People v. Davison ( 2010 )

Docket No. 107091.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee v.
JEFFREY A. DAVISON, Appellant.
Opinion filed February 4, 2010.
JUSTICE KILBRIDE delivered the judgment of the court, with
opinion.
Chief Justice Fitzgerald and Justices Freeman, Thomas, and
Karmeier concurred in the judgment and opinion.
Justice Garman specially concurred, with opinion, joined by
Justice Burke.
OPINION
This appeal requires us to determine whether the offense of mob
action properly served as the predicate forcible felony for defendant’s
first degree felony-murder conviction.1 Citing our decision in People
v. Morgan, 197 Ill. 2d 404 (2001), defendant contends his felony-
murder conviction must be reversed because the charged predicate
1
Defendant was charged with two counts of first degree felony murder
(720 ILCS 5/9–1(a)(3) (West 2004)), one count predicated on attempted
mob action (720 ILCS 5/8–4(a), 25–1(a)(1) (West 2004)) and the second
count predicated on mob action (720 ILCS 5/25–1(a)(1) (West 2004)).
felony conduct arose from and was inherent in the act of murder
itself. The appellate court, with one justice dissenting, rejected
defendant’s challenge to his felony-murder conviction, and affirmed
his conviction and sentence. No. 4–07–0679 (unpublished order
under Supreme Court Rule 23). For the reasons that follow, we affirm
the judgment of the appellate court.
I. BACKGROUND
The State charged defendant, in the circuit court of Macon
County, with five counts of first degree murder of James Norwood,
including one count of intentional murder, two counts of knowing
murder, and two counts of felony murder. The felony-murder counts
were originally predicated on attempted aggravated battery and
aggravated battery, respectively, but the State later successfully
amended the predicate felonies to attempted mob action and mob
action. The felony-murder charges alleged that defendant committed
first degree murder while attempting to commit, or while committing,
the forcible felony of mob action when he “struck, kicked, and
stabbed” the victim, causing his death.
At defendant’s trial, it was undisputed that sometime in the early
morning hours on December 3, 2005, defendant and three other men
searched for the victim. After the group located the victim, they
chased him and then fatally beat and stabbed him. Earlier that same
morning, between 2:35 a.m. and 2:53 a.m., the victim made four 911
telephone calls in the lobby of the Decatur police station, reporting he
was being pursued and threatened by four men. The victim’s autopsy
showed he died as a result of blood loss from 20 stab wounds,
including an abdomen wound that punctured his aorta. The victim
also sustained stab wounds and cuts to his head, neck, shoulders,
arms, and upper torso.
Defendant was arrested the night of the murder and initially
denied involvement. Defendant, however, ultimately confessed in a
videotaped statement to law enforcement officials. Police officers
recovered from defendant’s home a knife and softball bat with the
victim’s blood. The victim’s blood was also found inside defendant’s
vehicle.
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Following the close of the State’s evidence, defendant filed a
motion for directed verdict on his two felony-murder charges, arguing
the State improperly sought to prevent him from raising a claim of
imperfect self-defense. Relying on Morgan, defendant contended that
because he admitted to stabbing the victim, the charged actions of the
underlying predicate felonies were part of the murder itself and could
not form the basis of a felony-murder conviction. The State countered
that this court’s decision in People v. Davis, 213 Ill. 2d 459 (2004),
affirming a felony-murder conviction predicated on mob action,
supported the felony-murder charges against defendant. The trial
court denied defendant’s motion for directed verdict.
Defendant then called two witnesses in his defense. Melissa
Curtis testified that sometime before midnight on December 2, 2005,
a few hours before the murder, she was at her house at Cassel Court
with her boyfriend, Jeffrey DeBerry, and his brother, Jason DeBerry.
The victim and a number of other people were also present.
According to Curtis, the victim and Jason argued about money Jason
allegedly stole from the victim. After Curtis told them to leave her
house, she heard the victim and Jason fighting outside. Curtis looked
outside and saw the victim swing a bat and a knife at Jason. Curtis
told them she was going to call police officers, and the victim left,
and Jason returned to her house. Jason told Curtis the victim hit him
in the head with the bat. Curtis acknowledged she later told police
officers Jason was in possession of a metal door brace but denied she
ever saw Jason threaten the victim with it. Curtis believed Jason and
Jeffrey were mad at the victim after the incident. Curtis later saw
Jason and Jeffrey leave in a car with defendant.
Cody Bunning testified he was defendant’s roommate and that a
few hours before the murder he was driving his car with defendant
and Patrick DeBerry. While they were in the car, Patrick received a
telephone call and then asked Bunning to drive to Cassel Court, and
Bunning complied. Upon their arrival, two men exited a house,
approached Bunning’s car, and got in the back of his car where
Patrick was sitting. Bunning did not know the two men.
Once inside Bunning’s car, the two men explained they wanted to
“go find Dude,” but Bunning said he did not want to participate.
Bunning drove the group back to the house he shared with defendant.
Defendant, Patrick and the two men then left in defendant’s car. Later
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that night, Bunning spoke to defendant on the telephone on two
occasions. During the first conversation, defendant told Bunning they
had not found the victim, and defendant wanted to come home.
During the second conversation, defendant told Bunning they saw the
victim near a police station. Bunning denied that defendant ever told
him that defendant feared for his own safety.
According to Bunning, defendant and Patrick returned home
sometime after 3 a.m. and acted excited. Defendant told Bunning “we
got him good.” Defendant explained to Bunning that the victim
threatened defendant with a knife, but defendant took the knife and
stabbed him. Defendant was in possession of that knife when he
returned home, and Bunning saw him take it to the sink and attempt
to clean it.
Defendant testified in his own defense and explained that Jason
and Jeffrey DeBerry were the men who got inside Bunning’s car at
Cassel Court. After Bunning drove them back to his house, defendant
agreed to let Patrick drive defendant’s car to take Jason and Jeffrey
back to Cassel Court. Defendant later learned that Patrick had taken
one of defendant’s softball bats without defendant’s permission
before Patrick left.
According to defendant, however, the DeBerrys deceived him
because they did not return to Cassel Court. Instead, Patrick drove
defendant, Jason, and Jeffrey to search for the victim. Defendant did
not know the victim. Defendant said the DeBerrys were “talking
crazy” and “acting like madmen.” Defendant twice called Bunning,
once to tell Bunning he would be returning home soon, and the
second time he asked Bunning to pick him up. The DeBerrys were
angry that defendant was talking on the phone and made him feel
uncomfortable.
Eventually, the group located the victim. Defendant agreed to
participate only after being physically threatened by Jason and
Jeffrey, who stated they would “mess [defendant] up” if he refused.
Defendant described the victim as being “a lot bigger” than
defendant. Initially, defendant only chased the victim and threw a bat
at him. After defendant threw the bat, Jason and Jeffrey ordered
defendant to continue chasing the victim, and defendant complied.
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As defendant chased the victim, defendant yelled he was unarmed
and wanted to talk. The victim ran slower, and defendant caught up
to him. Defendant grabbed the victim’s shoulder, and then the victim
turned around and tried to stab defendant. Defendant pulled away
from the victim, causing the victim to trip over defendant and drop
the knife. Defendant recovered the knife, and then the victim
produced a second knife. Shortly thereafter, Jason approached on
foot, and Patrick drove toward them in the car.
As Jason and Patrick approached, the victim and defendant ran
away, with defendant behind the victim. Defendant explained he was
attempting to get away from the DeBerrys. Patrick, however, blocked
both defendant and the victim with the car. After Patrick stopped the
car, the victim turned to defendant and ran toward him, threatening
defendant with the knife. To get the victim to drop his knife,
defendant stated, he stabbed the victim. Defendant could not recall
where he stabbed the victim but believed it was his arms, hands, or
shoulders. When the victim dropped his knife, defendant stopped
stabbing him and returned to the car. After defendant got to the car,
he saw the three DeBerrys stab and beat the victim. Defendant
admitted he took the knife home and cleaned it.
On cross-examination, defendant conceded he repeatedly lied to
police officers about his involvement in the murder. Defendant also
conceded he did not tell police officers the victim had a knife or that
the victim tried to stab defendant. Defendant acknowledged he told
investigators he “went to jump this guy as a favor” but at trial he
testified that his statement was a lie. Defendant further acknowledged
he told investigators he lost control of himself that night but
explained he did not mean that statement.
At the close of the evidence, but before closing arguments and
jury instructions, the trial court allowed the State to nol-pros the
knowing and intentional murder charges, leaving defendant charged
only with two counts of felony murder. Following closing arguments,
the jury convicted defendant of felony murder. The trial court
sentenced defendant to 25 years’ imprisonment.
On appeal, defendant argued the trial court erred when it denied
his motion to dismiss the felony-murder charges and challenged the
court’s denial of his motion to suppress his statement to police. No.
4–07–0679 (unpublished order under Supreme Court Rule 23). A
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majority of the appellate court affirmed defendant’s conviction and
sentence. The dissenting justice argued defendant’s felony-murder
conviction should be reversed because the defendant and his co-
offenders chased the victim with the intent to kill or harm him, and,
thus, the predicate felony and the felony murder shared a common
purpose. No. 4–07–0679, at 27-29 (Cook, J., dissenting).
We allowed defendant’s petition for leave to appeal. 210 Ill. 2d
R. 315.
II. ANALYSIS
On appeal, defendant argues the offense of mob action improperly
served as the predicate forcible felony for his first degree felony-
murder conviction. Citing Morgan, defendant contends that the trial
court erred in denying his motion for directed verdict on the felony-
murder charges because the conduct constituting mob action arose
from and was inherent in the act of murder itself and did not have an
independent felonious purpose. Defendant further contends the State
improperly avoided its burden of proving a knowing or intentional
murder by solely charging him with felony murder. Because this
appeal solely presents a question of law, we review it de novo. People
v. Pelt, 207 Ill. 2d 434, 439 (2003).
The felony-murder statute is intended to limit violence caused by
the commission of a forcible felony, subjecting an offender to a first
degree murder charge if another person is killed during that felony.
People v. Belk, 203 Ill. 2d 187, 192 (2003). The offense of felony
murder is unique because it does not require the State to prove the
intent to kill, distinguishing it from other forms of first degree murder
when the State must prove either an intentional killing or a knowing
killing. Davis, 213 Ill. 2d at 471, citing 720 ILCS 5/9–1(a)(1), (a)(2)
(West 2002). Because of this distinction, this court has repeatedly
expressed our view that a felony-murder charge may, in effect,
improperly allow the State to both eliminate the offense of second
degree murder and avoid the burden of proving an intentional or
knowing first degree murder because many murders are accompanied
by certain predicate felonies. Davis, 213 Ill. 2d at 471, citing Morgan,
197 Ill. 2d at 447; Pelt, 207 Ill. 2d at 441.
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Addressing that view, this court has concluded that “where the
acts constituting forcible felonies arise from and are inherent in the
act of murder itself, those acts cannot serve as predicate felonies for
a charge of felony murder.” Morgan, 197 Ill. 2d at 447. Consequently,
in Morgan, we rejected felony-murder charges predicated on the
forcible felonies of aggravated battery and aggravated discharge of a
firearm for a 14-year-old defendant who fatally shot his grandfather
and grandmother because those felonies were inherent in, and arose
from, the fatal shootings. The Morgan court explained it was arguable
that the murders gave rise to the predicate felonies, rather than the
predicate felonies resulting in the murders. The Morgan court also
held that the predicate felony underlying a charge of felony murder
must have an independent felonious purpose. Morgan, 197 Ill. 2d at
458.
Two years after Morgan, this court revisited the issue of what
constitutes a proper predicate forcible felony for a felony-murder
charge in Pelt. The defendant’s conduct of throwing his infant son
against a bedroom dresser and causing the child’s death resulted in a
conviction of aggravated battery of a child and first degree felony
murder predicated on aggravated battery of a child. In determining
that the defendant’s conduct was an act inherent in, and arising from,
the child’s murder, the Pelt court explained:
“Defendant’s statement indicated that he was upset when the
infant would not stop crying, and that he tried to throw him to
the bed. He stated that he apparently threw him too far
‘[be]cause he hit the dresser.’ 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.” Pelt, 207 Ill. 2d at 442.
The Pelt court also observed the jury rejected the State’s charges of
knowing first degree murder and explained that the court’s refusal to
allow felony murder “ensures that defendant will not be punished as
a murderer where the State failed in proving to the jury that a
knowing murder occurred.” Pelt, 207 Ill. 2d at 442. This statement
underscores this court’s view that felony-murder charges could be
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abused by permitting the State to obtain a first degree murder
conviction that it could not obtain otherwise.
Following Pelt, we next considered whether a predicate felony
properly formed the basis of a felony-murder charge in Davis, with
the charge predicated on the forcible felony of mob action. In Davis,
the State alleged that a group of 10 to 20 individuals, including the
defendant, fatally beat the victim after an argument over a stolen
television. The defendant made a statement to police officers
admitting he hit the victim a few times, but at trial he denied actually
hitting the victim and claimed to have swung only at the victim two
times. It was undisputed that the other individuals inflicted many of
the victim’s injuries. Davis, 213 Ill. 2d at 474.
Based on the evidence presented at trial, the Davis court
concluded the defendant’s conduct was not an act inherent in, or
arising from, the victim’s murder. The court observed the same
evidence was not used to prove both the predicate felony of mob
action and the murder. Thus, because the case differed from Morgan
and Pelt, the Davis court concluded that the predicate felony involved
conduct with a felonious purpose other than the conduct that killed
the victim, and found mob action properly served as the predicate
felony for defendant’s felony-murder conviction. Davis, 213 Ill. 2d at
474.
In our view, this case most resembles the circumstances presented
in Davis. As in Davis, evidence apart from the actual murder
supported defendant’s conviction for mob action. An individual
commits mob action when he and at least one other person, without
lawful authority, act together with the use of force or violence to
disturb the public peace. 720 ILCS 5/25–1(a)(1) (West 2004).
Here, the evidence showed that a few hours before the murder
occurred the victim fought with one of defendant’s co-offenders over
stolen money. It was undisputed that sometime after the fight
defendant and his co-offenders searched for the victim and, after
locating him, pursued him on foot and by car. 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
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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.
Furthermore, defendant did not claim he intended to kill the
victim. Although defendant testified he was coerced into
participating, he conceded on cross-examination that he told
investigators he participated “as a favor” to his co-offenders.
Regardless of whether he was coerced or a willing participant,
however, the evidence shows defendant, in fact, participated in the
group pursuit and use of force against the victim. Consequently, we
conclude defendant acted with the felonious purpose to commit mob
action. See Morgan, 197 Ill. 2d at 458 (“the predicate felony
underlying a charge of felony murder must have an independent
felonious purpose”).
Moreover, unlike Morgan and Pelt, defendant’s conduct
constituting the mob action was neither inherent in, nor arose from,
the murder itself. Instead, the evidence established 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. See Davis, 213 Ill. 2d at 475,
citing People v. Viser, 62 Ill. 2d 568 (1975) (both cases allowing
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).
Accordingly, as in Davis, we conclude the charged predicate felony
of mob action properly formed the basis of defendant’s felony-murder
conviction.
The State urges this court to reject the same-act or merger
doctrine for felony murder, and overrule Morgan, Pelt, and Davis to
the extent they adopted the doctrine. The State advocates 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.
Although in Morgan we considered whether the acts constituting
the predicate felony arose from, and were inherent in, the murder
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itself, our consideration was based on the view that the State could
effectively eliminate its burden of proving an intentional or knowing
murder in any fatal shooting case. Morgan, 197 Ill. 2d at 447.
Nonetheless, in our conclusion, we expressly agreed “with the
appellate court’s holding that the predicate felony underlying a charge
of felony murder must have an independent felonious purpose.”
Morgan, 197 Ill. 2d at 458.
Similarly, in Pelt and Davis, we again expressed our view that
felony-murder charges could potentially enable the State to eliminate
second degree murder, or to eliminate altogether the need to prove an
intentional or knowing murder. Pelt, 207 Ill. 2d at 441; Davis, 213 Ill.
2d at 471-72. Ultimately, however, in both Pelt and Davis, this court
considered whether the predicate felony involved conduct with a
felonious purpose apart from the killing itself. Pelt, 207 Ill. 2d at 442;
Davis, 213 Ill. 2d at 474.
Therefore, this court has consistently recognized that the predicate
felony underlying a charge of felony murder must have an
independent felonious purpose. Morgan, 197 Ill. 2d at 458; Pelt, 207
Ill. 2d at 442; Davis, 213 Ill. 2d at 474. 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.
Morgan, 197 Ill. 2d at 447; Pelt, 207 Ill. 2d at 441; Davis, 213 Ill. 2d
at 473-74. Despite the State’s invitation to abandon the latter
consideration, we continue to adhere to these principles.
III. CONCLUSION
Consistent with Davis, we conclude the offense of mob action
properly served as the predicate felony for defendant’s felony-murder
conviction. For the foregoing reasons, we affirm the appellate court’s
judgment.
Appellate court judgment affirmed.
JUSTICE GARMAN, specially concurring:
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I agree with the majority that in this case the defendant was
properly convicted of felony murder predicated on mob action. I also
agree with the majority’s conclusion that this court has long
recognized that the predicate felony underlying a charge of felony
murder must have an independent felonious purpose. Slip op. at 10.
However, I write separately because this focus on an independent
felonious purpose is undermined by the majority’s decision to decline
either to expressly adopt or reject the same-act doctrine. In this way,
the majority confuses, rather than clarifies, the issue for prosecutors
and courts.
As I outlined in a special concurrence in Davis, jurisdictions
throughout the United States have adopted different approaches for
determining whether a particular felony may properly serve as a
predicate offense for felony murder. One of those methods is the
same-act doctrine. Under this doctrine, application of the felony-
murder rule is precluded whenever the act that constitutes the
predicate felony is the same act that results in the death of the victim.
This court has not expressly adopted the same-act doctrine.
Indeed, this court’s decision in People v. Viser stands as a de facto
rejection of the doctrine. In Viser, this court affirmed the defendant’s
felony-murder conviction even where the victim’s death was caused
by the same acts that constituted the predicate aggravated battery.
Since Viser, however, our line of cases on this issue has strayed from
a focus on the intent of the defendant to a focus on the act or acts
committed by the defendant.
In People v. Morgan, the court first reached the conclusion,
recognized by the majority in this case, that the predicate felony
underlying a charge of felony murder must have an independent
felonious purpose. Morgan, 197 Ill. 2d at 458. However, elsewhere
in the opinion, the court concluded that “where the acts constituting
forcible felonies arise from and are inherent in the act of murder
itself, those acts cannot serve as predicate felonies for a charge of
felony murder.” Morgan, 197 Ill. 2d at 447. As I later noted in my
partial dissent in Pelt, the use of this phrase altered, perhaps
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unintentionally, the focus of the inquiry.2 Pelt, 207 Ill. 2d at 445
(Garman, J., concurring in part and dissenting in part). The effect of
this change in focus was to shift the analysis to one consistent with
the same-act doctrine. Under this language from Morgan, a defendant
may not be convicted of felony murder unless he performs a separate
felonious act in addition to the act that causes the death.
Pelt provided an opportunity to clarify Morgan, and return the
focus of the inquiry to the defendant’s intent. However, the Pelt
majority, citing Morgan, focused on whether the predicate felony
“involved conduct with a felonious purpose other than the conduct
which killed the infant.” (Emphases added.) Pelt, 207 Ill. 2d at 442.
In that case, the single act of throwing the infant was held to be both
the basis for the aggravated battery conviction and the act underlying
the killing. Pelt, 207 Ill. 2d at 442. Thus, the aggravated battery could
not serve as a predicate offense for felony murder.
The result of the Pelt analysis, as I noted in a concurrence in
Davis, is that to be a predicate felony for felony murder, the felony
“must not only have a felonious purpose apart from killing the victim
*** but also must involve at least two separate acts.” Davis, 213 Ill.
2d at 493 (Garman, J., concurring). This is the definition of the same-
act doctrine. I noted at that time that if this doctrine were to be
adopted by the court, it should do so “unequivocally and thereby give
clear guidance to prosecutors and trial courts.” Davis, 213 Ill. 2d at
495 (Garman, J., concurring).
In the present case, this court again has the opportunity to clarify
Morgan and its progeny and do one of two things. First, the majority
could return the felony-murder analysis to the proper
question–whether the defendant acted with the purpose of committing
an independent felony apart from the homicide. The majority
ostensibly has done so when it reaffirms that the court has
“consistently recognized that the predicate felony underlying a charge
of felony murder must have an independent felonious purpose.” Slip
2
2
Later, in Davis, I also noted that the Morgan court incorrectly
attributed the “inherent in” language to the appellate court majority, rather
than to the appellate concurrence. Correct or not, however, this language
has now been adopted by this court and must be addressed.
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op. at 10. Nonetheless, the majority also undermines its conclusion by
repeatedly referencing, with approval, that language from Morgan,
Pelt and Davis, and implicitly relying on what is, in effect, a
formulation of the same-act doctrine.
The second alternative would be for the court to expressly adopt
the same-act doctrine. The majority already conveys, if
unintentionally, an adherence to its principles. For example, the way
the majority structures and prioritizes this court’s conclusions from
Morgan reveals its unspoken reliance on the same-act doctrine.
Rather than lead with the court’s holding in Morgan, which
emphasized the need to demonstrate an independent felonious
purpose, the majority begins its summary of Morgan by citing the
“arise from” and “inherent in” language. The majority’s discussions
of Morgan, Pelt and Davis also reinforce the doctrine, framing the
issue in terms of acts, conduct, or “same evidence.”
I would disagree with the adoption of the same-act doctrine, for
the reasons I set forth in Davis. Davis, 213 Ill. 2d at 495-97 (Garman,
J., concurring). However, adopting the doctrine expressly would
surely be more helpful to the bench and bar than the course the
majority continues to take. As it stands, the majority declines to adopt
the doctrine in name. Instead, the majority purports to embrace a
standard based on intent while also imposing a requirement that there
must be both an act that constitutes a forcible felony and a separate
act that results in the victim’s death.
In the present case, the majority’s analysis does not affect the
result. As the majority notes, defendant and his friends first chased
down the victim. Defendant then threw a bat at the victim. Ultimately,
defendant stabbed the victim at least once. Slip op. at 8. There is no
doubt that defendant acted with the intent to commit mob action.
Further, because defendant committed several acts, including
throwing the bat and stabbing the victim, the majority’s additional
standard can also be met. Thus, here, under either an intent standard
or under the majority’s analysis, defendant’s conviction is upheld.
Suppose, however, that defendant and his friends searched for the
victim with the same intent they had in this case, to “g[e]t [the victim]
good,” but when they found him, defendant struck only one blow as
his friends restrained the victim, and that blow resulted in his death.
Under the same-act doctrine and under the majority’s analysis, a
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felony-murder conviction could not stand. Although defendant 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.
This is not the result intended by our legislature. 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.
The majority’s approach continues to obscure the felony-murder
analysis. Therefore, I would again suggest that when the next case
arises, this court should either expressly adopt the same-act doctrine,
and overrule Viser, or expressly reject it and return the focus of our
inquiry to whether the defendant acted for the purpose of committing
an independent felony apart from the homicide.
JUSTICE BURKE joins in this special concurrence.
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