Court of Appeals of Illinois, First District, Sixth Division
Appeal from the Circuit Court of Cook County. 10 CR 3600 Honorable Nicholas J. Ford, Judge Presiding.
Presiding Justice Rochford and Justice Reyes concurred in the judgment and opinion.
¶ 1 Following a jury trial, defendant Lapoleon Colbert was found guilty of first degree felony murder based on the predicate felony of mob action in connection with the beating death of Derrion Albert. Defendant was sentenced to 32 years' imprisonment. The trial court denied defendant's motion to reconsider sentence. He now appeals his conviction and sentence. We affirm.
¶ 2 The facts show that on the afternoon of September 24, 2009, a street brawl involving a number of individuals broke out near the front entrance and parking lot of the Agape Community Center, located on 111th Street in the Roseland neighborhood of Chicago, Illinois. The brawl stemmed from an ongoing feud between two factions of students attending nearby Fenger Academy High School. The two groups of students were from rival neighborhoods.
¶ 3 During the street brawl, Derrion Albert was fatally beaten. The incident was captured on a video surveillance camera located on the outside of the building housing the community center and on a cell phone video recording taken by a bystander. The bystander's video recording was copied into a slow motion version. The three video recordings were published to the jury. The video recordings show a number of young men strike the victim. In regard to the defendant, the video recordings show him kick the victim in his head and stomp the victim in his torso area as the victim lay motionless on the ground.
¶ 4 An autopsy revealed Albert suffered multiple abrasions and bruises to his face, lips, hands, chest, abdomen, and back. He died from cerebral hemorrhaging caused by blunt force trauma to his head. The manner of death was ruled a homicide.
¶ 5 Defendant was initially charged with three counts of murder: intentional murder, strong probability murder, and felony murder predicated on mob action. Prior to trial, the State dismissed the intentional and strong probability murder counts and elected to proceed solely on the one count of felony murder. Defense counsel objected.
¶ 6 Defense counsel argued that the State had elected to proceed only on the felony murder count to eliminate the possibility of a conviction for second degree murder based on imperfect self-defense. Over defense counsel's objections, the trial court allowed the State to proceed solely on the count of felony murder predicated on mob action.
¶ 7 Defendant's theory of defense at trial was that, although he kicked the victim in the head, he did not inflict the fatal blow and did not participate in the mob action. The jury found defendant guilty of first degree felony murder predicated on mob action in connection with the fatal beating.
¶ 8 ANALYSIS
¶ 9 Under the Criminal Code of 1961 (Code), a person commits the offense of felony murder when, without lawful justification, he causes a person's death while "attempting or committing a forcible felony other than second degree murder." 720 ILCS 5/9-1(a)(3) (West 2002). The particular felony defendant was charged with committing was mob action pursuant to section 25-1(a)(1) of the Code, which consists of the "use of force or violence disturbing the public peace by 2 or more persons acting together and without authority of law." 720 ILCS 5/25-1(a)(1) (West 2008).
¶ 10 Mob action is not listed among the crimes classified as forcible felonies. 720 ILCS 5/2-8 (West 2002). However, our courts have determined that mob action qualifies as a forcible felony because the term "forcible felony" includes not only those listed, but also those felonies coming within the purview of the statute's catch-all clause which reads, " 'any other felony which involves the use or threat of physical force or violence against any individual.' " People v. Banks, 287 Ill.App.3d 273, 283 (1997) (quoting 720 ILCS 5/2-8 (West 1994)); see also People v. Davis, 213 Ill.2d 459, 471 (2004) (mob action qualified as a forcible felony because it involved the use of force or violence against the victim).
¶ 11 In this case, the mob action was used as a predicate forcible felony to charge defendant with felony murder. "The purpose behind the felony-murder statute is 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 ...