                                    2016 IL App (1st) 132284

                                                                             FOURTH DIVISION
                                                                             September 29, 2016


No. 1-13-2284

THE PEOPLE OF THE STATE OF ILLINOIS,                  )              Appeal from the
                                                      )              Circuit Court of
       Plaintiff-Appellee,                            )              Cook County.
                                                      )
v.                                                    )              No. 10 CR 16711
                                                      )
JAUAN O’NEAL,                                         )              Honorable
                                                      )              Kenneth J. Wadas,
       Defendant-Appellant.                           )              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

¶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
No. 1-13-2284

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.




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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


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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


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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:




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       “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


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¶ 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.




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¶ 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




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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.


       1
           There are several other acts constituting aggravated discharge of a firearm (see 720
ILCS 5/24-1.2(a) (West 2010)) but for purposes of this case, this is the only relevant provision.

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¶ 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

murder” and “[t]he result could be to effectively eliminate the second degree murder statute.”

(Internal quotation marks omitted.) Id. at 447.

¶ 33   Two years later, in People v. Pelt, 207 Ill. 2d 434, 442 (2003), the court held that the

State could not charge the defendant with felony murder predicated on aggravated battery, in a

case where the defendant threw an infant against a dresser and killed the child. The court held

that “the act of throwing the infant forms the basis of defendant’s aggravated battery conviction,

but it is also the same act underlying the killing. Therefore, as in Morgan, it is difficult to

conclude that the predicate felony underlying the charge of felony murder involved conduct with

a felonious purpose other than the conduct which killed the infant.” Id.

¶ 34   The court also reemphasized its “apprehension,” previously articulated in Morgan, in

permitting the State to avoid proving a defendant’s intent via a felony-murder charge. Id.

Specifically, the court noted that the defendant had been charged with intentional murder, but the

jury “rejected [that] charge and instead found [the] defendant guilty of aggravated battery.” Id.

The court stressed that its “holding ensure[d] that [a] defendant will not be punished as a

murderer where the State failed in proving to the jury that a knowing murder occurred.” Id.




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¶ 35   The supreme court next took up this issue in People v. Davis, 213 Ill. 2d 459, 474 (2004),

where the court held that the offense of mob action was a proper predicate felony because

defendant’s acts were not inherent in the death of a victim severely beaten by a group of 10 to 20

people. The court reasoned that “the same evidence was not used to prove both the predicate

felony, mob action, and the murder.” Id. The testimony varied as to how many times defendant

struck the victim with a stick, but it was “undisputed” that as many as 10 to 20 other people beat

him severely. Id. Regardless, to convict defendant of mob action, the State only needed to prove

that the defendant acted in concert with others to disturb the peace through the use of force or

violence and that someone within that group violently inflicted injury; “it was not necessary to

prove that defendant struck [the victim], much less performed the act that caused the killing.” Id.

Likewise, it was clear that the defendant’s participation on the mob action “involved conduct

with a felonious purpose other than the conduct which killed [the victim].” Id.

¶ 36   The court again acknowledged its “concern that the State will effectively eliminate

second degree murder and will avoid the burden of proving an intentional and knowing killing in

first degree murder cases by often charging felony murder because certain predicate felonies tend

to accompany all murders.” Id. at 471. But the court did not find the concern present. Id. at 474-

75.

¶ 37   The supreme court most recently considered this issue in Davison, 236 Ill. 2d at 243,

where the supreme court again determined whether mob action could serve as a predicate felony

for a felony-murder charge under those facts. The court held that, under the facts of that case,

mob action was a proper predicate felony for felony murder, where the defendant committed

several distinct acts toward the victim. The court first noted that, “[a]s in Davis, evidence apart

from the actual murder supported defendant’s conviction for mob action.” Id. at 242. The


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defendant in Davison had agreed to help one of his co-offenders, who had quarreled over money

with the victim, to locate and attack the victim. Id. The defendant and his friends searched for the

victim, found him, and pursued him on foot and by car. Id. The court detailed defendant’s

distinct acts:

        “Defendant admitted he threw a bat at the victim during the pursuit. Defendant also

        engaged in some sort of physical interaction with the victim when he first caught up to

        the victim during the pursuit, causing the victim to fall and drop a knife. Defendant

        stabbed the victim only toward the end of the pursuit. After stabbing the victim,

        defendant retreated and watched his three co-offenders repeatedly stab and hit the victim

        with a bat. This evidence supports a conclusion that defendant acted with other

        individuals to use force or violence to disturb the public peace, completing the predicate

        felony of mob action, before the end of the aggression that eventually resulted in the

        victim’s death.” (Emphasis added.) Id.

¶ 38    The supreme court held that defendant’s conduct was not inherent in, nor arose out of, the

murder itself, given that some of the defendant’s actions—throwing the bat at him and physically

attacking him—preceded the final attack resulting in death, and that “the victim died as the result

of cumulative blood loss from the 20 stab wounds inflicted by defendant and his three co-

offenders, rather than any particular wounds inflicted by defendant alone.” Id. at 243.

Emphasizing this latter point, the court cited Davis and People v. Viser, 62 Ill. 2d 568 (1975), for

the proposition that “when there was no clear evidence the defendants caused the fatal injuries”

during a group attack, it was proper to predicate felony-murder charges on the defendant’s

participation in that group attack. Davison, 236 Ill. 2d at 243.




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¶ 39   The supreme court further considered whether the defendant had an “independent

felonious purpose”—an intent separate and apart from the murder itself—in committing the act

of mob violence and found that he did, because the “defendant *** participated in the group

pursuit and use of force against the victim” long before the events that ultimately led to the

victim’s death. Id.

¶ 40   In summarizing, the supreme court recognized that it analyzed two distinct questions—

(1) whether the act was inherent in the murder itself, which could allow the State to avoid the

burden of proving an intentional or knowing murder by charging felony murder and (2) whether

the defendant had a felonious purpose in committing the predicate felony that was independent

of the murder itself. Id. The State asked the court to abandon the first principle and to adopt a test

“that focuses solely on whether the defendant acted with a felonious purpose distinct from an

intent to kill his victim, without considering whether the act underlying the predicate felony was

inherent in the murder itself.” Id. But the supreme court refused to do so, noting that in all of its

case law (Morgan, Pelt, and Davis), it had considered both principles and would continue to do

so:

       “[T]his court has consistently recognized that the predicate felony underlying a charge of

       felony murder must have an independent felonious purpose. [Citations.] In addition, we

       also carefully considered whether the State improperly used felony-murder charges to

       avoid the burden of proving an intentional or knowing murder. [Citations.] Despite the

       State’s invitation to abandon the latter consideration, we continue to adhere to these

       principles.” Id. at 244.

¶ 41   Thus, in deciding this issue, we must consider two separate questions—whether

defendant’s act of shooting at the van was inherent in the death of Darius Murphy, such that


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No. 1-13-2284

permitting a felony-murder charge would allow the State to circumvent the second-degree

murder statute and whether defendant’s felonious purpose in discharging the firearm was

independent of the murder itself. If we find that defendant prevails on either of these questions,

the felony-murder conviction must be reversed. Id. In this case, we find that defendant prevails

on both questions.

¶ 42                 1. Whether the Predicate Felony Was Inherent in the Murder

¶ 43   We agree with defendant that his act of discharging a firearm in the direction of the

van—the predicate felony charged in the felony-murder count—was inherent in the murder

itself. It was, in fact, the only act committed by defendant—or anyone else—in this case.

Defendant fired a cluster of shots at an oncoming van before it drove away. The State never

made any attempt to differentiate among the various shots in the cluster; it never tried to prove

that it was the first, or third, or fifth shot that caused Murphy’s death. And the State has

conceded throughout this case (including at oral argument) that every single shot defendant fired

was aimed at, and intended for, the occupants of the van.

¶ 44   This case is unlike a more traditional case of felony murder, where, for example, a

defendant commits a home invasion and the homeowner responds by shooting the defendant’s

accomplice, or a defendant commits a bank robbery and the security guard accidentally shoots a

bystander in the course of trying to stop the robbery, or a defendant commits a felony and then

kills someone in the course of his escape. Even with respect to the particular predicate felony at

issue, this is not a case where the aggravated discharge of a firearm set in motion a course of

events that later led to the victim’s death. A perfect example of such a fact pattern is one of the

cases cited by the State, People v. Toney, 337 Ill. App. 3d 122 (2003).




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¶ 45   In Toney, the defendant and two codefendants, who were all members of the same gang,

were driving when members of a rival gang threatened them and threw a bottle at their car. Id. at

127. The defendant let his codefendants out of the car, and they proceeded to open fire on the

rival gang. Id. That initial volley of gunfire spawned a gunfight, where rival gang members

returned fire, and several minutes after the shooting began, a bystander was struck with a bullet

and killed. Id. at 135. Forensic testing of the bullet that killed the bystander showed that the

bullet could not have been fired by the codefendants; “the victim *** could have been shot by

return gunfire” from the rival gang. Id. The court held that the defendant could properly be

convicted of felony murder predicated on aggravated discharge of a firearm, stating, as “the

defendant and his codefendants were not acting in self-defense and it was their criminal acts,

including [codefendants] firing their guns in the direction of their rivals *** that set in motion

conduct that eventually resulted in the death of [the victim].” Id.

¶ 46   Thus, though the State cites Toney, in fact that decision supports the more classic

example of felony murder where an underlying felony—the initial gunfire—set in motion a

course of events that later resulted in the death of an individual, in that case by someone else’s

gun. Id. at 135. See People v. Dekens, 182 Ill. 2d 247, 252 (1998) (“a charge of felony murder is

appropriate” when “an intended victim mistakenly shoots and kills a bystander”). But in this

case, there were no events set in motion by defendant’s shooting of the gun. There was no return

gunfire, nothing in the record to indicate that defendant’s shots were preceded, or followed, by

any felonious act whatsoever.

¶ 47   Indeed, by returning a verdict of guilty on first-degree intentional and strong-probability

murder (which it then reduced to second-degree murder), and by making the enhancement

finding that defendant discharged a weapon that resulted in Murphy’s death, the jury made it


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No. 1-13-2284

clear that it found that a bullet from defendant’s gun, not someone else’s, killed Murphy. This

case is thus distinguishable from supreme court precedent finding certain felonies to be

appropriate predicates for felony murder where it was unclear whether defendant or someone

else ultimately killed the victim. See Davis, 213 Ill. 2d at 475 (“it was not obvious which of the

defendants caused the fatal blow to the victim, who died two weeks later from pancreatitis

caused by severe abdominal injuries he received” during beating (internal quotation marks

omitted)); Davison, 236 Ill. 2d at 243 (relying on Davis and Viser, 62 Ill. 2d at 568, as cases that

permitted “felony-murder charges predicated on felonies involving the defendants’ participation

in fatal group attacks on the victims when there was no clear evidence the defendants caused the

fatal injuries”).

¶ 48    This case is also very different from Davis and Davison in the temporal sense that, in

those cases, the underlying predicate conduct was removed in time from the ultimate death that

occurred. In Davis, the defendant joined the mob after the beating had begun and stopped

participating in the beating as it continued on. Davis, 213 Ill. 2d at 474. In Davison, the supreme

court specifically found that the defendant’s initial participation in the mob action (throwing a

bat at the victim, initially disarming the victim of his knife, and stabbing defendant once) was

completed “before the end of the aggression that eventually resulted in the victim’s death.”

Davison, 236 Ill. 2d at 242. Here, in marked contrast, defendant unloaded a cluster of gunfire at

the van, and the affair ended at that point, with the van having driven away. Defendant’s acts

were not completed before the end of the series of events that caused Murphy’s death; his act

was the only event, the direct and only cause of Murphy’s death.

¶ 49    Likewise, the proof of defendant’s discharge of a firearm did not require different proof

than the events causing Murphy’s death. Cf. Davis, 213 Ill. 2d at 474 (“the same evidence was


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not used to prove both the predicate felony, mob action, and the murder”); Davison, 236 Ill. 2d at

242 (“[a]s in Davis, evidence apart from the actual murder supported defendant’s conviction for

mob action”). The proof of defendant’s aggravated discharge of a firearm was that he discharged

a firearm in the direction of the van. That is exactly the same proof that the State used to support

its intentional and strong-probability murder charges. Proof of the predicate felony and proof of

the murder were one and the same.

¶ 50   This case is much more analogous to Morgan, where the defendant shot his grandfather

with a gun and was charged with felony murder based on aggravated discharge—that is,

discharging a firearm in the direction of his grandfather. In both Morgan and this case, the

defendant shot a gun at someone, and the State used the discharge of the gun as a predicate

felony for a felony-murder charge. Although the shooting in Morgan occurred in close quarters

while this shooting occurred on a public street, we find no meaningful difference between this

case and Morgan except for the fact that defendant here missed his intended target and

accidentally killed his friend. We see no principled reason why the defendant in Morgan could

avoid a felony-murder conviction, but defendant here cannot, simply because defendant—

tragically—had bad aim.

¶ 51   The similarity to Morgan is especially striking because, as in Morgan, in this case the

jury found that defendant shot at the van while under the unreasonable belief that he was acting

in self-defense, i.e., that defendant’s conduct constituted second-degree murder. The jury refused

to convict defendant of first-degree intentional or strong-probability murder but, because the

felony-murder statute does not permit such mitigating factors, the State was able to convict

defendant of first-degree murder anyway, for the exact same shooting at the exact same intended

target. This case thus implicates our supreme court’s “repeatedly expressed” view “that a felony-


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No. 1-13-2284

murder charge may, in effect, improperly allow the State to *** eliminate the offense of second

degree murder *** because many murders are accompanied by certain predicate felonies.”

Davison, 236 Ill. 2d at 240 (citing Davis, 213 Ill. 2d at 471 (citing Morgan, 197 Ill. 2d at 447));

Pelt, 207 Ill. 2d at 441. This case presents a scenario where a felony-murder charge allowed the

State to effectively nullify a second-degree murder verdict where it otherwise should have been

available.

¶ 52   Our conclusion is further supported by two cases, cited by defendant, that dealt with the

offense of armed violence predicated on aggravated discharge of a firearm: People v. Alejos, 97

Ill. 2d 502 (1983), and People v. Drakeford, 139 Ill. 2d 206 (1990). In Alejos, the supreme court

considered whether a conviction for armed violence—which criminalized the commission of any

felony while armed with a dangerous weapon (see Ill. Rev. Stat. 1979, ch. 38, ¶ 33A-1 et seq.)—

could stand where the predicate felony for the conviction was voluntary manslaughter. Alejos, 97

Ill. 2d at 506. At the time, voluntary manslaughter, like the current second-degree murder statute,

applied to a killing committed in imperfect self-defense. Id. The Illinois Supreme Court held that

voluntary manslaughter could not serve as a predicate felony for armed violence because armed

violence was a crime designed to deter the use of weapons during felonies, but voluntary

manslaughter, by definition, was “an unpremeditated crime.” Id. The court reasoned:

       “It is *** difficult to understand the deterrent purpose the armed-violence provision could

       serve when applied to voluntary manslaughter. The general application of the armed-

       violence provision could be expected to discourage those who contemplate a felonious

       act beforehand from carrying a weapon when they set forth to perform the act, and from

       this perspective the provision serves a needed purpose. Yet no one who commits

       voluntary manslaughter intends in advance to take a life or employ deadly force; the only


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No. 1-13-2284

           ‘intent’ of this sort that enters into the crime is the decision, arrived at without

           deliberation and in most cases instantaneously, to use force capable of killing. Before that

           decision is arrived at, the person who is guilty of voluntary manslaughter typically has no

           criminal intent whatever.” Id. at 507.

¶ 53       In Drakeford, the Illinois Supreme Court expanded the reasoning it employed in Alejos to

find that, under the facts of the case, the State could not use the offense of aggravated battery as

a predicate felony for armed violence. Drakeford, 139 Ill. 2d at 213-14. The State had charged

the defendant with first-degree murder and armed violence predicated on aggravated battery. Id.

At trial, the jury was instructed as to second-degree murder based on imperfect self-defense, and

it found defendant guilty of second-degree murder and armed violence. Id. The court recognized

that, in the abstract, aggravated battery would be a proper predicate felony to support a charge of

armed violence. Id. at 213. But the court found that, even though the defendant’s armed violence

conviction was not literally predicated on second-degree murder, the State had attempted to

“circumvent[ ] *** Alejos by charging aggravated battery causing great bodily harm as the

predicate felony.” Id. The court noted that, by convicting the defendant of second-degree murder,

“the jury found that [the] defendant’s conduct was unpremeditated, undeterrable, and caused by

an actual but unreasonable belief that the circumstances required the use of deadly force in self-

defense.” Id. at 213-14. Because “the legislature did not intend for the armed violence statute to

apply to conduct constituting second-degree murder,” the court held that “the State [could] not

utilize the armed violence statute to enhance a defendant’s penalty if a defendant’s act constitutes

second degree murder.” Id. at 213. In support of that holding, the court stressed that upholding

the defendant’s armed-violence conviction would effectively eliminate the second-degree murder

statute:


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No. 1-13-2284

        “[I]f we were to hold that a defendant could be sentenced for armed violence predicated

        on aggravated battery where there was a simultaneous conviction for second degree

        murder arising out of the same act, we would render ineffective the second degree murder

        statute. To commit aggravated battery causing great bodily harm, a specific intent crime,

        the defendant must act ‘intentionally’ or ‘knowingly.’ [Citation.] Logically, any time a

        defendant commits second degree murder based on an unreasonable belief of self-

        defense, the defendant will also possess the intent or knowledge necessary for a

        conviction on aggravated battery causing great bodily harm. Thus, in the future,

        prosecutors will seek sentencing on the Class X armed violence predicated on aggravated

        battery conviction rather than on the Class 1 second degree murder conviction. This result

        would effectively nullify the second degree murder statute.” Id. at 215-16.

¶ 54    The Illinois Supreme Court’s concerns in Alejos and Drakeford apply with equal force in

this case. Like armed violence, felony murder is an offense aimed at deterring violent criminal

activity. See Belk, 203 Ill. 2d at 192 (“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.”). But as the court in Alejos explained, second-

degree murder involves conduct that is generally not accompanied by a preexisting criminal

intent. Here, the jury concluded that defendant acted under an unreasonable belief that he needed

to use deadly force to defend himself. That is not an act capable of deterrence. The felony-

murder statute is not a proper fit with the facts of this case, based on the verdicts returned by the

jury.




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No. 1-13-2284

¶ 55   In sum, we hold that defendant’s discharge of a firearm in the direction of the van’s

occupants was an act inherent in the killing of Darius Murphy. We also hold that permitting the

State to convict defendant of felony murder under the facts of this case, and in light of the jury’s

finding of imperfect self-defense, enabled the State to secure a first-degree murder conviction it

could not otherwise obtain, thereby bypassing the jury’s verdict on second-degree murder.

Indeed, if we did not reverse this felony-murder conviction, we would be creating a road map for

the State to effectively nullify the second-degree murder statute in any unintentional shooting of

a bystander performed by a defendant acting in imperfect self-defense toward another, simply by

the charging of felony murder. Because the Illinois Supreme Court has repeatedly refused to let

such a result occur, defendant’s felony-murder conviction must be reversed.

¶ 56                            2. Independent Felonious Purpose

¶ 57   Under the supreme court’s most recent discussion of felony murder in Davison, the court

made it clear that the consideration of the same-act doctrine and the concern that the felony-

murder statute was being used as an end-run around the second-degree murder statute are

considerations separate and apart from the “independent felonious purpose” doctrine. See

Davison, 236 Ill. 2d at 243-44 (rejecting State’s request to limit analysis to “independent

felonious purpose” question and continuing to adhere to consideration of these other questions as

well). Thus, our holding above, that defendant’s act of shooting at the van was inherent in the

death of Darius Murphy, and that permitting a felony-murder conviction in this case would

permit the State to essentially nullify the second-degree murder conviction, is sufficient on its

own to reverse the felony-murder conviction.

¶ 58   Regardless, we likewise agree with defendant that the State did not prove that defendant

acted with a felonious purpose that was independent of the murder itself. For the reasons we


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No. 1-13-2284

have already given, we think this case is analogous to Morgan, 197 Ill. 2d at 447, 458, where the

court held that the defendant’s discharge of a firearm was not undertaken with a felonious

purpose independent of the killing. See also Pelt, 207 Ill. 2d at 442 (“as in Morgan, it is difficult

to conclude that the predicate felony underlying the charge of felony murder involved conduct

with a felonious purpose other than the conduct which killed the infant”).

¶ 59   We appreciate that this case is different from Morgan in that here, defendant missed his

intended target and killed an innocent bystander. But we do not see how the felonious purpose in

shooting a bullet could somehow change based on where that bullet happened to land, regardless

of whether it landed with the intended target or the unintended bystander. We certainly make no

such distinction with other types of first-degree murder.

¶ 60   Just the opposite. With other forms of first-degree murder, in cases involving an

unintended victim, the law treats the defendant’s intent—his felonious purpose—in shooting the

unintended victim as one and the same as his intent to kill the intended victim. If the defendant

intended to kill an individual, he is deemed to have intended to kill the innocent bystander. See

People v. Thompson, 313 Ill. App. 3d 510, 516 (2000) (“Under the doctrine of transferred intent,

if a defendant shoots at one person, with the intent to kill, but kills an unintended victim, he may

be convicted of the crime of murder for the death of the unintended victim.”). If the defendant

acted in self-defense in shooting at the intended target, he acted in self-defense in killing the

innocent bystander. See People v. Getter, 2015 IL App (1st) 121307, ¶ 36 (“Under the doctrine

of ‘transferred intent,’ the ‘specific intent to kill one person in self-defense [may] be transferred

to third parties ultimately affected by the acts of self-defense.’ ” (quoting People v. Smith, 94 Ill.

App. 3d 969, 973 (1981)). If the defendant acted in provocation or unreasonable self-defense in

shooting at the intended target, he acted the same way with respect to the innocent bystander.


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No. 1-13-2284

People v. Wetzel, 308 Ill. App. 3d 886, 890, 894 (1999) (trial court should have instructed jury as

to second-degree murder where there was evidence that defendant fired at individuals in self-

defense, but hit another person); People v. Torres, 269 Ill. App. 3d 339, 348 (1995) (affirming

conviction for second-degree murder that was based on transferred intent).

¶ 61   It would be incongruous to then assert, based on the same facts, but now considering a

charge of felony murder, that suddenly the defendant’s felonious purpose in shooting the

intended target is completely separate and utterly divorced from his felonious purpose in

shooting the innocent bystander. The only thing that has changed is the type of first-degree

murder charged.

¶ 62   Which returns us full circle to the concerns so appropriately and repeatedly expressed by

the supreme court, that the State should not be permitted to nullify the second-degree murder

statute through the use of felony murder. If the State is correct in this case, it would have a

license to avoid the second-degree murder statute, and its burden of proving intent, in any

transferred-intent case. The State could charge knowing, intentional, or strong-probability first-

degree murder and, for those counts, treat the defendant’s intent in trying to kill one person as his

intent to kill the unintended victim, as if they are one, indistinguishable felonious purpose. But

the State could also charge felony murder and argue that, for the purposes of that first-degree

murder count, the felonious purpose in shooting at the intended target was altogether

independent from the murder of the accidental victim. Thus, if the jury found that the defendant

acted with a mitigated mental state of either provocation or unreasonable self-defense, the State

could fall back on the felony-murder charge to obtain a first-degree murder conviction it could

not otherwise obtain.




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No. 1-13-2284

¶ 63   This is precisely the result our supreme court has rejected. It is also a result the General

Assembly has rejected by excluding second-degree murder as a predicate felony for felony

murder. See 720 ILCS 5/9-1(a)(3) (West 2010) (defendant guilty of felony murder where death

occurs while defendant “is attempting or committing a forcible felony other than second degree

murder” (emphasis added)).

¶ 64   We hold that defendant did not act with a felonious purpose in shooting at the van that

was independent of the act causing the death of Darius Murphy. For this reason, as well,

defendant’s felony-murder conviction is reversed.

¶ 65                             3. Case Law Cited by the State

¶ 66   The State cites three cases interpreting Morgan and its progeny where an innocent

bystander was killed, and where the State charged aggravated discharge of a felony as the

predicate felony for a felony-murder. On their face, those cases would seem to be analogous, but

upon examination each case is readily distinguishable.

¶ 67    The first case it cites is Toney, 337 Ill. App. 3d at 135, which as we previously discussed

(supra ¶¶ 45-46), is plainly distinguishable from this case. In fact, Toney represents the more

textbook example of a felony-murder prosecution where the initial volley of gunfire—the

predicate felony of aggravated discharge of a firearm—did not kill the innocent bystander, but

instead set in motion a gunfight in which a bullet from someone else’s gun killed the victim. In

Toney, there could be no plausible argument that the codefendant’s initial spray of gunfire was

inherent in the death of the innocent bystander, considering that none of the codefendants’

bullets killed the victim. Toney, 337 Ill. App 3d at 135. Nor could anyone deny that the

defendant’s and his accomplices’ felonious purpose in discharging the firearm was independent

of the bystander’s death, considering that their bullets did not kill the bystander and that his


                                              - 24 -
No. 1-13-2284

shooting took place several minutes after that initial spray of gunfire. Id. Finally, the court in

Toney emphasized that the defendant and his codefendants “were not acting in self-defense,” and

unlike this case, there was no finding of imperfect self-defense that would trigger the supreme

court’s concern that the felony-murder statute was used to subvert the second-degree murder

statute. Id.

¶ 68    The other cases the State cites are People v. McGee, 345 Ill. App. 3d 693 (2003) and

People v. Figueroa, 381 Ill. App. 3d 828 (2008). Each of those cases is distinguishable, first and

foremost, because they did not involve a jury finding of a mitigated mental-state or a verdict of

second-degree murder. Thus, the concerns expressed in Morgan, Pelt, Davis, and Davison—that

the State not be permitted to avoid a second-degree murder verdict through a felony-murder

charge—were not present in McGee or Figueroa. For that reason alone, we would reverse

defendant’s felony-murder conviction notwithstanding McGee and Figueroa. But there are other

reasons that we decline to rely on those two decisions.

¶ 69    In McGee, 345 Ill. App. 3d at 695, the defendant was driving when a rival gang member

saw him and started shooting at his car. The defendant returned fire, striking an infant in the area.

Id. at 695-96. The court found defendant guilty of felony murder predicated on aggravated

discharge of a firearm. Id. at 696. This court affirmed, finding that the facts there were “almost

identical” to those in Toney and holding that, “[f]or the same reasons the Toney court

distinguished Morgan, we too can distinguish Morgan and Pelt.” Id. at 698. But as we explained

above, Toney was not a case where the defendant shot at one person and instead accidentally

killed a bystander; Toney represented that more traditional example of felony-murder where the

predicate felony of aggravated discharge started a course of events during which someone other

than the defendant or his accomplices shot the innocent bystander. Toney, 337 Ill. App. 3d at


                                               - 25 -
No. 1-13-2284

135; Dekens, 182 Ill. 2d at 252. Toney may have been similar to McGee in that each case

involved the death of an innocent bystander and the predicate felony was aggravated discharge,

but in this most critical respect Toney was clearly distinguishable from McGee.

¶ 70   The court in McGee thus found that the discharge of the firearm at the rival gang member

was not inherent in the murder because they were distinct acts: “[T]he defendant shooting at

[the] rival gang member *** is the conduct which formed the basis of [the] defendant’s

aggravated discharge of a firearm conviction. The defendant shooting [the victim] is the conduct

that formed the basis for murder.” McGee, 345 Ill. App. 3d at 698. But the court did not explain

how those acts were separate. To the contrary, it appears that the defendant’s only act was

shooting at the rival. That act resulted in the death of an unintended target, but the defendant’s

conduct was the same.

¶ 71   In Figueroa, the defendant and his fellow gang members were involved in a car chase

with rival gang members. Figueroa, 381 Ill. App. 3d at 831. During the chase, the defendant

stood up through the sunroof of the car and fired several shots at the rivals’ car, one of which

struck an innocent bystander. Id. at 830-31. This court affirmed a felony-murder conviction

based on the predicate felony of aggravated discharge. The court reasoned that, because “the

facts here comprise a gang shooting” involving an innocent bystander they mirror McGee and

Toney (id. at 836), a proposition with which we disagree given what we have already said about

Toney. The court distinguished Morgan, finding that “the aggravated discharge was not inherent

in the murder of [the victim] but, rather, involved conduct with a felonious purpose other than

killing [the victim], namely, shooting at [the rival gang members], both of whom were nowhere

near [the victim] at the time.” (Emphasis in original.) Id.




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No. 1-13-2284

¶ 72    It is not altogether clear whether there was one flurry of gunshots or more than one in

Figueroa; the gang members were driving in cars, after all, so they could have covered a lot of

ground in a short amount of time. The court’s note that the gang members were “nowhere near”

the victim when the defendant committed the predicate felony of aggravate discharge (id.)

suggests that perhaps there was an initial volley of gunfire followed some time later, further

down the road, by another series of gunshots closer to the victim. If so, the initial gunshots would

not have resulted in the bystander’s death, no one could plausibly claim that those shots were

inherent in the bystander’s murder, and Figueroa would be distinguishable from this case. If not,

then we fail to see how the court could have reached the conclusion that the “shooting at [the

rival gang members was] the conduct which formed the basis of the aggravated discharge of a

firearm charge; his separate shooting (and hitting) of [the bystander] is the conduct which formed

the basis of the murder.” Id. at 836. It was all the same conduct—discharging a firearm in the

direction of a rival gang member. The fact that all of the bullets missed the gang members, and

one of them hit an innocent bystander, does not change the fact that the physical act was the

same.

¶ 73    Because Toney is not remotely analogous, because neither McGee nor Figueroa

implicated the concern that a felony-murder charge could be used to undermine the second-

degree murder statute, and based on the other concerns we have raised with those latter two

cases, we reject the State’s reliance on that case law in defense of its felony-murder conviction.

¶ 74    For the reasons we have stated above, we reverse defendant’s first-degree felony-murder

conviction. In light of our disposition of this issue, most of defendant’s remaining issues are

rendered moot. We need not reach the alleged inconsistency of the felony murder and second-

degree murder verdicts, as we have reversed one of those allegedly inconsistent verdicts, leaving


                                               - 27 -
No. 1-13-2284

no possible inconsistency. Nor do we need to address the propriety of the trial court’s denial of a

second-degree murder instruction with respect to the felony-murder charge because that issue

deals only with the felony-murder conviction, which we have reversed. Nor do we need to

address the denial of defendant’s proposed instruction on the independent felonious purpose

doctrine, since that instruction would only have affected the felony-murder charge. Finally,

defendant’s arguments regarding his sentence are moot because our reversal of his first-degree

murder conviction requires him to be resentenced. The only remaining argument that we will

address is the propriety of the State’s instruction on aggravated discharge of a firearm.

¶ 75          B. Instruction on Justification and Aggravated Discharge of a Firearm

¶ 76   Defendant argues that the trial court erroneously instructed the jury that a defendant who

commits aggravated discharge of a firearm is not justified in using force. The jury instruction

with which defendant takes issue read, “A person is not justified in the use of force if he is

committing aggravated discharge of a firearm.” Defendant claims that this instruction improperly

curtailed the jury’s consideration of his self-defense claim.

¶ 77   The State claims that defendant forfeited this claim by failing to raise it at trial.

Defendant argues that he did preserve this challenge, as his attorney objected to the delivery of

the instruction. Defendant acknowledges that his attorney did not raise the issue in his posttrial

motion but contends that an exception to the posttrial-motion requirement applies. Specifically,

defendant notes that “constitutional issues that were previously raised at trial and could be raised

later in a postconviction petition are not subject to forfeiture on direct appeal.” (Emphasis in

original.) People v. Almond, 2015 IL 113817, ¶ 54; see also People v. Enoch, 122 Ill. 2d 176,

190 (1988) (“[W]hen the defendant fails to comply with the statutory requirement to file a post-

trial motion, our review will be limited to constitutional issues which have properly been raised


                                               - 28 -
No. 1-13-2284

at trial and which can be raised later in a post-conviction hearing petition [citation], sufficiency

of the evidence, and plain error.”).

¶ 78   While defendant’s challenge to the justification instruction could be construed as a claim

that his due process right to a fair trial was violated, and that the constitutional-issue exception to

forfeiture should thus apply, our supreme court has stated, “ ‘Generally, a defendant forfeits

review of any putative jury instruction error if the defendant does not object to the instruction or

offer an alternative instruction at trial and does not raise the instruction issue in a posttrial

motion.’ ” (Emphasis added.) People v. Mohr, 228 Ill. 2d 53, 64-65 (2008) (quoting People v.

Herron, 215 Ill. 2d 167, 175 (2005)). Because our supreme court has applied the posttrial-motion

requirement to the very type of challenge defendant raises here—a jury instruction error—we

must follow that rule. We find that defendant has forfeited this issue.

¶ 79   Defendant urges us to reach this issue despite his forfeiture pursuant to Illinois Supreme

Court Rule 451(c) (eff. July 1, 2006), which provides that “substantial defects are not waived by

failure to make timely objections [to jury instructions in criminal cases] if the interests of justice

require.” This rule “is coextensive with the plain-error clause of Supreme Court Rule 615(a).”

People v. Sargent, 239 Ill. 2d 166, 189 (2010). Before determining whether the alleged error was

a “substantial defect” or “plain error,” we must first decide whether any error occurred at all. Id.

¶ 80   We apply a de novo standard of review to the question of whether the jury instructions

accurately stated the applicable law. People v. Parker, 223 Ill. 2d 494, 501 (2006).

¶ 81   “[S]elf-defense is a proper affirmative defense to the crime of aggravated discharge of a

firearm.” Getter, 2015 IL App (1st) 121307, ¶ 36. If the jury had concluded that defendant fired

on the van in self-defense, that defense would completely exonerate defendant of the offense of

aggravated discharge of a firearm. See People v. Eveans, 277 Ill. App. 3d 36, 47 (1996) (“Self-


                                                - 29 -
No. 1-13-2284

defense is a justifying or exonerating circumstance.”). Moreover, if established, defendant’s self-

defense would transfer to justify the shooting of Murphy. See Getter, 2015 IL App (1st) 121307,

¶ 36 (“Under the doctrine of ‘transferred intent,’ the ‘specific intent to kill one person in self-

defense [may] be transferred to third parties ultimately affected by the acts of self-defense.’ ”

(quoting Smith, 94 Ill. App. 3d at 973).

¶ 82   The jury instruction that defendant has challenged was based on Illinois Pattern Jury

Instructions, Criminal, No. 24-25.10 (4th ed. 2000) (hereinafter IPI Criminal 4th No. 24-25.10),

which reads, “A person is not justified in the use of force if he is [(attempting to commit)

(committing) (escaping after the commission of)] ___.” The Committee Note to IPI Criminal 4th

No. 24-25.10 indicates that the blank should be filled with “the forcible felony committed or

attempted.” IPI Criminal 4th No. 24-25.10, Committee Note.

¶ 83   IPI Criminal 4th No. 24-25.10 instructs the jury of the principle that self-defense is not

available to a person who “[i]s attempting to commit, committing, or escaping after the

commission of, a forcible felony.” 720 ILCS 5/7-4(a) (West 2010). Aggravated discharge of a

firearm is a forcible felony. Figueroa, 381 Ill. App. 3d at 835. Thus, on its face, the instruction

was an accurate one: it told the jury that, if defendant committed the forcible felony of

aggravated discharge of a firearm, it could not conclude that he acted in self-defense.

¶ 84   But defendant contends that this instruction “effectively precluded the jury from even

considering whether the shooting was justified” because it signaled to the jury that, because

defendant shot at the van, he could never establish that his shooting was justified. In other words,

defendant argues, the jury “was affirmatively told that a person cannot fire a gun at a van in self-

defense.”




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No. 1-13-2284

¶ 85   We disagree. The jury was not told that, if defendant fired on the van, he could not utilize

self-defense. Instead, it was told that, if defendant committed the offense of aggravated discharge

of a firearm, he could not rely on self-defense. Critically, the jury also received an instruction

stating that, in order to prove that defendant committed aggravated discharge of a firearm, the

State had to prove three propositions:

                “First: That *** defendant knowingly discharged a firearm; and

                Second: That *** defendant discharged the firearm in the direction of a vehicle he

       knew to be occupied; and

                Third: That *** defendant was not justified in using the force which he used.”

       (Emphasis added.)

Thus, the jury was correctly told that defendant only could commit aggravated discharge of a

firearm if he was not justified in firing at the van, i.e., if he was not acting in self-defense.

Conversely, if the jury believed that he acted in self-defense, he could not be guilty of aggravated

discharge of a firearm, and IPI Criminal 4th No. 24-25.10, as modified by the State, would not

come into play.

¶ 86   We acknowledge that the jury was also given a definition of the offense of aggravated

discharge of a firearm that did not specify that the offense is the unjustified firing of a gun at an

occupied vehicle. Instead, it simply read, “A person commits the offense of aggravated discharge

of a firearm when he knowingly discharges a firearm in the direction of a vehicle he knows to be

occupied.” But that does not change the fact that the jury was told that the State had to disprove

justification in order to prove defendant guilty of aggravated discharge of a firearm. “We must

presume, absent a showing to the contrary, that the jury followed the trial judge’s instructions in

reaching a verdict.” People v. Simms, 143 Ill. 2d 154, 174 (1991). In this case, we must presume


                                               - 31 -
No. 1-13-2284

that the jurors read both the definitional and issues instructions for aggravated discharge of a

firearm. And when they did so, they would understand that the State could not prove that

defendant committed the forcible felony of aggravated discharge of a firearm unless they also

concluded that defendant did not act in self-defense.

¶ 87    Moreover, this court has held that the omission of the justification language from a

definitional instruction is not plain error so long as it is included in the issues instruction, as it

was in this case. See, e.g., People v. Rios, 318 Ill. App. 3d 354, 362-64 (2000). In light of the

inclusion of the justification language in the issues instruction for aggravated discharge of a

firearm, defendant has not shown that the use of IPI Criminal 4th No. 24-25.10 in this case was a

substantial defect in the jury instructions.

¶ 88   Defendant cites Getter, 2015 IL App (1st) 121307, ¶¶ 41, 64, where we held that the

exclusion of self-defense language in the issues instruction for aggravated discharge of a firearm

was plain error. In Getter, the court had included the self-defense language in the issues

instructions for the other offenses defendant had been charged with, and of which defendant was

acquitted, but neglected to include it in the issues instruction for aggravated discharge of a

firearm, the only offense of which defendant was found guilty. Id. ¶¶ 41, 67. This case is not

similar to Getter. Here, the court told the jury that defendant could not be justified in the use of

force if he committed aggravated discharge of a firearm and that the State could not prove that

defendant committed aggravated discharge of a firearm unless it proved that defendant was not

justified in using force. Thus, the jury was properly instructed regarding self-defense.

¶ 89   Defendant also argues that the jury’s note, requesting a definition of justification, showed

that the jury was confused by the modified version of IPI Criminal 4th No. 24-25.10. But the jury

had already received an instruction explaining when a defendant’s use of force is justified. In


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No. 1-13-2284

response to the jury’s note, the trial court told the jury it had already received the definition of a

justified use of force. Defendant perfunctorily claims that this response was improper, but even if

this one-sentence argument was not forfeited (see People v. Lacy, 407 Ill. App. 3d 442, 459

(2011) (defendant forfeited argument on appeal where he did not develop it further “than a one-

sentence statement that trial counsel was ineffective”)), we would disagree with his argument

because the instructions already accurately defined justification, making further clarification

unnecessary. See People v. Reid, 136 Ill. 2d 27, 39 (1990) (trial court has no duty to answer jury

question where instructions are readily understandable and sufficient to explain law). After

receiving this response from the trial court, the jury expressed no further confusion regarding

justification. It is entirely possible that, in directing the jury back to its instructions, the jury

resolved its confusion and properly applied the correct definition of justification. The jury note

offers defendant no support for his claim that the modified IPI Criminal 4th No. 24-25.10

actually confused the jury.

¶ 90   Defendant also argues that his attorney was ineffective for failing to object to the

modified IPI Criminal 4th No. 24-25.10. But as we have concluded that the instruction was

legally correct, counsel cannot be considered ineffective for failing to challenge it. See, e.g.,

People v. Simms, 192 Ill. 2d 348, 377-78 (2000) (counsel not ineffective for failing to object to

appropriate instructions). Defendant is not entitled to a new trial based on the delivery of this

instruction.

¶ 91                                    III. CONCLUSION

¶ 92   For the reasons stated, we reverse defendant’s first-degree murder conviction, affirm

defendant's remaining convictions, and remand for resentencing.

¶ 93   Reversed in part, affirmed in part, and remanded.


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¶ 94    JUSTICE McBRIDE, specially concurring.

¶ 95    I concur in the majority’s decision to vacate the verdict of felony murder and remand for

resentencing on the second degree murder conviction. I write separately to express my

disagreement regarding portions of the majority’s analysis and to address some troubling aspects

of this case.

¶ 96    As Justice Garman has pointed out in her special concurrences in People v. Davis, 213 Ill.

2d 459, 480-98 (2004) (Garman, J., specially concurring), and People v. Davison, 236 Ill. 2d

232, 245-49 (2010) (Garman, J., specially concurring), the test for when a particular felony can

be a proper basis for a conviction of felony murder lacks clarity and has become confusing for

courts and practitioners. See Davis, 213 Ill. 2d at 497 (Garman, J., specially concurring).

¶ 97    The supreme court has declined to either expressly adopt or reject the “same-act

doctrine,” used in a number of other jurisdictions, which precludes a felony murder conviction

“whenever the act that constitutes the predicate felony is the same act that results in the death of

the victim.” Davison, 236 Ill. 2d at 245 (Garman, J., specially concurring). The supreme court,

however, has suggested its use of this doctrine in a number of cases including Morgan, Pelt,

Davis, and Davison when it has stated that when felony acts “arise from and are inherent in the

act of murder itself,” they cannot serve as predicate felonies for a charge of felony murder. At

the same time, however, the supreme court has expressly reaffirmed its decision in People v.

Viser, 62 Ill. 2d 568 (1975), in which it previously rejected the same-act doctrine. See Davison,

236 Ill. 2d at 245 (Garman, J., specially concurring).

¶ 98    Since the supreme court’s latest pronouncement on this issue, there appears to be

continued confusion as to whether the supreme court’s requirements that the defendant acted

with an independent felonious purpose, and that the predicate felony not be inherent in the


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murder itself, are two separate elements or whether they are part and parcel of the same inquiry.

After its thorough review of the precedent on this issue, I agree with the majority that the test

requires two separate findings. Although I disagree with the majority’s conclusion that there was

no independent felonious purpose here, I ultimately agree that defendant’s aggravated discharge

of a firearm arose from and was inherent in the killing of the victim, and thus, his felony murder

conviction cannot stand.

¶ 99   Since the supreme court’s decisions in Morgan and Pelt, there have been numerous

decisions which have found the independent felonious purpose necessary to support a finding of

felony murder in cases like this one, involving the killing of innocent bystanders. See, e.g.,

People v. Figueroa, 381 Ill. App. 3d 828, 837 (2008) (where the defendant’s shooting at a rival

gang member formed the basis of the underlying offense of aggravated discharge of firearm, the

defendant’s act in shooting at the rival gang member was not an act that was inherent in and that

arose out of the killing of the innocent bystander victim, and thus, aggravated discharge of a

firearm could properly serve as the underlying felony for felony murder); People v. McGee, 345

Ill. App. 3d 693, 698-99 (2003) (where the defendant’s conduct of shooting at a rival gang

member formed the basis of underlying offense of aggravated discharge of a firearm, the

predicate offense underlying the felony murder charge involved conduct with a felonious

purpose other than the conduct which killed the victim, a baby in a stroller nearby); People v.

Toney, 337 Ill. App. 3d 122, 135 (2003) (where the defendant was involved in an altercation with

members of a rival gang and return shots were fired killing a bystander, Morgan did not preclude

the finding of an felonious purpose other than killing the bystander); People v. Colbert, 2013 IL

App (1st) 112935, ¶ 16 (the mob action of beating the victim to death, properly served as the

predicate felony for felony murder where the action had an independent felonious purpose other


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than the murder itself); People v. Alvarez-Garcia, 395 Ill. App. 3d 719, 734 (2009) (the

defendant’s act of shooting at the pregnant victim was conduct which demonstrated a felonious

purpose other than the death of the in utero child who died three months after delivery). Unlike

Morgan and Pelt where the defendants’ acts were directed at the victim who actually died, the

defendants’ acts in these cases were directed at someone else, in many cases a rival gang

member.

¶ 100 Like in McGee, Toney, Figueroa, Colbert, and Alvarez-Garcia, I believe that defendant’s

act of shooting at what he thought was a rival gang member’s van demonstrated an independent

felonious purpose apart from the murder of the victim. In this case, defendant’s acts were

directed at the individual or individuals in the rival gang’s van, and not at the bystander victim

who was sitting in a vehicle across the street. As the supreme court observed in Davis, 213 Ill. 2d

at 474, in order to convict defendant of the predicate felony of mob action “it was not necessary

to prove that defendant struck [the victim], much less performed the act that caused the killing.”

Thus, the supreme court concluded that the predicate felony “involved conduct with a felonious

purpose other than the conduct which killed [the victim].” Id. Similarly here, the State was not

required to prove anything with regard to the victim in order to prove defendant committed

aggravated discharge of a firearm. All that was required was that it show that defendant

knowingly discharged a firearm in the direction of the rival gang’s van which he knew to be

occupied. That crime was completed without any felonious purpose as to the victim who was

sitting across the street. Therefore, I would conclude that defendant’s act underlying the

predicate offense demonstrated an independent felonious purpose apart from the victim’s

murder.




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¶ 101 The majority attempts to distinguish the First District cases cited above by relating

specific aspects of their individual fact patterns. It posits that Toney is distinguishable because

the defendant engaged in two separate bouts of shooting, whereas here defendant fired one

“cluster of shots” at the van. The majority further states that, unlike in Figueroa where the

aggravated discharge occurred during a prolonged car chase and fired at rivals “nowhere near”

the victim, defendant’s shots here occurred in a short amount of time within a limited area. I do

not agree with the majority’s attempts to factually distinguish the above First District cases. The

decisions in these cases were based, not on the minor distinctions cited by the majority, but on

the court’s determination that the defendant’s shooting at an individual other than the bystander

victim, oftentimes a rival gang member, demonstrated an independent felonious purpose to

support a felony murder charge.

¶ 102 I also disagree with the majority’s characterization of the evidence in this trial in its

attempt to factually distinguish this case from the other First District cases. The majority

contends that there is nothing in the record here to show that defendant’s acts “set in motion a

course of events that later led to the victim’s death.” Supra ¶ 44. There was no return gunfire,

nothing in the record to indicate that defendant’s shots were preceded, or followed, by any

felonious act whatsoever.” Supra ¶ 46. However, the accounts provided by the trial witnesses

who attended the gathering that night varied widely and could have been consistent with a

number of different factual scenarios. Some witnesses testified that they observed only one man

in the van, while others observed three people. Some witnesses were not sure if anyone in the

van was armed, while others saw what looked like a gun, saw a “flash,” or heard gunfire coming

from the van. At least one of the witnesses previously gave a statement in which she indicated

that a passenger in the van pointed a gun at defendant and fired at him. Some witnesses testified


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that they heard 4 or 5 shots, while others heard 6, 7, or 10 gunshots. One witness said the shots

were not in succession. Although five cartridge cases were recovered from the scene and were

identified as having been fired from the same 9-millimeter handgun, the bullet core that was

recovered from the victim’s head was not able to be connected to that same weapon. Given this

testimony presented at trial, it is not clear how many shots were fired, or whether some of those

shots were return gunfire.

¶ 103 However, I do believe that this case can be distinguished from the other First District

innocent bystander cases based on the verdicts returned by the jury. The significant difference in

this case, compared to all of the First District decisions cited above, is that the jury here accepted

defendant’s imperfect self-defense and returned a verdict of second degree murder in addition to

felony murder.

¶ 104 I agree with the majority that under the circumstances presented here, defendant’s act

constituting the underlying felony of aggravated discharge of a firearm arises out of and is

inherent in the murder itself. The act which supported defendant’s aggravated discharge of a

firearm conviction, namely shooting at the rival gang’s van, is the same act that resulted in the

death of the victim. Under the circumstances of this case, in which the victim was struck and

killed by a single bullet, I believe that defendant’s act of discharging a firearm was inherent in

and arose out of the murder itself. See Davison, 236 Ill. 2d at 248 (Garman, J., concurring)

(observing that where the defendant “committed several acts [of mob action], including throwing

the bat and stabbing the victim, the majority’s additional standard can also be met”). However,

had the defendant “struck only one blow as his friends restrained the victim, and that blow

resulted in his death” a felony-murder conviction could not stand. Id. “Although defendant




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would have been acting with an independent felonious purpose, the act proving the felony would

have ‘arisen out of’ and been ‘inherent in’ the act of murder itself.” Id.

¶ 105 I also disagree with the majority’s contention that this case is “unlike a more traditional

case of felony murder.” Supra ¶ 44. In my opinion, the felony murder statute was designed

particularly for the type of situation here, and its purpose seems to be served in a case like this

one, in which an innocent bystander was killed. See People v. Belk, 203 Ill. 2d 187, 192 (2003)

(observing that the purpose behind the felony murder doctrine is to limit the violence that

accompanies the commission of forcible felonies, so that anyone who commits such a violent

felony will be automatically subject to a murder charge if someone is killed during the

commission of that felony). As Justice Garman stated in her concurrence in Davison, our

“legislature has clearly expressed the intent that when a defendant intends to commit a forcible

felony, his committing that felony is a sufficient basis to impose liability for murder if the victim

dies as a result. There is nothing in the statute that would impose felony-murder liability on the

defendant who strikes the victim multiple times, but not impose liability on the defendant who

strikes the victim only once.” Davison, 236 Ill. 2d at 248-49 (Garman, J., concurring).

¶ 106 At the same time, however, when a defendant exercises his right to self-defense, and

accidentally kills an innocent bystander, he cannot be convicted of murder. People v. Hill, 315

Ill. App. 3d 1005, 1012 (2000); 720 ILCS 5/7-1 (West 2010). Likewise, when a defendant kills

an individual while acting under the unreasonable belief that he was acting in self-defense, his

crime is mitigated, his acts amount to second degree murder, and he should not be punished as a

first degree murderer. See Davis, 213 Ill. 2d at 474 (It is “improper to find the defendant to be a

first degree murderer when the predicate felony was inherent in the killing and when the State

had failed to prove another form of first degree murder to the jury.” (citing Pelt, 207 Ill. 2d at


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442)); 720 ILCS 5/9-2 (West 2010). This recognizes defendant’s right to present a defense,

which is paramount to the State’s ability to charge and seek a conviction. An accused has the

“ ‘right to present a defense, the right to present the defendant’s version of events as well as the

prosecution’s to the jury so it may decide where the truth lies.’ ” People v. Manion, 67 Ill. 2d

564, 576 (1977) (quoting Washington v. Texas, 388 U.S. 14, 19 (1967)); see also Davis, 213 Ill.

2d at 492 (Garman, J., concurring) (“The Morgan ‘type of case’ is one where the defendant

admits intent to kill, but argues that his crime is second degree murder rather than first degree

murder. Having admitted the intent to kill, he must be given the opportunity to present his case

for provocation or imperfect self-defense to the fact finder.”). In this case, the defendant did so.

He presented a defense of imperfect self-defense, and the jury agreed, finding that his

involvement in the murder of the victim was mitigated. In these circumstances, defendant’s

felony murder conviction cannot stand.

¶ 107 This case is significant because the factual scenario heard by this jury is likely to recur.

Gang shootings have become an all-too-common problem, leaving innocent bystanders hurt or

killed. See J.J. Gallagher, Bloody Weekend as Chicago Sees 4 Killed, Dozens Wounded in

Shootings, ABC News (Aug. 22, 2016), http://abcnews.go.com/US/bloody-weekend-chicago-

sees-killed-dozens-wounded-shootings/story?id=41565833 (reporting that 27 children younger

than 13 years old had been shot in Chicago from January 1, to August 22, 2016). Many of these

situations, in which there is an exchange of gunfire or other violent force, may create situations

leading to a felony murder charge, while at the same time, the defendant may have a claim of

perfect or imperfect self-defense. Although our supreme court has reviewed the issue of proper

predicate felonies for felony murder on a number of occasions, none of those cases have

involved the deaths of innocent bystanders.


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¶ 108 Another district of this court has recently addressed a similar situation in People v. Lefler,

2016 IL App (3d) 140293, ¶ 12, in which the jury returned verdicts for second degree murder—

crediting the defendant’s imperfect self-defense or serious provocation defenses—and felony

murder based on an attempted burglary. Although that case is distinguishable from the case at

bar because the defendant in Lefler did not, and perhaps could not, raise a challenge based on

Morgan, the Third District Appellate Court concluded that the trial court was correct in

sentencing defendant on the more serious offense of felony murder. Id. ¶ 25. The differing results

in these two cases, and the fact that this scenario can and has recurred, illustrates that the current

jury instructions are not adequately describing the law, and there is a lack of clarity in the test’s

requirements.

¶ 109 If this situation arises again, and it will, given the frequent nature of similar gang

shootings, trial courts should be knowledgeable of how to address this issue with appropriate

instructions and what course to take when the jury returns verdicts like the ones rendered in this

case.




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