Appeal from the Circuit Court of Cook County. No. 03 CR 00969 Honorable Joseph Kazmierski, Judge Presiding.
The opinion of the court was delivered by: Justice Hall
The defendant, Clinton Moore was charged by indictment with first degree murder (720 ILCS 5/9-1(a)(1), (a)(2) (West 2002)), first degree murder while committing a forcible felony (aggravated possession of a stolen motor vehicle) (720 ILCS 5/9-1(a)(3) (West 2002)), first degree murder while committing a forcible felony (burglary) (720 ILCS 5/9-1(a)(3) (West 2002)), aggravated possession of a stolen motor vehicle (625 ILCS 5/4-103.2(a)(7)(A) (West 2002)), burglary (720 ILCS 5/19-1(a) (West 2002)), and possession of burglary tools (720 ILCS 5/19-2 (West 2002)). The charges stemmed from a collision in which a stolen vehicle driven by the defendant collided with a vehicle driven by Jerry Love. At the time of the collision, the defendant was being pursued by the police. Mr. Love died as a result of the collision.
Following a jury trial, the defendant was found guilty of felony murder and burglary. The trial court imposed concurrent sentences of 30 years' and 7 years' imprisonment on the felony murder and burglary convictions, respectively. This appeal followed.
On appeal, the defendant contends that the offense of burglary was complete prior to the police chase, and therefore, he was not guilty of felony murder. We agree and reverse the defendant's felony murder conviction.
The evidence at trial established the following facts. On November 24, 2002, Richard Abolins discovered that his tan 1984 Buick Century automobile was missing from where he had parked it earlier that day. He reported the missing Buick to the police. He had not given anyone permission to drive the Buick. On November 25, 2002, Chicago police officers, Stack and Conway, were on patrol in an unmarked police vehicle when they responded to a message regarding two black males with a gun in a gray Oldsmobile Cutlass. Proceeding to the scene, Officer Stack believed he spotted the Oldsmobile at Cicero Avenue and began to follow it. A check of the license plate revealed that the suspect vehicle had been stolen. Activating their vehicle's oscillating headlights and siren, the officers pursued the suspect vehicle.
As the chase continued, 5 to 10 police vehicles joined in the pursuit. The cars proceeded through stop signs and the wrong way down one-way streets. At Kostner Avenue and Madison Street, a marked police car, driven by Officer Dorsey, took the lead as the pursuit continued. The suspect vehicle proceeded through a red light at Pulaski Avenue and Madison Street, striking a red Hyundai on the driver's door. As a result of the collision, Mr. Love, the driver of the Hyundai, was killed. The driver of the suspect vehicle, later identified as the defendant, fled on foot but was apprehended by police.
Following the accident, Officer Stack observed that the vehicle he had been pursuing was actually a tan Buick. The Buick's steering column had been "peeled," meaning that the plastic around it had been broken, and there was a screwdriver on the front seat. Officer Dorsey detained Misty McQueen, the defendant's passenger. According to Officer Dorsey, the keys to the Buick were in the ignition. The tan Buick was later determined to be Mr. Abolins's Buick.
According to Ms. McQueen, on November 24, 2002, she saw the defendant sitting in a tan Buick parked at Rockwell Gardens.*fn1 On November 25, 2002, she again saw the tan Buick parked at the Rockwell Gardens; the defendant was sitting in the driver's seat of the Buick. She asked him for a ride to buy drugs. When they arrived at their destination, a police car pulled up with its blue light flashing. The defendant hit the accelerator, and a chase began. When Ms. McQueen asked him to slow down so she could get out, the defendant refused saying there was a warrant out for him. She did not recall telling the grand jury that the defendant stated that the Buick was stolen but conceded that she must have done so. The defendant was driving approximately 70 miles per hour when they reached Kostner Avenue. As the defendant approached the intersection of Pulaski Avenue and Madison Street, the light turned red for him, and a red Hyundai entered the intersection. The Hyundai was in the middle of the intersection when the Buick collided with it.
After the defendant waived his Miranda rights, he was questioned by Detective David March. The defendant acknowledged driving the tan Buick that was involved in the collision. He did not know who owned the Buick. He had gotten the Buick from a friend of his, known only as "Slick." The defendant noticed that the steering column had been peeled. He had to use a screwdriver to start the vehicle so he assumed it was stolen. While driving with Ms. McQueen, he noticed an unmarked police vehicle behind him. After police activated their lights and the defendant realized they were after him, he attempted to escape because he believed there was a warrant out for him for parole violations. He was aware there was a traffic signal at the Pulaski Avenue and Madison Street intersection, but he did not look to see if it was red or green; he just sped through it. The defendant did not know how fast he was going. Following the crash, he tried to flee but was apprehended by police.
Detective March acknowledged that the defendant told him that he had permission from Slick to drive the Buick. However, the detective denied that the defendant told him the steering column of the Buick had been peeled when the Buick was stolen from Slick. The defendant's statement was not reduced to writing.
Following the close of all the evidence, defense counsel requested that the jury be instructed on the offense of reckless homicide, and the trial court agreed. In response, the State elected to dismiss all remaining charges but the felony murder based on the commission of a burglary and the burglary counts.*fn2 The defendant's motion for a mistrial was denied. The reckless homicide instruction was not given.
The jury returned a verdict finding the defendant guilty of first degree murder and burglary. Following the denial of the defendant's motion for a new trial, the trial court sentenced the defendant to 30 years' imprisonment for first degree murder and 7 years' imprisonment for burglary and ordered the sentences to run concurrently. Following the denial of his motion to reconsider sentence, the defendant filed a timely notice of appeal.
Sufficiency of the Evidence of ...