The opinion of the court was delivered by: Presiding Justice O'mara Frossard
Appeal from the Circuit Court of Cook County
Honorable Stanley Sacks, Judge Presiding.
Defendant, Donald Toney, appeals his convictions for first degree murder, attempted first degree murder, and aggravated discharge of a firearm. Co-defendants Robert Foster and Frederick Luckett were tried by separate juries and are not involved in this appeal. On appeal, defendant contends that the trial court erred by (1) instructing the jury on felony murder with a predicate felony of aggravated discharge of a firearm; (2) failing to instruct the jury on the charged offense of intentional and knowing first degree murder and on the mitigating offense of second degree murder; (3) admitting two weapons into evidence; and (4) imposing consecutive sentences. The defendant also contends the State failed to prove the identity of the shooter beyond a reasonable doubt and denied him a fair trial with improper comments during closing arguments. We reverse and remand for a new trial.
At approximately 7 p.m. on the evening of October 10, 1995, Antoine Harris and his brother Terrance, members of the Four Corner Hustlers street gang, recognized defendant as he drove past Halsted east on 123rd Street. Luckett, defendant's younger brother, and Foster were passengers in defendant's car. All were members of the Gangster Disciples. A confrontation occurred during which at some point threats were yelled, Antoine threw a bottle at defendant's vehicle and shots were fired. Defendant remained in the car. Luckett and Foster got out of the car and fired their guns. Phillip Matthews died from gunshot wounds. Bobby Roberson, Terrance and Antoine were not injured. Antoine knew defendant and gave the police a description of the offenders and a location where defendant lived. Approximately one hour after the shooting, the police arrested defendant when Luckett's mother brought the defendant out of the house at 12320 South Carpenter. Luckett and Foster were also arrested near the same location. Antoine and Terrance identified defendant, Foster, and Luckett in a lineup. Antoine identified the rifle that Foster fired at him.
Defendant initially denied involvement in the shootings, but when Detective Baker showed defendant the two recovered weapons and told defendant that he and his car had been identified as involved in the shooting, defendant admitted his involvement. However, at trial, he denied any plan or intent to shoot Four Corner Hustlers and maintained the shootings were in self-defense. A forensic expert who examined the firearms evidence from the scene including 15 fired cartridge casings concluded the casings were consistent with the two recovered weapons; however, three fired bullets, including a .38-caliber bullet from the body of Phillip Matthews, were not fired from the two weapons fired by Luckett and Foster.
The jury found defendant guilty of the first degree murder of Philip Matthews, guilty of the attempted murder of Antoine Harris, Terrance Harris, and Bobby Roberson, and guilty of aggravated discharge of a firearm of Antoine Harris, Terrance Harris, and Bobby Roberson. The court sentenced defendant to prison terms of 35 years for the first degree murder conviction to run consecutive to the 18-year concurrent sentences imposed for the attempted murder convictions. Defendant's 10-year prison terms for aggravated discharge of a firearm were to run concurrent to each other and to the attempted murder sentences.
A. Felony Murder Instruction
We review the trial court's decision regarding jury instructions under an abuse of discretion standard. People v. Kidd, 295 Ill. App. 3d 160, 167 (1998). Defendant argues that the trial court erred by instructing the jury on felony murder because the shootings were reasonable acts of self-defense and the evidence failed to show that the defendant planned or participated in a forcible felony during which Phillip Matthews was murdered. Defendant additionally argues that aggravated discharge of a firearm cannot serve as a predicate felony for a felony murder charge. In People v. Dekens, 182 Ill. 2d 247, 252 (1998), our supreme court noted that Illinois follows the proximate cause theory of felony murder. "Consistent with the proximate cause theory, liability should lie for any death proximately related to the defendant's criminal conduct." (Emphasis added.) Dekens, 182 Ill. 2d at 252. Thus, defendant is subject to the felony murder doctrine if the "decedent's death is the direct and proximate result of the defendant's felony." Dekens, 182 Ill. 2d at 252.
The State's theory was that Toney, together with Foster and Luckett, was the aggressor and the murder of Philip Matthews occurred as the result of Foster and Luckett shooting at Four Corner Hustlers. The State's evidence established that defendant asked Luckett and Foster to accompany him to rival gang territory as "backup" and knew that Luckett and Foster brought guns with them. Defendant drove Luckett and Foster, armed with weapons, into rival gang territory. Defendant stopped his vehicle to allow Luckett and Foster to aim and shoot their guns at rival gang members. Foster and Luckett exited the vehicle and shot at several rival gang members. Defendant tried unsuccessfully to aid Foster and Luckett in leaving the scene of the shooting. Thus, there is evidence that the victim's death was a direct and proximate result of defendant's felonious conduct in aiding and facilitating Foster and Luckett's shooting at rival gang members. While the defense presented a competing version of the shootings based on a theory of self-defense, there was sufficient evidence in this record to warrant instructing the jury on felony murder and the trial court did not abuse its discretion by so instructing the jury.
Defendant next argues unfair surprise and prejudice as the result of the jury being instructed on felony murder because he was only charged with intentional and knowing first degree murder. 720 ILCS 5/9-1(a)(1), (a)(2) (West 1996). The test is whether the indictment apprised defendant of the offense charged with sufficient specificity to allow him to prepare his defense and protect him from double jeopardy. People v. Allen, 56 Ill. 2d 536, 542-43 (1974). A jury may be instructed on felony murder even if felony murder was not specifically charged. People v. Maxwell, 148 Ill. 2d 116 (1992). "[T]he law in Illinois recognizes only one offense of murder; thus, there is no requirement that a defendant be charged specifically under section 9-1(a)(3) [(720 ILCS 5/9-1(a)(3)(West 1996))] in order to be convicted under the felony murder theory." People v. Jackson, 233 Ill. App. 3d 1089, 1096 (1992). The court in Jackson found no double jeopardy problem because if defendant was charged and acquitted under section 9-1(a)(1), he could not be tried for the murder of the same individual under subparagraph (a)(2) or (a)(3). Jackson, 233 Ill. App. 3d at 1097. The only inquiry was whether defendant could show prejudice from the State's decision to use a felony murder jury instruction despite the initial intentional and knowing murder charges. The court in Jackson found no prejudice because the defendant was aware of the felony murder theory from the instruction conference. Jackson, 233 Ill. App. 3d at 1098.
In this case, before trial the State informed defendant and the trial court that it sought to add a felony murder charge. The trial court denied the request, but put the defense on notice that such instruction would be given if supported by the evidence. Defendant knew that it was necessary to prepare a defense against the charges of aggravated discharge of a firearm, contained in his indictment and serving as the predicate felony for the felony murder charge. Defendant was also well aware of the State's theory that the killing of Phillip Matthews occurred during the commission of this underlying felony. We find no abuse of discretion by the trial court as the defendant was not unfairly surprised or prejudiced by this instruction.
Defendant additionally argues the felony murder instruction was improperly given because aggravated discharge of a firearm cannot serve as a predicate felony for a felony murder charge. A defendant commits aggravated discharge of a firearm when he knowingly or intentionally discharges a firearm in the direction of a person. 720 ILCS 5/24-1.2 (a)(2)(West 1996). The Illinois Criminal Code of 1961 requires that the offense underlying a felony murder be a "forcible felony." 720 ILCS 5/9-1(a)(3)(West 1996).
While aggravated discharge of a firearm is not specifically listed among the forcible felonies that will trigger a charge of felony murder, we note the definition of forcible felony is not limited to those listed and includes any "felony which involves the use or threat of physical force or violence against any individual." 720 ILCS 5/2-8 (West 1996). Aggravated discharge of a firearm is a proper predicate felony for felony murder because knowingly or intentionally discharging a firearm in the direction of a person involves the use or threat of physical force or violence against an individual. The purpose of the felony murder statute is to deter individuals from committing forcible felonies by holding them responsible for murder if death results from their criminal acts that involve use or threat of force or violence against any individual. People v. Graham, 132 Ill. App. 3d 673, 680 (1985). This law exists because forcible felonies are so inherently dangerous that a resulting homicide, even an accidental one, is strongly probable. People v. Jenkins, 190 Ill. App. 3d 115, 126 (1989). It is therefore consistent with the purpose of the felony murder statute to recognize aggravated discharge of a firearm as a predicate felony for felony murder.
Moreover, Illinois case law has recognized this crime as a predicate felony for felony murder; "[b]ecause the offense of aggravated discharge of a firearm necessarily involves violence directed against an individual, it constitutes a forcible felony within the intendments of felony murder." People v. Pugh, 261 Ill. App. 3d 75 (1994). In Pugh the defendants were charged with felony murder based on the predicate felony of aggravated discharge of a firearm. Defendants had fired at several people who returned fire, and the victim was killed. Pugh, 261 Ill. App. 3d at 76. The appellate court reversed the trial court's dismissal of the felony murder charges and held that the felony murder charges were proper because "[d]efendants are responsible for any death precipitated by their initial criminal acts provided it was their criminal acts which set in motion the events which ultimately resulted in death." Pugh, 261 Ill. App. 3d at 77. The court noted that, under felony murder, the defendant may be liable for either an intentional or accidental killing or for a killing committed by an accomplice or a third party. Pugh, 261 Ill. App. 3d at 77. In addition, the defendant need not perform the acts that cause the victim's death, and the defendant's felonious conduct does not have to be contemporaneous with the death. Pugh, 261 Ill. App. 3d at 77-78. The court concluded that "it was foreseeable that if defendants here fired guns in the direction of other people, someone would be likely to return fire and, just as likely, someone could be killed." Pugh, 261 Ill. App. 3d at 78.
We note the fourth district in People v. Morgan, No. 4-96-0996 (September 29, 1999), held that under the facts of that case aggravated discharge of a firearm could not properly be used as the predicate felony for the felony murder charge. We note the facts of Morgan are significantly different from the facts we have here. In Morgan, the 14-year-old defendant killed his grandfather after his grandfather beat him on the buttocks with a razor strap for receiving a detention. The defendant originally obtained the gun to kill himself, loaded it, 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 his grandfather to carry out the threat. As the defendant left the bathroom, he encountered his grandfather coming toward him and shot him. His grandmother was standing in the hallway screaming and the defendant shot her in the back as she ran out of the house. Morgan, slip op. at 2.
The Morgan court discussed the Pugh case and concluded that in Pugh felony murder was properly charged because the defendant committed the independent felony of aggravated discharge of a firearm by engaging in a gun battle and a bystander was killed by return fire. Morgan, slip op. at 69. However, in addressing the defendant's conviction for the first degree murder of his grandmother the Morgan court indicated, "Because the record in this case fails to show the commission of a predicate felony that had an independent felonious purpose, we conclude that the trial court erred by instructing the jury that defendant could be convicted of first degree murder on a felony murder theory." Morgan, slip op. at 70. The Morgan court held "that the predicate felony underlying a charge of felony murder must involve conduct with a felonious purpose other than the killing itself." Morgan, slip op. at 70.
We find the facts here similar to the factual scenario in Pugh and dissimilar to the facts of Morgan. Like Pugh, there was evidence here that the defendant and his companions engaged in a gun battle. The .38-caliber bullet recovered from the victim could not have been fired from either of the co-defendants' guns and that evidence demonstrates that, like the victim in Pugh, the victim here could have been shot by return fire. Under the State's version of the facts in this case, a jury could find that the defendant and his co-defendants were not acting in self-defense and it was their criminal acts, including firing their guns in the direction of the Four Corner Hustlers, that set in motion the events that ultimately resulted in the death of Phillip Matthews. That conduct involved the independent felonious purpose of discharging ...