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People v. Morgan

September 29, 1999

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
V.
JON R. MORGAN, DEFENDANT-APPELLANT



Appeal from Circuit Court of Logan County No. 95CF101 Honorable Gerald G. Dehner, Judge Presiding.

The opinion of the court was delivered by: Justice Garman

IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS

Defendant Jon R. Morgan was tried as an adult and convicted after a jury trial in the circuit court of Logan County of the first degree murder (720 ILCS 5/9-1(a) (West 1994)) of his grandmother and the second degree murder (720 ILCS 5/9-2(a)(1) (West 1994)) of his grandfather. He was sentenced to consecutive terms of imprisonment totaling 75 years. On appeal, he argues the trial court erred by (1) granting the State's motion to try him as an adult; (2) admitting certain statements into evidence; (3) excluding testimony regarding prior violent conduct by the victims; (4) refusing to dismiss the felony murder counts; and (5) refusing to give an instruction on second degree murder as to the felony murder counts. We affirm in part and reverse in part.

I. BACKGROUND

On an April day in 1995, 14-year-old Jon was late to class and received an in-school detention. According to Jon, he was asleep at about 6:30 p.m. on April 27, 1995, when his grandfather, Keith Cearlock, awakened him and demanded an explanation for the notice of detention he had received. Keith berated Jon for 10 to 15 minutes. Jon yelled back. Keith punished Jon by having him bend over while Keith beat him on the buttocks with a razor strap. After enduring five strong blows, Jon went into the bathroom. He knew where Keith kept a gun and decided to get the gun to kill himself. Jon took a gun and box of ammunition from Keith's bedroom closet shelf, returned to the bathroom, loaded eight bullets into the gun, took aim, and fired at a bottle. Because his grandfather had threatened in the past to kill him, he believed his firing the gun would provoke Keith to carry out the threat. As Jon left the bathroom, he encountered Keith coming toward him and shot him. Lila Cearlock, his grandmother, was standing in the hallway screaming. Jon shot Lila in the back as she ran out of the house. He tried to fire another shot, but the gun jammed.

The Lincoln police department responded to an emergency call to the Cearlocks' address. Minutes later, Jon approached one of the officers, holding a pistol and a box of bullets, saying, "I did it. I killed them." The officer took Jon to Michael Harberts, the officer in charge, who asked him why he did it. Jon said, "[B]ecause they pissed me off. I couldn't take it anymore so I shot them." Jon was placed under arrest.

This case was originally filed in the juvenile court of Logan County. The State filed a petition, pursuant to section 5-4 of the Juvenile Court Act of 1987 (Act) (705 ILCS 405/5-4 (West 1994)), seeking to have Jon tried as an adult. The juvenile court granted the State's petition after a hearing.

Jon was subsequently indicted on eight counts. Counts I and II charged first degree murder of Lila and Keith, respectively, with intent to kill or do great bodily harm (720 ILCS 5/9-1(a)(1) (West 1994)); counts III and IV charged first degree murder of Lila and Keith, respectively, by knowingly committing an act causing great probability of death or great bodily harm (720 ILCS 5/9-1(a)(2) (West 1994)); counts V and VII (Lila) and VI and VIII (Keith) charged first degree murder by attempting or committing a forcible felony (720 ILCS 5/9-1(a)(3) (West 1994)). The predicate felony for counts V and VI was aggravated battery (720 ILCS 5/12-4(a) (West 1994)), and the predicate felony for counts VII and VIII was aggravated discharge of a firearm (720 ILCS 5/24-1.2(a)(2) (West 1994)).

Defense counsel filed a motion to suppress certain statements made by Jon to the police at the crime scene and while in custody. The motion was denied after a hearing.

After defense counsel disclosed his intent to raise the affirmative defense of self-defense (720 ILCS 5/7-1 (West 1994)) and the mitigating factor of "sudden and intense passion resulting from serious provocation" (720 ILCS 5/9-2(a)(1) (West 1994)), the State sought to bar second degree murder instructions as to the felony murder counts. The trial court initially denied the motion, but later reversed its ruling. The trial court thereafter denied Jon's motion to dismiss the four counts of felony murder.

At trial, the State sought to preclude Glenda Ashworth, Jon's mother, and Dr. Stuart Hart, defense expert, from testifying regarding prior violent conduct of the Cearlocks. The trial court ruled in favor of the State and the defense made offers of proof.

The trial court instructed the jury on second degree murder (720 ILCS 5/9-2(a) (West 1994)) as to counts I through IV. The jury found Jon guilty of first degree murder as to Lila and second degree murder as to Keith. Jon was sentenced to consecutive terms of 58 and 17 years' imprisonment, respectively.

II. ANALYSIS

A. Transfer to the Adult Criminal Justice System

The material in this section is not to be published pursuant to Supreme Court Rule 23 (166 Ill. 2d R. 23).

[Nonpublishable matertial removed under Supreme Court Rule 23.]B.

Evidentiary Rulings

The material in this section is not to be published pursuant to Supreme Court Rule 23.

[Nonpublishable material removed under Supreme Court Rule 23.]

C. Felony Murder

The jury was instructed that Jon was charged with two types of first degree murder: Type A (knowing or intentional) and Type B (felony). Second degree instructions were given only as to Type A. The State offered six verdict forms, three for each victim: (1) not guilty, (2) guilty of first degree murder, and (3) guilty of second degree murder.

We first consider whether Jon preserved the felony murder issues for appeal. After he was denied second degree murder instructions on the felony murder counts, he made a motion to dismiss those counts, which was also denied. He raised the issues again in his posttrial ...


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