Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. Michael B. Bolan, Judge, presiding.
As Modified on Denial of Rehearing December 1, 1997.
Chief Justice Freeman delivered the opinion of the court.
The opinion of the court was delivered by: Freeman
CHIEF JUSTICE FREEMAN delivered the opinion of the court:
Following a jury trial in the circuit court of Cook County, defendant, Antonio Lowery, was convicted of first degree murder based on the commission of a felony (720 ILCS 5/9-1(a)(3) (West 1992)), attempted armed robbery (720 ILCS 5/18-1 (West 1992)) and two counts of armed robbery (720 ILCS 5/18-2 (West 1992)). The trial court sentenced defendant to 35 years' imprisonment for first degree murder, 20 years for each of the two armed robberies and 12 years for attempted armed robbery, to be served concurrently. On appeal, the appellate court reversed defendant's conviction and vacated his sentence for felony murder, holding that there was insufficient evidence to support defendant's conviction. 281 Ill. App. 3d 706, 713, 666 N.E.2d 834, 217 Ill. Dec. 165. We granted the State's petition for leave to appeal (155 Ill. 2d R. 315(a)) and now reverse the judgment of the appellate court.
On March 20, 1993, defendant was arrested and charged with two counts of armed robbery and one count of attempt armed robbery of Maurice Moore, Marlon Moore, and Robert Thomas. Defendant was also charged with the murder of Norma Sargent. In his statement to the police officers, defendant explained that he and his companion, "Capone," planned to rob Maurice, Marlon, and Robert. As Maurice, Marlon, and Robert walked along Leland Avenue in Chicago, defendant approached them, pulled out a gun and forced Maurice into an alley. Capone remained on the sidewalk with Robert and Marlon. Once in the alley, defendant demanded Maurice's money. Maurice grabbed defendant's gun and a struggle ensued. Meanwhile, Capone fled with Robert in pursuit. Marlon ran into the alley and began hitting defendant with his fists. As defendant struggled with Maurice and Marlon, the gun discharged. The three continued to struggle onto Leland Avenue. Upon pushing Maurice down, defendant noticed that Maurice now had the gun. Defendant then ran from the place of the struggle to the corner of Leland and Magnolia Avenues, where he saw two women walking. As he ran, he heard gunshots and one of the women scream.
Defendant continued to run, and in an apparent attempt at disguise, he turned the Bulls jacket which he was wearing inside-out. He was subsequently apprehended by the police and transported to the scene of the shooting, where Maurice identified him as the man who had tried to rob him.
At the conclusion of testimony and arguments, the jury found defendant guilty of first degree murder under the felony-murder doctrine, two counts of armed robbery, and one count of attempted armed robbery. The appellate court reversed, holding that there was insufficient evidence to sustain a conviction for felony murder and remanded the cause for resentencing on defendant's armed robbery and attempted armed robbery convictions. 281 Ill. App. 3d at 713.
At issue in this appeal is whether the felony-murder rule applies where the intended victim of an underlying felony, as opposed to the defendant or his accomplice, fired the fatal shot which killed an innocent bystander. To answer this question, it is necessary to discuss the theories of liability upon which a felony-murder conviction may be based. The two theories of liability are proximate cause and agency.
In considering the applicability of the felony-murder rule where the murder is committed by someone resisting the felony, Illinois follows the "proximate cause theory." Under this theory, liability attaches under the felony-murder rule for any death proximately resulting from the unlawful activity-notwithstanding the fact that the killing was by one resisting the crime.
People v. Payne, 359 Ill. 246, 194 N.E. 539 (1935), is exemplary of Illinois' first application of the proximate cause theory. In Payne, the armed robbers approached the home of two brothers. One of the brothers fired a gun, attempting to prevent the robbery, and one of the robbers also fired. The second brother was killed by the gunfire, but it could not be determined whether his brother or the robber fired the fatal shot. The court found this fact to be immaterial and confirmed the defendant's murder conviction, stating:
"It reasonably might be anticipated that an attempted robbery would meet with resistance, during which the victim might be shot either by himself or someone else in attempting to prevent the robbery, and those attempting to perpetrate ...