Appeal from the Circuit Court of St. Clair County. No. 96-CF-392 Honorable Jan V. Fiss, Judge, presiding.
The opinion of the court was delivered by: Justice Welch
On April 26, 1996, in the circuit court of St. Clair County, Terry Dibble (defendant) was indicted for the offense of first-degree murder in violation of section 9-1(a)(3) of the Criminal Code of 1961 (Code) (720 ILCS 5/9-1(a)(3) (West 1994)), in that, on or about the ninth day of November 1993, while committing the forcible felony of burglary, he, without lawful justification, shot Billy Barker in the head with a shotgun, causing the death of Billy Barker. Defendant was tried before a jury on May 19 through 21, 1998, and found guilty of first-degree murder. On August 28, 1998, defendant was sentenced to 45 years in the Illinois Department of Corrections.
The evidence presented at defendant's trial can be summarized as follows. On the evening of November 9, 1993, defendant, Preston Arnsperger, and Christopher Mathis traveled together in an automobile driven by defendant to the home of the victim, Billy Barker. Defendant had been acquainted with Barker, had lived in Barker's rental house, and had visited with Barker at Barker's residence. Defendant and Barker had engaged in two fist fights in the past and were not on the best of terms. Arnsperger and Mathis did not know the victim.
According to Arnsperger and Mathis, who testified at defendant's trial, their purpose was to break into Barker's home and steal marijuana and cocaine, which defendant had told them were always present in the home in large quantities. Defendant had told Arnsperger and Mathis that Barker would not be at home as he was always at a tavern during the evening hours. Nevertheless, according to Arnsperger and Mathis, defendant took a shotgun with him into Barker's house.
Entry was gained through a window, and defendant directed Arnsperger and Mathis to search a bedroom for drugs. Defendant then proceeded to a different part of the house. While Arnsperger and Mathis were in the bedroom, they heard a male voice, not defendant's, say, "Freeze, I've got a .45," or words to that effect. They then heard defendant respond with similar words, immediately followed by a shotgun blast. Arnsperger and Mathis immediately exited the house through the same window they had entered and returned to the car. Shortly thereafter, defendant exited the house and returned to the car. They left the scene.
Barker was found the next evening, laying dead on the floor of his home. He had been shot in the eye with a shotgun. Although marijuana and a large amount of cash were in plain view in the home, apparently nothing had been taken from the home.
Prior to defendant's trial, Arnsperger and Mathis both pleaded guilty to felony murder. Pursuant to a negotiated plea, Arnsperger and Mathis agreed to testify at defendant's trial in return for the State agreeing not to seek a sentence in excess of 60 years' imprisonment. Arnsperger was serving a 30-year prison sentence; Mathis was serving a 35-year prison sentence. Both were seriously impeached by prior inconsistent statements they had made to the police at the time the crime was being investigated. Mathis in particular admitted that he had lied to the police in an attempt to minimize his responsibility for the crime.
The murder weapon was never found, and no physical evidence linked defendant to the crime. Defendant's conviction rested primarily on the testimony of Arnsperger and Mathis. Defendant did not present any evidence at the trial and did not testify in his own behalf. His counsel did, however, engage in extensive cross-examination of the State's witnesses, particularly Arnsperger and Mathis.
Prior to defendant's trial, the State filed a notice of intent to submit instructions to the jury on multiple alternative theories of first-degree murder under sections 9-1(a)(1) and 9-1(a)(2), in addition to section 9-1(a)(3) of the Code (720 ILCS 5/9-1(a)(1), (a)(2), (a)(3) (West 1994)). Defendant made no objection to the State's proposed instructions. Accordingly, the jury was instructed that defendant could be found guilty of first-degree murder if he, or one for whose conduct he was legally responsible, performed the acts that caused the death of Billy Barker and that he intended to kill or do great bodily harm to Barker, he knew that his acts would cause death to Barker, he knew that his acts created a strong probability of death or great bodily harm to Barker, or he was attempting to commit or committing the offense of burglary. The jury was further instructed that a person commits the offense of burglary when he, without authority, knowingly enters a building with the intent to commit therein the offense of theft. The jury was given only a general verdict form, so it is impossible to know on which theory of first-degree murder defendant was found guilty.
This brings us to defendant's first argument on appeal. Defendant was charged with, and the jury was instructed on, felony murder based on burglary as defined in section 19-1 of the Code (720 ILCS 5/19-1 (West 1992)). However, the evidence presented at the trial showed beyond a reasonable doubt that defendant could not have been guilty of burglary because the "building" that he unlawfully entered was the victim's residence. Accordingly, defendant could only be guilty of residential burglary as defined in section 19-3 of the Code (720 ILCS 5/19-3 (West 1992)). Burglary and residential burglary are mutually exclusive: residential burglary can be committed only in a dwelling place, while simple burglary cannot occur in a dwelling place. People v. Childress, 158 Ill. 2d 275, 302 (1994). However, the jury was not instructed that the term "building," as included in the definition of burglary, could not include a "dwelling place." The victim in the present case was killed in his own dwelling place, and thus, defendant could not have been guilty of burglary or felony murder based on burglary. Nevertheless, the jury was instructed on this theory of first-degree murder.
On appeal, defendant relies on the Stromberg rule to argue that the general verdict against him must be set aside where the jury was instructed that it could rely on two or more independent grounds and that one of those grounds, felony murder based on burglary, is insufficient, because the verdict may have rested exclusively on the insufficient ground. See Stromberg v. California, 283 U.S. 359, 367-68, 75 L. Ed. 1117, 1122, 51 S. Ct. 532, 535 (1931). Defendant argues that the jury's general verdict against him may have rested exclusively on the improper felony murder ground and that such a charge, and the instructions based thereon, are unconstitutional. While we agree that, under the jury instructions given, the jury could have improperly found defendant guilty of felony murder based on burglary because the jury was not instructed that a "building" could not include a "dwelling place," we do not agree with defendant that the charge or instructions were unconstitutional. Instead, we agree with the State that the charge was not legally insufficient but that it was factually insufficient. That is, the evidence produced at the trial did not support a finding of guilt of felony murder based on burglary because the evidence produced at the trial demonstrated beyond a reasonable doubt that the "building" that defendant unlawfully entered was a "dwelling place." A conviction for felony murder based on burglary is not supported by the evidence and cannot stand. However, the other theories of first-degree murder were supported by the evidence, and convictions based on those theories can stand.
In Stromberg v. California, 283 U.S. 359, 75 L. Ed. 1117, 51 S. Ct. 532 (1931), the defendant was convicted of a violation of section 403a of the California Penal Code for one or more of the following acts: displaying a red flag or banner in a public place "as a sign, symbol[,] and emblem of opposition to organized government [or] as an invitation and stimulus to anarchistic action [or] as an aid to propaganda that is and was of a seditious character." Stromberg, 283 U.S. at 361, 75 L. Ed. 1117, 51 S. Ct. at 533. The jury was instructed that the defendant could be convicted if the flag was displayed for any one of the three purposes named. However, the verdict was general and did not specify on which ground the defendant was convicted. A conviction upon the first clause, however, that the flag was displayed as a symbol of opposition to organized government, would violate the defendant's first amendment right to free speech. Thus, this clause could not constitute a lawful foundation for a criminal prosecution. Accordingly, because it could not be determined whether or not the defendant's conviction rested exclusively on this invalid and unconstitutional criminal charge, her conviction was set aside.
The instant case differs from Stromberg in the following way. The charge of felony murder based on burglary is a valid and constitutional charge, and had the murder occurred in the victim's office building, rather than his dwelling, the conviction could stand. A charge of felony murder based on burglary violates no constitutional provision and is not invalid as a matter of law. Accordingly, a conviction for felony murder based on burglary can stand where it is adequately supported by the evidence. In Stromberg, the charge and conviction, even if supported by the evidence, could not stand because they were unconstitutional. In the instant case, the charge and conviction for felony murder based on burglary could stand if they were supported by the evidence. In the case at bar they were not. We conclude that the Stromberg rule does not apply to the case at bar.
Instead, we conclude that the rule of Griffin v. United States, 502 U.S. 46, 116 L. Ed. 2d 371, 112 S. Ct. 466 (1991), applies to the case at bar. In Griffin, the United States Supreme Court explained that its decision in Stromberg stands for nothing more than the principle that where a provision of the constitution forbids a conviction on a particular ground, the constitutional guarantee is violated by a general verdict that may have rested on that ground. 502 U.S. at 53, 116 L. Ed. 2d at 379, 112 S. Ct. at 471. The Griffin court refused to expand the holding of Stromberg to set aside a general verdict not because one of the possible bases of conviction was unconstitutional but because one of the possible bases of conviction was merely unsupported by sufficient evidence. 502 U.S. at 56, 116 L. Ed. 2d at 380, 112 S. Ct. at 472. Thus, a reversal of a general ...