Find Legal Information

JUSTICE SOUTH delivered the opinion of the court:

Defendant, John Belk, was charged with two counts of felony murder predicated on theoffenses of burglary and aggravated possession of a stolen motor vehicle, during the commissionof which two people were killed when their car was struck by the vehicle that defendant wasoperating during a police chase. At the end of the bench trial, defendant was convicted of twocounts of felony murder and one count of aggravated possession of a stolen motor vehicle andsentenced to natural life imprisonment. The sole issue on appeal is whether aggravatedpossession of a stolen motor vehicle may serve as a predicate offense for felony murder. Noissue is raised as to the sufficiency of the evidence establishing defendant's guilt.

The relevant facts adduced at trial are as follows: Sergeant Craig T. Kincaid, a policeofficer with the Blue Island police department, testified that on May 14, 1998, he was on patrol inhis marked squad car when he received a radio dispatch of an automobile theft in progress aswell as a physical description of that vehicle. He immediately activated his emergency lights andsiren and drove to the vicinity of the crime. As he approached the intersection at 127th andVincennes, he observed a vehicle matching the description given to him. That vehicleaccelerated, and a police pursuit ensued. Sgt. Kincaid testified that the cars attained speeds ashigh as 100 miles per hour in an area where the posted speed limit was 30 miles per hour. At notime did the van defendant was driving apply its brakes or attempt to slow down. The witnessalso testified that defendant's actions in driving the van in a business area where there were manypedestrians were "reckless." When the van reached the vicinity of 111th and Western, it collidedwith the rear of the victim's car, killing the two people inside. The van that defendant wasdriving flipped upside down, at which time he crawled out and fled on foot. After a brief chase,he was apprehended and taken into custody.

A stipulation was entered into that while defendant was in the emergency room at St.Francis Hospital and Health Centers being treated for the injuries he sustained in the accident, atoxicological test was performed on him for the purpose of treatment and diagnosis. The resultsshowed that his blood-alcohol content was 0.19, and under Illinois law intoxication occurs at0.08, making defendant legally intoxicated at the time of the collision.

William Cosgrove, a retired fire investigator for the Chicago fire department, testifiedthat when he first observed the stolen van on the date in question, it was traveling at an excessiverate of speed and being pursued by a Blue Island police car. Cosgrove did not see the impact. However, he described the van at the point he observed it as speeding "recklessly" down an alley. Throughout his entire testimony, he described the manner in which the van was being driven as"reckless."

Defendant argues on appeal that aggravated possession of a stolen motor vehicle is not anenumerated forcible felony under the felony murder statute or a forcible felony threateningviolence against individuals, and that, therefore, given his level of intoxication and the recklessmanner in which he operated the stolen van, his conviction should be reduced to recklesshomicide.

Section 9-1(a)(3) of the Criminal Code of 1961s in part: "A person who kills anindividual without lawful justification commits first degree murder if, in performing the actswhich cause the death *** he is attempting or committing a forcible felony other than seconddegree murder." 720 ILCS 5/9-1(a)(3) (West 2000). If the killing is in the course of an escape,it is within the operation of the doctrine. People v. Bongiorno, 358 Ill. 171 (1934). InBongiorno, two men committed an armed robbery, which was interrupted by a police officer. One of the men escaped, but defendant was arrested by the officer. As he was being taken downa hallway, the other man, who had returned, shot and killed the officer. Defendant's contentionwas that he was not guilty of murder under the felony-murder doctrine because five minutes hadelapsed after the robbery had been completed, and the prosecution's evidence did not show anyplan or design to kill in the course of the robbery. In affirming the conviction, our supreme courtsaid: "Here the uncontradicted evidence shows that the conspirators designed to commit thecrime of robbery through the use of a deadly weapon. That use included the intimidation of thevictims and the means of the offenders' escape. Under such circumstances the intention to kill, ifnecessary, in obtaining and carrying away the loot is established. A plan to commit robberywould be futile if it did not comprehend an escape with the proceeds of the crime. *** Unless theplan of robbery is to terrify the victim, and, if occasion requires, to kill any person attempting toapprehend them at the time of or immediately upon gaining possession of the property, it wouldbe inane and child-like.*** It is vain to argue that the killing was not included as a part, ifnecessary, in the commission of the crime which both *** had deliberately planned." Bongiorno, 358 Ill. at 173-74.

Later, the supreme court expanded this holding to include nonviolent crimes whichserved as a predicate offense for felony murder. In People v. Golson, 32 Ill. 2d 398 (1965), thedefendant was convicted of murder arising out of a shooting death that occurred during thecourse of a theft from an automobile. Prior to the commission of the crime, defendant and hiscodefendants purchased a gun. On the night of the crime, they set out with the intention ofstealing from automobiles. They did not find any automobiles from which to steal, so they drovearound looking for something else to steal when they came across a loading dock and stole a mailsack. After driving a short distance, they were approached by two postal inspectors who haddriven up beside them and directed them to stop. The inspectors ordered them to get out of thecar and during the inspection of that car were shot and killed.

The defendants in Golson argued that the felony-murder doctrine applied only in caseswhere conspirators have conspired to commit a forcible felony, which by its nature is dangerousto human life, and that, consequently, theft from the United States mails by stealth is anonforcible felony not normally involving danger to human life.

Our supreme court, in affirming the convictions, held that the test to be applied indetermining whether the felony-murder doctrine is applicable is not whether the felony isnormally classified as nonviolent, but is whether, under the facts of a particular case, it iscontemplated that violence might be necessary to enable the conspirators to carry out theircommon purpose. Golson, 32 Ill. 2d at 408-09. The court then determined that since the postalinspectors were shot a short distance from the scene of the theft while the conspirators wereattempting to escape from the scene, there was sufficient evidence from which the jury couldinfer that they intended to forcibly resist any attempt to arrest them, either during the course ofthe crime or in an attempt to escape from the scene, and that such a plan came within the doctrineof felony murder since it was contemplated that violence might be necessary to enable them tocarry out their common purpose.

In Illinois, a forcible felony is defined as "treason, first degree murder, second degreemurder, *** aggravated criminal sexual assault, criminal sexual assault, robbery, burglary ***arson, aggravated kidnaping, kidnaping, aggravated battery resulting in great bodily harm orpermanent disability or disfigurement and any other felony which involves the use or threat ofphysical force or violence against any individual." 720 ILCS 5/2-8 (West 2000). There is noquestion that aggravated possession of a stolen motor vehicle is not an enumerated offense underthe forcible felony statute. What is at issue is whether, under the facts of this case, the crime ofaggravated possession of a stolen vehicle involved the use or threat of physical force or violenceagainst the victims.

Aggravated possession of a stolen motor vehicle occurs when a person is "the driver oroperator of a vehicle and is not entitled to the possession of that vehicle and who knows thevehicle is stolen *** [and] who has been given a signal by a peace officer directing him to bringthe vehicle to a stop, to willfully fail or refuse to obey such direction, increase his speed *** orotherwise flee or attempt to elude the officer." 625 ILCS 5/4-103.2(7)(A) (West 1998).

In Illinois, the supreme court has interpreted the residual category of nonenumeratedfelonies that may serve as the predicate felony for purposes of a felony-murder conviction toinclude nonviolent felonies that might require force to perpetrate. People v. Guest, 115 Ill. 2d 72(1986); People v. Golson, 32 Ill. 2d 398 (1965).

Under section 9-3(a), a person who "unintentionally kills an individual without lawfuljustification commits involuntary manslaughter if his acts whether lawful or unlawful whichcause the death are *** likely to cause death or great bodily harm to some individual, and heperforms them recklessly, except in cases in which the cause of the death consists of the drivingof a motor vehicle, *** in which case the person commits reckless homicide." 720 ILCS 5/9-3(a)(West 2000).

In the case at bar, the evidence is undisputed that defendant was attempting to escape in astolen motor vehicle when he observed Officer Kincaid's squad car. It is undisputed that he waslegally intoxicated. It is also undisputed that during that escape and prior to the collision whichkilled the victims, he was operating that vehicle at an excessive rate of speed. Aggravatedpossession of a stolen motor vehicle is a felony that is not normally classified as a violentoffense. That is not to say that it could never involve the use of physical force or violence. However, the law in this state mandates that we must determine from the facts of a particularcase whether it was contemplated by defendant that violence might be necessary to enable himand his companion to steal the vehicle and escape arrest. For example, if the evidence showedthat defendant deliberately rammed his car into that of the victims or any individual who was inthe direct path of the vehicle, there would be no question that the predicate felony, i.e.,aggravated possession of a stolen motor vehicle, involved violence or the use of physical forceagainst any individual.

The facts in this case are distinguishable from those in Golson and Bongiorno where thedefendants were armed with guns and deliberately used them when they were facing arrest. Itreasonably could be inferred in those cases that the defendants contemplated that violence mightand would be necessary to enable them to carry out their crimes. In the case at bar, however, theevidence does not support an inference that defendant contemplated violence or actedintentionally when his vehicle struck that of the victims. The evidence does not support theinference that it was defendant's intent to kill or cause great bodily injury to anyone who got inhis way. The circumstances of the accident appear to have been just that, an accident, albeit avery tragic one. We are hard-pressed to say that the facts of this case present a situation wherethe perpetrators formulated a plan to kill anyone and everyone who got in their way in the eventthey had to escape. The evidence is clear that defendant was determined to elude capture but notthat he intended to kill anyone during the course of that chase.

There is no question that an automobile can be used as a deadly weapon. However,according to the testimony of the witnesses who observed defendant's driving, the stolen van wasbeing operated in a reckless manner. No one testified that it appeared that defendant deliberatelycollided with the victims' vehicle. What the evidence does demonstrate is that defendant, whilelegally intoxicated, drove the vehicle in a reckless manner by operating it at an excessive rate ofspeed in a business area which was populated with pedestrian and vehicular traffic. We do notbelieve that the felony-murder statute was intended to apply to a situation such as the one we arepresented with here where the defendant's actions can be characterized only as grossly reckless.

In reviewing the sufficiency of the evidence to sustain a verdict on appeal, the relevantinquiry is "whether, after viewing the evidence in the light most favorable to the prosecution, anyrational trier of fact could have found the essential elements of the crime beyond a reasonabledoubt." (Emphasis omitted.) Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99S. Ct. 2781, 2789 (1979); People v. Thomas, 178 Ill. 2d 215, 231-32 (1997); People v. Howery,178 Ill. 2d 1, 38 (1997). Under this standard, a reviewing court will not substitute its judgmentfor that of the trier of fact on issues of the weight of evidence or the credibility of witnesses. Thomas, 178 Ill. 2d at 232. Indeed it is the responsibility of the trier of fact to "fairly ***resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences frombasic facts to ultimate facts." Jackson, 443 U.S. at 319, 61 L. Ed. 2d at 573, 99 S. Ct. at 2789. This same standard of review applies regardless of whether the evidence is direct orcircumstantial (Thomas, 178 Ill. 2d at 232) and regardless of whether the defendant receives abench or jury trial (Howery, 178 Ill. 2d at 38).

Applying this standard, we find that the evidence presented at trial, considered in the lightmost favorable to the prosecution, shows that defendant acted recklessly prior to and at the timeof the fatal collision, and that his actions do not come within the purview of the felony-murderstatute. Therefore, pursuant to our authority under Supreme Court Rule 615(a)(3), we reducedefendant's conviction of first degree murder to reckless homicide and remand to the circuit courtfor resentencing. 134 Ill. 2d R. 615(a)(3).

Based upon the foregoing analysis, the conviction is reduced to reckless homicide,defendant's sentence of life imprisonment is vacated, and the matter is remanded forresentencing.

Judgment modified and sentence vacated; cause remanded.

HALL, P.J., and CERDA, J., concur.