People v. Klebanowski ( 2006 )

Docket No. 100257.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
ROBERT KLEBANOWSKI, Appellant.
Opinion filed June 22, 2006.
JUSTICE FREEMAN delivered the judgment of the court,
with opinion.
Chief Justice Thomas and Justices Fitzgerald, Kilbride,
Garman, and Karmeier concurred in the judgment and opinion.
Justice McMorrow dissented, with opinion.
OPINION
Following a bench trial, the circuit court of Cook County
found defendant, Robert Klebanowski, guilty of armed robbery
(720 ILCS 5/18B2 (West 2002)) and first degree murder based
on the commission of a felony (720 ILCS 5/9B1(a)(3) (West
2002)). The circuit court sentenced defendant to 20 years of
imprisonment for the murder but did not enter judgment on the
armed robbery charge. The appellate court affirmed. No.
1B04B0119 (unpublished order under Supreme Court Rule 23).
We granted defendant leave to appeal (177 Ill. 2d R. 315) and
now affirm the judgment of the appellate court.
BACKGROUND
On February 7, 2002, Chicago police officers arrested
defendant in connection with the armed robbery of Gary
Szparkowski and the death of Robert Winters. Defendant
waived his constitutional rights and gave a statement that was
handwritten by the assistant State=s Attorney. Subsequently,
defendant gave a videotaped statement. Defendant stated that
he had been living in a Cloud 9 motel for five days. Winters
also lived at the motel, with his girlfriend, Carla Mitchell. On
February 7, 2002, Winters burglarized a home, taking $180
and two handgun-style BB guns, one black and one silver.
Mitchell refused to allow Winters to keep the BB guns in their
motel room. Consequently, Winters gave the BB guns to
defendant for safekeeping, along with $20 from the proceeds of
the burglary. Later that day, Winters returned for the black BB
gun. He asked defendant to give him a ride to the city because
he wanted to Amake up some moneyBrob somebody.@
Defendant agreed and gave Winters a ride in defendant=s black
Chevrolet pickup truck. Defendant and Winters drove around
the city until Winters spotted a red vehicle pulling into a garage
off the alley at 5128 S. Narragansett Avenue. With the BB gun
at his waist, Winters ran toward the garage to rob the driver of
the vehicle. Defendant stayed in the Chevrolet pickup truck,
parked on the street by the alley, until he heard gunshots.
Assuming that Winters had been shot, defendant left the scene
and returned to the Cloud 9 motel. At the motel, defendant told
Mitchell that Winters had attempted to rob someone and he
believed that Winters had been shot. Mitchell asked defendant
to give her a ride back to the area. The police being already at
the scene, defendant dropped Mitchell off a couple of blocks
away and returned to the motel.
In the videotaped statement, defendant was asked: ANow, if
he was gonna get money from that man you were assuming he
was going to give you some of that, right?@ Defendant
answered: AThat was, was possible, yeah.@ In the handwritten
statement, however, defendant stated positively that Winters
was going to give him some of the proceeds from the robbery.
Also in the handwritten statement, defendant stated that his job
was to be the getaway driver.
Charged with armed robbery and felony murder, defendant
pled not guilty and waived trial by jury. At the ensuing bench
trial, Gary Szparkowski, a lieutenant in the Chicago police
department, testified that on February 7, 2002, his shift ended
at 6:30 p.m. He went to a restaurant dressed in civilian clothes,
and returned to his home at 5128 S. Narragansett Avenue at
approximately 10:10 p.m. He accessed his garage from the
alley, backed his pickup truck into the parking space, and
exited the vehicle. Just as he closed the door of the pickup
truck, Winters placed a gun to the middle of his forehead.
Lieutenant Szparkowski ducked, grabbed the barrel of the gun
with one hand while attempting to access his own gun with the
other hand. Winters regained control of the gun, however, and
placed the gun at the top of Lieutenant Szparkowski=s head. He
demanded that Lieutenant Szparkowski give him his wallet,
and Lieutenant Szparkowski complied. Winters then turned and
ran from the garage with the wallet in hand. Within a couple of
seconds, Lieutenant Szparkowski recovered, drew his gun and
gave pursuit. Lieutenant Szparkowski announced his office and
ordered Winters to stop. Winters, who was approximately 25
feet down the alley, stopped and turned, with the wallet in one
hand and the gun pointed in Lieutenant Szparkowski=s
direction. Lieutenant Szparkowski fired two or three shots at
Winters. Winters turned and took a few more steps. Lieutenant
Szparkowski continued to fire until Winters fell face first to the
ground and dropped the gun. Lieutenant Szparkowski identified
the black BB gun, which resembled a .357 Magnum, as the
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weapon Winters used in the robbery. Lieutenant Szparkowski
also identified his wallet and stated that, at the time of the
robbery, he had $50, his credit cards, and his identification
cards in the wallet.
Joseph McInerney, a Chicago police officer, testified that at
approximately 10:10 p.m. on February 7, 2002, he heard a
dispatch that an officer was in danger and shots had been fired
at 5128 S. Narragansett Avenue. He arrived at the alley two to
three minutes later and found Winters face down on the
ground, with a gun approximately three feet away. Lieutenant
Szparkowski=s wallet was not then in sight. Officer McInerney
called for an ambulance. When the paramedics arrived, they
rolled Winters onto his back to provide medical aid to him.
Lieutenant Szparkowski=s wallet was underneath Winter=s
body.
Detective Tom Kelly of the Chicago police department
testified that he arrived at 5128 S. Narragansett Avenue at
approximately 10:45 p.m. Fifteen minutes later, he observed a
woman, later identified as Mitchell, lift the police tape and run
toward the police officers. Mitchell yelled that Winters was her
boyfriend. Following a conversation with Mitchell, Detective
Kelly proceeded to the Cloud 9 motel, looking for defendant
and a black, late model Chevrolet pickup truck. In the motel
parking lot, Detective Kelly saw a 2002 Chevrolet S-10 pickup
truck, matching the description given by Mitchell. The license
plate revealed that the pickup truck belonged to defendant.
Detective Kelly then asked the motel desk clerk to identify the
owner of the pickup truck and the room in which he was
staying. The desk clerk directed Detective Kelly to defendant=s
room. Defendant identified himself and Detective Kelly placed
him under arrest.
Joseph Bembynista, a Chicago police officer, processed the
scene in the alley at 5128 S. Narragansett Avenue. He
photographed the various bullet wounds on Winters= body,
Szparkowski=s wallet, and what appeared to be a gun, with the
chamber area and barrel separated. He also recovered nine
cartridge cases from the alley and a fired bullet that had gone
through a nearby garage wall and lodged in a coffee can.
Officer Bembynista identified the gun recovered from the alley
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as a Crosman 357 CO2-powered pistol, capable of firing a
.177-caliber pellet or a steel BB. Officer Bembynista found no
evidence in the alley that the BB gun had been discharged.
The trial then proceeded by way of stipulation. Barry
Lifshultz, an assistant Cook County medical examiner,
performed an autopsy on Winters= body and would testify that
Winters died of multiple gunshot wounds. Curt Murray, an
expert in firearms identification, would testify that the nine
cartridge cases recovered from the alley were all fired from a
nine-millimeter Luger, matching Lieutenant Szparkowski=s gun.
Judy Townsend, a paramedic with the Chicago fire department,
would testify that she and her partner rolled Winters over in an
attempt to perform lifesaving procedures. Winters was not
breathing at the time. The trial judge allowed the stipulations
and admitted them into evidence. The trial judge also admitted
into evidence the State=s exhibits including the autopsy report,
the BB gun, and defendant=s statements.
The trial court found defendant guilty of armed robbery.
Specifically, the trial judge found that the BB gun Winters used
in the armed robbery was a bludgeon. The trial judge also
found that defendant aided and abetted Winters in the planning
and commission of the armed robbery. According to the trial
judge, defendant Aprovided the platform, the mobile platform
that moved both Mr. Winters and the weapon into the area
where the lieutenant was.@ Next, the trial court found defendant
guilty of felony murder based on the predicate offense of
armed robbery. The court found that Winters was killed during
the commission of the armed robbery and defendant was
responsible for the death under principles of accountability.
The trial judge sentenced defendant to 20 years of
imprisonment for the felony murder but did not enter a
judgment or sentence for the predicate offense of armed
robbery.
The appellate court affirmed. The court first rejected
defendant=s argument that he was not legally responsible for
the armed robbery. The court noted that defendant drove
Winters around until Winters spotted a person to rob. Further,
when Winters exited the pickup truck, defendant knew that
Winters intended to rob Lieutenant Szparkowski. Defendant
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believed that Winters would give him part of the proceeds and
waited for Winters= return. The court also noted that defendant
did not withdraw from the criminal enterprise by depriving his
prior efforts of effectiveness, giving timely warning to law
enforcement officials, or making a proper effort to prevent the
commission of the armed robbery. Next, the appellate court
rejected defendant=s argument that escape is not an element of
armed robbery, and he could not be held responsible for a
murder that occurred after the completion of the armed
robbery. The court noted that if a killing occurs in the course of
an escape from a robbery, the escape is within the operation of
the felony-murder rule. Lastly, the court noted that a conviction
for felony murder requires that the victim=s death be the direct
and proximate result of the defendant=s felony. The court
concluded that Adefendant=s knowingly unlawful actions in
transporting both Winters and the weapon to the area where
Szparkowski was robbed set in motion a chain of events
leading to Winters= death.@
We granted defendant=s petition for leave to appeal. 177 Ill.
2d R. 315.
ANALYSIS
In his brief on appeal, defendant argues the evidence was
insufficient to prove him guilty of armed robbery. Particularly,
defendant argues that the BB gun Winters used was not
operable and could not be considered a weapon for armed
robbery purposes. Defendant also argues that, by leaving the
scene when he heard gunshots, he withdrew from the armed
robbery and could not be held accountable for Winters= actions.
Lastly, defendant argues the State did not show that he had
the specific intent required for the commission of armed
robbery. At oral argument, however, defendant admitted his
liability for the armed robbery. Defendant=s counsel specifically
stated: AMr. Klebanowski did know there was a robbery, yes
Judge. We are not contesting Mr. Klebanowski=s accountability
for the offense of armed robbery.@ Yet later, in rebuttal,
defendant=s counsel stated: AI hope it is clear to this court that
Mr. Klebanowski is not arguing his accountability for the armed
robbery.@ In light of defendant=s concession, we consider only
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the arguments related to defendant=s conviction for the crime of
felony murder.
Defendant argues that he should not be held accountable
for felony murder because Winters was killed after the armed
robbery had ended. Citing People v. Dennis, 181 Ill. 2d 87
(1998), defendant maintains that neither flight from pursuing
victims nor escape is included as an element of robbery. Thus,
according to defendant, the armed robbery, and defendant=s
participation in the criminal enterprise, ended when Winters
exited the garage with the wallet in hand. Winters= subsequent
death could not be considered a felony murder because the
predicate felony of armed robbery ended before Lieutenant
Szparkowski shot and killed Winters.
It has long been the rule in Illinois that a defendant may be
held responsible for a death that occurs during an escape
following the commission of a forcible felony. Thus, in People
v. Bongiorno, 358 Ill. 171 (1934), the court affirmed
Bongiorno=s conviction for felony murder based upon the
predicate offense of armed robbery. Bongiorno and Ross King
entered an office suite and ordered all present to stick up their
hands. Bongiorno closed the door and stood with his back to it.
King proceeded to take all valuables from the victims as well as
from a safe. An employee evaded the felons and notified police
officer Redlich of the robbery. When Redlich ordered the felons
to open the door, King escaped through a window. Redlich
arrested Bongiorno and marched him down the hallway to the
elevators and stairwell. As Redlich stood with his back to the
stairwell, King came up the stairway and fired three shots,
killing Redlich.
In appealing his conviction, Bongiorno insisted that he was
not a participant in the murder; that he was then under arrest
and in the custody of an officer; that the robbery was
completed; that the evidence failed to show any previous
design or plan to kill; and that he neither aided nor abetted in
the killing. The court rejected these arguments, reasoning:
AIt is also a recognized principle of law that where two or
more persons are engaged in a conspiracy to commit
robbery and an officer is murdered while in immediate
pursuit of either or both of the offenders who are
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attempting escape from the scene of the crime with the
fruits of the robbery, either in possession of one or both,
the crime of robbery is not complete at the time of the
murder, inasmuch as the conspirators had not then won
their way, even momentarily, to a place of temporary
safety, and the possession of the plunder was nothing
more than a scrambling possession. [Citation.] Here the
uncontradicted evidence shows that the conspirators
designed to commit the crime of robbery through the
use of a deadly weapon. That use included the
intimidation of the victims and the means of the
offenders= escape. Under such circumstances the intent
to kill, if necessary, in obtaining and carrying away the
loot is established. A plan to commit robbery would be
futile if it did not comprehend an escape with the
proceeds of the crime. These factual circumstances are
inseparable. Unless the plan of robbery is to terrify the
victim, and, if occasion requires, to kill any person
attempting to apprehend them at the time of or
immediately upon gaining possession of the property, it
would be inane and child-like. Here Bongiorno was
attempting to gain his release and make his escape
from the scene of the crime not by the use of a deadly
weapon, for he had none, but his endeavors were by
persuasion and false representations. He knew that his
co-conspirator was armed with a gun. He knew that he
had gone out of Compton=s office. He saw him come up
the stairway with gun in hand, behind the officer, and
shoot him in the back. He gave no warning of King=s
approach, but when the officer reeled and fell he ran
and attempted to hide away. He concealed himself until
he was arrested by other police officers. It is vain to
argue that the killing was not included as a part, if
necessary, in the commission of the crime which both
Bongiorno and King had deliberately planned.@
Bongiorno, 358 Ill. at 173-74.
In People v. Hickman, 59 Ill. 2d 89 (1974), police officers
were conducting surveillance at a warehouse. Three
conspirators accessed the warehouse by removing a panel and
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a lock from the side door. When they exited the warehouse, the
officers closed in. On seeing the officers, the conspirators fled.
In the ensuing pursuit, one officer shot and killed another,
mistakenly believing that the victim was one of the
conspirators. The jury found two of the conspirators guilty of
burglary and murder. The trial court, however, entered an order
arresting the judgment of murder. The appellate court
reversed. In affirming the judgment of the appellate court, this
court reasoned:
AHere defendants planned and committed a burglary,
which is a forcible felony under Illinois law. [Citation.]
One of them was armed. It was their conduct which
occasioned the presence of the police. When
confronted by approaching officers, the defendants
elected to flee. We have previously held that the period
of time and activities involved in escaping to a place of
safety are part of the crime itself. [Citation.] The
defendants were repeatedly told to halt and the police
identified themselves, but the defendants continued
their attempt to escape. The commission of the
burglary, coupled with the election by defendants to
flee, set in motion the pursuit by armed police officers.
The shot which killed Detective Loscheider was a shot
fired in opposition to the escape of the fleeing burglars,
and it was a direct and foreseeable consequence of
defendants= actions. The escape here had the same
effect as did the gunfire in [People v. Allen, 56 Ill. 2d
536 (1974)], in that it invited retaliation, opposition and
pursuit. Those who commit forcible felonies know they
may encounter resistance, both to their affirmative
actions and to any subsequent escape. As we indicated
in a recent felony-murder case, >It is unimportant that
the defendants did not anticipate the precise sequence
of events that followed upon his entry into the apartment
of Judy Tolbert. His unlawful acts precipitated those
events, and he is responsible for the consequences.=
People v. Smith, 56 Ill. 2d 328, 333-334.@ Hickman, 59
Ill. 2d at 94.
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See also Allen, 56 Ill. 2d at 545 (where the conspirators
ignored a directive to stop and a police officer was shot in an
exchange of gunfire, the court held that the defendant was
liable for the death Awhether the fatal shot was fired by a co-
felon in the furtherance of the attempted robbery or by another
police officer in opposition to the attempted robbery@); People
v. Johnson, 55 Ill. 2d 62, 69 (1973) (in affirming the defendant=s
conviction for murder where the defendant=s companion
returned to the tavern they had just robbed and killed the victim
in order to avoid possible detection, the court reasoned:
AObviously, too, the plan for the crimes would include the use
of the weapons if necessary to avoid apprehension and to
effect an escape. Mrs. Pietras was shot in the presence of the
other robbery victims and on the premises where the robberies
took place. When Clay killed her the robbers had not >won their
way to a place of safety= @); People v. Golson, 32 Ill. 2d 398,
408-09 (1965) (AThe postal inspectors were shot a short
distance from the scene of the theft while the conspirators were
attempting to escape from that scene. There is sufficient
evidence from which the jury could infer that the conspirators
intended to forcibly resist any attempt to arrest them, either
during the course of the crime or in an attempt to escape from
the scene. Such a plan comes within the doctrine of felony-
murder, since it was contemplated that violence might be
necessary to enable the conspirators to carry out their common
purpose@).
In the case at bar, Winters= death occurred as he effected
his escape following the commission of the armed robbery. A
killing that occurs during the course of an escape from a
forcible felony is within the operation of the felony-murder rule.
Consequently, defendant may be held liable for Winters= death.
Defendant=s reliance on Dennis, 181 Ill. 2d 87, to the
contrary is unavailing. In Dennis, the defendant testified that he
and his fiancee drove to Earnest Jones= home. After picking up
Jones, the three drove to a location in Chicago with the intent
to purchase heroin. The defendant parked the car in an alley
and allowed Jones to exit the car to effectuate the purchase.
While the defendant and his fiancee were waiting, the
defendant saw Jones being chased toward the car by an
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unknown male. Jones jumped into the car, told the defendant
to go, and the defendant sped off, believing there had been a
Adrug bust.@ When Jones reentered the defendant=s car, Jones
was carrying a small radio in his hand. Prior to this time, the
defendant had not seen the radio and did not know from where
Jones had gotten the radio. Jones subsequently told the
defendant that he had taken the radio from the Aguys@ chasing
him. The jury convicted the defendant of armed robbery on a
theory of accountability. The appellate court reversed and
remanded for a new trial because the trial judge told the jury to
consider the period of time and the activities involved in
escaping to a place of safety in determining whether the
defendant was accountable for armed robbery.
In the State=s subsequent appeal, the court began its
analysis by considering the nature of accountability. Citing the
Illinois accountability statute (720 ILCS 5/5B2(c) (West 1992)),
the court held that a person is legally accountable for another=s
criminal conduct when either before or during the commission
of an offense, and with the intent to promote or facilitate such
commission, he solicits, aids, abets, agrees or attempts to aid
such other person in the planning or commission of the
offense. The court noted that the defendant could only be
accountable for the armed robbery if he aided or abetted Jones
prior to or during the commission of the offense. Dennis, 181
Ill. 2d at 96. Next, the court considered the elements of armed
robbery to determine the duration of the commission of the
armed robbery. The court observed:
ANeither flight from pursuing victims nor escape is
included as an element in the statutory definition of
robbery. See 720 ILCS 5/18B1(a) (West 1994). Thus,
consistent with [People v. Smith, 78 Ill. 2d 298 (1980)],
the offense of robbery is complete when force or threat
of force causes the victim to part with possession or
custody of property against his will. Although the force
which occurs simultaneously with flight or an escape
may be viewed as continuing the commission of the
offense [citations], it is the force, not escape, which is
the essence and constitutes an element of the offense.
The commission of an armed robbery ends when force
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and taking, the elements which constitute the offense,
have ceased.@ Dennis, 181 Ill. 2d at 103.
Applying the law to the facts, the court noted that Jones was
criminally liable and the offense of robbery was completed, for
purposes of a guilt determination, at the moment in time when
he forcefully took the radio. His conduct beyond the taking
neither enhanced nor diminished his criminal culpability for
armed robbery. Dennis, 181 Ill. 2d at 102-03. It was the
defendant=s uncontradicted testimony he was unaware of the
armed robbery until Jones reentered his car. Further, the fact
that the jury inquired as to when the armed robbery ended
supported the conclusion that the jury did not find that the
defendant was involved in planning the armed robbery either
prior to picking up Jones or from the time that he entered the
alley. The trial judge=s instruction to the jury that it could
consider the period of time involved in escaping to a place of
safety was erroneous and was not harmless.
From the Dennis court=s holding that escape is not an
element of robbery, defendant seeks to draw a general rule
that a killing committed during an escape following the
commission of a robbery cannot be considered felony murder.
Thus, defendant would have us abandon the felony-murder
escape rule and overrule Bongiorno and its progeny. Dennis
does not so require. We note the Dennis court cited with
approval those authorities holding that, if a killing occurs in the
course of an escape from a robbery, the escape is within the
operation of the felony-murder rule. Dennis, 181 Ill. 2d at 104.
Further, we note that Dennis involved an attempt by the State
to hold the defendant liable for armed robbery on an
accountability basis. As explained by the court in Dennis,
felony murder and accountability have theoretically different
underpinnings:
AFelony murder seeks to deter persons from committing
forcible felonies by holding them responsible for murder
if a death results. [Citation.] Because of the extremely
violent nature of felony murder, we seek the broadest
bounds for the attachment of criminal liability. For that
reason, in felony murder, a defendant=s liability is not
limited to his culpability for commission of the underlying
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felony. A defendant may be found guilty of felony
murder regardless of a lack either of intent to commit
murder [citation], or even connivance with a
codefendant [citation]. Our continued adherence to a
proximate cause approach is further exemplary of how
broadly we seek to extend the reaches of criminal
liability in the case of felony murder. [Citation.]
Unlike felony murder, accountability focuses on the
degree of culpability of the offender and seeks to deter
persons from intentionally aiding or encouraging the
commission of offenses. Holding a defendant who
neither intends to participate in the commission of an
offense nor has knowledge that an offense has been
committed accountable does not serve the rule=s
deterrent effect. Further, the attachment of liability in
such situations contravenes general concepts of
criminal culpability. The felony-murder escape rule
contemplates neither knowledge nor intent. Thus, the
rule is irreconcilable with our accountability statute ***.@
Dennis, 181 Ill. 2d 105-06.
Consequently, we decline defendant=s invitation to overrule
established precedent and release him from liability for the
killing that occurred during the course of the escape following
the armed robbery.
Next, defendant argues we should abandon the proximate
cause theory and adopt the agency theory for imposition of
liability under the felony-murder rule. Defendant maintains that
it is unfair, and a violation of due process, to hold a defendant
liable for felony murder when the killing is at the hands of an
innocent agent. Again, we decline defendant=s invitation to
overrule settled precedent.
In People v. Lowery, 178 Ill. 2d 462 (1997), the court
reviewed at length the differences between the theories of
liability upon which a felony-murder conviction may be based.
The court explained that, under the proximate cause theory,
liability attaches Afor any death proximately resulting from the
unlawful activityBnotwithstanding the fact that the killing was by
one resisting the crime.@ Lowery, 178 Ill. 2d at 465. Under the
agency theory, A >the doctrine of felony murder does not extend
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to a killing, although growing out of the commission of the
felony, if directly attributable to the act of one other than the
defendant or those associated with him in the unlawful
enterprise.= [Citations.] Thus, under the agency theory, the
felony-murder rule is inapplicable where the killing is done by
one resisting the felony.@ Lowery, 178 Ill. 2d at 466. The court
compared Illinois case law adopting and implementing the
proximate cause theory of liability with legal authorities from
sister jurisdictions which follow the agency theory of liability.
Lowery, 178 Ill. 2d at 465-66. The court also considered the
intent of the legislature in drafting the felony-murder statute,
finding that the legislature intended to adhere to the proximate
cause theory of liability. Lowery, 178 Ill. 2d at 467-69. The
court explained:
A[W]e fail to recognize any language, express or implied,
that would allow felony murder to be treated like all
other offenses. It is the inherent dangerousness of
forcible felonies that differentiates them from nonforcible
felonies. [Citation.] As noted in the committee
comments of the felony-murder statute, >it is well
established in Illinois to the extent of recognizing the
forcible felony as so inherently dangerous that a
homicide occurring in the course thereof, even though
accidentally, should be held without further proof to be
within the Astrong probability@ classification of murder.=
720 ILCS Ann. 5/9B1, Committee CommentsB1961, at
15 (Smith-Hurd 1993). This differentiation reflects the
legislature=s concern for protecting the general populace
and deterring criminals from acts of violence.@ Lowery,
178 Ill. 2d at 468-69.
Following this exhaustive review, the court concluded that it
would be inappropriate to abandon the proximate cause theory
of liability.
Citing the dissenting opinion of Justice Bilandic in People v.
Dekens, 182 Ill. 2d 247, 254 (1998) (Bilandic, J., dissenting,
joined by McMorrow, J.), defendant also suggests that it is
unfair, and a violation of due process, to hold him liable for
felony murder where the murder victim is a cofelon. Defendant
argues, in essence, that he did not foresee or assume the risk
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that his cofelon, Winters, would be killed during the criminal
enterprise and, consequently, he should not be held liable for
Winters= death. Once more, we decline defendant=s invitation.
The precise issue raised by defendant, whether a
defendant may be held liable for the death of a cofelon, was
considered by the court in Dekens. As in Lowery, the court
engaged in an extensive review of Illinois precedent supporting
the use of the proximate cause theory of liability, and the
legislature=s intent in enacting the felony-murder statute.
Dekens, 182 Ill. 2d at 249-54. The Dekens court concluded that
Adenying liability when the decedent is a cofelon would conflict
with the legislature=s adoption of the proximate cause theory@ of
liability for felony murder. Dekens, 182 Ill. 2d at 254.
We note that defendant does not raise any arguments other
than those advanced in the dissenting opinion authored by
Justice Bilandic. Indeed, defendant writes his Aargument
cannot be composed nor stated with any more clarity than it
was stated *** by the late Justice Bilandic.@ This court had the
benefit of the arguments and policy considerations raised by
the dissenters in Dekens. The court determined not to adopt
the position advanced by Justice Bilandic. In light of the
thorough review of the proximate cause theory of liability
contained in Dekens, the recency of the decision, and
principles of stare decisis (see People v. Robinson, 187 Ill. 2d
461, 464 (1999); Pasquale v. Speed Products Engineering,
166 Ill. 2d 337, 349 (1995)), we determine also that the
proximate cause theory of liability is the theory applicable to
the case at bar.
The trial judge found defendant guilty of armed robbery and
first degree murder based on the commission of a felony. We
have reviewed the trial proceedings and find that Winters=
death was a direct and foreseeable consequence of the armed
robbery. See Lowery, 178 Ill. 2d at 470. Winters ordered
Lieutenant Szparkowski to hand over his wallet, grabbed the
wallet, and fled from the garage. Lieutenant Szparkowski gave
chase and shot Winters as Winters turned, with the BB gun
pointed toward the lieutenant. AThose who commit forcible
felonies know they may encounter resistance, both to their
affirmative actions and to any subsequent escape.@ Hickman,
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59 Ill. 2d at 94. It is unimportant that defendant did not
anticipate the precise sequence of events that followed the
armed robbery. We conclude that defendant=s unlawful acts
precipitated those events, and he is responsible for the
consequences. See Lowery, 178 Ill. 2d at 470.
CONCLUSION
For the aforementioned reasons, we affirm the judgment of
the appellate court.
Appellate court judgment affirmed.
JUSTICE McMORROW, dissenting:
In the case at bar, defendant argues that his conviction for
first degree murder based on the commission of a felony
(felony murder) cannot stand because it is premised on the
death of a cofelon at the hands of an innocent agent. He
advocates that we abandon the proximate cause theory in
favor of the agency theory for imposition of liability under the
felony-murder rule. The majority reaffirms this court=s
adherence to the proximate cause theory for imposing liability
and affirms defendant=s conviction relying on People v.
Dekens, 182 Ill. 2d 247 (1998), wherein it was held that
Adenying liability when the decedent is a cofelon would conflict
with the legislature=s adoption of the proximate cause theory.@
Respectfully, I disagree. I joined Justice Bilandic=s dissent in
Dekens and continue to maintain that application of the
proximate cause theory does not compel us to impose liability
for murder under the felony-murder rule when the deceased is
a cofelon. Moreover, I find the proximate cause theory
particularly inapplicable under the facts of the present case.
In Dekens, Justice Bilandic presented cogent reasons for
rejecting an interpretation of the felony-murder rule which
would permit a defendant to be held liable for murder when the
life that is taken in the course of a forcible felony is that of a
coparticipant in the underlying felony. Justice Bilandic wrote:
AWhen a defendant=s commission of a forcible felony
proximately results in the death of an innocent party, I
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agree that charging the defendant with murder may
comport with notions of justice and fairness. There is,
however, simply a qualitative difference between that
situation and the situation presented here, where the
death which resulted was that of a coparticipant in the
underlying felony. As one renowned treatise on criminal
law has noted:
>[I]t is now generally accepted that there is no felony
murder liability when one of the felons is shot and
killed by the victim, a police officer, or a bystander
***. ***
A more plausible explanation [for this
conclusion] is the feeling that it is not justice (though
it may be poetic justice) to hold the felon liable for
murder on account of the death, which the felon did
not intend, of a co-felon willingly participating in the
risky venture. It is true that it is no defense to
intentional homicide crimes that the victim voluntarily
placed himself in danger of death at the hands of the
defendant ***. But with unintended killings it would
seem proper to take the victim=s willing participation
into account ***.= W. LaFave & A. Scott, 2
Substantive Criminal Law '7.5, at 217-18 (1986).
The majority provides no explanation for how the
purpose of the felony-murder doctrine is served by
applying it in cases such as this. Rather, the majority=s
holding is simply that the proximate cause theory
>compels= this result. ***. I disagree with this conclusion.
Where a cofelon is killed by a third party, the most direct
cause of the death is the cofelon=s participation in the
felony, not the defendant=s acts. Contrary to the
majority=s characterization, this distinction does not go
to the >guilt or innocence= of the decedent. Rather, this
distinction pertains to the >proximate cause= of the
death. Significantly, we are not here considering an
issue of tort liability, but an issue of imposing criminal
liability for first degree murder with the severe
consequences that entails. In my view, the distinction
between a third party killing an innocent party and a
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third party killing a participant in the felony must be
accorded weight. It is illogical to conclude that the same
degree of guilt should attach where a defendant's felony
results in the death of an innocent party and where it
results in the death of an active participant in the
felony.@ (Emphasis in original.) Dekens, 182 Ill. 2d at
256-57 (Bilandic, J., dissenting, joined by McMorrow,
J.).
Here, again, the majority fails to explain why the purpose of
the felony-murder doctrine is served by applying it in cases
such as this. Moreover, the majority fails to properly analyze
and apply the proximate cause theory, particularly under the
facts of the present case.
In the case at bar, defendant drove his friend Winters into
Chicago, knowing that Winters intended to commit an armed
robbery there. When they arrived in Chicago, Winters exited
defendant=s car to look for a suitable robbery victim. Defendant
waited in the car for Winters to return so that defendant could
provide Winters with transportation out of the city. Winters
never returned to defendant=s car, however, because after
Winters committed an armed robbery, Winters was shot and
killed by the victim, who happened to be an off-duty police
officer.
As recognized in Dekens, Athe focus of the proximate cause
theory is on the chain of events set in motion by the
defendant.@ Dekens, 182 Ill. 2d at 254. In the case at bar,
defendant=s participation in the armed robbery was limited to
providing transportation to Winters. While defendant=s
involvement is sufficient to hold him accountable for the armed
robbery, it is too attenuated to support a finding that his
conduct set in motion the chain of events leading to Winters=
death. Here, even more so than in Dekens, the most direct
cause of the cofelon=s death is the cofelon=s participation in the
felony and not any conduct of the defendant.
For all of the above-stated reasons, I believe that
defendant=s conviction for first degree murder is not consonant
with notions of justice and fairness and should be reversed.
Accordingly, I dissent.
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