People v. Colbert , 2013 IL App (1st) 112935 ( 2014 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
People v. Colbert, 2013 IL App (1st) 112935
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption LAPOLEON COLBERT, Defendant-Appellant.
District & No. First District, Sixth Division
Docket No. 1-11-2935
Filed November 8, 2013
Held Defendant’s conviction for first degree felony murder predicated on mob
(Note: This syllabus action was upheld over his contentions that his conduct constituting mob
constitutes no part of action was inherent in the murder and was not committed with a purpose
the opinion of the court independent of the murder, that the trial court should have instructed the
but has been prepared jury that the mob action had to have an independent felonious purpose
by the Reporter of other than the murder, and that his sentence was excessive, since the
Decisions for the evidence showed defendant engaged in the mob action with the
convenience of the independent felonious purpose of intimidating students from a rival
reader.)
neighborhood faction, the mob action served as a predicate felony for
felony murder, the trial court did not err in failing to give an instruction
that the mob action had to have an independent felonious purpose other
than the murder, and the sentence was a result of the court’s balancing
society’s need for protection and defendant’s rehabilitative potential.
Decision Under Appeal from the Circuit Court of Cook County, No. 10-CR-3600; the
Review Hon. Nicholas J. Ford, Judge, presiding.
Judgment Affirmed.
Counsel on Michael J. Pelletier, Alan D. Goldberg, and Tomas G. Gonzalez, all of
Appeal State Appellate Defender’s Office, of Chicago, for appellant.
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg and
Peter D. Fischer, Assistant State’s Attorneys, of counsel), for the People.
Panel JUSTICE HALL delivered the judgment of the court, with opinion.
Presiding Justice Rochford and Justice Reyes concurred in the judgment
and opinion.
OPINION
¶1 Following a jury trial, defendant Lapoleon Colbert was found guilty of first degree felony
murder based on the predicate felony of mob action in connection with the beating death of
Derrion Albert. Defendant was sentenced to 32 years’ imprisonment.1 The trial court denied
defendant’s motion to reconsider sentence. He now appeals his conviction and sentence. We
affirm.
¶2 The facts show that on the afternoon of September 24, 2009, a street brawl involving a
number of individuals broke out near the front entrance and parking lot of the Agape
Community Center, located on 111th Street in the Roseland neighborhood of Chicago,
Illinois. The brawl stemmed from an ongoing feud between two factions of students
attending nearby Fenger Academy High School. The two groups of students were from rival
neighborhoods.
¶3 During the street brawl, Derrion Albert was fatally beaten. The incident was captured on
a video surveillance camera located on the outside of the building housing the community
center and on a cell phone video recording taken by a bystander. The bystander’s video
recording was copied into a slow motion version. The three video recordings were published
to the jury. The video recordings show a number of young men strike the victim. In regard
to the defendant, the video recordings show him kick the victim in his head and stomp the
victim in his torso area as the victim lay motionless on the ground.
¶4 An autopsy revealed Albert suffered multiple abrasions and bruises to his face, lips,
1
Codefendants Eric Carson, Eugene Riley, and Silvonus Shannon were also charged in
connection with the fatal beating. Silvonus Shannon’s conviction and 32-year prison sentence for
first degree murder were affirmed on appeal. People v. Shannon, 2012 IL App (1st) 111433-U.
Eugene Riley’s conviction for first degree murder was affirmed on appeal (People v. Riley, 2013 IL
App (1st) 112464-U); he did not challenge his 32-year prison sentence.
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hands, chest, abdomen, and back. He died from cerebral hemorrhaging caused by blunt force
trauma to his head. The manner of death was ruled a homicide.
¶5 Defendant was initially charged with three counts of murder: intentional murder, strong
probability murder, and felony murder predicated on mob action. Prior to trial, the State
dismissed the intentional and strong probability murder counts and elected to proceed solely
on the one count of felony murder. Defense counsel objected.
¶6 Defense counsel argued that the State had elected to proceed only on the felony murder
count to eliminate the possibility of a conviction for second degree murder based on
imperfect self-defense. Over defense counsel’s objections, the trial court allowed the State
to proceed solely on the count of felony murder predicated on mob action.
¶7 Defendant’s theory of defense at trial was that, although he kicked the victim in the head,
he did not inflict the fatal blow and did not participate in the mob action. The jury found
defendant guilty of first degree felony murder predicated on mob action in connection with
the fatal beating.
¶8 ANALYSIS
¶9 Under the Criminal Code of 1961 (Code), a person commits the offense of felony murder
when, without lawful justification, he causes a person’s death while “attempting or
committing a forcible felony other than second degree murder.” 720 ILCS 5/9-1(a)(3) (West
2002). The particular felony defendant was charged with committing was mob action
pursuant to section 25-1(a)(1) of the Code, which consists of the “use of force or violence
disturbing the public peace by 2 or more persons acting together and without authority of
law.” 720 ILCS 5/25-1(a)(1) (West 2008).
¶ 10 Mob action is not listed among the crimes classified as forcible felonies. 720 ILCS 5/2-8
(West 2002). However, our courts have determined that mob action qualifies as a forcible
felony because the term “forcible felony” includes not only those listed, but also those
felonies coming within the purview of the statute’s catch-all clause which reads, “ ‘any other
felony which involves the use or threat of physical force or violence against any
individual.’ ” People v. Banks, 287 Ill. App. 3d 273, 283 (1997) (quoting 720 ILCS 5/2-8
(West 1994)); see also People v. Davis, 213 Ill. 2d 459, 471 (2004) (mob action qualified as
a forcible felony because it involved the use of force or violence against the victim).
¶ 11 In this case, the mob action was used as a predicate forcible felony to charge defendant
with felony murder. “The purpose behind the felony-murder statute is to limit the violence
that accompanies the commission of forcible felonies, so that anyone engaged in such
violence will be automatically subject to a murder prosecution should someone be killed
during the commission of a forcible felony.” People v. Belk, 203 Ill. 2d 187, 192 (2003).
¶ 12 The offense of felony murder is unique in that, in order to commit felony murder, the
defendant need not have had the intent to kill; rather, the defendant must have had the intent
to commit the predicate forcible felony. People v. Davison, 236 Ill. 2d 232, 239-40 (2010)
(“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.”); People v. Dekens, 182 Ill. 2d 247,
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259 (1998) (Heiple, J., dissenting) (“In Illinois, the only type of first degree murder which
does not require proof of a specific mens rea, or intent, on the part of the defendant is felony
murder. [Citation.] The felony-murder doctrine thus stands as a substitute for intent in cases
where the defendant’s commission of a felony causes another person’s death.”).
¶ 13 “[C]oncern arose that the State would use felony murder charges to avoid the burden of
proving intentional or knowing killings to obtain a first degree murder conviction and would
effectively eliminate second degree murder charges, a concern that was especially paramount
in cases where the same evidence is used to prove the predicate felony and the killing.”
People v. Phillips, 383 Ill. App. 3d 521, 535 (2008). To address this concern, our supreme
court determined 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.” People v. Morgan, 197 Ill. 2d 404, 447 (2001). Thus, in order to support
a charge of felony murder, the predicate felony underlying the charge of felony murder must
have an independent felonious purpose, i.e., it must have some independent motivation or
purpose apart from the murder itself. People v. Alvarez-Garcia, 395 Ill. App. 3d 719, 733-34
(2009).
¶ 14 Defendant now contends on appeal that his felony murder conviction should be reversed
because the conduct constituting the mob action was inherent in the murder itself and was
therefore not committed with an independent felonious purpose. To resolve this issue, we
must review the factual context surrounding Albert’s murder. See People v. Toney, 337 Ill.
App. 3d 122, 132 (2003) (“the factual context surrounding the murder is critical in
determining whether the forcible felony can serve as a predicate felony for felony murder”).
¶ 15 Based on our review, we find that defendant’s conduct in participating in the mob action
did not arise from and was not inherent in the murder of Albert but, rather, involved conduct
with an independent felonious purpose other than the murder itself. Evidence was presented
showing the mob action stemmed from an ongoing feud between two factions of students
from rival neighborhoods who attended the same high school. Defendant told detectives, “we
used to get into it all the time.” When asked why he kicked the victim, defendant stated,
“guess in the heat of the moment. Tired of everything that’s going on. You can run. We was
outnumbered.” When asked if he knew it was Albert they were attacking, defendant stated,
“I just thought it was one of them ***. But I ain’t know it was going to be like that.”
¶ 16 Thus, the evidence indicates defendant participated in the mob action with the
independent felonious purpose of physically intimidating and harassing fellow students from
a rival neighborhood and that the mob action escalated to the point where defendant and his
codefendants struck the victim multiple times, causing his death. Therefore, based on the
facts of this case, the mob action properly served as a predicate felony for felony murder.
Accordingly, we uphold defendant’s conviction for felony murder.
¶ 17 Defendant next contends the trial court erred by failing to instruct the jury that the
underlying mob action must have an independent felonious purpose other than the murder
itself in order to convict him of felony murder. Again, we must disagree.
¶ 18 “The function of jury instructions is to provide the jury with accurate legal principles to
apply to the evidence so that it can reach a correct conclusion.” People v. Pierce, 226 Ill. 2d
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470, 475 (2007). “In a criminal case, fundamental fairness requires that the trial court fully
and properly instruct the jury on the elements of the offense, the burden of proof, and the
presumption of innocence.” Id.
¶ 19 In general, the decision whether to give a certain jury instruction rests within the trial
court’s discretion and will not be reversed absent an abuse of that discretion. People v. Jones,
219 Ill. 2d 1, 31 (2006). However, the issue of whether the jury instruction accurately
conveyed to the jury the applicable law is reviewed de novo. Pierce, 226 Ill. 2d at 475.
¶ 20 Defendant claims that since the existence of an independent felonious purpose is a
question of fact for the trier of fact, the trial court should have issued an instruction to the
jury tasking it with the question of whether the acts comprising the predicate mob action
arose from or were inherent in the murder. Defendant maintains the trial court’s failure to
issue the instruction deprived him of his right to a jury determination that he was guilty of
every element of the crime with which he was charged.
¶ 21 The issue of whether the offense of mob action can properly serve as a predicate forcible
felony for felony murder in a particular case is a question of law for the trial court, whose
ruling is reviewed de novo. Davison, 236 Ill. 2d at 239. In resolving this issue, the trial court,
rather than the jury, must examine the factual context surrounding the murder and determine
whether the evidence is sufficient to show that the predicate felony has an independent
felonious purpose apart from the murder itself. See People v. Morgan, 307 Ill. App. 3d 707,
714 (1999), aff’d, 197 Ill. 2d 404, 447-48 (2001) (if, after all the evidence has been
presented, and the trial court concludes that the State’s evidence is not sufficient to show an
independent underlying felony, then the court should refuse the felony murder instruction);
People v. Tamayo, 2012 IL App (3d) 100361, ¶ 26 (in making the determination as to
whether mob action may properly serve as a predicate felony for felony murder, the court
must consider whether the conduct underlying the felony involves “ ‘an independent
felonious purpose’ ” other than the killing (quoting Davison, 236 Ill. 2d at 244)); Davis, 213
Ill. 2d at 474. Therefore, we find the trial court did not err by not instructing the jury
regarding the existence of an independent felonious purpose.
¶ 22 Finally, we reject defendant’s contention that his 32-year sentence was excessive.
Imposition of a sentence is a matter of judicial discretion. People v. Perruquet, 68 Ill. 2d 149,
153 (1977). When a defendant’s sentence is within statutory limits, a reviewing court will
not alter the sentence absent an abuse of that discretion. People v. Cabrera, 116 Ill. 2d 474,
494 (1987).
¶ 23 Defendant was convicted of first degree murder. First degree murder is punishable by a
prison term of not less that 20 years and not more than 60 years. 730 ILCS 5/5-4.5-20(a)
(West 2008). In the instant case, defendant’s 32-year sentence falls within the applicable
statutory range.
¶ 24 If an imposed sentence falls within the statutory range, it will not be found excessive
unless there is an affirmative showing that the sentence varies greatly from the spirit and
purpose of the law or manifestly violates constitutional guidelines. People v. Boclair, 225
Ill. App. 3d 331, 335 (1992). The spirit and purpose of the law are promoted when a sentence
reflects the seriousness of the crime and gives adequate consideration to a defendant’s
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rehabilitative potential. Id.
¶ 25 In the present case, there is nothing in the record which indicates that the trial judge
ignored defendant’s rehabilitative potential or any mitigating factors before he imposed
sentence. The record shows that at defendant’s sentencing hearing, the trial judge
acknowledged the presentence investigation report, which raises the presumption that the
trial court took into account defendant’s potential for rehabilitation. See People v. Wilburn,
263 Ill. App. 3d 170, 185 (1994). Our review of the record shows the trial judge considered
both mitigating and aggravating factors and arrived at a balance between society’s need for
protection and defendant’s rehabilitative potential.
¶ 26 Accordingly, for the reasons set forth above, we affirm the judgment of the circuit court
of Cook County.
¶ 27 Affirmed.
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