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People v. Toney

January 31, 2003

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
DONALD TONEY, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County Honorable Stanley Sacks, Judge Presiding.

The opinion of the court was delivered by: Justice O'mara Frossard

Unpublished

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) refusing to instruct the jury on the mitigating offense of second degree murder where defendant was charged with intentional and knowing murder and the evidence warranted a second degree instruction; (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 because of improper comments during closing arguments.

Based on the facts of this case, it was reversible error for the trial judge to refuse to instruct the jury on the mitigating offense of second degree murder because defendant was charged with intentional and knowing murder and the evidence warranted a second degree instruction. We reverse and remand for a new trial.

BACKGROUND

At approximately 7 p.m. on October 10, 1995, Antoine Harris and his brother Terrance, members of the Four Corner Hustlers street gang, recognized defendant as he drove on 123rd Street past Halsted Street with his brother Luckett and Foster. Defendant, Luckett, and Foster were Gangster Disciples. A confrontation occurred during which threats were yelled, Antoine threw a bottle at defendant's car, and shots were fired. Defendant remained in the car. Luckett and Foster got out of the car and fired their guns. Toney drove away alone. Phillip Matthews died from gunshot wounds. Bobby Roberson, Terrance, and Antoine were not injured. Antoine knew defendant and told the police where he lived. Within an hour of the shooting, the police arrested defendant, Luckett, and Foster. Antoine and Terrance identified defendant, Foster, and Luckett in a lineup and Antoine identified the rifle that Foster fired.

Defendant denied involvement in the shootings, but when Detective Baker showed him the two recovered weapons and told him that he and his car had been identified, defendant admitted his involvement. 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 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 discharged from the two weapons fired by Luckett and Foster.

Defendant was indicted on eight counts: counts I and II charged defendant with first degree intentional and knowing murder (720 ILCS 5/9-1(a)(1), (a)(2) (West 1994)); counts III, IV and V charged defendant with attempted murder (720 ILCS 5/8-4, 9-1(a) (West 1994)); counts VI, VII and VIII charged defendant with aggravated discharge of a firearm (720 ILCS 5/24-1.2(a)(2) (West 1994)). The jury found defendant guilty of the first degree murder of Phillip Matthews, guilty of the attempted murder of Antoine Harris, Terrance Harris, and Bobby Roberson, and guilty of aggravated discharge of a firearm in connection to Antoine Harris, Terrance Harris, and Bobby Roberson. Defendant was sentenced to 35 years in prison for first degree murder, consecutive to 18 years for attempted murder, concurrent to 10 years for aggravated discharge of a firearm.

I. FELONY MURDER JURY 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, the evidence failed to show that the defendant planned or participated in a forcible felony during which Phillip Matthews was murdered, and defendant was not charged with felony murder. Defendant additionally argues that aggravated discharge of a firearm cannot serve as a predicate felony for a felony murder charge.

Our supreme court noted in People v. Dekens, 182 Ill. 2d 247, 252 (1998), 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.

We first address the defendant's argument that the evidence demonstrated the shooting was in self-defense and failed to show defendant planned or participated in a forcible felony during which Phillip Matthews was murdered. The State's theory was that Toney, together with Foster and Luckett, were the aggressors, and the murder of Phillip 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. Defendant drove Luckett and Foster, armed with weapons, into rival gang territory. Defendant stopped his vehicle, and Foster and Luckett exited the vehicle and shot at several rival gang members. Defendant drove away alone, but tried unsuccessfully to aid Foster and Luckett in leaving the scene of the shooting. Thus, the State provided 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. The defense presented a competing version of the shootings based on a theory of self-defense and we will address the argument that defendant's competing theory of self-defense warranted a second degree murder instruction in the next section. However, regarding the felony murder instruction, we find that based on the State's evidence, there was sufficient evidence in this record that defendant participated in a forcible felony during which Phillip Matthews was murdered and the trial court did not abuse its discretion by instructing the jury on felony murder.

Next we address defendant's argument that it was error for the trial court to instruct on felony murder because he was not charged with felony murder. The test is whether the indictment informed 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). Defendant argues the felony murder instruction caused unfair surprise and prejudice because he was only charged with intentional and knowing first degree murder. 720 ILCS 5/ 9-1(a)(1), (a)(2) (West 1994). 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) [(Ill. Rev. Stat. 1985, ch. 38, par. 9-1(a)(3) (now 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 the defendant was protected from double jeopardy 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 court in Jackson found no unfair surprise or 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 judge that it sought to add a felony murder charge to the charge of intentional and knowing murder. The trial judge denied the request but put the defense on notice that a felony murder 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 theory. Defendant was also well aware of the State's theory that the killing of Phillip Matthews occurred during the commission of this predicate felony. We find no abuse of discretion by the trial judge in instructing the jury on felony murder because defendant suffered no unfair surprise or prejudice and was informed of the offense with sufficient specificity to allow him to prepare his defense and to avoid double jeopardy.

Defendant additionally argues the felony murder instruction was improperly given because aggravated discharge of a firearm cannot serve as a predicate felony for felony murder. 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). The Criminal Code defines forcible felony as "treason, first degree murder, second degree murder, predatory criminal sexual assault of a child, aggravated criminal sexual assault, criminal sexual assault, robbery, burglary, residential burglary, aggravated arson, arson, aggravated kidnaping, kidnaping, aggravated battery resulting in great bodily harm or permanent disability or disfigurement and any other felony which involves the use or threat of physical force or violence against any individual." 720 ILCS 5/2-8 (West 1996).

While aggravated discharge of a firearm is not specifically listed among the forcible felonies that can serve as a predicate for 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). It is consistent with the purpose of the felony murder statute to recognize aggravated discharge of a firearm as a predicate felony for felony murder. 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 the use or threat of force or violence against any individual. People v. Graham, 132 Ill. App. 3d 673, 680 (1985). The felony murder statute serves "to limit the violence that accompanies the commission of forcible felonies, so that anyone engaged in such violence will be automatically subject to a murder prosecution should someone be killed during the commission of a forcible felony." See People v Belk, No. 92937, slip op. at 4 (January 24, 2003) (and cases cited therein). Whether the perpetrator intended to kill the victim is irrelevant for purposes of the felony murder statute. Belk, slip op. at 8, citing People v. Shaw, 186 Ill. 2d 301, 322 (1998). The felony murder statute 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). Depending on the factual context, the forcible felony of aggravated discharge of a firearm can be so inherently dangerous that a resulting homicide, even an accidental one, is strongly probable.

Illinois case law has recognized this particular forcible felony 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 75,77 (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 in Pugh 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 Illinois Supreme Court has recently clarified the circumstances under which forcible felonies can properly serve as predicate felonies for a charge of felony murder in People v. Morgan, 197 Ill. 2d 404 (2001) *fn1 . In Morgan, the supreme court reviewed the holding of the Fourth District Appellate Court in People v. Morgan, 307 Ill. App. 3d 707 (1999), that aggravated discharge of a firearm and aggravated battery could not serve as a predicate felony for the felony murder instruction under the facts of that case. In Morgan, the supreme court found that because the predicate felonies arose from and were inherent in the murders of the two victims, the forcible felonies could not serve as predicate felonies for felony murder. Morgan, 197 Ill. 2d at 447-48. While the Criminal Code requires that the offense underlying a felony murder be a forcible felony, not all forcible felonies can serve as the predicate for felony murder. Morgan limits the predicate felonies for felony murder to those felonies which do not arise from and are not inherent in the murder itself. Morgan, 197 Ill. 2d at 447-48. In light of that limitation, the factual context surrounding the murder is critical in determining whether the forcible felony can serve as a predicate felony for felony murder. The facts of Morgan are significantly different from the facts of the instant case. The issue is whether, in the factual context of the instant case, aggravated discharge of a firearm can serve as the predicate felony for felony murder.

In Morgan, the 14-year-old defendant, Jon Roe Morgan, killed his grandfather, Keith Cearlock, after his grandfather beat him 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. The defendant's grandfather had threatened in the past to kill him, and the defendant 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, Lila Cearlock, was standing in the hallway screaming and the defendant shot her in the back as she ran out of the house.

Morgan was originally indicted on eight counts: counts I, II, III and IV charged Morgan with the first degree intentional or knowing murders of Lila and Keith (720 ILCS 5/9-1(a)(1), 1(a)(2) (West 1994)); counts V and VI charged Morgan with the felony murders of Lila and Keith based on the forcible felony of aggravated battery (720 ILCS 5/9-1(a)(3) (West 1994)), and counts VII and VIII charged Morgan with the felony murders of Lila and Keith, based on the forcible felony of aggravated discharge of a firearm (720 ILCS 5/9-1(a)(3) (West 1994)). Following a jury trial, the defendant was convicted of the first degree murder of his grandmother, Lila Cearlock, and the second degree murder of his grandfather, Keith Cearlock.

We note the appellate court in Morgan discussed the Pugh case when first addressing the issue of whether aggravated battery and aggravated discharge of a firearm could serve as predicate felonies for felony murder. The appellate court 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, 307 Ill. App. 3d at 713. The appellate court noted that aggravated battery and aggravated discharge of a firearm can serve as a predicate felony for a felony murder instruction as long as those crimes have an independent felonious purpose, and are not merely incidental to the murder itself. Morgan, 307 Ill. App. 3d at 715. However, in addressing Morgan's conviction for the first degree murder of his grandmother, the appellate court in Morgan 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, 307 Ill. App. 3d at 714. The appellate 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, 307 Ill. App. 3d at 714.

The Illinois Supreme Court agreed with the reasoning of the appellate court indicating as follows:

"[W]e agree with the appellate court that where the acts constituting forcible felonies arise from and are inherent in the act of murder itself, those acts cannot serve as predicate felonies for a charge of felony murder. Because the predicate felonies in this case arose from and were inherent in the murders of Keith and Lila, the jury should not have been instructed that Jon could be convicted of first degree murder on a felony murder theory. Accordingly, we affirm the ...


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