in person he succeeded testimony The of Richard’s testimony, Bruce Stewart. was Garrett, testified Shelly who family and friends —save more Richard six or times —was that defendant struck It actually hit Richard. to whether defendant unclear as many Richard received undisputed that of the blows is jury found from the to 20 other assailants. were persons or more together with one that defendant acted law; public authority knowingly disturbed without violence; force and one peace by the use of inflicted violently injury mob participants action of mob ac- essence, In to convict defendant to Richard. defendant struck tion, necessary prove that Richard, the act that caused performed much less Pelt, conclude we are able to killing. Morgan Unlike charge felony underlying other purpose a felonious involved conduct with Therefore, under killed Richard. than conduct which case, proper mob action was the facts of the instant in Mor- holding murder. Our predicate felony gan preclude does not defendant’s convic- tion. further

We note that this outcome is consistent with holding Viser, (1975), our 62 Ill. 2d preceding Morgan. Viser, case there was an alterca among tion men approximately off-duty seven and two officers, law enforcement Although Smith and Jordan. guns present, injuries were to the officers were inflicted through than punching kicking gunshots. rather abdominal Jordan died two weeks later due to severe injuries Viser, he during received the confrontation. here, Ill. 2d at 573-74. As it was not obvious which of the victim, defendants caused the fatal blow to the who died two weeks later “of pancreatitis caused severe injuries abdominal he during Viser, received” the beating. Therefore, 62 Ill. 2d at 576. the individual conduct of each in beating victim, which formed the basis of the individual forcible aggravated felonies of bat tery defendant, for each did not arise from nor was inher ent the killing itself.

Involuntary Manslaughter Jury Instructions initially We note that argument defendant’s on this issue is than less clear. throughout What is consistent defendant’s arguments court, before the trial appellate court, and before this court a general argument jury was entitled to determine if the defendant acted recklessly, in the form of an involuntary manslaughter Therefore, instruction. defendant argues that the trial court erred refusing that instruction. This court reviews court’s decision give to deсline to an instruc tion under the of abuse discretion standard. People v. Di (1998). Vincenzo, 239, 183 Ill. 2d 249 We have adopted and applied charging the instru- ment approach to determine if one offense is a lesser- included offense of a charged jury offense so that instruc- given tions can be for the lesser-included offense. People 476 Novak, 93, (1994); v. People

v. 163 Ill. 2d 106-14 Hamil (1997). ton, 319, approach, 179 Ill. 2d 324 Under this we (1) charging the includes analyze whether: instrument “ ” or the ‘a foundation main outline’ of lesser- broad it can be a lesser- included offense so considered (2) offense; rationally and evidence at trial included the support a conviction for the lesser-included offense. could (2003), 332, Ill. Ceja, quoting v. 204 2d 360-61 People (2002). 11 Baldwin, 1, v. 199 Ill. 2d People step, traditionally have looked to Under first we conducting when the indictment or information (2003); People Ceja, 332, People v. 204 Ill. 2d analysis. (1997); Hamilton, 319, Ill. 2d v. People v. 324-25 (1997); Landwer, Jones, 126, Ill. v. People 2d (1995); Novak, Ill. 163 Ill. 2d People 491-92 trial motion 115-16 The court allowed State’s indictment, I count leaving only count dismiss II, count. II the amended indictment this case

Count provided: (FELONY)

“FIRST MURDER —in that said DEGREE defendant, committing justification, while without lawful Action, which involved the use threat Mob individual, in an against or violence violation physical force 1(a)(1), and kicked Richard L. Skel- оf 720 ILCS beat 5/25 — Skelton, ton, caused death of Richard L. thereby and 1(a)(3), against and all in violation of 720 ILCS 5/9 — of the State of Illinois.” ‍‌‌‌​‌​​‌‌​​​‌‌‌​‌​‌‌​‌​‌​​‌​​​‌‌‌‌​​​‌‌‌‌​​​​​​‌‍peace dignity kill II does mental state as specify any Count above, statutory definition of ing. As discussed killing indicate a mental state for the murder does not (720 1(a)(3) (West 2002)), have we ILCS 5/9 — murder does not confirmed that the offense of 581). (Viser, kill 62 Ill. 2d at an intent include as manslaughter involuntary Criminal Code describes follows: unintentionally

“A kills individual person who

477 involuntary man- justification commits without lawful or unlawful which slaughter if his acts whether lawful likely death or are as are to cause cause the death such individual, performs and he great bodily harm to some 1998). 3(a) (West recklessly ***.” 720 ILCS them 5/9 — statutory clearly specifies Accordingly, definition perpetrator a reckless mental state to that a must have involuntary manslaughter. guilty be of proven by an offense A lesser-included offense is state, both, or than the lesser facts or a lesser mental charged Hamilton, 324; Ill. 2d at 720 ILCS offense. 179 (West 2002). involuntary Therefore, for man 5/2—9 slaughter murder, offense of to be lesser-included culpable a more count must include involuntary manslaugh equally culpable mental state as Felony ter. murder as in defendant’s indict described culpable mental state as to the ment does not include killing involuntary manslaughter of while offense charging requires Thus, a reckless mental state. does not include a broad outline of involun instrument tary manslaughter. Involuntary manslaughter not a

is murder in this case. See lesser-included offense (1988); App. People McCarroll, 1020, v. 168 Ill. 3d (1981); App. People People Ellis, v. 981, v. 93 Ill. 3d (1974); App. Weathers, Ill. 3d 345-46 see but (1975). light People App. Golden, 29 Ill. step conclusion, of this we need not reach the second charging approach, instrument the evaluation of rationally support whether the evidence at trial could involuntary manslaughter. Ceja, convictionfor 204 Ill. 2d at 361. argues alternative,

In the that even if defendant involuntary manslaughter not a lesser-included offense supports case, murder in this evidence at trial recklessly theory the defense acted so guilty defendant could have been found less though involuntary serious, included, offense of manslaughter. involuntary manslaughter result, As a given. instructions should have been jury A instructed defendant is entitled to have be “slight” there is at least on defense theories about which 147, It Everette, evidence. v. 141 Ill. 2d permissible is for such instructions to address alternative long support each theories that are inconsistent so as has Everette, in the trial 141 Ill. 2d at 156. Defense record. typically providе affirmative defenses to or theories mitigation charged e.g., People See, v. offenses. (the (1986) Spears, 396, 112 Ill. 2d defendant as theory shootings unintentional, so he serted were jury conduct as a lesser- tendered instructions on reckless violence); Everette, 141 Ill. 2d included offense of armed (the tendered self-defense instructions at 150 case). recently explained, “[t]he on homicide As we controlling principles quite A defendant are settled. generally may not of an offense for which be convicted charged. ap However, in an the defendant has been jury propriate case, entitled to have the the defendant is that are included in instructed on less serious offenses charged Ceja, 204 Ill. 2d at 359. offense.” may theories words, In a defendant assert other while mitigate responsibility charged try of- to or rebut to argue responsibility for less fenses, the defendant cannot charged. serious, unrelated, offenses which were not but objects that this case demonstrates how Defendant preclude giving principle prosecutor can use this manslaughter involuntary instruction dismiss- of an charge first-degree ing knowing intentional felony-murder charge. proceeding have We on objection unpersuasive: already explained why Attorney “[T]he with exclusive discre- is vested State’s management criminal of a in the initiation tion prosecution. of which includes the choice That discretion brought. charges not have A criminal does shall be or punishment.” or her right prosecution to choose his Novak, 163 Ill. 362; v. Ill. 2d at see also Ceja, 204 2d taken the Court has Supreme

The United States 88, 141 L. Reeves, 524 U.S. Hopkins position. same (1998), defendant, indicted 118 S. Ct. 1895 Ed. murder, requested counts of first on two and man- degree murder on second jury instructions give instructions The trial court refused slaughter. offenses of not lesser-included they are because Ap- The Court law. Nebraska murder under Nebraska given. have been the instruction should held peals Appeals, the Court of Court reversed Supreme explaining: *** only on those instructions provide all States “Almost constitute lesser deemed that have been

offenses We have [Citation.] crime. charged offenses of the included anything requires the Constitution suggested that never case, however, required in this Appeals The Court more. *** *** other offense given instruction on some be that an requirement a exists. Such included offense no lesser when Under also unworkable. but only unprecedented, not is determining scheme, be no basis there would such The are warrаnted. for which instructions the offenses recognize a constitu- Appeals apparently would Court of any that bears a on offense right to an instruction tional by the supported charged crime is resemblance to obligation unquestionably is an affirmative Such evidence. prerogative structure great [ on a State’s ]limitation original.) Hopkins, 524 (Emphasis in criminal law ***.” its 96-97, 118 S. Ct. at 1901. 141 L. Ed. 2d at U.S. at trial court hold that a we light Ceja Hopkins, In jury request have allow a defendant’s need not serious, not that are less but on offenses instructed he or she for which included, offenses to those offenses trial the evidence at of whether charged regardless was defendant note offense. We the less serious support could erred in dismiss- the trial court no argument makes Therefore, the trial court I the indictment. ing count involuntary defendant’s tendered give refused to properly count of the remaining on the manslaughter instructions indictment.

CONCLUSION im- was not conviction felony-murder Defendant’s Morgan felony of under because proper killing of Richard inherent action was mob refused to addition, properly the trial court Skelton. manslaughter involuntary defendant’s tendered give not a manslaughter is involuntary instructions because case and offense of lesser-included on less entitled to receive instructions is not are included offenses. they unless serious offenses is affirmed. court judgment appellate

Affirmed. no consider- part KARMEIER took JUSTICE of this case. ation or decision concurring: GARMAN, specially JUSTICE although he committed argues that Defendant respect action, his conduct with felony of mob intentional Thus, merely reckless. of the mob action was target to the to the contributed contends, if actions caused or he his involuntary Skelton, guilty he is death of Richard 3(a) (West (720 1998)), not first ILCS manslaughter 5/9 — degree felony statute, defen-

However, our under if, felony murder while properly dant convicted of a the death” cause[d] the acts which “performing committing a forcible “attempting he person, murder.” 720 ILCS than second felony other 5/9— 1998). 1(a)(3) (West felony The with which (West 1(a)(1) (720 ILCS charged, mob action was 5/25 — in the enumerated 1998)), among those crimes is not (720 defining felonies ILCS provision forcible 5/2 —8 (West 1998)). felony” However, the term “forcible listed, felony only “any but also other includes those threat of force or physical which involves use or (West (720 against any violence individual.” ILCS 5/2—8 1998)). action, (a)(1), consists Mob under subsection disturbing peace or the public the “use of force violence author by persons acting together 2 or more and without (West 1(a)(1) 1998). Thus, if ity ILCS of law.” 720 5/25 — at an individual and caused the mob action was directed death, charge felony may a lie. See also his (even (2003) Belk, 187, 193 v. 203 Ill. 2d People for felony predicate felony as the may nonviolent serve if, case, facts of the com under the was manner or threat of mitted in a involved the use individual). physical against force violence that, I, therefore, the court’s conclusion concur with case, properly under the facts of this defendant was He action as convicted of murder. committed mob 1(a)(1) Code, Criminal of the defined in section 25— action was force and violence mob physical single at a who died a result of directed individual as injuries inflicted of the mob. members years the third in present

The case marks time two petition ap court for leave to granted which this has peal particular to determine whether a for a See proper People basis conviction Pelt, (2003); Belk, v. Ill. 2d 2d Ill. 187. (see question many years on this was well settled law Viser, (1975)), the oc v. 62 Ill. 2d 568 People unusual circumstance requiring casional factual (see 2d 462 guidance Lowery, v. 178 Ill. court’s (1997)). 197 Ill. People Morgan, With decision (2001), however, law to have well-settled seems unsettled, resulting frequent beсome need agree holding I with the question. Although revisit 482 case, present separately I write to explore how this might

confusion has arisen and how it be resolved. Courts scholars have identified at least two significant concerns with the unfettered application The See, the felony-murder e.g., Felony Gerber, rule. R. Conundrum, Murder Rule: Principle, Without 31 Ariz. St. (1999). First, L.J. 763 “absent some on the limitations rule, can nondangerous felonies which invoke the even pursuit felonies which cannot reasonably thought be to have manifested a man- mind, endangering state can turn accidental death State, murder.” Baker v. 754, 755, into 236 Ga. 269, 225 S.E.2d This been called the has Baker, “nondangerous felony problem.” 236 Ga. at Illinois, at 270. In nondangerous S.E.2d has problem by legislature, been addressed which has defined to include that only those deaths occur as a result of the commission or the attempt to (720 1(a)(3) (West commit a forcible ILCS 5/9 — 1998)), provided and has a clear definition of that term (720 (West 1998)). ILCS 5/2 —8 grows

The “the problem second arises when homicide aggressive felony.” out of an initial act which is itself cases, In such can all “bootstrap practically State killings dangerous weapons by into murder simply that the death showing assault out of which arose Baker, 755-56, at felony.” was a 236 Ga. at 225 S.E.2d Baker, “merger 271. This is the at problem.” Ga. concern, course, at The S.E.2d 271. felony murder, every unless there is some limitation on death conduct caused could be described as as- murder, first and a defendant’s degree sault would be offense, ability argue guilty that he is of a lesser such involuntary manslaughter, as second murder or effectively would eliminated. the concern in be Such was rules, Morgan. jurisdictions variously Some have adopted doctrine,” “same-act “merger as the described doctrine,” response “collateral-felony doctrine,” or grapple courts continue merger problem. Illinois with it. Doctrine

Merger limitation judicially created merger doctrine is potential rule that addresses felony-murder on the doctrine, Under the merger for abuse. an of felony is applied underlying cannot be if the

rule fact” or is is an “included “integral part” fense that Ireland, 70 Cal. See, e.g., People in the homicide. 590, Rptr. 188,198 Cal. 522, 539, 580, 450 P.2d 75 doctrine, the merger that have adopted In jurisdictions causes death of the that the personal the act of violence of the death insufficiently independent ‍‌‌‌​‌​​‌‌​​​‌‌‌​‌​‌‌​‌​‌​​‌​​​‌‌‌‌​​​‌‌‌‌​​​​​​‌‍deemed victim is It with the separate felony. merges to constitute of some Thus, may be convicted homicide. LaFave homicide, felony murder. See W but not of form 1986). (2d Scott, 7.5, § at 638 ed. & A. Criminal Law result, hold that a felonious jurisdictions As a some felony charge of a can never serve as basis assault 927, example, State, For in Barnett v. 783 So. murder. (Ala. 2000), the court that App. 930 Crim. held because enumer applies statute felony “clearly danger also any ated crimes but other life,” killing human that would otherwise ous to even charged could be as manslaughter constitute statute, reading To murder. avoid absurd concluded, a court felonious assault that results the homicide and cannot merges victim’s death with for a underlying felony charge as the serve Barnett, v. Ess murder. 783 2d at 930. See also State So. (1965) (defen man, 228, 235, Ariz. 98 403 P.2d 545 dant who shot killed his wife under circumstances may may have been accidental or have deliber been on as- may ate not be convicted of murder based 484

sault a deadly weapon because the “acts assault merge homicide, into the may resultant not be separate deemed a and independent offense which could murder”). support conviction for Other jurisdictions rejected have the merger doctrine entirely. The Supreme Court of Minnesota has repeatedly rejected suggestion adopt merger should Loebach, (Minn. doctrine. See State v. N.W.2d Jackson, (Minn. State v. 1981); 1984); 346 N.W.2d 634 Abbott, (Minn. 1984). State v. The N.W2d 677 court concluded that legislature presumably state aware of the doctrine and adopt chose not to it when it amended the murder reclassifying felony statute degree as second rather than third Jackson, 346 N.W2d at 636. Supreme Court of Dakota rejected South merger rule in a case a defendant killed involving who his daughter by intentionally dropping four-month-old (S.D. her on the floor. State v. O’Blasney, N.W2d 797 Viser, 1980). Citing opinion this court’s the South Dakota adopt court observed that the “decision to reject the merger largely doctrine has resulted from an O’Blasney, analysis jurisdiction’s of that statutes.” adopted merger N.W.2d at 799. Courts that have because, limitation, doctrine have done so such a absent justified “all homicides excused would become O’Blasney, murder under their first-degree statutes.” adoption merger 297 N.W.2d at 799. Because of the necessary doctrine was not the nullification “prevent statutes, provisions” of other of the state’s homicide the court that of the doctrine “would adoption concluded that represent judicial oversight an exercise of would O’Blasney, have no warrant.” 297 at 800. N.W2d The that Supreme Court of Tennessee has noted “the State v. merger widely doctrine has not been aсcepted.” 2001). (Tenn. Godsey, 759, 60 S.W.3d 774 The court merger agreed that “the with the State’s contention statutory applies that is a rule of construction” doctrine “only legislature the not enumerated has when the support murder.” a that will conviction felonies aggravated Godsey, child abuse 774. Because S.W.3dat predicate Ten of the enumerated felonies under is one squeezing Godsey’s law, of the seven-month- act nessee biceps did not his and forearm old head between victim’s though merge homicide, it the same into the even was Godsey,60 act that caused the infant’s death. assaultive at 775. S.W.3d Supreme Georgia the also relied on

The Court legislature the the the construction of intent of it concluded state’s various homicide statutes when urged by adopt merger the doctrine” “not free to was appellant Baker, 757, at 225 S.E.2d in Baker. 236 Ga. at 271-72. jurisdictions adopted merger doctrine other

Still Williams, it. In v. 24 S.W.3d and then abandoned State (Mo. 1993), App. 101, 117 court concluded that legislature abrogated merger doctrine exclud state ing only manslaughter murder and as felonies. (Mo. App. Bouser, 130, also State v. See S.W.3d 1999) legislature merger (holding that if intended easily doctrine to limit it could have manslaughter other murder or excluded felonies than stаtute). the reach from century-old provides A York case from New example merger People Huther, doctrine. (1906), and killed 77 N.E. 6 the defendant shot N.Y. attempting police evade officer while arrest. held he could convicted of court not be assaulting police based officer on underlying felony prevent arrest because merged part Huther, and, therefore, into homicide. at at court held that when 184 N.Y. 77 N.E. 8. The 486 gist

“the of the offense is the by assault when it is inflicting injury assaulted, violence to the so person resulting death, the act part becomes constituent the homicide and is merged charge therefor.” omitted.) Huther, (Emphasis 244, 184 N.Y. at 77 at N.E. follow, 8-9. It however, does not that “the act which caused the death must be a different one from that done in the commission of the collateral felony.” If the act causing the death is “committed with a collateral and independent design felonious it is sufficient” to serve as the underlying charge for a murder. Huther, 244, 184 N.Y. at 77 N.E. at 9. 1973, highest New York’s court explained

had developed merger remedy doctrine “to a funda- v. mental defect in felony-murder the old statute.” Miller, 157, 159, 85, 87, 32 N.Y.2d 297 N.E.2d 344 (1973). 342, However, noted, N.Y.S.2d 345 the court defect was remedied in 1965 the legislature when revised the statute to include a of specified may list felonies that Miller, form the basis for 32 N.Y.2d at sеe also Saenz 160, 87, 345; 297 N.E.2d at 344 N.Y.S.2d at (Tex. 1998) State, App. S.W.2d Ct. (judicially merger trumped by created doctrine is “ex- code,” press language penal exempts of the current which only manslaughter underlying as an under rule). felony-murder noteworthy

It is that even in some states that have doctrine, adopted merger the doctrine itself is limited language felony-murder statute. Under law, Kansas doctrine if applies only the underlying felony, abstract, viewed in the is inher- ently dangerous to human life and if the elements of the underlying felony are from so distinct the homicide so as Smallwood, thereof. State v. not to be an ingredient 69, 91, Thus, Kan. 955 P.2d judicially created rule had “single been a assaultive in the death results of a child which incident of abuse constitutes killing and merges child at 91, 955 P.2d Smallwood, 264 Kan. at one offense.” could acts of abuse Further, prior evidence 1226. murder. Such felony into charge the used to escalate be crimes of abuse separate be as prosecuted acts could prior into child abuse bootstrap felony not be used to could but 92, at Smallwood, 264 Kan. charge. felony-murder a noted, court However, the Smallwood at 1226. P.2d merger the dealing with the cited decisions subsequent abuse, Kansas the felony of child in the context doctrine as murder stаtute the first amended legislature dangerous inherently defining well as the statute In 93, P.2d at 1227. Smallwood, 264 Kan. at felonies. the a child one of statute, of is felony abuse the revised that provides The definition also felonies. enumerated inherently deemed shall be the enumerated felonies are distinct from they or not” so dangerous “whether thereof. Small they ingredient that are an the homicide 1227, Kan. Stat. 93, citing 955 P.2d at wood, 264 Kan. at court con supreme § The state Ann. 21 — 3436 anyone who legislature intended that “the cluded act of committing the the death of a child while causes first-degree of the crime of guilty a child to be abuse of P.2d at Smallwood, 264 Kan. at murder.” felony Thus, may part doctrine still be merger 1228. the felony is not when law, may applied but it be Kansas identified as explicitly has legislature one that felony felony charge for predicate proper (Okla. McCann, P.2d 240-41 See also State 1995) enumeration of a crime (legislature’s App. Crim. punish its “intent shows felony-murder statute of an enumer during the commission deaths which occur rule murder,” merger thus the is felony as felony ated cases). not in such applicable

Same-Act Doctrine doctrine, of the application the same-act Under felony-murder precluded rule is whenever the act that predicate constitutes is the same act Although results the death of the victim. may ap- pear to be a mere restatement merger doctrine, expansion is fact an of the merger any doctrine to felony, whether it involves assaultive conduct. example, doctrine,

For under this the defendant who profit commits arson for cannot be convicted of if, arsonist, unknown to the there a person is inside the structure who dies in the flames. Because the act that constitutes starting fire —is the — dangerous same act that felonious causes the death of victim, a conviction precluded. is contrast, application merger doctrine would not bar application rule to this arsonist.

Massachusetts appears adopted have the same-act doctrine, which, more perhaps, accurately described as the “different Kilburn, Commonwealth v. act rule.” In 356, 359, 1237, (2003), Mass. 780 N.E.2d that highest state’s court stated that the doctrine of felony requires that the conduct constituting felony the separate be from the act of personal violence that causes the death. Kilburn was properly felony convicted of predicate felony murder based on the of armed assault dwelling he separate because committed two assaults— first, brandishing a the pistol arousing intention Kilburn, and, second, fear in the victim shooting him. 780 N.E.2d at 1241. See also Com 359, 438 Mass. at Smiley, monwealth v. 477, 489, 431 Mass. 727 N.E.2d (2000) (defendant 1182, 1192 properly was convicted of felony designed murder because the initial assault to gain entry the dwelling separate into victim’s was from the necessary killing). act to commit the unlawful

Collateral-Felony Doctrine New Mexico courts have a third adopted approach murders degree that “most second the concern address the murders” under degree as first charged be might limitation on some statute, “absent felony-murder Varela, 128 N.M. State felonies.” appropriate range 1280, To convict 454, 460, 993 P.2d murder, must the State degree felony defendant of first relationship between a causal show inherently or felony is and that the homicide life, also to human but foreseeably dangerous homicide.” to the or collateral “independent was As 460, applied, 993 P.2d at 1286. Varela, 128 at N.M. not be a requires this rule murder, which, degree of second offense lesser-included In other law, “knowing” murder. Mexico under New abstract, “it is whether, pos words, the court asks without commit degree murder to commit second sible Varela, 128 felony ***.” dangerous ting some form analysis, P.2d at “Under this at 1287. N.M. if to be convicted impossible be would or ag assault underlying felony aggravated com be battery impossible because it would gravated form committing some mit murder without second at 1287. Varela, at 993 P.2d ***.” 128 N.M. of both Illinois Decisions Analysis of case, an armed stereotypical In the The clerk money. and demands enters store robber makes a sudden resists, merely or hesitates, perhaps or robber, weapon, his who fires movement that startles immaterial whether robber the clerk. It is killing clerk, knowing to kill the trigger intending pulls result, or substantially likely to that the clerk’s death is the seriousness of the clerk with wanting only impress Ramey, v. demand, entirely People accident. by his 329 Ill. (1992); McCarty, v. People Ill. 2d 498 see also (2002) (State prove to required is not 3d App. the death or intended could foresee that defendant murder; commit State need show intent to commit underlying felony). the The armed guilty robber is of felony murder when he the act that performed because death, caused the committing felony he was the forcible Casillas, v. See, e.g., People robbery. of armed Ill. 2d Richardson, (2000); 123 Ill. 2d 322 It in is certain such a case that the robber entered the Indeed, store for the of it. the purpose robbing predicate of armed felony robbery complete pulls is befоre he ever Thus, trigger. the there is clear of his intent evidence felony. addition, commit the the predicate separate conduct of the store clerk shooting felony after complete robbery-gone-wrong makes obvious that felony constitutes

The hard case arises when the actus reus of the charged predicate felony is the same act that causes expressly death. This court has never the same- adopted by holding charge act doctrine that a of may not stand unless the conduct that caused the death addition to the ‍‌‌‌​‌​​‌‌​​​‌‌‌​‌​‌‌​‌​‌​​‌​​​‌‌‌‌​​​‌‌‌‌​​​​​​‌‍ actus of the from in separate victim is reus underlying contrary, On the felony. this court affirmed defendant’s conviction of in Viser, in there no than that which conduct other necessary carry predicate felony aggravated out of battery. Viser, Further, 62 Ill. 2d at 580. Illinois has not doctrine or the adopted merger collateral-felony Indeed, doctrine, by judicial either statute or decision. Viser, of expressly rejected “theory this court charac merger” light legislature’s “forthright one of the aggravated battery terization as forcible charge murder.” trigger felonies will Viser, 62 Ill. at 579-80. Morgan, later,

Twenty-four years appellate felony underlying charge “the court held that with a invоlve conduct murder must felonious added.) purpose killing (Emphasis other than the itself.”

491 707, 714 That Ill. 3d Morgan, App. (conduct) must of the is, underlying the actus reus purpose.” felonious “independent committed with an be If, in the Morgan, at as App. 307 Ill. 3d 714. Morgan, intent committed with the conduct is forcible felonious committing the kill, purpose rather than with the may felony, charge a independent stand. court decision concurring appellate in the justice

The that, rule, aggravated some noted under this Morgan would discharges of firearms aggravated and batteries charge, long so as felony-murder remain the basis for Morgan, to murder. incidental merely the crimes were not J., concurring). He (Steigmann, at 719 App. 307 Ill. that requirement additional then, however, suggested an concurring justice adopt. court did not appellate the the predicate crimes could serve as that such suggested than “conduct other they where involved Ill. App. killing Morgan, in the itself.” that inherent the same- J., concurring). This is (Steigmann, 3d at 719 doctrine, predicate that requires act which that to the act criminal conduct in addition involve a rule Adoption of such causes the death of the victim. overruling Viser, which this had the effect of would have in the case. present to reaffirm even сourt continues judgment court’s appellate court affirmed the This against Morgan counts were that so, However, doing 404. 197 Ill.Ill.2d improper. Morgan, First, this court analysis. the focus of the altered concluded stated, that court incorrectly, appellate limited to cases which “felony murder was conduct other than felony consisted of added.) Morgan, killing (Emphasis inherent itself.” holding appel Ill. 2d at 444. This was not Instead, suggested by it is the formulation late court. This inconsistent with Viser. concurring justice and is and, later in the inconsistency opinion, court noted court’s approval appellate require referred with purpose. Morgan, independent ment of felonious 446. Ill. 2d at court noted that the forcible felonies com

This also of, in, inherent and arose out by Morgan mitted “were grandparents. Morgan, 197 Ill. shootings” the fatal of his Morgan true of fact. Jon 2d at 447. This is as statement gun grandpar admitted that he at each of his pointed intent kill. He of trigger with the pulled ents self-defense provocation imperfect fered evidence degree to mitigate in an effort to his crimes second Morgan, However, Ill. 2d at 411-12. murder. while arising in and out of’ is an ac phrase the “inherent case, of the facts of the it is not use description curate оne commits the forcible ful rule other cases. When a firearm and uninten felony aggravated discharge death, firing tionally causes a it cannot be said that the killing. inherent in and arose from the gun of the the killing The is true —the arises or flows from opposite independent felony defendant’s intent to commit the Nevertheless, this court acting adopted his on that intent. the statement of the rule for determin language this as as the ing felony may predicate when a forcible serve Ill. 2d Morgan, charge felony to a murder. at 447. case states that “in this opinion present

Our (213 472), must type prove of case” Ill. at the State the defendant knowing punish intentional or murder to Morgan “type one like a murderer. The of case” is where kill, argues intent that his the defendant admits to but degree crime is murder rather than first degree second kill, admitted the intent to he must be Having to his case for given opportunity present provocation imperfect self-defense to the fact finder. State ability mitigate not short-circuit his his crime to may by characterizing act of second offering felony murder, murder as proof at least not without specificpurpose for the that the defendant acted underlying felony. committing the Morgan “type 2d at of case.” 213 Ill. Pelt was not approval ap prior Pelt, court noted its 472. pellate holding Morgan to convict a court’s prove required defendant of State is committing predicate the defendant that in independent purpose. Pelt, acted with felonious majority However, Ill. 2d at 441. then went on battery aggravated of an infant consider whether Pelt’s in, of, and arose out “was an act that was inherent majority kilhng” Pelt, of the child. 207 Ill. 2d at 442. The recognize Morgan’s intent failed to that was kill that rendered “inherent” in the act of to killing, his conduct

it also breathed new life into same-act throwing by stating that the “act of the infant” doctrine aggravated battery that was the basis for the conviction underlying kilhng.” Pelt, was “also the same act majority Further, Ill. 2d at 442. reformulated the Pelt question as whether the “involved con purpose than the duct with felonious other conduct added.) (Emphases killed Pelt, which the infant.” 207 Ill. 2d at 442. only reading language of the used in reasonable predicate felony only

Pelt is that the a must not have purpose apart kilhng victim, felonious from such as rape, robbery, kidnaping, also must involveat least but separate necessary prove first, two the actus reus to acts— and, second, of the elements itself the conduct that kills or causes the death of the victim. I noted in As my Pelt, rule, in dissent this “which focuses on the state, rather than his mental if liter- defendant’s conduct ally applied, preclude charge would engaged in felonious unless forcible killing.” caused the in addition to the act that conduct Pelt, (Garman, J., in concurring part Ill. 2d at 446 rule dissenting part). apparently in This would and kidnap murder based on a conviction for preclude act, luring one only commits ing kidnaper where candy, and then the promise his car with a child into her for lack of access to from an asthma attack child dies inhaler. in court its decision year than a after this issued

Less Pelt, in which the defendant are faced with a case we affirming are his yet one criminal act we committed in dissented, I Although conviction for reasoning Pelt, I court’s by in and am troubled part, of stare decisis to Morgan, by I am bound the doctrine Morgan Reasoning from settled law. accept these cases as Pelt, way suggests now this court inherent conduct was a defendant’s determine whether whether killing of the is to ask in and arose out both the prove the State to evidence” was used “same Ill. 2d at 474. the murder. 213 felony and action, it case, defendant of mob “to convict present that defendant struck necessary prove was not that caused the Richard, the act performed much less felony of Thus the predicate 213 Ill. 2d at 474. killing.” purpose with a felonious action “involved conduct mob Ill. 2d Richard.” 213 the conduct which killed other than in conduct with engaged Davis Apparently, at 474. mob, cumula and the members purpose felonious that killed additional conduct engaged tively, conclude that Further, my colleagues Skelton. Richard Viser, in which the defen this result is consistent punched who individuals dant was one of several attacker not clear which the victim and kicked Ill. at 475. the fatal blow.” “caused effect, pos- if it is says, our opinion What forcible underlying the elements of prove sible also, using evidence, and different prove “in performing the acts which cause the death” the “attempting defendant was committing forcible (720 other than second murder” ILCS 5/9— (West 1(a)(3) 1998)), conviction of is proper. doctrine, This is the same-act under which State must that the prove defendant committed the actus and, addition, underlying felony reus of the caused the death of the victim other conduct engaging some as attempted he or committed the I felony. suggest forcible that if court going adopt doctrine, this this it should do so unequivocally thereby give guidance and clear prosecutors and trial courts.

In my opinion, however, the same-act doctrine completely ignores legislature intent of the as expressed in the statutory felony, definition of forcible which includes “predatory criminal sexual assault of a child, aggravated assault, criminal sexual criminal sexual assault, robbery, burglary, burglary, ag- residential gravated arson, arson, aggravated kidnaping, kidnaping” (West 1998). and other crimes. 720 ILCS Nothing 5/2—8 in this statutory definition or in the felony-murder statute itself suggests legislative intent that the provi- apply only sion in cases such as the stereotypical store robbery case described above where the defendant com- separate acts, mits two one that constitutes the felony and one that causes the Indeed, death of the victim. inclusion of arson on this list a legislative indicates intent the single felonious act lighting a fire (720 (West intent to defraud an insurer ILCS 5/20—1 1998)) can serve as the predicate felony for a charge of felony murder if present structure, someone entirely arsonist, unknown to the is killed as a result. sum, although agree I case, with the result in this I although accept Morgan progeny its as the law state, I cannot agree that either the merger on proper

doctrine or the same-act doctrine are limits our statute. The General application act Assembly clearly expressed has its intention that an constituting felony a forcible than second —other li- imposition murder —is a sufficient basis for the of ability felony murder, precluding thus our of adoption the same-act doctrine. merger similarly precluded by

The doctrine is the doctrine, is hold a purpose felony-murder which to felon for the direct and foreseeable conse responsible v. People Lowery, 2d quences of his actions. Ill. (1997). logic The the is behind statute felony that one who to commit a forcible will chooses being of to endeavor to limit his use violence avoid if automatically subject prosecution to a someone felony. of the dies as a result the commission of Shaw, 2d also 40 Am. Jur. 186 Ill. See (“The (1999) Homicide § common-law rule was in or to doing attempting if a killed another person felony, killing the murder. amounting do act to have Practically jurisdictions provid all enacted statutes commission, ing during that a homicide perpetrated commission, felony, or fre any or more attempted *** certain felonies shall be deemed quently, specified in the first The effect of such degree. murder or to felon so impute to malice or deliberation statutes in to the incidental homicide murder the first as make all, statutes, Hence, most, but not such degree. under any perpetration of killing where the occurs crimes, defendant had the specified whether or Thus, any kill and irrelevant. intent is immaterial death, even felony time commission of a causes from accidental, legal malice though unintentional into killing is sufficient transform to commit the need intend felony, no required” other mens rea is underlying added)). (emphases charged,

Thus, in each case where murder is inquiry charged should be whether the State has predicate felony, forcible as the whether the felony, defendant set out to commit the forcible during whether the death of the victim occurred the at- tempt felony. or the commission of and as a result of the Morgan, the defendant admitted that he acted with the intent to kill. He could not be convictedof murder because he committed the fatal assaults for the purpose carrying sole out that intent.

In Pelt, there was no evidence of the defendant’s mens rea aside from the forcible felonious conduct itself. No one, Pelt, other than knows whether he threw the infant against the dresser with the kill, intent with the knowledge likely grave that he would сause death or bodily “merely” harm, or intent to batter the my my child. As I opinion, case, indicated dissent question the answer to this should be within the province jury. charges If the intentional, State knowing, felony jury and case, murder in such a permitted should be to consider all three counts of murder and to infer the defendant’s mental state from (Garman, Pelt, his actions. J., 207 Ill. 2d at 447 concur ring part dissenting part). Godsey, See also (affirming felony-murder S.W.3d759 convictionbased on aggravated victim); child abuse of seven-month-old O’Blasney, (affirming felony-murder 297 N.W.2d 797 felony conviction based on child abuse four-month-old victim). present participate

In the case, defendant intended to in the forcible action, of mob which resulted guilty death of Richard Skelton. He is pronouncement I fearful, am however, that our latest question proper predicate on the felonies for important obscures, rather clarifies, than is- hope sue. I that when the arises, next case ‍‌‌‌​‌​​‌‌​​​‌‌‌​‌​‌‌​‌​‌​​‌​​​‌‌‌‌​​​‌‌‌‌​​​​​​‌‍the members adopt merger unequivocally of this court will either Viser, doctrine, overruling the same-act thus doctrine or them, Pelt, clearly reject or else overrule state if and if the may for conviction stand purpose has defendant acted proven State from the committing independent felony apart homicide.

(No. 96503 . ILLINOIS, THE Appel THE PEOPLE OF STATE OF lee, JONES, TRAMAINE Appellant. Rehearing

Opinion November denied 2004 . filed January 2005.

Case Details

Case Name: People v. Davis

Court Name: Illinois Supreme Court

Date Published: Dec 16, 2004

Citation: 821 N.E.2d 1154

Docket Number: 95614

Court Abbreviation: Ill.