The opinion of the court was delivered by: Justice Cousins
APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY
THE HONORABLE DANIEL M. LOCALLO, JUDGE PRESIDING.
The defendant, Marcel Rhoden, was charged with multiple counts of felony murder, attempt (armed robbery), attempt (robbery), home invasion, and other offenses. He opted for a bench trial. At the close of the State's case, the trial court denied a defense motion for a directed finding of not guilty for attempt (armed robbery) among other charges. The trial court granted the motion as to attempt (robbery). At the end of the case, the trial court found the defendant guilty of home invasion, three counts of attempt armed robbery, and two counts of felony murder, inter alia. The trial court vacated the home invasion conviction together with the felony murder conviction based upon it. The defendant was sentenced to a 35-year term for the felony murder conviction that was based on attempt (armed robbery) and to 15 years for each of the three attempt (armed robbery) convictions. The attempt (armed robbery) prison terms were to run consecutively to the felony murder term but concurrently with each other.
The defendant contends that the trial court erred by (1) convicting him of attempt (armed robbery) and felony murder since this was inconsistent with his acquittal on attempt (robbery) charges; (2) convicting him of felony murder when the person killed was a fellow robber; (3) convicting him of multiple counts of attempt (armed robbery) when, he claims, there was only one act; (4) sentencing him for attempt (armed robbery) when that crime was a lesser included offense of the felony murder; (5) making the attempt (armed robbery) sentences consecutive to, rather than concurrent with, the felony murder sentence; and (6) not giving him credit for time served for the period that he spent in the custody of the Federal Bureau of Investigations (FBI) in another state.
On June 3, 1994, the defendant and his friend Paul Wrigley went to the condominium of James Moy. Moy knew the defendant and Wrigley, whom he previously had hired to wash and detail his Jeep. Wrigley and Moy had fallen out when Wrigley borrowed Moy's Jeep and returned it late.
Moy lived with Russell Laos and Norma Sula, Laos' girlfriend. At the time of the crime, the three residents were in the condominium along with Nelson Santiago and Santos Echevarria. All except Nelson Santiago testified at trial. Their testimony presents the following picture of events.
The defendant and Wrigley knocked on the door at about 6 p.m.. Laos started to unlock the door. However, before he could finish, the defendant and Wrigley pushed the door in, breaking the bolt. With guns drawn, they pushed Laos into the living room, where Santiago and Echevarria were. The defendant and Wrigley demanded "Where's the money, where's the gold?" They forced Laos and Santiago to the ground. In attempting to force Echevarria to the ground, the defendant hit him in the back with his gun, which discharged, grazing Echevarria's back and hitting Wrigley in the leg. As the defendant attended to his companion, Laos and Echevarria fled to other parts of the condominium. The defendant helped Wrigley, who was bleeding profusely, out of the condominium and back into their car.
The defendant testified that at first Wrigley asked not to be taken to the hospital because there were outstanding warrants for his arrest. He drove Wrigley to their apartment and called his girlfriend, Shava Langston. She met the defendant and they agreed that she would take Wrigley to the emergency room at a local hospital. She took him to the hospital, but he died that evening from internal bleeding.
Wrigley's mother, Ivy Lewis, identified the body at the morgue that night. Later, about 2 a.m., she called the defendant and asked where her son was. The defendant said that Wrigley had stepped out and would be back soon. When Lewis told him that her son was in the morgue, the defendant replied: "Lord Jesus Christ, police going to lock me up."
The defendant flew to New York the next day and then went to Jamaica in August. He came back to the United States in January 1995 and found work in a hardware store in East Chester, New York.
An Illinois warrant was issued for the defendant's arrest on June 6, 1994. FBI agents arrested the defendant in New York on this warrant on July 25, 1995. He was returned to Illinois on August 26, 1995, and was indicted on September 29, 1995. At the close of the State's case, the court denied a defense motion for a directed acquittal for attempt (armed robbery), among other charges, but granted a directed acquittal on the charge of attempt (robbery). The defendant was convicted of, inter alia, home invasion, three counts of attempt (armed robbery), and two counts of felony murder.
The trial court vacated the home invasion conviction and the felony murder conviction based upon it. The defendant was sentenced to a term of 35 years' incarceration for the felony murder that was based on attempt (armed robbery) and 15 years for each of the three convictions for attempt (armed robbery). The attempt (armed robbery) sentences were to run concurrently with each other, but consecutively to the felony murder sentence.
The defendant appeals his convictions and sentences. He contends (1) that his felony murder conviction should be reversed on the ground that the felony murder rule does not apply when the deceased is a partner in the crime; (2) that his convictions for attempt (armed robbery) and felony murder must be reversed because they are inconsistent with his acquittal on the predicate offense of attempt (robbery); (3) that he should not have been convicted of three counts of attempt (armed robbery) since he made only one attempt;(4) that he should not have been sentenced for attempt (armed robbery) since this crime was a lesser included offense of the felony murder; (5) that the trial Judge erred in making the attempt (armed robbery) sentences consecutive to, rather than concurrent with, the felony murder sentence; and (6) that the Judge erred in not taking into account the time that he was in the custody of the FBI in New York when calculating his credit for time served.
We affirm in part, reverse in part, and remand the case for further proceedings.
The defendant argues that Wrigley's death cannot serve as the basis for a felony murder conviction because Wrigley was a cofelon. We disagree. Subsequent to the filing of briefs in this case the supreme court decided People v. Dekens, 182 Ill. 2d 247, 695 ...