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People v. Dekens

April 15, 1998


The opinion of the court was delivered by: Justice Miller

Agenda 4

January 1998.

delivered the opinion of the court:

This appeal presents the question whether a defendant may be charged with first degree murder, on a felony-murder theory, when the decedent is a cofelon who is killed by an intended victim of the defendant and cofelon.

The defendant was charged in the circuit court of Kankakee County with murder, criminal drug conspiracy, and attempted armed robbery. Prior to trial, the defendant moved to dismiss the murder charge, which was based on a felony-murder theory. The defendant contended that he could not be charged with that offense because the decedent in this case was a cofelon, who was shot and killed by the victim of the robbery attempt. For purposes of resolving the defendant's motion, the prosecution and the defense stipulated to the facts underlying the case. According to the parties' stipulation, an undercover police officer arranged to buy drugs from the defendant at a residence in Kankakee on January 5, 1996. Prior to the meeting, the defendant and the decedent, Peter Pecchenino, formulated a plan to rob the officer. During the drug transaction, the defendant pointed a shotgun at the officer and threatened him. In response, the officer fired several shots at the defendant. As the officer was leaving the residence, he was grabbed by Pecchenino. The officer shot Pecchenino, who later died as a result of those wounds. The defendant was subsequently charged with Pecchenino's murder, under a felony-murder theory. 720 ILCS 5/9-1(a)(3) (West 1996).

The trial Judge granted the defendant's motion to dismiss the murder charge. The Judge believed that he was required to follow the appellate court opinion in People v. Morris, 1 Ill. App. 3d 566 (1971), which had held that a defendant could not be liable under a felony-murder theory for the death of a cofelon when the act causing the cofelon's death was not done in furtherance of the common design to commit the felony. The State appealed the dismissal of the charge pursuant to Supreme Court Rule 604(a)(1) (145 Ill. 2d R. 604(a)(1)), and the appellate court affirmed the trial Judge's ruling. In an unpublished order, the appellate court relied on a rationale different from the one used by the trial Judge yet reached the same result. From a review of the case law in this area, the appellate court believed that liability under a felony-murder theory could extend only to innocent victims. We allowed the State's petition for leave to appeal (166 Ill. 2d R. 315(a)), and we now reverse the judgments of the courts below and remand the cause to the circuit court of Kankakee County for further proceedings.

In People v. Lowery, 178 Ill. 2d 462 (1997), this court recently reviewed the nature of the felony-murder doctrine and the opposing theories on which liability may be based. As Lowery explains, Illinois follows the "proximate cause" theory of liability for felony murder. Under that theory, liability attaches "for any death proximately resulting from the unlawful activity-notwithstanding the fact that the killing was by one resisting the crime." Lowery, 178 Ill. 2d at 465. The other principal theory of liability under the felony-murder doctrine is the agency theory, which is followed by a majority of jurisdictions. Under the agency theory, " `the doctrine of felony murder does not extend to a killing, although growing out of the commission of the felony, if directly attributable to the act of one other than the defendant or those associated with him in the unlawful enterprise.' [Citations.]" Lowery, 178 Ill. 2d at 466. There is no liability under the agency theory when the homicide is committed by a person resisting the felony. Morris, relied on by the trial Judge in this case, is an expression of the agency theory of liability.

Although we have never addressed the precise question raised here, this court has, over the years, addressed similar questions concerning the scope of the felony-murder doctrine and the proximate cause theory. A review of these cases is instructive. In People v. Payne, 359 Ill. 246 (1935), several persons tried to rob two brothers. One of the robbers pointed a gun at one of the brothers, who drew his own gun and fired at the robbers; the robbers fired back. The second brother was killed in the gunfire, but it could not be determined whether his brother or one of the robbers had shot him. The defendant was charged with murder, on a felony-murder theory, for the brother's death. Applying the proximate cause theory, the court explained that the identity of the person who fired the shot that killed the decedent was immaterial to the murder charge:

"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 the robbery would be guilty of murder." Payne, 359 Ill. at 255.

A later case, People v. Allen, 56 Ill. 2d 536 (1974), reaffirmed Payne and the proximate cause theory. In that case, the court concluded that the drafters of section 9-1 of the Criminal Code of 1961 had intended to incorporate the holding in Payne. Allen upheld a conspirator's murder conviction for the death of a police officer in an attempted robbery of an armored car. This court rejected the defendant's argument that his conviction for murder could not stand because the slain officer had been shot by another officer. The court stated, "[T]he defendant in this case may be held liable for the death of Officer Singleton whether the fatal shot was fired by a co-felon *** or by another police officer in opposition to the attempted robbery." Allen, 56 Ill. 2d at 545.

A similar result was reached in People v. Hickman, 59 Ill. 2d 89 (1974). In Hickman the defendant and cofelons fled after they were observed by police committing a burglary. A police officer who was pursuing the burglars was mistakenly shot and killed by another officer, who mistook him for a burglar. Two defendants were convicted of the police officer's murder on a felony-murder theory. The trial Judge later entered an order arresting the judgment in the case, however, and the State appealed from that order. Citing Payne and Allen, this court rejected the two defendants' argument that they could not be guilty of murder because the police officer who fired the fatal shot was acting justifiably. The court stated:

"The commission of the burglary, coupled with the election by defendants to flee, set in motion the pursuit by armed police officers. The shot which killed Detective Loscheider was a shot fired in opposition to the escape of the fleeing burglars, and it was a direct and foreseeable consequence of defendants' actions." Hickman, 59 Ill. 2d at 94.

More recently, in People v. Lowery, 178 Ill. 2d 462 (1997), we revisited the scope of the felony-murder doctrine in a case in which the intended victim of an armed robbery shot at one of the fleeing robbers and struck an innocent bystander instead, killing her. The defendant asked the court to overrule Payne and Hickman and to adopt in this state the agency theory of liability for felony murder. Lowery, 178 Ill. 2d at 466. This we declined to do. We explained:

"It is equally consistent with reason and sound public policy to hold that when a felon's attempt to commit a forcible felony sets in motion a chain of events which were or should have been within his contemplation when the motion was initiated, he should be held responsible for any death which by direct and almost inevitable sequence results from the initial criminal act. Thus, there is no reason why the principle underlying the doctrine of proximate cause should not apply to criminal cases. Moreover, we believe that the intent behind the felony-murder doctrine ...

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