Appeal from Circuit Court of Sangamon County No. 94CF0571 Honorable Stuart H. Shiffman, judge Presiding.
The opinion of the court was delivered by: Justice Cook
THE COURT OF APPEALS OF THE STATE OF ILLINOIS
After a jury trial, defendant was found guilty of first degree murder (felony murder) and the aggravated battery of Anthony Lipsey. 720 ILCS 5/9-1(a)(3), 12-4(a) (West 1994). On appeal, defendant argues (1) the trial court erred in refusing his proposed jury instructions for second degree murder, and (2) his sentence of imprisonment should be credited with one additional day.
On October 6, 1994, Anthony Lipsey (the victim) and Edwin Jones were walking down the street together when a man farther down the street yelled "hey" at them. The man signaled to a porch full of men to join him. Lipsey and Jones were then surrounded by additional people who came from a nearby alley. A white car pulled up near them and four or five people from the car joined the crowd, including the defendant, Antonio Kidd, and Donnie Brown. Defendant asserts he "wasn't thinking of nothing" when he walked up to where Lipsey and Jones were standing. Jones backed away from the crowd and stood across the street. An argument ensued between Lipsey and the man who had yelled "hey," and the man hit Lipsey in the face.
A fight then broke out between Lipsey and several members of the group, lasting approximately 5 to 10 minutes. There is some dispute about who initiated the fight. Defendant and Brown contend that Lipsey struck defendant on the side of the head with his hand, while holding a can, causing defendant to stagger backward. Jones, however, maintains that Lipsey did not strike anyone before he was struck and that Lipsey threw punches only in an attempt to defend himself. Jones did not see Lipsey holding anything in his hands.
After Lipsey allegedly hit defendant, Brown and another man grabbed Lipsey as he tried to run away and pulled him back into the fight. Brown and the other man hit Lipsey until defendant hit Lipsey "no more than three" times--twice in the face and "probably" in the chest area. Defendant estimates 30 to 60 seconds elapsed between the time Lipsey struck defendant and defendant hit Lipsey. During that time defendant decided it was "time *** to get licks in." Defendant admitted that at the time he hit Lipsey, Lipsey did not put him in fear of his safety, since Lipsey was being beaten by the other two men.
After the fight, all the men left the area. Jones went over to Lipsey, helped him up, and walked him home. Lipsey reported the incident to the police. Officer John Kohler of the Springfield police department was on duty on October 6, 1994, when Lipsey flagged him down. Lipsey told Kohler that he had just been beaten up by four black males, who had also robbed him about one week earlier. Lipsey explained that they beat him up because they did not want him to press charges against them for the prior robbery. Lipsey identified one of the men as defendant Kidd. At trial, Edwin Jones testified that the people who beat Lipsey were talking about someone taking money from Lipsey. Cortessa Williams testified that on October 5, 1994, one day before the fight, she heard a conversation between Sylvester Anderson and defendant Kidd regarding someone they wanted to get even with. Kidd stated that he had to get "him" for telling the police on them, but did not name anyone in particular.
Lipsey remained at home the evening of October 6. Lipsey's mother and father, Betty and Joe, noticed bruises and swelling around his right eye, lip, and his right temporal area. Lipsey refused suggestions by his parents to go to the hospital. Betty checked on him periodically throughout the night. When she checked around 6:15 a.m. on October 7, she noticed white liquid coming from his mouth, and his difficulty in breathing. Lipsey did not respond when Joe shook him, and he eventually stopped breathing. An ambulance took Lipsey to the hospital, where efforts to resuscitate him were unsuccessful.
On November 18, 1994, the State issued a two-count indictment against Antonio Kidd. In count I, the State charged defendant with first degree murder (felony murder), in that "while committing a forcible felony, Aggravated Battery, *** struck Anthony Lipsey in the head with his hand and thereby caused the death of Anthony Lipsey." 720 ILCS 5/9-1(a)(3) (West 1994). Count II charged defendant with aggravated battery in that he "intentionally caused great bodily harm to Anthony Lipsey in that he struck Anthony Lipsey in the head with his fist." 720 ILCS 5/12-4(a) (West 1994). Defendant was tried by a jury, along with co-defendant Donnie Brown.
During the jury trial, defendant testified that when he hit Lipsey on October 6, 1994, he did not believe his punches could have killed or caused great bodily harm to Lipsey. During the fight, he had no idea that Lipsey would die. Dr. Victor Lary performed Anthony Lipsey's autopsy on October 7, 1994, and concluded that the cause of Lipsey's death was a traumatic head injury resulting in an epidural hematoma, a large and relatively recent clot of blood located between the skull and the brain pressing downward on the brain. Dr. Lary could not determine how much force created Lipsey's head injury, but said that blows to the head with a fist could cause an epidural hematoma.
During the jury instructions conference, defendant's attorney tendered instructions for second degree murder based on provocation. The trial court refused to give the second degree murder instructions, apparently finding the evidence insufficient to allow those instructions to be given and concluding that the case only raised the issue of whether defendant committed aggravated battery, the predicate offense for the felony murder charge. The jury subsequently found defendant guilty of first degree murder (felony murder) and aggravated battery. 720 ILCS 5/9-1(a)(3),12-4(a) (West 1994). The trial court sentenced defendant to 25 years' imprisonment and awarded him credit for 228 days served.
Defendant filed a posttrial motion arguing the trial court erred in not instructing the jury on second degree murder. Defendant argued those instructions should have been given because the evidence showed defendant had no felonious intent prior to being struck in the head by Lipsey. In addition, because Lipsey struck defendant first, Lipsey was the initial aggressor, which caused the defendant to act under a sudden and intense passion resulting from serious provocation by Lipsey. The court denied defendant's posttrial motion. This appeal followed.
Prior to 1987, Illinois defined voluntary manslaughter to include the situation where the defendant "is acting under a sudden and intense passion resulting from serious provocation." Ill. Rev. Stat. 1985, ch. 38, par. 9-2(a). Since 1987, provocation has been addressed by the second degree murder statute, which made significant changes in that defense. 720 ILCS 5/9-2(a)(West 1994).
Defendant recognizes that in most felony murder cases it should not be a defense that a defendant is provoked, but he argues the defense is available in this case, citing People v. Williams, 164 Ill. App. 3d 99, 109, 517 N.E.2d 745, 751 (1987). A person who intends to rob a shopkeeper or rape an individual is not allowed to claim that he was provoked by his victim or to raise any other affirmative defense if, in the course of committing the original felony, the intended victim or any other person is killed. Williams, 164 Ill. App. 3d at 109, 517 N.E.2d at 751. The argument that a defendant was provoked to commit the robbery or rape in which the victim was killed similarly has no merit. Mental state is irrelevant. "It is immaterial whether the killing in such case is intentional or accidental, or is committed by a confederate without the connivance of the ...