People v. O’Neal, 2016 IL App (1st) 132284 (September). Episode 239 (Duration 13:06)

Defendant shoots his own friend on accident but was acting under an unreasonable claim of self defense.

Felony murder reversed.

Facts

Defendant was acting as “security” for a block party.

He fired multiple shots at a 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 was sitting in a car across the street. One of the bullets defendant fired at the van struck him in the head, killing him.

Jury Verdict

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.

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.

Murder Charges

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.

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));
(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)); 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)).

The felony-murder statute states that the predicate forcible felony must be one “other than second degree murder.”

Second Degree Murder

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  or
(2) the defendant subjectively believed that he was acting in self-defense, but his belief was unreasonable.

See 720 ILCS 5/9-2(a)(1) & (2).

Felony Murder

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.

That is because felony murder is not concerned with the defendant’s intent to commit murder.

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.

The forcible felony used as the predicate felony for defendant’s felony-murder charge in this case was aggravated discharge of a firearm, which occurs when a defendant knowingly or intentionally discharges a firearm “in the direction of another person or in the direction of a vehicle he or she knows or reasonably should know to be occupied by a person.” 720 ILCS 5/24-1.2(a)(2).

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.

Felony Murder Abuse

Defendant argued 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 the victim’s death.

Indeed, the law is clear that an act that is inherent in a murder cannot serve as the predicate felony for felony murder.

The reason is simple. Because every shooting involves conduct constituting aggravated discharge of a firearm, all fatal shootings could be charged as felony murder and the result could be to effectively eliminate the second degree murder statute.

Felony Murder Abuse Test

In these cases, the court must ask two 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.

Analysis & Holding

In this case, the reviewing court looked at

(1) whether defendant’s act of shooting at the van was inherent in the death of, such that permitting a felony-murder charge would allow the State to circumvent the second-degree murder statute and
(2) whether defendant’s felonious purpose in discharging the firearm was independent of the murder itself.

Defendant prevailed on both of these questions, and the felony-murder conviction was reversed.

One of the shots he fired at the van was the same shot that struck his friend. 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.

What About Transferred Intent?

The transferred intent issue did not change the outcome.

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. 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.

Similarly, 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.