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FIFTH DIVISION
April 26, 2002

No. 1-98-4279

JUSTICE QUINN delivered the opinion of the court:

Defendant, Desean McCarty, was charged by indictment withthree counts of first-degree murder (for the murder of oneindividual), one count of aggravated possession of a stolen motorvehicle and one count of aggravated fleeing or attempting to eludea police officer. The State later added a fourth count of first-degree murder. Following a bench trial, defendant was found guiltyof one count of felony murder and sentenced to 40 years'imprisonment. Defendant now timely appeals.

On appeal, defendant argues that his conviction must bereversed because; (1) aggravated possession of a stolen motorvehicle is not a forcible felony; (2) he is excluded fromculpability under a plain reading of the felony murder statute; (3)the State failed to prove proximate cause; (4) the trial judge'sfailure to enter a finding of guilt on the aggravated possession ofa stolen motor vehicle count constitutes an implied acquittal onthe predicate felony and/or the State failed to prove an essentialelement of the aggravated possession of a stolen motor vehicleoffense; and (5) his sentence was excessive.

For the following reasons, we affirm.

I. BACKGROUND

The pertinent facts of the case involve the events thatoccurred the evening of September 20, 1997. Renell Brown testifiedthat on Thursday September 18, 1997, she allowed her boyfriend,Andre Griffin, to use her automobile. Brown testified that shegave Griffin the maroon Chevrolet Caprice to drive it to Harvey,Illinois, to be repaired. Brown stated that Griffin had permissionto use the car "for a couple of hours."

Andre Griffin testified that on September 18, 1997, he droveBrown's car to Harvey and had some work done on it. Griffintestified that someone had attempted to steal the car on a previousoccasion and therefore the steering column was peeled and the carcould only be started with a screw driver. Griffin stated thatafter the repairs were finished, he drove the car to a housingproject on 154th Street in Harvey. Griffin testified that herented Brown's car out to defendant in exchange for drugs. Griffinstated that defendant had permission to use the car for only threehours; however, defendant never returned. Griffin testified thattwo days later, defendant returned to the housing projects in theCaprice. Griffin requested that defendant return the car. Griffinstated that defendant said he was going to park the car behind thebuilding, but he "punched the accelerator and took off."

Larry Mason testified that on Saturday, September 20, 1997,defendant pulled up in the maroon Caprice and asked if anyonewanted to buy the car. Mason noticed the steering column waspeeled, and someone in the group told him "that's a stolen car,man, get that off our block."

Tia Brewton testified that on September 20, 1997, she was ather home at 84 East 155th Street, Harvey, Illinois. Brewtontestified that at around 7:30 p.m. that night she was sitting onher front porch and heard sirens. Brewton walked to the end of hersidewalk and looked down the street. Brewton saw two men runningacross the street. Brewton stated that the first man made itacross the street but the second man was hit by a police car. Brewton testified that when she first saw the men running, shenoticed the police car lights coming "awfully fast."

James Sanders testified that on September 20, 1997, he wasworking at the gas station at 159th and Wood. Sanders testifiedthat he heard sirens and saw a red Chevy being chased by a Markhampolice car. Sanders heard the sirens and observed the emergencylights flashing on the police car. Sanders testified that itappeared that the cars were traveling faster than the speed limit. He characterized the incident as a "high speed chase."

Officer Brogdon testified that on the evening of September 20,1997, he was on duty as a patrol officer for the Harvey policedepartment. While monitoring his radio that evening, Brogdon hearda Markham police unit advise his department that he had a vehiclerefusing to stop. Brogdon testified that the next call on theradio stated that the unit was getting into a "10-80," a high-speedchase. Brogdon testified that he was near the area so he proceededto 159th and Ashland to give assistance to the Markham unit. Whiletraveling down 154th Street, his car windows were down and he heardengines revving and tires squealing.

Brogdon stated that as he proceeded east down 155th he heardthe Markham police officer state over the radio that he was"bailing out." Brogdon testified that this meant the officer musthave exited the vehicle and the car chase had become a foot chase. As he continued east down 155th, Brogdon stated that he saw a malerunning northbound across 155th. Brogdon gave the suspect'sphysical description and direction of travel over the radio as theman was passing across the street. Brogdon began to slow his cardown, in preparation to "bail out" of the car and proceed on a footchase, when an impact happened. Brogdon stated that he thought hehad run over a brick. When Brogdon exited the car, he noticeddamage to the rear driver side quarter panel, and as he walked tothe back of the car he saw some black trousers under his policecar. He then called for assistance from an ambulance, a tow truckand his sergeant. Brogdon testified that he later learned that theperson he hit was Officer Sean Laura from the Markham policedepartment.

The parties stipulated that if Thamrong Chira, Cook Countymedical examiner, were called to testify he would express anopinion to a reasonable degree of scientific and medical certaintythat Officer Sean Laura died of multiple injuries sustained as apedestrian that was struck by an automobile.

Detective James Knapp testified that after receivinginformation regarding the accident, he began canvassing the areafor defendant. Knapp stated that on September 21, 1997, defendantwas arrested at approximately 7:30 p.m. After defendant was readhis rights, defendant went with Knapp to show him the streets thathe drove on in the pursuit from the previous day. Knapp testifiedthat the defendant indicated that the patrol car was following himwith its police lights activated. Knapp testified that thedefendant showed him where the Caprice stopped and he got out ofthe car and began to run between the houses.

Assistant State's Attorney John Coyne testified that onSeptember 22, 1997, at approximately 2:30 p.m., he spoke withdefendant at the Harvey police station. After advising defendantof his Miranda rights, defendant provided Coyne with a statement. Coyne testified that he wrote out defendant's statement andreviewed the statement with the defendant. Defendant madecorrections to the statement and initialed and signed every page. The pertinent portions of defendant's statement read as follows:

"On Saturday, September 20th, 1997, I got a Chevy Capricefrom Lil Moe. The State's Attorney has shown me apicture of the car I got from Lil Moe, Exhibit One. LilMoe's real name is Mohammad. I don't know his last nameor where he lives. The car Lil Moe gave me was stolen. I knew it was stolen because the steering column waspeeled. It means it was broken. I used a screwdriver tostart the car. I was going to drive the car and then getrid of it.

Some time after seven p.m. I was parked onMarshfield just north of 165th Street. I was in thedriver's seat. Lil Moe was in the passenger seat.

I look out the rear view mirror and saw a MarkhamPolice car drive eastbound on 165th Street. A short timelater I saw the Markham Police car drive westbound on165th Street.

When I saw the Markham Police car I knew I had toget out of there. I did not want to get caught in astolen car. Additionally, I had two ounces of marijuanaon me.

I started to drive north on Marshfield to 163rdStreet. I stopped at the stop sign at 163rd andMarshfield. At the stop sign I again saw the MarkhamPolice car.

I turned right on 163rd and drove past the policecar. As I was driving toward Wood Street I looked in themirror and saw the police car make a U-turn. I turnedright on Wood.

Before I got to 159th and Wood I saw the police carhad its emergency lights on. I did not want to getcaught so I turned onto 159th Street. I drove throughthe red light. While on 159th Street the speed of my carwas about fifty miles per hour. I then turned left onAshland. I was still traveling at about fifty miles perhour.

When I got to the alley on Ashland I could see thepolice car behind me. The car had its emergency lightson.

I turned right into the alley. I drove into thealley until I could ditch the car between a garage and apole. I then got out of the car and ran on foot. Icould hear the police officer chasing me. The officerwas on foot.

I ran into the back yards. I ran across 155thStreet and through the yards across 155th Street. OnceI got into the alley behind 155th Street I threw mymarijuana to the ground. I did not want to get caughtwith it.

I then hid under a porch of a house on 155th Street. I stayed there for about ten minutes. I knew the policeofficer was no longer chasing me at that time."

Finally, the State presented the testimony of three policeofficers to testify to two prior incidents where the defendant wasinvolved in high-speed police chases. Chicago police officerPerkins testified that on August 26, 1997, he observed a red pickuptruck run a red light at the intersection of Halsted and 95thStreet. Perkins testified that he got behind the pickup andactivated his car's emergency equipment. Perkins stated that thetruck sped up proceeding south down Halsted. Perkins testifiedthat the truck turned into a gas station parking lot, struck somecars in the lot, and then turned back onto Halsted. The car thenpulled back into the parking lot and struck a pole. Perkins statedthat the driver then exited the vehicle and began to flee eastbounddown 98th Street on foot. Perkins identified defendant in court asthe driver of the red pickup truck.

Chicago police officer Michel Vogenthaler testified that heresponded to a radio dispatch of the chase involving OfficerPerkins. Vogenthaler testified that at Halsted and 99th Street, heobserved a black male exit a red pickup truck at a gas station andrun eastbound across Halsted. Vogenthaler stated that he pursuedthe subject, first in his police car, and then on foot, along withother officers that had been called to the vicinity. Vogenthalertestified that the subject fled into a garage and was found andarrested. Vogenthaler testified that the subject made a statementthat the red truck was stolen but that he did not steal it. Vogenthaler identified that subject in court as defendant.

Officer Martin Murphy testified that he is also a Chicagopolice officer. Murphy testified that on December 26, 1996, heobserved a car driving the wrong way on a one-way street. Murphystated that he got behind the vehicle, which turned down an alley,and activated his emergency equipment. Murphy stated that the carthen accelerated to approximately 50 to 55 miles per hour. Murphystated that this was a residential street and the conditions thatevening were snowy and icy. The car drove through a stop signwithout stopping. Murphy stated that the car continued two moreblocks and crashed into some garbage cans, and the driver exitedthe car and fled. Murphy identified the driver of that car incourt as defendant.

The State then rested. A defense motion for a directedfinding was denied. The defense then rested without presentingevidence. At the close of all the evidence, the trial court foundthe defendant guilty of felony murder and sentenced him to 40years' imprisonment. Defendant's motion for a new trial wasdenied.

Defendant now appeals.

II. ANALYSIS

A. Felony-Murder Charge

Defendant argues that his conviction for felony murder wasimproper because aggravated possession of a stolen motor vehicle(aggravated PSMV) is not a forcible felony under section 9-1(a)(3)of the Criminal Code of 1961 (Criminal Code) (ILCS 5/9-1(a)(3)(West1996)). Section 9-1 of the Criminal Code states:

"(a) A person who kills an individual without lawfuljustification commits first degree murder if, inperforming the acts which cause death:

(1) he either intends to kill or do great bodily harm tothat individual or another , or knows that such acts willcause death to that individual or another; or

(2) he knows that such acts create a strong probabilityof death or great bodily harm to that individual oranother; or

(3) he is attempting or committing a forcible felonyother than second degree murder." (Emphasis added.) 720ILCS 5/9-1 (West 1996).

Under section 2-8, a forcible felony is defined as follows:

" 'Forcible felony'. 'Forcible felony' means treason,first degree murder, second degree murder, predatorycriminal sexual assault of a child, aggravated criminalsexual assault, criminal sexual assault, robbery,burglary, residential burglary, aggravated arson, arson,aggravated kidnaping, kidnaping, aggravated batteryresulting in great bodily harm or permanent disability ordisfigurement and any other felony which involves the useor threat of physical force or violence against anyindividual." (Emphasis added.) 720 ILCS 5/2-8 (West1996).

The primary goal in construing a statute is to ascertain andgive effect to legislative intent. People v. Bole, 155 Ill. 2d188, 195, 613 N.E.2d 740 (1993). This goal is best achieved bylooking to the plain meaning of the statutory language. People v.Robinson, 172 Ill. 2d 452, 457, 667 N.E.2d 1305 (1996). Where thelanguage is clear and unambiguous, the statute must be appliedwithout further aids of statutory construction. Robinson, 172 Ill.2d at 457. Since statutory construction is a question of law, ourstandard of review is de novo. People v. Hart, 313 Ill. App. 3d939, 941, 730 N.E.2d 1202 (2000).

The trial court, in finding defendant guilty of felony murder,recognized that aggravated PSMV was not specifically enumeratedunder the statute. However, the trial court determined that thefacts of this case brought defendant's commission of aggravatedPSMV within the residuary clause "any other felony which involvesthe use or threat of physical force or violence against anyindividual" (720 ILCS 5/2-8 (West 1996)) and, hence, felony murderwas applicable.

To prove aggravated PSMV, the State must prove that defendant: (1) operated a vehicle that he is not entitled tooperate; (2) had knowledge that the vehicle is stolen; and (3)willfully failed to stop the vehicle after a peace officerdisplayed his lights and sirens. 625 ILCS 5/4-103.2(a)(7)(A) (West1996). In its findings, the trial court noted:

"Is aggravated PSMV an inherently dangerous felony? Thecourt will submit that it is. Burglary is an enumeratedfelony, but is stealing a bicycle out of a garage moreserious than driving down a street in a two or threethousand pound motor vehicle and running stop lights andrunning stop signs at high rates of speed? Is stealinga bicycle out of a garage more serious than that? Thecourt would submit not, and that is a forcible felony,stealing a bicycle out of a garage."

All parties agree that the felony murder doctrine is applicable todefendant only if the facts of this case bring defendant'scommission of the offense of aggravated PSMV within the residuaryclause of the definition of "forcible felony," to wit: "any otherfelony which involves the use or threat of physical force orviolence against any individual." 720 ILCS 5/2-8 (West 1996).

This clause has been interpreted broadly to include nonviolentfelonies that might require force to perpetrate. People v. Guest,115 Ill. 2d 72, 101, 503 N.E.2d 255 (1986), citing People v.Golson, 32 Ill. 2d 398, 207 N.E.2d 68 (1965). As the Statecorrectly points out, felonies inherently less violent thanaggravated PSMV have been held as predicate offenses for felonymurder when they were carried out with violence. In People v.Golson, 32 Ill. 2d 398, 207 N.E.2d 68 (1965), the defendant and twoother men stole some mail sacks from a loading dock. As they weredriving away, they were stopped by two postal inspectors. Thepostal inspectors were shot and killed by one of the other men. Golson was convicted of felony murder. On appeal, defendant arguedthat he could not be convicted of felony murder because theft fromthe United States mails is not a forcible felony and normally itwould not involve any danger to human life. The Illinois SupremeCourt held that the test to be applied in determining whether thefelony murder doctrine is applicable is not whether the felony isnormally classified as nonviolent, but whether, under the facts ofa particular case, it is contemplated that violence might benecessary to enable the perpetrators to carry out their purpose. Golson, 32 Ill. 2d at 407-08.

In People v. Banks, 287 Ill. App. 3d 273, 678 N.E.2d 348(1997), mob action was held to be a proper predicate offense underfelony murder. The court noted that while mob action, under section 25-1(a)(1) (720 ILCS 5/25/01(a)(1)(West 1994)), involvesthe use of force or violence against the public peace, in that casethe defendant's mob action was carried out with violence against anindividual. In People v. Greer, 326 Ill. App. 3d 890 (2002), theappellate court affirmed defendant's conviction for felony murderpredicated on the charge of armed violence based on unlawfulpossession of a controlled substance. The defendant went to thevictim's home to sell him cocaine. He went with a codefendant whomhe knew intended to demand repayment of a debt from the victim andknew the codefendant was armed with a handgun. The codefendantshot the victim after he let them in.

The felony murder doctrine was recently discussed in greatdetail in J. Hilliard, 'Felony Murder in Illinois, The ('AgencyTheory') vs. The 'Proximate Cause Theory': The Debate Continues, 25S.Ill.U.L.J. 331 (2001). "'In the typical case of felony murder,there is no malice in "fact" with respect to the homicide, themalice is supplied by the "law." There is an intended felony andan unintended homicide. The malice which plays a part in thecommission of the felony is transferred by the law to the homicide. As a result of the fictional transfer, the homicide is deemedcommitted with malice; and a homicide with malice is, bydefinition, a common-law murder.'" 25 S. Ill. U.L.J. 342, quoting Torcia, Wharton's Criminal Law