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People v. O'Neal

Court of Appeals of Illinois, First District, Fourth Division

September 29, 2016

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
JAUAN O'NEAL, Defendant-Appellant.

         Appeal from the Circuit Court of Cook County. No. 10 CR 16711 Honorable Kenneth J. Wadas, Judge Presiding.

          PRESIDING JUSTICE ELLIS delivered the judgment of the court, with opinion. Justice Cobbs concurred in the judgment and opinion. Justice McBride specially concurred, with opinion.

          OPINION

          ELLIS PRESIDING JUSTICE.

         ¶ 1 During a street party on May 29, 2010, on a portion of South Laflin Street that served as an approximate boundary between rival Chicago street gangs, a van drove the wrong way down the one-way street toward the group of people gathered at the party. Many people at the party noticed the slow-moving van and began to shout. Defendant Jauan O'Neal, who claimed he was acting as "security" for the party, fired multiple shots at the van, claiming that he believed it was being driven by rival gang members and that he was acting in self-defense. At the time defendant fired the shots, his friend Darius Murphy was sitting in a car across the street. One of the bullets defendant fired at the van struck Murphy in the head, killing him.

         ¶ 2 The State charged defendant with, among other things, three different forms of first degree murder-intentional murder, strong-probability murder, and felony murder based on the predicate felony of aggravated discharge of a firearm. The jury was instructed on self-defense as to all counts. On the charges of intentional and strong-probability murder, the jury was also instructed as to second-degree murder, based on the mitigating factor of unreasonable self-defense.

         ¶ 3 The jury found defendant guilty of first-degree murder based on felony murder. On the intentional and strong-probability murder counts, the jury reduced the conviction to second-degree murder based on the mitigating factor of unreasonable self-defense. The jury also convicted defendant of aggravated discharge of a firearm.

         ¶ 4 We reverse the felony-murder conviction and remand for resentencing on the second-degree murder conviction. The felony-murder conviction was predicated on the offense of aggravated discharge of a firearm, i.e., defendant's act of shooting at the van. But that was the same act causing Murphy's death-an act that the jury found warranted only a second-degree murder conviction based on unreasonable self-defense. Allowing defendant's felony-murder conviction to stand would effectively license the State to nullify a second-degree murder verdict in any case where a defendant shoots at one individual under the subjective but unreasonable belief that he was acting in self-defense but misses and mistakenly kills another person. The State cannot be permitted to use felony murder to obtain a first-degree murder conviction that it otherwise could not secure. We reverse the felony-murder conviction, affirm defendant's other convictions for second-degree murder and aggravated discharge of a firearm, and remand for resentencing.

         ¶ 5 I. BACKGROUND

         ¶ 6 The State charged defendant with three different forms of first-degree murder- intentional, strong-probability, and felony murder-as well as aggravated discharge of a firearm. The felony-murder charge was predicated on the offense of aggravated discharge of a firearm. The aggravated discharge of a firearm count alleged that defendant "knowingly discharged a firearm in the direction of a vehicle he knew or should have known to be occupied by a person."

         ¶ 7 On May 29, 2010, a group of people, including defendant, were drinking and smoking marijuana near the intersection of 51st Street and South Laflin Street in Chicago. The decedent, defendant's friend Darius Murphy, was sitting in a parked car on the opposite side of the street. Many of the people at the party, including defendant, were members of the Black P. Stone gang, which was involved in a conflict with the La Raza gang.

         ¶ 8 Defendant was acting as "security" for the party that night and was carrying a 9-millimeter handgun. Murphy's brother Deandre and his cousin Nikevis testified that they understood defendant's responsibility as the "security" was to protect the people at the party from rival gangs. None of the witnesses at trial testified that they saw other partygoers carrying firearms.

         ¶ 9 During the party, a van with tinted windows approached, traveling the wrong way down Laflin Street. People at the party yelled, "on that van" or "on that car, " and defendant fired his gun at the van. After defendant fired, the van drove away. People then realized that Murphy had been shot in the head.

         ¶ 10 The amount of shots defendant fired was unclear. Deandre testified that he heard 6 or 7 shots, Nikevis testified that he heard 4 or 5, and Derreon, Murphy's other brother, testified that he heard 8 or 10. The police found five cartridge cases and one bullet jacket on the scene, as well as a bullet core in Murphy's head.

         ¶ 11 There was also conflicting evidence regarding who was in the van and whether any of its occupants were armed. Deandre and Nikevis both testified that there was only one 40-year-old Hispanic man driving the van. They did not see anyone in the van with a weapon. Samuel Walton, a defense witness, testified that there were four Hispanic men inside the van, including a passenger who was holding a gun out of the window. Andre Lacour, another defense witness, also saw multiple people inside the van, but he could not say how many. Andre testified that he saw the people in the van "arguing or fumbling with something." Terry McCauley, the final defense witness, testified that there was one passenger in the van in the front seat who raised something that Terry thought may have been a gun. Terry said that he could not be certain because it was dark and the van's windows were tinted.

         ¶ 12 After defendant's arrest, he was interrogated by Detective Scott Reiff. Reiff testified that defendant admitted firing at the van. The first time Reiff questioned defendant, he said that there were three Hispanic men in the van, one of whom was holding a gun out the front passenger window and flashing gang signs. The second time Reiff questioned defendant, he said that there was only one passenger in the van and that he did not see a gun, only a flash.

         ¶ 13 At the close of the State's case, defendant moved for a directed finding on the felony-murder charge, arguing that the same act that formed the basis of the underlying felony of aggravated discharge of a firearm, i.e., shooting at the van, was also the act that caused Murphy's death. Defense counsel argued, "If I'm shooting at someone, intending to kill them, and I miss and kill the person behind [him], that's straight up murder. That's not felony murder. This is essentially that case." The trial court denied the motion, noting that "the offense of aggravated discharge of a firearm currently and has been for the last couple of years the main predicate underlying offense in these various shootings that have taken place in the city of Chicago."

         ¶ 14 During the jury instruction conference, defense counsel proposed instructions that would tell the jury that it had to conclude that, with respect to the felony-murder charge, the jury had to find both that the acts forming the basis of the predicate felony were not inherent in the acts that caused Murphy's death and that defendant's "felonious purpose" when committing the predicate felony was different from his felonious purpose when committing the murder. The court denied the instructions on the basis that they would confuse the jury and the instructions were not taken from the Illinois Pattern Jury Instructions, Criminal (4th ed. 2000).

         ¶ 15 The State proposed an instruction informing the jury that an individual could not be justified in the use of force if he was committing the offense of aggravated discharge of a firearm. Defense counsel objected to the instruction, but the trial court allowed it.

         ¶ 16 The jury was instructed as to first-degree intentional murder, first-degree strong-probability murder, first-degree felony murder, self-defense, second-degree murder, and aggravated discharge of a firearm. With respect to the felony murder charge, the jury was not instructed to consider whether the mitigating factor for second-degree murder (an unreasonable belief in the need for self-defense) was present.

         ¶ 17 During the jury's deliberations, the jurors sent out a note asking, "What is the definition of justification under the law?" Defense counsel pointed out that the jurors had already been instructed on the definition of justification. The court responded, "You have already been given a definition for the justified use of force in your instruction packet."

         ¶ 18 The jury found defendant guilty of felony-murder, second-degree murder, and aggravated discharge of a firearm. The jury further found that defendant personally discharged the firearm that proximately caused Murphy's death.

         ¶ 19 In his motion for a new trial, defendant argued that the felony murder count should be vacated because the "act constituting aggravated discharge of a firearm [was] precisely the same as [the] act constituting second degree murder." Defendant argued:

"The jury found [defendant] guilty of second degree murder under a theory of transferred intent. By doing so [it] determined that, when he shot *** Mr. Murphy, [defendant] was attempting to commit second degree murder of an occupant of the van. Therefore, his act may only form the basis for a conviction of second degree murder."

         The trial court was "not persuaded by the Defense's argument that second degree murder rules in this case." The court stated, "There was a transferred intent scenario here, and the felony murder count is the most serious count here, and that's the count that he will be sentenced on." The trial court "merged" the other counts into the felony murder count and sentenced defendant to 70 years' incarceration: 40 years for the murder itself and another 30 years pursuant to the statutory firearm enhancement (730 ILCS 5/5-8-1(a)(1)(d)(iii) (West 2010)).

         ¶ 20 Defendant appeals, raising six issues: (1) that his felony-murder conviction predicated on the offense of aggravated discharge of a firearm must be reversed because the act forming the basis of the aggravated discharge charge (shooting at the van) was inherent in the shooting of Murphy, (2) that he is entitled to a new trial because the jury's verdicts of guilty for felony murder and second-degree murder were legally inconsistent, (3) that the trial court erred in instructing the jury that defendant could not be justified in using force if he committed aggravated discharge of a firearm and failing to instruct the jury on second-degree murder with respect to the felony murder charge, (4) that the trial court erred in refusing to instruct the jury on the independent felonious purpose doctrine, (5) that his sentence is unconstitutional and excessive, and (6) his mittimus should be corrected to reflect additional credit for time he served in custody prior to sentencing.

         ¶ 21 II. ANALYSIS

         ¶ 22 A. Felony Murder

         ¶ 23 Defendant first argues that his conviction for first-degree murder based on a felony-murder theory must be reversed. For the reasons that follow, we agree and reverse the felony-murder conviction outright.

         ¶ 24 There are three types of first-degree murder in Illinois: (1) intentional murder, i.e., where the defendant "intends to kill or do great bodily harm" or "knows that [his] acts will cause death" (720 ILCS 5/9-1(a)(1) (West 2010)); (2) strong-probability murder, i.e., where the defendant knows that his acts "create a strong probability of death or great bodily harm" (720 ILCS 5/9-1(a)(2) (West 2010)); and (3) felony murder, i.e., where the defendant commits or attempts to commit a forcible felony and, during the commission of that felony, a death occurs (720 ILCS 5/9-1(a)(3) (West 2010)). The felony-murder statute states that the predicate forcible felony must be one "other than second degree murder." Id.

         ¶ 25 Second-degree murder occurs when the defendant commits either intentional, knowing, or strong-probability first-degree murder and one of two mitigating factors is present: (1) the defendant acted under a sudden and intense passion resulting from serious provocation by the victim (720 ILCS 5/9-2(a)(1) (West 2010)) or (2) the defendant subjectively believed that he was acting in self-defense, but his belief was unreasonable (720 ILCS 5/9-2(a)(2) (West 2010)). See People v. Jeffries, 164 Ill.2d 104, 122 (1995); People v. Newbern, 219 Ill.App.3d 333, 353 (1991); People v. Lefler, 2016 IL App (3d) 140293, ¶ 19 (all standing for proposition that conviction for second-degree murder is conviction for first-degree murder plus finding that one of two listed mitigating factors is present). The second mitigating factor, which has been described as "imperfect self-defense" (Jeffries, 164 Ill.2d at 113), is the factor at issue in this case.

         ¶ 26 But as we have already noted, unlike intentional and strong-probability murders, the felony-murder statute requires that the predicate forcible felony must be one "other than second degree murder." 720 ILCS 5/9-1(a)(3) (West 2010). So while a finding of a mitigating factor such as imperfect self-defense will serve to reduce a charge of first-degree intentional or strong-probability murder to a second-degree murder conviction, the "defense of second degree murder is not available to a charge of felony murder." People v. Morgan, 197 Ill.2d 404, 452 (2001). That is because felony murder is not concerned with the defendant's intent to commit murder. People v. Klebanowski, 221 Ill.2d 538, 552 (2006). Rather, the purpose of the felony-murder statute is to deter the commission of the predicate forcible felony by holding the wrongdoer liable for any foreseeable death that results from the commission of that forcible felony. See People v. Belk, 203 Ill.2d 187, 192 (2003) ("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 during the commission of a forcible felony."); People v. Davison, 236 Ill.2d 232, 239 (2010) (citing Belk for same proposition).

         ¶ 27 In this case, defendant was charged with first-degree intentional and strong-probability murder, but the jury reduced those charges to second-degree murder based on defendant's unreasonable belief that he was acting in self-defense. The State also charged defendant with and convicted him of felony murder, also a first-degree murder. The forcible felony used as the predicate felony for defendant's felony-murder charge in this case was aggravated discharge of a firearm, which occurs when a defendant knowingly or intentionally discharges a firearm "in the direction of another person or in the direction of a vehicle he or she knows or reasonably should know to be occupied by a person." 720 ILCS 5/24-1.2(a)(2) (West 2010).[1]

         ¶ 28 Thus, the jury was able to credit defendant's claim of imperfect self-defense, while simultaneously finding defendant guilty of first-degree murder based on the State's felony-murder charge.

         ¶ 29 Defendant argues that, in this case, aggravated discharge of a firearm could not be used as the predicate felony for his felony-murder conviction because it was inherent in the act causing Murphy's death. He notes that one of the shots he fired at the van was the same shot that struck Murphy. And because the jury found that the killing was mitigated by imperfect self-defense when it convicted him of second-degree murder, defendant argues that he cannot also stand convicted of first-degree murder for the same conduct.

         ¶ 30 Whether a felony is a proper predicate felony for felony murder is a question of law that we review de novo. Davison, 236 Ill.2d at 239.

         ¶ 31 Defendant's argument relies on Morgan, 197 Ill.2d 404, which held that an act that is inherent in a murder cannot serve as the predicate felony for felony murder. In Morgan, the defendant was charged with the murders of his grandparents. Id. at 410. He was convicted of first-degree murder for shooting his grandmother but was convicted of serious-provocation second-degree murder for shooting his grandfather. Id. Before trial, the defendant sought to dismiss the counts of felony murder predicated on the offenses of aggravated battery and aggravated discharge of a firearm, arguing that those predicate felonies "were not independent of the murders themselves." Id. at 444.

         ¶ 32 Our supreme court agreed that those counts should have been dismissed because "[t]he forcible felonies underlying the charges of felony murder *** were acts that were inherent in, and arose out of, the fatal shootings." Id. at 447. The court held that, "[b]ecause the predicate felonies *** arose from and were inherent in the murders of [the victims], the jury should not have been instructed that [the defendant] could be convicted of first degree murder on a felony-murder theory." Id. at 447-48. The court reasoned that, because every shooting involves conduct constituting aggravated discharge of a firearm, "all fatal shootings could be charged as felony ...


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