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Docket No. 92966-Agenda 2-January 2003.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.

RAYSHUN PELT, Appellee.

Opinion filed October 17, 2003.

JUSTICE FITZGERALD delivered the opinion of the court:

Following a jury trial in the circuit court of Will County,defendant, Rayshun Pelt, Sr., was found guilty of aggravated batteryof a child, his infant son, Rayshun Pelt, Jr., and first degree felonymurder predicated on aggravated battery of a child. Defendant wasfound not guilty of first degree knowing murder and involuntarymanslaughter. After merging defendant's conviction for aggravatedbattery of a child with his felony-murder conviction, the courtsentenced defendant to 46 years' imprisonment. A divided appellatecourt reversed defendant's convictions. For the reasons discussedbelow, we reverse in part, affirm in part, and remand this cause forfurther proceedings.

BACKGROUND

On February 13, 1997, at approximately 4:30 p.m., police officerDonald Draksler responded to a radio announcement concerning aninfant who was not breathing at a residence in the Village ofBolingbrook. Once inside the residence, Draksler went to an upstairsbedroom and observed defendant sitting on the edge of a bed, holdinghis 95-day-old son, Rayshun Pelt, Jr., in his lap. Defendant wasrocking the infant back and forth and saying, "Wake up, baby, wakeup." Draksler noticed that the infant had a yellowish cast and was notmoving or breathing. He also could not detect a pulse. Draksler begancardiopulmonary resuscitation on the infant, and the infantregurgitated what appeared to be formula. He flipped the infant overand noticed stiffening in the back and the legs, clenching of the fists,and that the infant's temperature was below normal. In the ambulance,he noticed a bruise on the right side of the head and a purplishdiscoloration along the rib cage. A paramedic in the ambulanceconcluded that the infant was deceased. This paramedic and anotherpolice officer also noted a bruise on the infant's cheek. The infant waslater pronounced dead at the hospital.

A forensic pathologist, Dr. Shaku Teas, conducted an autopsy ofthe infant on February 14, 1997. She observed that the infant hadexternal injuries on his face and head, including a "large boggy area"on the back of the head, bruising on the left temple, two bruises "rightbehind the eye and in the temple area," two bruises on the left cheek,a large bruise on the right cheek, as well as a scrape mark on thelower lip. In addition, she noted fractures to the infant's skullsustained at the time of death. The autopsy further revealed healingfractures on the ribs, and "obvious hemorrhage underneath the scalp."The rib injuries were anywhere from 10 days to one month old. Dr.Teas stated that these injuries would make the infant "crabby andcrying, but doesn't have to necessarily warrant a visit to the physicianor emergency room." She also noted wrist and ankle fractures thatlikely occurred days before the death of the infant. In Dr. Teas'opinion, the cause of death of the infant was "cerebral injuries due tomultiple blunt force trauma." She classified all of the injuries as "non-accidental."

Detective Raymond Browne interviewed the defendant on Friday,February 14, 1997. Defendant initially stated that he was unaware ofany problems with the infant the previous day until Kimberly Papa, theinfant's mother, came home from work and later went in the bedroomto check on the infant. Defendant heard Papa yelling his name, and shetold him that the baby was not breathing. Defendant's story evolved,however, as Detective Browne confronted him with the existence ofinjuries to the infant which were not consistent with his story.Defendant eventually stated that the baby had not stopped crying sinceit arrived home from the hospital in February. Defendant made awritten statement in which he stated, "I was holding him and hewouldn't stop crying. I got upset and tried to throw him onto his bed,but I missed and he hit the dresser." In a tape recorded statement,defendant said that the infant "kept on crying," and that he tried tothrow the infant on the bed, but "I guess I threw him too far, cause[sic] he hit the dresser." Defendant picked him up, put him on hisstomach, placed a blanket on him, and left the room. Defendantreiterated the veracity of an earlier statement that when he came back,he hurt his leg and grabbed it, causing him to fall on the infant. Hedenied that the infant hit a knob on the dresser.

Kimberly Papa, the infant's mother, stated that she could havecaused the injuries to the infant's ankle, wrist, and rib in incidentsoccurring "weeks" before the death, including one incident where shetried to force a sleeper on the baby.

Defendant was indicted on three counts of first degree murderand one count of aggravated battery of a child. Prior to trial, the Statenol-prossed count I, that defendant committed murder with the intentto do great bodily harm. 720 ILCS 5/9-1(a)(1) (West 1996). The juryfound defendant not guilty of first degree murder based upon thecharge that he, without lawful justification, caused the death of hisson, knowing that his acts created a strong probability of death orgreat bodily harm (720 ILCS 5/9-1(a)(2) (West 1996)). The jury alsofound defendant not guilty of involuntary manslaughter (720 ILCS5/9-3(a) (West 1996)). The jury found defendant guilty of aggravatedbattery of a child, in that defendant knowingly caused great bodilyharm to his son, a child under the age of 13 years (720 ILCS 5/12-4.3(West 1996)) and first degree felony murder, in that defendant causedthe death of his son while committing the forcible felony of aggravatedbattery of a child (720 ILCS 5/9-1(a)(3) (West 1996)). At sentencing,the trial court merged the aggravated battery of a child convictionwith the first degree felony murder conviction. The trial judgesentenced him to 46 years in prison.

On appeal, the appellate court held that the finding of not guiltyfor knowing murder was legally inconsistent with the finding thatdefendant was guilty of aggravated battery of a child. No. 3-00-0255(unpublished order under Supreme Court Rule 23). The appellatecourt reversed defendant's conviction for aggravated battery of a childpursuant to People v. Klingenberg, 172 Ill. 2d 270 (1996). The courtfurther held that "[w]ithout a valid conviction on the aggravatedbattery charge, the conviction for felony-murder which that crimesupports must also be reversed." The appellate court alternatively heldthat even if there was no inconsistency, our decision in People v.Morgan, 197 Ill. 2d 404 (2001), required that aggravated batterycould not be a predicate offense for felony murder.

In a special concurrence and dissent, Justice Homer agreed withthe appellate court majority that, in light of Morgan, defendant'sconviction for felony murder could not stand. Justice Homer,however, did not find the acquittal for knowing murder to beinconsistent with the finding of guilt of aggravated battery. Wegranted the State's petition for leave to appeal. 177 Ill. 2d R. 315.Because the appellate court judgment presents only issues of law, ourreview is de novo. People v. Johnson, 206 Ill. 2d 348, 359 (2002).

ANALYSIS

The State initially argues that we should reverse the appellatecourt because the jury's finding of guilt on aggravated battery of achild was not inconsistent with a finding of not guilty of knowingmurder. If the findings are inconsistent, the State asserts, this courtshould decline to follow our decisions in People v. Frias, 99 Ill. 2d193 (1983), and People v. Klingenberg, 172 Ill. 2d 270 (1996), orthat the court should find any error to be harmless. Defendantresponds that the verdicts are legally inconsistent, and the courtshould continue to follow Klingenberg.

Subsequent to briefing and argument in this matter, wereconsidered and overruled Klingenberg. People v. Jones, No. 93511(May 22, 2003). In overruling Klingenberg, we held that criminal"defendants in Illinois can no longer challenge convictions on the solebasis that they are legally inconsistent with acquittals on othercharges." Jones, slip op. at 8. For this reason, we need not examinewhether the jury's findings were inconsistent because even if theywere, the jury's findings of guilt stand. Therefore, we reverse theappellate court on this issue.

We turn to the alternate holding of the appellate court. Accordingto both the majority and the dissent, defendant's conviction for felonymurder was improperly predicated upon aggravated battery, incontravention of People v. Morgan, 197 Ill. 2d 404 (2001). Defendantaccurately asserts that the State failed to raise this argument in itspetition for leave to appeal to this court (see 177 Ill. 2d R. 315(b)(3)(the petition shall state "the points relied upon for reversal of thejudgment of the Appellate Court")). A party's failure to raise anargument in the petition for leave to appeal may be deemed a waiverof that argument. People v. Donoho, 204 Ill. 2d 159, 169 (2003).However, the rule of waiver is a limitation on the parties and not onthe court. Donoho, 204 Ill. 2d at 169. We choose to address the issue.

The State contends that the facts of this case are squarely onpoint with People v. Viser, 62 Ill. 2d 568 (1975), rather than Peoplev. Morgan, 197 Ill. 2d 404 (2001), and therefore defendant's felony-murder conviction based on the predicate of aggravated battery of achild should be upheld. Defendant responds that defendant's conductwas similar to that in Morgan, in that the acts charged arose from andwere inherent in the act of murder itself; thus, those acts cannot serveas predicate felonies for the charge of felony murder. We find thatMorgan controls the present matter.

In Morgan, we discussed the circumstances in which forciblefelonies may serve as predicates for the charge of felony murder. TheMorgan defendant, who was 14 years old at the time, shot hisgrandmother in the back as she was fleeing her home. He attemptedto shoot her again as she was lying on the ground in the front yard,but the gun jammed. The Morgan defendant was convicted, inter alia,of felony murder predicated on both aggravated battery andaggravated discharge of a firearm. The appellate court noted that toallow such a conviction for felony murder to stand could "effectivelyeliminate the second degree murder statute" and also "eliminate theneed for the State to prove an intentional or knowing killing in mostmurder cases." People v. Morgan, 307 Ill. App. 3d 707, 712 (1999).The appellate court held that "the predicate felony underlying a chargeof felony murder must involve conduct with a felonious purpose otherthan the killing itself." Morgan, 307 Ill. App. 3d at 714. The appellatecourt therefore reversed the defendant's conviction.

On appeal, we found that a "cause and effect relationship"between the shooting and the killing was "not so clear." Morgan, 197Ill. 2d at 447. We agreed with appellate court that where "the actsconstituting forcible felonies arise from and are inherent in the act ofmurder itself, those acts cannot serve as predicate felonies for a chargeof felony murder." Morgan, 197 Ill. 2d at 447. In concluding, we alsoapproved of the appellate court's holding regarding felonious purpose.Morgan, 197 Ill. 2d at 458. Applying these principles, we held that theforcible felonies underlying the murder charge "were acts that wereinherent in, and arose out of, the fatal shootings." Morgan, 197 Ill. 2dat 447.

Our task here is to discern from defendant's conduct whetherdefendant's aggravated battery was an act that was inherent in, andarose out of, the killing of the infant. Like Morgan, the cause andeffect relationship between the aggravated battery and the killing ismuddled. Defendant's statement indicated that he was upset when theinfant would not stop crying, and that he tried to throw him to thebed. He stated that he apparently threw him too far "[be]cause he hitthe dresser." The act of throwing the infant forms the basis ofdefendant's aggravated battery conviction, but it is also the same actunderlying the killing. Therefore, as in Morgan, it is difficult toconclude that the predicate felony underlying the charge of felonymurder involved conduct with a felonious purpose other than theconduct which killed the infant.

We also note that the present matter illustrates our apprehensionthat to permit such a felony-murder charge of this nature would" 'eliminate the need for the State to prove an intentional or knowingkilling in most murder cases.' " Morgan, 197 Ill. 2d at 447, quotingMorgan, 307 Ill. App. 3d at 712. The prosecution attempted toestablish a knowing killing by defendant. The jury rejected this chargeand instead found defendant guilty of aggravated battery of the infant.Our holding ensures that defendant will not be punished as a murdererwhere the State failed in proving to the jury that a knowing murderoccurred. Accordingly, we hold that the acts charged here cannotserve as the predicate felony to the charge of felony murder.

CONCLUSION

For the foregoing reasons, we reverse that part of the appellatecourt's judgment that reversed defendant's conviction for aggravatedbattery of a child and we affirm the circuit court's judgment of guilt ofthis offense. However, we agree with the appellate court's holdingthat aggravated battery improperly served as the predicate for felonymurder and thus we affirm that part of the appellate court's judgmentreversing defendant's conviction for the offense of felony murder. Thiscause is remanded to the circuit court for sentencing on defendant'sconviction of aggravated battery of a child.

Appellate court judgment affirmed

in part and reversed in part;

circuit court judgment affirmed

in part and reversed in part;

cause remanded.

In People v. Jones, No. 93511 (May 22, 2003), this courtreconsidered and overruled Klingenberg. I dissented from the majorityin Jones, in large part, because of the majority's unwarrantedabandonment of the principle of stare decisis and because I believethat the case should have been analyzed on an entirely different basisthat would have avoided a reconsideration of Klingenberg. Today'sdecision follows Jones. While I believe that in Jones this courtunnecessarily and unwisely overruled Klingenberg, Jones is now thelaw and, accordingly, the result in this case is mandated by principlesof stare decisis.

CHIEF JUSTICE McMORROW joins in this specialconcurrence.

JUSTICE GARMAN, concurring in part and dissenting in part:

I agree with the majority that the issue of seemingly inconsistentverdicts in this case is resolved by our recent decision in People v.Jones, No. 93511 (May 22, 2003). I write separately, however, toexpress my concern with the majority's application of People v.Morgan, 197 Ill. 2d 404 (2001), as it pertains to the question ofwhether defendant's conviction of aggravated battery of a child, underthe facts of this case, may serve as the predicate felony for aconviction of felony murder.

In Morgan, the 14-year-old defendant did not deny that heintentionally shot and killed his grandparents. Rather, his defense wasthat he shot his grandfather in self-defense, or, in the alternative, thatthe killing of his grandfather was mitigated by "sudden and intensepassion resulting from serious provocation" (720 ILCS 5/9-2(a)(1)(West 1994)), based on his grandfather's beating him with a leatherstrap shortly before the shooting and his grandfather's previous threatsto kill him. He claimed to have shot his grandmother while actingunder the same serious provocation. People v. Morgan, 307 Ill. App.3d 707, 709-10 (1999). He was convicted of second degree murderfor the killing of his grandfather and of first degree murder for thekilling of his grandmother. Morgan, 307 Ill. App. 3d at 710. Theverdict forms did not reveal whether the jury's verdict of first degreemurder was based on a finding of intentional murder, knowingmurder, or felony murder. Morgan, 307 Ill. App. 3d at 712.

A person who kills another without lawful justification commitsfirst degree felony murder if "in performing the acts which cause thedeath *** he is attempting or committing a forcible felony other thansecond degree murder." 720 ILCS 5/9-1(a)(3) (West 1996). Morganargued on appeal that when he shot his grandmother he was notattempting or committing the forcible felony of aggravated battery anddischarge of a firearm. He admitted that he shot her with the intent tokill. Thus, he argued, he could be convicted of intentional or knowingmurder (720 ILCS 5/9-1(a)(1), (a)(2) (West 1994)), or of seconddegree murder (720 ILCS 5/9-2 (West 1994)), but not of felonymurder. Morgan, 307 Ill. App. 3d at 712.

The appellate court recognized that if the felony-murder rulecould be applied in such a case, any deliberate killing and any fatalshooting could be charged as felony murder, effectively eliminatingboth a defendant's ability to argue that his offense constituted seconddegree murder and the State's burden of proving intentional orknowing murder. Morgan, 307 Ill. App. 3d at 712. After reviewingour case law and the scholarly commentary regarding felony murder,the appellate court held that "the predicate felony underlying a chargeof felony murder must involve conduct with a felonious purpose otherthan the killing itself." (Emphasis added.) Morgan, 307 Ill. App. 3d at714.

This court affirmed that portion of the appellate court judgmentdealing with the scope of the felony-murder statute. In formulating itsholding, however, this court, perhaps unintentionally, altered the focusof the inquiry. Instead of asking whether the defendant had anindependent felonious purpose when he committed the act thatresulted in the killing, this court asked whether the act constituting theforcible felony arose from and was inherent in the act of murder itself.Morgan, 197 Ill. 2d at 447.

The rule formulated by the appellate court distinguished felonymurder from other forms of first degree murder on the basis of thekiller's mental state. If the killer intends to kill, or acts withknowledge that his conduct is likely to kill, he is guilty of first degreeintentional or knowing murder. If, however, he does so "under asudden and intense passion resulting from serious provocation" (720ILCS 5/9-2(a)(1) (West 1996)), or in the sincere but unreasonablebelief in the need for self-defense (720 ILCS 5/9-2(a)(2) (West1996)), his offense is mitigated to second degree murder. In such acase, he may not be convicted of felony murder because he lacks theintent to commit an independent forcible felony. See Morgan, 307 Ill.App. 3d at 713 (citing People v. Pugh, 261 Ill. App. 3d 75 (1994),and People v. Jenkins, 190 Ill. App. 3d 115 (1989) (felony-murderconviction is proper where defendant intended to commit aggravatedbattery or aggravated discharge of a firearm and a death resulted fromthe use of violence)).

In contrast, the rule formulated by this court, instead of requiringthat a charge of felony murder be based on "conduct with a feloniouspurpose other than the killing itself"(emphasis added) (Morgan, 307Ill. App. 3d at 714), requires that the charge be based on conductother than the killing itself (Morgan, 197 Ill. 2d at 447). This rule,which focuses on the defendant's conduct rather than his mental state,if literally applied, would preclude a charge of felony murder unlessthe defendant engaged in forcible felonious conduct in addition to theact that caused the killing. Thus, a charge of felony murder could notbe predicated on aggravated battery or aggravated discharge of afirearm unless the defendant's felonious conduct included acts otherthan the shooting or the beating that killed the victim. This rulemisapprehends the very nature of the felony murder rule-to impute theintent to kill to one who intends to commit a forcible felony, includingaggravated battery and aggravated discharge of a firearm, if he killswhile doing so.

Applying the conduct-based rule of Morgan to the present case,the majority states that its task is "to discern from defendant'sconduct whether defendant's aggravated battery was an act that wasinherent in, and arose out of, the killing of the infant." (Emphasisadded.) Slip op. at 5. Further, the majority finds, "[l]ike Morgan, thecause and effect relationship between the aggravated battery and thekilling is muddled." Slip op. at 5.

The relationship between the defendant's actions and theresulting killing in Morgan, however, was not "muddled." Indeed, therelationship was crystal clear-Morgan admitted that he aimed a gunat his grandmother and pulled the trigger with the intent to kill her.Thus, a charge of felony murder could not lie because he lacked intentto commit any felony other than the murder itself. The only properquestion for the jury in Morgan was whether the defendant hadproven facts that would mitigate his offense to second degree murder.

In the present case, an infant died as a result of multiple bluntforce trauma. Defendant admitted that he threw the crying infantagainst a dresser and also that he fell on the baby. Whether heintended to kill the child, or knew that his acts created a strongprobability of death, or intended to commit the felony of aggravatedbattery is a question for the jury to decide based its finding of fact asto his mental state at the time.

The present case offers this court the opportunity to remedy itsimprecise formulation of the holding in Morgan and to put the focusof the inquiry where it properly belongs-on the mental state of thedefendant when he committed the acts that resulted in the killing. If,as in the present case, there is no conceivable set of facts under whichthe defendant's actions might constitute second degree murder and thedefendant's mental state is unknown, the question of whether hecommitted intentional, knowing, or felony murder is a question of factproperly decided by the jury.

The need for such clarification is supported by the fact that thiscourt, in adopting Morgan, did not overrule its earlier decision inPeople v. Viser, 62 Ill. 2d 568 (1975), which predates the amendmentsto our murder statute creating the offense of second degree murder.In Viser, two armed but off-duty police officers encountered the sevendefendants, who were on their way from a tavern to a party. Wordswere exchanged. After the officer's drew their guns and identifiedthemselves, the confrontation escalated. The defendants disarmed theofficers and threw them to the ground, kicking and beating them. Onedefendant jumped with both feet on the chest of one of the officers.He died two weeks later as a result of his injuries. The defendantswere charged with felony murder in the death of one victim andattempted murder as to the other victim. Viser, 62 Ill. 2d at 575-76.

The defendants argued that they could not be charged with felonymurder based on the underlying felony of aggravated batterycommitted against the same victim, because aggravated battery is an"included offense" of murder. Viser, 62 Ill. 2d at 577. This courtacknowledged that "[m]ost felony murders, if not all of them, involvean aggravated battery" (Viser, 62 Ill. 2d at 579), but rejected thedefendants' "theory of merger," based on the existing statute's"forthright characterization of aggravated battery as one of theforcible felonies that will trigger a charge of felony murder." Viser, 62Ill. 2d at 579-80, citing Ill. Rev. Stat. 1973, ch. 38, par. 2-8. Further,in rejecting the additional charge of attempted murder, this courtnoted that "the distinctive characteristic of felony murder is that itdoes not involve an intention to kill." Viser, 62 Ill. 2d at 581. TheViser court clearly understood that it is the mental state of the actorthat determines whether a charge of felony murder may lie.

Although the statute has since been amended, the definition of"forcible felony" continues to include aggravated battery as well asrobbery, burglary, arson, kidnaping, sexual assault, and "any otherfelony which involves the use or threat of physical force or violenceagainst any individual." 720 ILCS 5/2-8 (West 2000). Thus, any ofthe enumerated forcible felonies, with the exception of second degreemurder, may be the predicate felony for a charge of felony murder(720 ILCS 5/9-1(a)(3) (West 1996)), unless, as in Morgan, thedefendant commits the act with the specific intent to kill.

This court's opinion in Viser, combined with a more preciseformulation of the rule adopted in Morgan, would resolve the presentcase and would provide our circuit courts and prosecutors with theguidance they need regarding the proper application of the felony-murder rule. I, therefore, dissent from the portion of the majorityopinion reversing defendant's conviction for felony murder.