Court of Appeals of Illinois, First District, Fourth Division
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.
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
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
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
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
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."
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
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
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 ...