People v. Costic ( 2020 )

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as
precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
2020 IL App (3d) 150253-UOrder filed June 3, 2020
_____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
2020
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 10th Judicial Circuit,
) Peoria County, Illinois,
Plaintiff-Appellee, )
) Appeal No. 3-15-0253
v. ) Circuit No. 13-CF-970
)
MICHAEL D. COSTIC, ) Honorable
) David A. Brown,
Defendant-Appellant. ) Judge, Presiding.
_____________________________________________________________________________
JUSTICE WRIGHT delivered the judgment of the court.
Justice Carter concurred in the judgment.
Justice McDade dissented.
_____________________________________________________________________________
ORDER
¶1 Held: Based on the facts of this case, the State proved defendant guilty of felony murder
beyond a reasonable doubt because the forcible felony of mob action was a
legally permissible predicate offense for felony murder. Additionally, trial
counsel was not ineffective for failing to seek a jury instruction on the affirmative
defense of self-defense to the underlying offense of mob action.
¶2 The State charged Michael D. Costic (defendant) with aggravated battery with a firearm
and first degree felony murder based on the underlying charge of mob action. Following a jury
trial, defendant was convicted of first degree murder, mob action, and aggravated battery with a
firearm. The trial court sentenced defendant to 50 years’ imprisonment in the Illinois Department
of Corrections on the first degree murder conviction and a consecutive sentence of 17 years’
imprisonment for the aggravated battery with a firearm conviction. Defendant appeals his first
degree felony murder conviction on the grounds that the State failed to prove defendant guilty
beyond a reasonable doubt.
¶3 FACTS
¶4 On November 12, 2013, the State filed a four-count indictment charging defendant with
first degree murder, aggravated battery with a firearm, and two separate counts of mob action.
Count I charged defendant with first degree murder pursuant to 720 ILCS 5/9-1(a)(3) (West
2012) and alleged that defendant, without lawful justification, while committing the forcible
felony of mob action, shot Treyshawn Blakely (the victim) with a firearm, thereby causing the
victim’s death. Count II charged defendant with aggravated battery with a firearm pursuant to
720 ILCS 5/12-3.05(e)(1) (West 2012) and alleged that while committing a battery, defendant,
without legal justification, knowingly discharged a firearm in the direction of Gerald Embrey,
thereby causing an injury to Embrey. Count III was dismissed prior to trial. Count IV charged
defendant with mob action pursuant to 720 ILCS 5/25-1(a)(1) (West 2012) and alleged that
defendant, without authority of law and while acting together with another person, knowingly
disturbed the public peace by the use of force or violence “and caused injury to Embrey by the
discharge of a firearm.” 1
¶5 Defendant pleaded not guilty to the charges and a jury trial began on January 13, 2015.
The State called Peoria police officer Dave Logan to testify. According to Logan’s testimony, on
April 7, 2013, at approximately 6 p.m., Logan was dispatched to the corner of Butler and Warren
1
720 ILCS 5/25-1(a)(1) (West 2012) does not require the State to prove that any injury occurred.
Therefore, this language in the charging instrument may be treated as unnecessary surplusage. People v.
Collins, 214 Ill. 2d 206, 219 (2005).
2
Streets in Peoria, Illinois, in response to a report of shots fired and a man down. Upon arrival,
Logan witnessed a dead man lying in the street. Two doors down from the location of the
deceased victim, Logan came into contact with Allen Fitzpatrick. Fitzpatrick had sustained a
facial injury and told Logan that he had been knocked out. Logan indicated that 50 to 75 people
were present and that officers took some time to get the scene under control. Once officers
controlled the scene, Logan located several rifle casings.
¶6 Embrey testified that on April 7, 2013, he was walking on Butler Street when he
witnessed more than 10 people fighting in the street at the corner of Butler and Warren Streets.
Embrey walked toward the fight and passed defendant and defendant’s brother, Marquis Costic,
who were standing in their yard a few houses down from the fight. Embrey never saw defendant
or Marquis participate in the fight. Embrey stood and watched the fight for a couple of minutes
and saw that Fitzpatrick had been knocked out.
¶7 Embrey saw his friend, the victim, who was also watching the fight. The victim was not
involved in the fight. The victim saw Embrey and the two began walking toward one another. At
this point, Embrey heard many “fast” gunshots being fired and watched as one of the shots struck
the victim. The victim fell forward onto his face. As Embrey attempted to run from the scene, a
bullet struck him in the back part of his left thigh. Embrey could no longer run and someone
carried him out of the area. Eventually, Embrey received medical treatment. Embrey did not see
a gun or the shooter.
¶8 Dishai Beck testified as a State’s witness. Beck’s testimony indicated that on April 7,
2013, Beck lived on Butler Street. On that date, Beck witnessed a group of more than 10 males
arguing as Beck stood on the front porch of her residence. Eventually, a fight broke out. Beck
indicated that defendant and Fitzpatrick were involved in an altercation with others. During this
3
altercation, defendant sustained injuries and Fitzpatrick was knocked unconscious. Beck saw
defendant run from the fight. Beck assumed defendant was running toward the home he lived in
that was also on Butler Street, down the street from Beck’s residence. The fight continued after
defendant left the area. Then, Beck saw defendant come back toward the fight, which was still in
progress. Defendant walked back past Beck’s home with Marquis and “another guy.” Beck
indicated that Marquis had a “big gun” and started firing while defendant stood beside him. Beck
saw that the victim was struck by a gunshot and fell in the street. Beck immediately went into the
house and called the police.
¶9 Two days later, on April 9, 2013, while at the Peoria police station, Beck circled a photo
identifying defendant as the shooter, not Marquis. In the photo array, Beck also circled Marquis
as the individual following defendant back toward the fight. When questioned about the
discrepancies in her testimony, Beck indicated that she did not know who the shooter was, but
indicated that her memory would have been better on April 9, 2013.
¶ 10 Cynthia Singleton testified that she witnessed more than 10 people fighting from the
front, closed-in porch with Beck. At the beginning of the fight, defendant and one other
individual, whom Singleton could not identify, were arguing with several other males. Next,
more than one person began hitting defendant. According to Singleton, “a bunch of dudes
jumped [defendant]” and also jumped one other male. Singleton did not see defendant leave the
fight. After the fight had stopped, Singleton witnessed defendant walking down the street firing a
“big gun” “straight ahead” in the direction of the crowd of people who were fighting. Singleton
claimed that when the shooting occurred, Singleton was on the porch while Beck was in the
house. The police showed Singleton a photo array on April 11, 2013. Singleton identified
defendant as the shooter.
4
¶ 11 Peoria police officer Paul Tuttle testified that he was called to the scene on April 7, 2013.
Tuttle located one projectile at the scene inside a home. Later, Tuttle transported 21 .223 shell
casings, along with fragments from the victim’s head, to the Morton crime lab.
¶ 12 Peoria police officer John Williams testified that he was assigned to the crime scene unit
on April 7, 2013. Several persons at various addresses called complaining that their homes had
been struck by bullets. Williams inspected the homes and collected items from two of the homes.
Ultimately, Williams collected a total of 21 shell casings from the scene. Williams collected one
shell casing that was a different caliber than the others. Williams informed the jury that a .223
round is associated with the AR-15 family of military-type rifles. Williams testified that he
observed several bullet strikes in the ground in a grassy area at the scene which would indicate
that several shots were directed toward the ground. Williams cataloged a bullet strike directly
above the window of a home, approximately eight or nine feet above the ground. On April 8,
2013, Williams testified that he assisted in the execution of a warrant at 1614 W. Butler Street in
Peoria. Officers forced open a large gun safe inside the residence. Inside the safe, officers found
a box of .223 rounds which included two live rounds and personal belongings bearing
defendant’s name.
¶ 13 Dustin Johnson testified as a forensic scientist with the Illinois State Police who
specialized in firearms identification. Johnson received the 21 fired shell casings collected at the
scene. Johnson indicated that the casings were .223 cartridges, which are high velocity rounds
typically used in rifles. Johnson determined that all the casings were fired from the same gun.
Johnson also examined a .38-caliber bullet.
¶ 14 Dershonda Branscumb, defendant’s ex-girlfriend, testified that she was not present during
the shooting on April 7, 2013. Branscumb had no contact with defendant for several weeks after
5
the shooting. Eventually, defendant called Branscumb and told Branscumb that defendant was
involved in the shooting. Defendant told Branscumb that defendant did not intend to kill the
victim and was sorry.
¶ 15 Robert McMillen testified that he worked for the Peoria police as a violent crime
detective on April 7, 2013. During the course of the investigation, McMillen spoke with Beck
and showed Beck a photo array on April 9, 2013. Beck identified defendant as the shooter and
identified Marquis as the person following defendant back to the fight. McMillen also showed
Singleton a photo array. Singleton identified defendant as the shooter. 2
¶ 16 The State’s final witness, Dr. Scott Denton, testified as a coroner’s forensic pathologist.
Denton stated that the victim had been killed by a gunshot wound to the head. Both the State and
the defense rested following Denton’s testimony. The trial court denied defense counsel’s motion
for a directed verdict.
¶ 17 The defense presented the testimony of Kimberly Brock. On April 7, 2013, Brock was
visiting her best friend in Peoria. On that date, Brock’s friend attempted to drive down Butler
Street with Brock in the passenger seat. However, Butler Street was impassible due to a fight
involving 20 to 30 individuals occurring in the middle of the road. Out of the corner of her eye,
Brock saw two people, one behind the other, moving toward the fight on her right side, including
a person with “dreads.” Brock heard shooting. Brock did not specifically see a gun, but indicated
that shots were being fired “into the crowd,” and that she saw somebody get shot. Conversely,
Brock testified that she did, in fact, see the shooter run toward the crowd with a gun. Brock
phoned the police the next day. Subsequently, detectives met with Brock and asked Brock if she
could identify the assailant from a photo array. Based on the photo array administered by law
2
At this juncture, the parties decided to take the witnesses out of order because the State’s final
witness, Dr. Scott Denton, was unavailable that day. Therefore, the defense called its two witnesses.
6
enforcement on April 8, 2013, Brock identified Marquis as the shooter and identified defendant
as running with Marquis. Later, Brock clarified that she did not see defendant with Marquis
while the shooting occurred. However, Brock explained that she saw defendant running with
Marquis near Tax Maxx on Western Avenue prior to the shooting. Brock could not identify the
second individual standing behind the shooter.
¶ 18 The defense recalled McMillen as a defense witness. McMillen, along with another
detective, met with Brock and administered the photo arrays. McMillen said that Brock
identified Marquis as the shooter and identified defendant as the person running with the shooter.
¶ 19 During the jury instruction conference, defense counsel objected to the State’s proposed
jury instruction No. 22 and argued for a jury instruction stating that the jury could only find
defendant guilty of mob action if the jury found the injury was caused by means “other than by
discharging a firearm.” The court did not add “other than by discharging a firearm” as requested
by defense counsel. We note that while not an element of the offense of mob action, a finding by
the trier of fact that an injury to another resulted from the violence is necessary for sentencing
purposes in some mob action cases. 720 ILCS 5/25-1(b) (3) (West 2012).
¶ 20 Following their deliberations, the jury found defendant guilty of first degree murder, mob
action, and aggravated battery with a firearm. On January 28, 2015, defendant filed a motion for
a new trial. On April 9, 2015, the trial court denied defendant’s motion for a new trial and
sentenced defendant to 50 years’ imprisonment in the Illinois Department of Corrections for first
degree murder based on count I, and a consecutive 17-year sentence of imprisonment for
aggravated battery with a firearm, based on count II. The trial court did not impose a sentence on
count III following the jury’s guilty verdict on that count. On April 10, 2015, defendant filed a
7
motion to reconsider the trial court’s sentence. Four days later, the trial court denied defendant’s
motion to reconsider. Defendant filed a timely notice of appeal on April 15, 2015.
¶ 21 ANALYSIS
¶ 22 On appeal, defendant asks this court to reverse the felony murder conviction on the
grounds that the State failed to prove first degree felony murder beyond a reasonable doubt
because the same act formulated the basis for mob action and the killing. Additionally, defendant
asserts that trial counsel was ineffective for failing to seek jury instructions on the affirmative
defense of self-defense pertaining to the mob action. Defendant requests reversal and remand for
a new trial to allow the jury to be instructed on self-defense with regard to the charge of mob
action during the earliest phase of the street brawl.
¶ 23 The State contends that defendant was proven guilty of felony murder beyond a
reasonable doubt because the forcible felony, mob action, took place during the earliest phase of
the street brawl and was independent of the shooting that resulted in the killing necessary to
prove felony murder. The State further asserts that defendant received effective assistance of
counsel during trial.
¶ 24 In criminal proceedings, the State carries the burden of proving each element of an
offense beyond a reasonable doubt. People v. Siguenza-Brito, 235 Ill. 2d 213, 224 (2009). When
a challenge to the sufficiency of the evidence arises, reviewing courts must determine whether,
viewing the evidence in the light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307, 319 (1979); People v. Collins, 106 Ill. 2d 237, 261 (1985).
¶ 25 A person commits first degree murder if, in performing the acts which cause the death of
an individual, the person is attempting or committing a forcible felony other than second degree
8
murder. 720 ILCS 5/9-1(a)(3) (West 2012). In this case, an element of felony murder required
the State to prove the victim’s death occurred while defendant was committing a forcible felony,
mob action.
¶ 26 The statute defining the forcible felony of mob action states that a person commits mob
action when he or she engages in: “the knowing or reckless use of force or violence disturbing
the public peace by 2 or more persons acting together and without authority of law.” 720 ILCS
5/25(a)(1) (West 2012). The State’s instruction No. 35, as given, clearly instructed the jury that if
the jury did not find defendant guilty of mob action, then the jury could not find defendant guilty
of felony murder.
¶ 27 I. Predicate Forcible Felony
¶ 28 The first issue defendant raised on appeal is whether the offense of mob action may serve
as the predicate felony for purposes of this particular felony murder conviction. The case law
provides that, under certain circumstances, the offense of mob action may serve as a proper
predicate felony for a charge of felony murder based on 720 ILCS 5/9-1(a)(3) (West 2012) as
long as the act forming the basis for mob action does not arise from and is not inherent in the act
of the murder itself. People v. Davis, 213 Ill. 2d 459, 473-74 (2004); People v. Davison, 236 Ill.
2d 232, 243 (2010); People v. Tamayo, 2012 IL App (3d) 100361, ¶ 25.
¶ 29 Generally speaking, the acts constituting the underlying forcible felony are considered to
be inherent in the killing itself “where the evidence of the conduct underlying the felony and the
killing is the same.” Davis, 213 Ill. 2d at 471. Whether the act supporting the underlying forcible
felony was inherent in the act of murder itself or whether the act supporting the underlying
forcible felony had an independent felonious purpose are questions of law subject to de novo
review. Davison, 236 Ill. 2d at 239.
9
¶ 30 In this case, the court instructed the jury that the prosecution had to prove the following
two propositions, beyond a reasonable doubt, to warrant a guilty verdict for first degree murder:
(1) that the defendant or one for whose conduct he was legally responsible performed the acts
which caused the death of the victim, and (2) in performing the acts which caused the victim’s
death, defendant was committing the offense of mob action.
¶ 31 To prove the underlying or predicate offense of mob action necessary to establish felony
murder, the State needed only to prove that defendant, without authority of law and while acting
with at least one other person, knowingly or recklessly disturbed the public peace by the use of
force or violence. See 720 ILCS 5/25-1(a)(1) (West 2012). Here, the State’s witnesses, Beck and
Singleton, described defendant’s conduct when the mob consisted of approximately 10
participants. According to these two eyewitnesses, defendant actively participated in the fight
during the very first moments of the disturbance at issue. Based on our careful review of the
record, the State’s evidence established that while acting with at least one other person,
defendant participated in the first stages of the disturbance and proved all the necessary elements
of the forcible felony of mob action.
¶ 32 We scrutinize the State’s evidence to discern whether the act, namely defendant’s early
unarmed participation in the fight with others, was the very same act that was inherent in the
killing. The evidence reveals that as time passed, the disturbance may have doubled in size. For
example, Brock, a passenger in a car that became trapped on the roadway, testified that she saw
approximately 20 to 30 people actively fighting in the street. The eyewitness testimony also
established that defendant and Marquis stood side-by-side as one of these two men repeatedly
pulled the trigger of the gun thereby killing the victim. When Officer Logan arrived at the scene
after the shooting, Logan observed 50 to 75 people gathered at the scene.
10
¶ 33 Next, we consider whether the act that resulted in the killing was the same act inherent to
defendant’s participation in the fight during the first few moments of the street brawl. On one
hand, the first degree murder involved the act of someone pulling the trigger of a firearm closer
to the time when the fight concluded. For purposes of felony murder, it did not matter whether
defendant or someone else discharged the firearm.
¶ 34 On the other hand, the act supporting the mob action involved defendant’s earlier actions
during his scuffle with Fitzpatrick and another person. One act involved pulling the trigger of a
firearm, the other did not. Each act took place at separate times and involved different levels of
violence. Therefore, we reject defendant’s contention that the mob action arose out of the same
conduct that was inherent in the act of the killing itself.
¶ 35 II. Independent Felonious Purpose
¶ 36 Reviewing courts must also determine whether the acts comprising the underlying felony
mob action involved an independent felonious purpose other than that of the killing. Davison,
236 Ill. 2d at 244; Tamayo, 2012 IL App (3d) 100361, ¶ 25; People v. Morgan, 197 Ill. 2d 404,
458 (2001). When determining whether there was an independent felonious purpose, courts look
to whether “the felony murder charge arose from the cause and effect relationship between the
predicate felony and the resulting murder.” Tamayo, 2012 IL App (3d) 100361, ¶ 25; see also
Morgan, 197 Ill. 2d at 446-47.
¶ 37 Here, it is clear that defendant was initially a participant in a street fight that did not
involve lethal force. In fact, the initial phase of the disturbance did not cause a death. Later,
someone, either defendant or Marquis, introduced lethal force into the fight presumably to gain
an advantage in the ongoing street fight.
11
¶ 38 The evidence, when viewed in the light most favorable to the State, supports the theory
that while unarmed, defendant actively participated in the fight with the intent to perpetuate the
rapidly growing disturbance of the peace. Thereafter, defendant, together with Marquis,
demonstrated a much different and independent purpose by resorting to potentially lethal
violence, either as a display of superior force to become the victor or as a form of retaliation
against those engaged in the ongoing fight. Consequently, we conclude defendant’s acts
comprising the underlying felony of mob action involved two very independent felonious
purposes.
¶ 39 III. Break in the Chain of Events/Foreseeability
¶ 40 Next, we consider defendant’s argument that that there was a “break in the chain of
events between the [predicate] felony and the killing” after defendant retreated to the temporary
safety of his home. Under the proximate cause theory of felony murder, liability attaches for any
death proximately resulting from the unlawful activity with foreseeability being an essential
consideration. People v. Nash, 2012 IL App (1st) 093233, ¶ 27.
¶ 41 The case law provides that “[a] felon is liable for those deaths which occur during a
felony and which are the foreseeable consequence of his initial criminal acts.” People v. Moore,
375 Ill. App. 3d 234, 239 (2007). Citing Moore, defendant submits his retrieval of a firearm from
a nearby location constituted a “break in the chain of events between the felony and the killing”
because defendant reached “a place of temporary safety.” Id. at 241. According to defendant’s
theory, based on Moore, once defendant reached a place of temporary safety inside his home,
defendant’s participation in the mob action ended. We reject defendant’s argument on two
grounds. First, Moore involved very different circumstances than those in the case at bar.
Second, there is no evidence supporting defendant’s assertion that he entered his home at all.
12
¶ 42 The circumstances in Moore are distinguishable from the facts in this appeal. In Moore,
the defendant stole a car. See Id. at 235. The next day, while driving the stolen car, officers
attempted to effectuate a traffic stop on the defendant. Id. at 236. The defendant in Moore led
officers on a chase that resulted in an auto collision and a death. Id. The State charged the
defendant with first degree felony murder with the underlying felony being the burglary of the
stolen car. Id. at 235. The jury returned a verdict finding the defendant guilty of first degree
murder and burglary. Id. at 238.
¶ 43 On appeal, the Moore court reversed defendant’s conviction because the defendant had
enjoyed the use of the stolen vehicle while he was “unmolested” and away from police pursuit
for nearly 24 hours before the chase and resulting death. The court held that the defendant
reached a temporary place of safety and concluded the defendant’s predicate felony offense of
burglary to a vehicle was completed before the police chase resulted in a death the next day. Id.
at 240-43.
¶ 44 Much like the Moore court, we consider the decision rendered by the Tennessee Supreme
Court in State v. Pierce, 23 S.W. 3d 289 (Tenn. 2000) instructive. When determining whether the
killing in that case occurred during the perpetration of the predicate felony, the Pierce court
considered whether the killing and the predicate felony were closely related in time, place,
causation, and continuity of action. Id. at 294. If the predicate felony and the killing occurred as
part of a continuous criminal transaction, the felony murder rule applied. Id. at 295.
¶ 45 Defendant argues that his role as a participant in the mob action concluded long before
the killing took place. Specifically, defendant argues that once he reached the safety of his home,
his participation in the underlying forcible felony ended. On this basis, defendant asserts the
State has not established the killing occurred while defendant was simultaneously committing the
13
offense of mob action that was a continuation of an ongoing street brawl that had not come to an
end.
¶ 46 Contrary to defendant’s assertions before this court, there is no direct evidence
establishing that defendant actually entered his home, the safe haven, at any point in time.
Rather, Beck’s testimony was based on an assumption that when defendant ran past Beck’s
home, defendant was running toward the address where defendant resided. Another eyewitness,
Embrey, testified that he saw defendant and Marquis standing in their yard, presumably outside
the building, that was located a couple of houses down from the fight. 3 Yet, no witness testified
that defendant sought or reached a safe haven by going inside his residence.
¶ 47 At best, the witnesses established defendant ran down the block to some undisclosed
location and then reappeared with a firearm, accompanied by Marquis. Defendant’s conduct
involved continuity of purpose, namely, the acquisition of a loaded weapon to further facilitate
defendant’s continued participation in a violent brawl. Based on the time, place, causation, and
continuity of action, we hold that defendant’s decision to run down the block when he acquired a
firearm, did not break the chain of events ending his role in the mob action before the killing.
¶ 48 We must also determine whether the victim’s death was a foreseeable consequence of
defendant’s participation in the events that began with an unlawful fist fight. Defendant argues
that “Once [defendant] had the gun, any subsequent crime, be it murder or mob action, would
have been not the foreseeable outcome of his original decision to participate in the fight, but a
freely-made decision to leave the safety of his home and take revenge.” We disagree.
¶ 49 As this court has previously noted, when a disagreement escalates into a group fight, it
“was not unforeseeable that severe injury and death would result.” Tamayo, 2012 IL App (3d)
3
Embrey’s testimony did not indicate how Embrey knew the yard located a few houses down
from the brawl belonged to defendant and Marquis.
14
100361, ¶ 22. It is quite foreseeable that when tempers grow hotter during a group fight,
someone may obtain and utilize a lethal weapon during the ongoing conflict that attracted
curious spectators. Here, from the beginning, “defendant had embarked upon a course of action
which was dangerous in character and could reasonably be expected to require the use of force
that might result in the death of a human being.” (Citation omitted.) People v. Tate, 63 Ill. 2d
105, 112 (1976). This is a tale as old as time. Based on the circumstances of this case, the
inevitable escalation of the violence during the group fight and the resulting death of either a
participant or spectator were very foreseeable consequences.
¶ 50 Based on this record, we conclude defendant did not withdraw from the ongoing
disturbance by running down the block and acquiring a firearm from an unknown person or
location. Further, we conclude it was foreseeable that death could result when defendant made
his original decision to participate in the street fight.
¶ 51 Viewing the evidence in the light most favorable to the State, we conclude the State
proved the elements of felony murder beyond a reasonable doubt, including the underlying
forcible felony of mob action.
¶ 52 IV. Ineffective Assistance of Counsel
¶ 53 Lastly, defendant contends that trial counsel was ineffective. Defendant claims defense
counsel should have requested the court to give jury instructions on the affirmative defense of
self-defense to the mob action. Defendant contends the instruction for self defense was supported
by the testimony of one witness indicating that “a bunch of dudes jumped [defendant]” during an
argument.
¶ 54 It is well established that accused persons are guaranteed the assistance of competent
counsel for their defense. U.S. Const, amends. VI, XIV; Ill. Const. 1970, art. I, § 8; Strickland v.
15
Washington, 466 U.S. 668, 685-686 (1984). In order to establish ineffective assistance of
counsel, defendant must show that counsel’s performance fell below an objective standard of
reasonableness and that there is a reasonable probability that but for counsel’s errors, the result
of the proceeding would have been different. Strickland, 466 U.S. at 669. “Matters of trial
strategy are generally immune from claims of ineffective assistance of counsel.” People v.
Morris, 2013 IL App (1st) 110413, ¶ 74. Courts evaluate any purported deficiencies in the
competence of defense counsel by applying an objective standard of competence based on
prevailing professional norms. People v. Evans, 186 Ill. 2d 83, 93 (1999). The failure to satisfy
either prong of the Strickland test bars a finding of ineffective assistance of counsel. People v.
Lofton, 2015 IL App (2d) 130135, ¶ 24. When determining the adequacy of defendant’s legal
representation, appellate courts consider the totality of the circumstances. People v. Valladares,
2013 IL App (1st) 112010, ¶ 52. This court reviews the legal issue of whether counsel was
ineffective de novo. People v. Nowicki, 385 Ill. App. 3d 53, 81 (2008).
¶ 55 In this case, defense counsel’s decision to forgo a request that the jury be instructed on
the affirmative defense of self-defense to mob action did not constitute ineffective assistance of
counsel where the request would have been contrary to defendant’s position at trial claiming that
he did not participate in the brawl at all. Self-defense is an affirmative defense wherein defendant
necessarily admits that he or she committed the crime for which he or she is being prosecuted.
See 720 ILCS 5/7-1 (West 2012); See 720 ILCS 5/7-14 (West 2012); People v. Chatman, 381 Ill.
App. 3d 890, 897 (2008). As a matter of trial strategy, it appears defense counsel did not wish to
make this admission.
¶ 56 Defense counsel’s strategy was expressed in the closing argument when counsel argued
that “[defendant] was not the shooter, nor was he his brother’s keeper, nor did he participate in a
16
mob action, and he is not guilty of the charges against him.” Initially, in an attempt to convince
the jury that defendant didn’t even participate in the fight, defense counsel pointed out that
Embrey’s “testimony doesn’t tie either [defendant] or Marquis to that fight. There’s no mob
action there based on what you heard.” Part of defense counsel’s theory of the case was that
defendant did not participate in the brawl on any level. A self-defense instruction is not
necessary for an act that a defendant denies committing. Chatman, 381 Ill App. 3d at 900. On
this basis, a self-defense instruction would have been inappropriate.
¶ 57 However, to the extent that defense counsel went on to argue that the testimony
established that if defendant was in the fight, defendant was jumped, and was defending himself,
we conclude that the result of the proceeding would not have been different had a self-defense
instruction been posed to the jury. Here, the jury was instructed that “A person commits the
offense of Mob Action when he acting together with one or more persons and without authority
of law knowingly disturbs the public peace by the use of force or violence.”
¶ 58 Had the jury been instructed on the affirmative defense of self-defense, the instruction
would likely have stated “A person is justified in the use of force when and to the extent that he
reasonably believes that such conduct is necessary to defend [(himself) (another)] against the
imminent use of unlawful force.” Illinois Pattern Jury Instructions, Criminal, No. 24-25.06.
However, the jury found defendant guilty of mob action in this case, and in doing so, necessarily
found that defendant did so “without authority of law.” Therefore, we cannot say the outcome of
the trial could have been different had a self-defense instruction been offered because the jury
already found that defendant acted without authority of law.
¶ 59 For the above reasons, defendant did not receive ineffective assistance of counsel and we
affirm defendant’s convictions.
17
¶ 60 CONCLUSION
¶ 61 The judgment of the circuit court of Peoria County is affirmed.
¶ 62 Affirmed.
¶ 63 JUSTICE McDADE, dissenting.
¶ 64 Michael Costic killed a man. He took the life of Treyshawn Blakely and injured Gerald
Embrey when he or his brother, acting by agreement, shot a gun repeatedly and randomly into a
crowd of people, seemingly in a fit of pique. So said the jury at the end of his trial when it found
him guilty of first degree felony murder. So agreed the trial court when it entered the verdict of
felony murder and sentenced him to 50 years for Blakely’s death. And so concludes the majority
as it upholds the conviction of felony murder in this appeal.
¶ 65 Not so, says Costic. He has appealed, alleging that the State failed to prove him guilty of
felony murder. I agree with the defendant that the State has failed to carry its burden and, for the
reasons that follow, I believe defendant’s conviction must be reversed. I respectfully dissent
from the majority decision that affirms that conviction.
¶ 66 As I have picked my way through the myriad details of this case that have led three
judges applying the same facts and the same law to reach diametrically opposite conclusions, I
have envisioned people outside of the justice system, and likely some within it as well, saying,
“Treyshawn Blakely is dead; this defendant pulled the trigger; he was found guilty and now he is
in prison where he should be. What’s the big deal?” And if Costic’s conviction were to be
reversed as I think it must be, many people who read the decision or hear about it will utter that
most damning of opinions, “the court let him go on a ‘technicality.’ ”
¶ 67 Those people would be wrong. If his conviction were to be reversed it would be on the
basis of the most fundamental tenet of our criminal justice system: no person charged with a
18
crime should be deprived of life or liberty unless the State proves him/her guilty, beyond a
reasonable doubt, not of any crime but of the crime with which it has chosen to charge him.
Striving to determine if the State has sustained that burden is not an exercise in technical nit-
picking, no matter how much it may appear to be just that.
¶ 68 The General Assembly has, by statute, given Illinois prosecutors a smorgasbord of ways
to charge one person with the death of another. Specifically, relevant to this case, it has given
prosecutors three ways to charge first degree murder: acting with the intent or the sure
knowledge that your action(s) will kill or cause great bodily harm; acting recklessly knowing
there is a strong probability that your actions will kill or cause great bodily harm; and causing the
death of another while engaged in the commission of a felony. In addition to these choices,
prosecutors have also been granted complete discretion to choose the offense(s) with which they
elect to charge the defendant and they are immunized against any liability for the way in which
they exercise that discretion. There is, nonetheless, a cost to that choice in that, in making it, the
prosecutor has eliminated all options not chosen and has prescribed what he or she is now
obligated to prove to secure a conviction. In this prosecution of Michael Costic, the Peoria
County State’s Attorney chose to pursue only the third variant of first degree murder: felony
murder.
¶ 69 Our supreme court has voiced its disquiet with felony murder and its potential for abuse
by prosecutors and it has alerted the trial and appellate courts to the need to exercise care to
ensure that it is properly proven. In People v. Davison, 236 Ill. 2d 232 (2010), Justice Kilbride,
19
writing for an essentially unanimous court 4, discussed the court’s fundamental concerns about
the risks of felony murder as a basis for first degree murder convictions.
“The offense of felony murder is unique because it does not
require the State to prove the intent to kill, distinguishing it from
other forms of first degree murder when the State must prove
either an intentional killing or a knowing killing.” People v. Davis,
213 Ill. 2d 459, 471 (2004) (citing 720 ILCS 5/9-1(a)(1), (2) (West
2002)). “Because of this distinction, this court has repeatedly
expressed our view that a felony-murder charge may, in effect,
improperly allow the State to both eliminate the offense of second
degree murder and avoid the burden of proving an intentional or
knowing first degree murder because many murders are
accompanied by certain predicate felonies.” Davis, 213 Ill. 2d at
471 (citing People v. Morgan, 197 Ill. 2d 404, 447 (2001) and
People v. Pelt, 207 Ill. 2d 434, 441 (2003)).
“Addressing that view, this court has concluded that ‘where
the acts constituting forcible felonies arise from and are inherent in
the act of murder itself, those acts cannot serve as predicate
felonies for a charge of felony murder.’ Morgan, 197 Ill. 2d at 447.
Consequently, in Morgan, we rejected felony-murder charges
predicated on the forcible felonies of aggravated battery and
4
Justice Garman, joined by Justice Burke, specially concurred to call attention to an issue in
felony murder analysis that remains unresolved but that had no impact on the outcome of the case then
under consideration. It may be a relevant consideration in this case.
20
aggravated discharge of a firearm for a 14-year-old defendant who
fatally shot his grandfather and grandmother because those felonies
were inherent in, and arose from, the fatal shootings. The Morgan
court explained it was arguable that the murders gave rise to the
predicate felonies, rather than the predicate felonies resulting in the
murders. The Morgan court also held that the predicate felony
underlying a charge of felony murder must have an independent
felonious purpose. Morgan, 197 Ill. 2d at 458.”
¶ 70 I believe a reasonable characterization of the gist of this explanation is that the State must
prove that the death at issue was an unintended consequence of the predicate felony. It is
unintended because it was not the perpetrator’s purpose or intent to kill but rather to further a
different, independent felonious goal. And it is a consequence because the death must result from
the predicate felony; the converse will not suffice.
¶ 71 Applying these general principles to the instant case, I would find, unlike the majority,
that no variation of the claim of mob action offered by the prosecution in this case provides
evidentiary support for, and certainly not proof beyond a reasonable doubt of, the State’s charge
of felony murder. Indeed, I believe this case lends compelling substance to the specific concerns
expressed by the Davison court.
¶ 72 In a nutshell, the events culminating in defendant’s conviction began with an argument
involving approximately ten people, including defendant. It devolved into a street fight when
several of the people arguing began throwing punches. The evidence presented by the State
appears to show that the defendant was neither an instigator of nor an active participant in this
devolution. Indeed, Dishai Beck and Cynthia Williams (referred to by the majority as Singleton),
21
who were the only trial witnesses who observed the incident from its inception, testified at trial
that Costic had been jumped (“a bunch of dudes jumped [defendant]”) and struck by several
people at once, was beaten and had sustained injuries. The State notes in its appellate brief that
Beck described Costic as defending himself. Both women further testified that at this point
defendant ran away from the fight; they both assumed he was going to his home down the block.
¶ 73 And, in fact, Gerald Embry observed defendant at his house, talking with his brother out
in the yard. Neither of them was in possession of a gun when he saw them. A little later,
defendant and his brother walked back to the area of the original fight with one of them carrying
“a big gun.” While there was some dispute among the witnesses about which brother actually
had it in hand, the weight of the testimony seems to point to it being defendant who was holding
and shooting the gun. Defendant did not join the brawl, did not engage in hand-to-hand fighting,
nor had he brought a weapon to the scene suitable for inflicting greater injury in a hand-to-hand
conflict, such as a knife, brass knuckles, a sap, etc. Instead he began randomly shooting the gun
into the crowd, ultimately injuring Embry and killing Blakely.
¶ 74 The State charged defendant with first degree murder on only one basis—felony murder
while committing mob action under section 9-1(a)(3) of the Criminal Code of 2012 (the Code)
(720 ILCS 5/9-1(a)(3) (West 2012)), which provides:
“(a) A person who kills an individual without lawful
justification commits first degree murder if, in performing the acts
which cause the death:
***
(3) he is attempting or committing a forcible felony
other than second degree murder.” (Emphasis added.) Id.22
¶ 75 The predicate forcible felony alleged was mob action, a Class 4 felony, pursuant to
section 25-1(a)(1) of the Code (720 ILCS 5/25-1(a)(1) (West 2012)), which provides:
“(a) A person commits mob action when he or she engages
in any of the following:
(1) the knowing or reckless use of force or violence
disturbing the public peace by 2 or more persons acting
together and without authority of law.” (Emphasis added.)
Id.¶ 76 Turning once again to Davison, the State’s decision to charge felony murder obligated it
to prove, beyond a reasonable doubt, that Costic’s acts of arming himself and shooting his loaded
gun into a crowd of people locked together in hand-to-hand battle had a felonious purpose other
than (1) the intent or knowledge that his acts will kill or do great bodily harm (720 ILCS 5/9-
1(a)(1) (West 2012)) or (2) to shoot with knowledge that his acts create a strong probability of
death or great bodily harm. (720 ILCS 5/9-1(a)(2) (2012)). The State’s choice of how to frame
mob action as the predicate felony also obligated it to prove that defendant’s purpose was some
undefined relationship between the use of force or violence and disturbing the peace. This
second requirement leads to my first significant problem with this case.
¶ 77 I. Absence of Statutory Statement of Purpose or Intent
¶ 78 Subsection (1) of the mob action statute, which the State elected to charge, has no express
or clearly implied intent or purpose. 720 ILCS 5/25-1(a)(1) (West 2012). We are left to speculate
whether disturbing the peace is a purpose or intent, a necessary result, or merely an incidental
by-product of the use of force or violence undertaken for some other unspecified purpose. By
contrast, subsection (2) of the mob action statute requires “the knowing assembly of 2 or more
23
persons with the intent to commit or facilitate the commission of a felony or misdemeanor.” 720
ILCS 5/25-1(a)(2) (West 2012). Subsection (3) has two purposes: “the knowing assembly of 2 or
more persons, without authority of law, for the purpose of doing violence to the person or
property of anyone supposed to have been guilty of a violation of the law, or for the purpose of
exercising correctional powers or regulative powers over any person by violence.” 720 ILCS
5/25-1(a)(3) (West 2012). The omission of an intent or purpose from subsection (1) leaves a
defendant without a clear offense or a clear mental state to defend against and leaves the State
free to present the felonious purpose as a constantly moving target.
¶ 79 And that appears to be precisely what happened here. The State posited two (or possibly
three) iterations of mob action in this case. The first was the “street fight” itself that began at the
corner of Butler and Warren Streets and continued unabated through the shooting; the second
was solely the act of the two brothers, one of whom was armed, going together to the scene of
the ongoing street fight, with what the State speculated were several possible purposes; and the
third appears to be a single action involving some combination of the first and second with those
same speculative purposes.
¶ 80 Although it is not totally clear to me, the majority appears to have opted for the first
variant as the operative mob violence. Its initial finding was, “[b]ased on our careful review of
the record, the State’s evidence established that while acting with at least one other person,
defendant participated in the first stages of the disturbance and proved all the necessary elements
of the forcible felony of mob action.” Supra ¶ 31. The majority goes on to show the street fight
continued even after defendant retreated to his home and returned to the scene of the fight,
shooting indiscriminately, and it concludes the shooting was part of that “mob action.”
24
¶ 81 I believe, and would find, that the use of subsection (1) as the applicable version of mob
action actually impedes the State’s ability to prove Costic guilty of felony murder in this case
because the act of force or violence alleged and the only such act in which defendant was
engaged at the time Blakely was killed—the act of shooting the gun into the crowd—is inherent
in the act of murder. Davis, 213 Ill. 2d at 471 (“the evidence of the conduct underlying the felony
and the killing is the same”). Moreover, if subsection (1) is found to have a clearly articulated or
clearly implied felonious purpose or intent, it appears that purpose would likely be disturbance of
the public peace. The language of subsection (1) does not lend itself to construing or implying
any other purpose for the knowing or reckless use of force or violence. And, indeed, the majority
has at least implicitly so found, stating “the State needed only to prove that defendant, without
authority of law and while acting with at least one other person, knowingly or recklessly
disturbed the public peace by the use of force or violence” (supra ¶ 31).
¶ 82 Thus, assuming the majority’s finding is correct, the State has taken on the dual burden of
proving the highly unlikely proposition that when the Costic brothers went together to the scene
of the street fight and one of them raised the loaded gun and fired multiple bullets into the crowd
he did so (a) with the singular purpose of violently disturbing the public peace and (b) not with
the purpose or probability of killing someone. As will be shown, the State has failed to do so and
defendant’s felony-murder conviction must be reversed on that basis.
¶ 83 II. Absence of Evidence Proving Elements of Mob Action
¶ 84 The second major problem I have with the majority decision is the dearth of evidence
necessary to prove the elements of the predicate offense. Turning again to Morgan and Davison,
the supreme court has made it clear, and the mob action statute confirms, that proof of a
defendant’s ongoing predicate felony with an independent felonious purpose is critical to proving
25
felony murder. Stated differently, the State must prove defendant was currently involved in the
actions of the predicate felony and with the purpose of committing that felony. The State’s
burden is complicated in this case because, unlike the typical felony-murder prosecution, the
predicate felony alleged did not take place seamlessly. Because defendant went home in the
middle of the claimed mob action, the State was obligated to prove defendant was committing
the predicate offense and harbored the independent felonious intent at both ends of the alleged
offense and did not intend for or recognize a probability that his actions would kill or cause great
bodily harm that could cause death. In that regard, I find three essential failures of proof by the
State in this case.
¶ 85 A. Was Defendant an Actual Participant in the Early Stages of Mob Action?
¶ 86 The majority’s first finding with regard to its conclusion is that “[t]he State’s evidence
established that while acting with at least one other person defendant participated in the first
stages of the disturbance and proved all the necessary elements of the forcible felony of mob
action.” Supra ¶ 31. Contrary to that specific finding, the State did not prove that defendant ever
participated in “the very first moments” or “the first stages” of the alleged mob action. The
elements of the form of mob action charged by the State in this case are that the defendant,
acting together with one or more other persons, engaged in the knowing or reckless use of force
or violence that disturbed the public peace. Pertinent to this issue, the evidence produced at trial
showed that defendant was involved in an argument, which is not forcible or violent conduct,
that changed into something else when he was physically attacked by some of the other
participants in the argument. I have seen no evidence produced by the State that showed
defendant was “acting together” with any other person to change the incident from legal, if
heated, discussion to illegal force or violence. The State’s two eyewitnesses described defendant
26
being jumped and attacked and defending himself, and further described him as injured and
running from the scene.
¶ 87 The only reasonable inference from that fact testimony presented by the State is that
defendant was not, at the time of or after the introduction of force or violence, “acting together”
with his attackers in the knowing or reckless use of force or violence. Even a showing that he
struck out at one or more of the persons who attacked him cannot, standing alone, support a
reasonable inference that he was “acting together” with them for any purpose. But the State
presented no additional facts, direct or indirect, that would compel, or even support, the contrary
and essential inference that defendant was acting together or in concert with his attackers to use
force or violence for the purpose of disturbing the public peace or any other felonious purpose.
Thus, the State has failed to prove defendant participated in mob action prior to retreating to his
home.
¶ 88 B. Was Defendant Participating in Mob Action upon His Return to the Scene?
¶ 89 Second, the State failed to present any evidence that defendant was a participant in the
ongoing mob action when, after leaving the fight and retreating to his home, he returned to the
scene with his brother. Even if defendant had been part of the early stage of the mob action
event, there is no evidence that he was participating in the event upon his return to the site.
¶ 90 The majority appears to be using escalating numbers of participants and bystanders in the
area of the fight to confirm the continuation of the mob violence and the actual disturbance of the
peace. The effectiveness of this use of numbers to prove the necessary point is problematic. The
question is not whether the offense was ongoing but whether defendant was actively engaged in
it. The statutes defining the particular form of felony murder alleged here make that clear. The
first degree murder statute requires that a defendant be “attempting or committing a forcible
27
felony other than second degree murder” while “performing the acts which cause the death.” 720
ILCS 5/9-1(a)(3) (West 2012). The mob action statute defines the offense as “engag[ing] in” the
“knowing or reckless use of force or violence.” 720 ILCS 25-1(a)(1) (West 2012). It is,
therefore, insufficient to show the action is going on without persuasive evidence that
defendant’s intent is to participate in it with the purpose of disturbing the public peace or
whatever the proven felonious intent is. The State has produced no evidence that defendant
harbored any purpose at the time he fired the shots other than the obvious one of killing or
causing great bodily harm. In fact, the State has produced no evidence at all of defendant’s
purpose or intent at any stage of the events. I believe Davison and Morgan make clear that
without such a showing, the felony-murder conviction stands unproven. Moreover, without some
evidence, some facts on which to base a reasonable inference of a different purpose, the felony-
murder conviction is grounded entirely in speculation, which is not proof beyond a reasonable
doubt.
¶ 91 I do not find any factual support in the State’s evidence for a reasonable inference or
conclusion by the majority that defendant was a culpable participant in the forcible mob-action
felony described by the majority at the shooting stage of the events in this case.
¶ 92 C. Did Defendant Have an Independent Felonious Purpose?
¶ 93 Despite this failure of evidence of defendant’s participation in the initial and later stages
of the described mob action, the majority still goes on to consider “whether the act, namely
defendant’s early unarmed participation in the fight with others, was the very same act that was
inherent in the killing.” As part of its consideration, the majority appears to conclude, without the
benefit of any discernible evidence, that even though defendant had left the scene of the original
alleged mob action without ever having participated in it, his return was still for the elusive mob-
28
action purpose—a conclusion that flies in the face of the preeminently reasonable, arguably
compelling, inference that someone who approaches a crowd indiscriminately firing a loaded
gun into that crowd is intending to injure or kill. As untenable as the majority’s conclusion may
be, it is nonetheless essential to its finding that the State has proven a fundamental element of
felony murder—specifically, that defendant’s purpose, his sole felonious intent while he was
recklessly discharging bullets from his loaded gun into a massed crowd of people and injuring
Embry and killing Blakely was not to injure or kill but merely to use force or violence with the
intent to disturb the peace or for a different, nebulous felonious purpose, thereby disturbing the
peace. As noted, the State presented no evidence of such an intent and the obvious and
reasonable inference from the facts the State did present is that defendant’s intent was to cause
great bodily harm or to kill.
¶ 94 III. Lack of Coherent, Consistent Theory and Narrative
¶ 95 The third major problem I have with the affirmance of this conviction derives from the
fact that the case presented to the jury was incoherent and lacking in factual and legal
consistency. This casts serious doubt on the legitimacy and reliability of the jury’s verdict. The
jury had to find that Costic was guilty of felony murder and not simply that he killed Blakely.
This required the State to present a clear and consistent theory and narrative and actual evidence
to support a conclusion that the jury found Costic guilty of felony murder beyond a reasonable
doubt. The case constructed by the State was long on supposition, long on rhetoric, and woefully
short of essential evidence. The State argued at least two theories of what conduct constituted the
underlying felony and what defendant intended to achieve by that conduct (his purpose).
¶ 96 This incoherence and inconsistency are clearly shown in the State’s closing argument. I
acknowledge here at the outset that closing argument is not evidence. See, e.g., People v.
29
Hattery, 109 Ill. 2d 449, 463 (1985). But closing argument does frame the issues for the jury and
organize the evidence to show how it supports or refutes the legal proposition the party is urging
the jury to accept. In this case the State vacillated between two versions of the mob action,
neither of which, in my opinion, works.
¶ 97 The first version, of course, is the one that the majority has adopted as its basis for
affirming defendant’s conviction. I believe that I have amply demonstrated that the State has not
produced any evidence to support its contention that defendant was a culpable participant at
either stage of the mob action as the State alleged it occurred. Nor has the State produced any
facts that would support a reasonable inference that defendant was acting to achieve any purpose
other than the one that springs immediately and forcefully to mind when a person shoots 21
rapid-fire shots from a gun into a roiling crowd of people.
¶ 98 The State’s second version of the mob action is even more problematic. In its argument
on defendant’s motion for directed verdict, the State implied a different mob action in which
Michael and Marquis were the two persons—required for mob action under the statute—and that
their actions had a different purpose than that of the original mob action. The State suggested a
spin-off mob action in which the purpose or intent was “to send a message, a violent terrifying
message.” The essence of the argument was:
“They were sending that group of males who had jumped
them a message. They didn’t go back there with the specific intent
to kill any particular individual, but unquestionably not the two
people that got shot. I don’t think anyone is suggesting that they
intended that. Murder was not on their minds. I would say
indifference to murder was essentially the scenario. They went
30
there to send a message, a violent, terrifying message. And again,
that’s exactly what mob action is.”
¶ 99 The trial court denied the motion finding the issues of requisite felonious
intent or purpose to be “interesting,” but found evidence presented by the State
could show “a felonious purpose separate and apart from the murder itself.” The
court concluded “the indication that Michael was getting the worst end of the
fight, left, returned, *** indicates that they were returning for the purpose of
participating in the mob action.”
¶ 100 Having succeeded in this argument of a second mob action once, the State
used it again, this time with the jury. After making an initial argument that the
subject mob action was the original and continuing street brawl—the mob action
found by the majority—the State pivoted to its new mob action with its new and
different purpose, with an occasional oblique nod to the original mob action.
“And when they open up [begin shooting], what was the
purpose? [Incorrect statement of law.] They did not I submit to you
intend to kill anyone specific. They did not have a specific target in
mind. It was not intentional or knowing murder. I would submit to
you at best they were indifferent on the subject of whether or not
they killed anybody. I don’t think they gave a damn. They opened
up on a group of people. If somebody got hit, they got killed, so be
it, but that wasn’t the point. The point, the intent was a textbook
continuation of a mob action. The use of force, in this case as
31
extreme a type of force as you can get, assault rifle, if not fully
automatic, semiautomatic.”
¶ 101 The prosecutor then set out the case for the statutory elements of the use of force and the
disturbance of the public peace and then moved on to intent:
“And the intent, the purpose was to send a message to that
other group. Whether they hit some of them, sure, why not? Or if
they hit somebody that had nothing to do with it—Treyshawn
Blakely, Gerald Embrey—they didn’t care. The point was they
were sending a message to that other group. ‘You don’t do this in
my neighborhood, and if you do, this is what happens. They were
terrorizing. They were intimidating. Mob action. They committed
together mob action.”
¶ 102 Considering these arguments made by the State, there are several things
that seem clear to me. First, the State has defined the applicable mob action
conduct as Michael and Marquis going together to the area where the street fight
is continuing, armed with the gun, and shooting into the crowd (“They opened up
on a group of people. If somebody got hit, they got killed so be it ***.” “This isn’t
a crossfire. It wasn’t a shootout. It was a massacre. He opened upon a crowd of
people unilaterally, he or his brother.”). The State identified the force or violence
element of the alleged mob action (“The use of force, in this case as extreme a
type of force as you can get, assault rifle, if not fully automatic, semiautomatic. I
mean 21, 21 rapid fire shots into a group of people. That’s force. That’s a use of
force, and it actually was demonstrated in that Gerald Embrey was
32
struck…Treyshawn Blakely was struck. The result of the force was described to
you.”). The element of disturbance of the public peace was described (“And was
the public peace disturbed by that? Everyone you heard from that saw that, saw
Treyshawn Blakely go down; heard shots fired, saw shots fired at a group of
people. I mean, if that didn’t disturb the peace, then there’s not behavior capable
of doing so, I would submit to you. Of course it did. That is a textbook mob
action.”). Because, as defined by the State, the evidence of the conduct
underlying the felony and the killing is the same, the felony in this case is inherent
in the act of murder and the felony murder conviction cannot stand. Davis, 213 Ill.
2d at 471.
¶ 103 Second, the State appears to have determined that the conduct constituting
this version of the alleged mob action was a response to the first, not part of it. In
arguing that the purpose or intent of the predicate mob action was something
other than to kill or cause great bodily harm, the State contended in response to
the motion for directed verdict that the brothers went to the scene of the street
fight to
“send[ ] that group of males who had jumped them a message.
They didn’t go back there with the specific intent to kill any
particular individual, but unquestionably not the two people that
got shot. *** Murder was not on their minds. I would say
indifference to murder was essentially the scenario. They went
there to send a message, a violent, terrifying message.”
Later, the State argued to the jury that
33
“The intent, the purpose was to send a message to that other group.
Whether they hit some of them, sure, why not? Or if they hit
somebody that nothing to do with it...they didn’t care. The point
was they were sending a message to that other group, ‘You don’t
do this in my neighborhood and if you do, this is what happens.’ ”
(Emphasis added.)
¶ 104 Even if we overlook the fact that the State is advancing arguments that
appear inconsistent with the known facts and if we ignore the fact that the
prosecutor cites no testimony or other evidence in support of the arguments and
seems to be testifying and if we accept the assertions at face value; we are still left
with the questions: What is the terrifying and intimidating message? and What is
the “this” that will happen? And looking at the facts before us, the inescapable
answer would be: “We will shoot at you and possibly kill you.” To send that
message, they had to do it. As set out by the State, the killing was not an
unintended consequence, it was the subject of the message they intended to send.
¶ 105 In summary, I do not believe the State has met its burden of proving
Michael Costic guilty beyond a reasonable doubt of felony murder. First, the
section of the mob action statute under which he was charged does not contain a
discernible purpose, making the critical determination of whether he had the mob
action purpose rather than a homicidal purpose at the time he pulled the trigger
exceedingly problematic. Second, the State presented no evidence that Costic
participated in either the early or later stages of the mob action posited in one of
its theories and the facts recited by the State’s witnesses support only one
34
reasonable inference—that he was not a culpable participant. Third, under the
State’s second theory—the one it presented most forcefully and persuasively—
there are three major problems: (1) the alleged mob action was inherent in and
arose from the fatal shooting—that is to say, if the felonious purpose was to send
a “violent and terrifying message” the shooting had to occur and ideally someone
had to sustain life-threatening injury or to die; (2) the fact that sending the
message and doing the shooting constituted the same action with the same
purpose appears to foreclose the possibility of finding an independent felonious
purpose; and (3) the reckless and repeated discharge of a firearm into a milling
crowd knowing that those acts create a strong probability of death or great bodily
harm constitutes the second form of first degree murder (720 ILCS 5/9-1(a)(2)
(West 2012) and obviates felony murder.
¶ 106 This case perfectly exemplifies the concerns and fully justifies the
reservations expressed by the supreme court in Davison. I believe Costic’s
conviction of felony murder must be reversed.
35