People v. Morgan
| Decision Date | 29 September 1999 |
| Docket Number | No. 4-96-0996.,4-96-0996. |
| Citation | 240 Ill.Dec. 725,307 Ill. App.3d 707,718 N.E.2d 206 |
| Court | United States Appellate Court of Illinois |
| Parties | The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Jon R. MORGAN, Defendant-Appellant. |
D. Peter Wise (argued), Gates, Wise & Schlosser, P.C., Springfield, for Jon R. Morgan.
William G. Workman, State's Attorney, Lincoln, Norbert J. Goetten, Director, Robert J. Biderman, Deputy Director, David E. Mannchen, Staff Attorney (argued), State's Attorneys Appellate Prosecutor, Springfield, for the People.
Defendant Jon R. Morgan was tried as an adult and convicted after a jury trial in the circuit court of Logan County of the first degree murder (720 ILCS 5/9-1(a) (West 1994)) of his grandmother and the second degree murder (720 ILCS 5/9-2(a)(1) (West 1994)) of his grandfather. He was sentenced to consecutive terms of imprisonment totalling 75 years. On appeal, he argues the trial court erred by (1) granting the State's motion to try him as an adult; (2) admitting certain statements into evidence; (3) excluding testimony regarding prior violent conduct by the victims; (4) refusing to dismiss the felony murder counts; and (5) refusing to give an instruction on second degree murder as to the felony murder counts. We affirm in part and reverse in part.
On an April day in 1995, 14-year-old Jon was late to class and received an in-school detention. According to Jon, he was asleep at about 6:30 p.m. on April 27, 1995, when his grandfather, Keith Cearlock, awakened him and demanded an explanation for the notice of detention he had received. Keith berated Jon for 10 to 15 minutes. Jon yelled back. Keith punished Jon by having him bend over while Keith beat him on the buttocks with a razor strap. After enduring five strong blows, Jon went into the bathroom. He knew where Keith kept a gun and decided to get the gun to kill himself. Jon took a gun and box of ammunition from Keith's bedroom closet shelf, returned to the bathroom, loaded eight bullets into the gun, took aim, and fired at a bottle. Because his grandfather had threatened in the past to kill him, he believed his firing the gun would provoke Keith to carry out the threat. As Jon left the bathroom, he encountered Keith coming toward him and shot him. Lila Cearlock, his grandmother, was standing in the hallway screaming. Jon shot Lila in the back as she ran out of the house. He tried to fire another shot, but the gun jammed.
The Lincoln police department responded to an emergency call to the Cearlocks' address. Minutes later, Jon approached one of the officers, holding a pistol and a box of bullets, saying, The officer took Jon to Michael Harberts, the officer in charge, who asked him why he did it. Jon said, Jon was placed under arrest.
This case was originally filed in the juvenile court of Logan County. The State filed a petition, pursuant to section 5-4 of the Juvenile Court Act of 1987 (Act) (705 ILCS 405/5-4 (West 1994)), seeking to have Jon tried as an adult. The juvenile court granted the State's petition after a hearing.
Jon was subsequently indicted on eight counts. Counts I and II charged first degree murder of Lila and Keith, respectively, with intent to kill or do great bodily harm (720 ILCS 5/9-1(a)(1) (West 1994)); counts III and IV charged first degree murder of Lila and Keith, respectively, by knowingly committing an act causing great probability of death or great bodily harm (720 ILCS 5/9-1(a)(2) (West 1994)); counts V and VII (Lila) and VI and VIII (Keith) charged first degree murder by attempting or committing a forcible felony (720 ILCS 5/9-1(a)(3) (West 1994)). The predicate felony for counts V and VI was aggravated battery (720 ILCS 5/12-4(a) (West 1994)), and the predicate felony for counts VII and VIII was aggravated discharge of a firearm (720 ILCS 5/24-1.2(a)(2) (West 1994)).
Defense counsel filed a motion to suppress certain statements made by Jon to the police at the crime scene and while in custody. The motion was denied after a hearing.
After defense counsel disclosed his intent to raise the affirmative defense of self-defense (720 ILCS 5/7-1 (West 1994)) and the mitigating factor of "sudden and intense passion resulting from serious provocation" (720 ILCS 5/9-2(a)(1) (West 1994)), the State sought to bar second degree murder instructions as to the felony murder counts. The trial court initially denied the motion, but later reversed its ruling. The trial court thereafter denied Jon's motion to dismiss the four counts of felony murder. At trial, the State sought to preclude Glenda Ashworth, Jon's mother, and Dr. Stuart Hart, defense expert, from testifying regarding prior violent conduct of the Cearlocks. The trial court ruled in favor of the State and the defense made offers of proof.
The trial court instructed the jury on second degree murder (720 ILCS 5/9-2(a) (West 1994)) as to counts I through IV. The jury found Jon guilty of first degree murder as to Lila and second degree murder as to Keith. Jon was sentenced to consecutive terms of 58 and 17 years' imprisonment, respectively.
The material in this section is not to be published pursuant to Supreme Court Rule 23 (166 Ill.2d R. 23).
[Nonpublishable material removed under Supreme Court Rule 23.]
The material in this section is not to be published pursuant to Supreme Court Rule 23.
[Nonpublishable material removed under Supreme Court Rule 23.]
The jury was instructed that Jon was charged with two types of first degree murder: Type A (knowing or intentional) and Type B (felony). Second degree instructions were given only as to Type A. The State offered six verdict forms, three for each victim: (1) not guilty, (2) guilty of first degree murder, and (3) guilty of second degree murder.
We first consider whether Jon preserved the felony murder issues for appeal. After he was denied second degree murder instructions on the felony murder counts, he made a motion to dismiss those counts, which was also denied. He raised the issues again in his posttrial motion. He did not, however, object to the use of general verdict forms.
In People v. Thurman, 223 Ill.App.3d 196, 203, 165 Ill.Dec. 635, 584 N.E.2d 1069, 1074 (1991), the court held that even if the defendant was improperly charged with felony murder, his conviction would still stand, because "[i]t is well settled that a defendant convicted by a general verdict is guilty of any good count in the indictment to which proof is applicable." In Thurman, the defendant was charged with first degree murder under each of the three sections of the statute. The general guilty verdict indicated "an intention to convict the defendant of first degree murder under sections 9-1(a)(1) and 9-1(a)(2), as well as felony murder under section 9-1(a)(3)." Thurman, 223 Ill.App.3d at 203, 165 Ill. Dec. 635, 584 N.E.2d at 1074.
Thurman relied on People v. Baker, 127 Ill.App.3d 565, 569, 82 Ill.Dec. 958, 469 N.E.2d 602, 605 (1984), in which the issue was whether the defendant could be sentenced for the underlying felony when he was convicted of multiple counts of murder, including felony murder, by a general verdict of guilty. Because defendant offered no reason why a conviction of home invasion could not stand with a murder conviction on the basis of section 9-1(a)(1) or 9-1(a)(2), the sentence was affirmed. Baker, 127 Ill.App.3d at 569, 82 Ill.Dec. 958, 469 N.E.2d at 606; see also People v. Scott, 148 Ill.2d 479, 562, 171 Ill.Dec. 365, 594 N.E.2d 217, 253 (1992) ().
We are reluctant to find an issue forfeited, however, where the defendant made the proper motions at trial and renewed his arguments in a posttrial motion. Our decision to address these issues on the merits is reinforced by the emphasis placed on the felony murder theory by the prosecutor during closing argument. The prosecutor argued repeatedly that the jury members should first consider the felony murder theory because, if they found the underlying felony proved, they need not deal with the considerable amount of evidence relating to defendant's mental state.
Our decision is also buttressed by the decision in People v. Shaw, 186 Ill.2d 301, 329, 239 Ill.Dec. 311, 713 N.E.2d 1161, 1176 (1998), in which the supreme court rejected a claim of instructional error because the jury was completely and thoroughly informed of the three types of murder and "received separate verdict forms for each crime charged against defendant," including the underlying felony. In the present case, the jury was instructed to consider whether Jon committed either of the alleged felonies, but was not asked to render a verdict for each crime charged, including the underlying felony and each individual count of murder.
We also conclude the verdict of second degree murder as to Keith cannot have been based on Type B, because the second degree instruction was limited to Type A murder. However, it is not possible to determine whether the verdict of first degree murder as to Lila was based on Type A or Type B. As a result, the issues raised by the defendant with regard to felony murder affect only the conviction of first degree murder for the shooting of Lila.
Jon repeatedly challenged the State's theory at trial that his shooting of Lila could constitute felony murder. He argued at trial—and repeats the argument on appeal—that, because aggravated battery and discharge of a firearm were inherent in his act of intentionally killing with a firearm, the trial...
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TABLE OF CASES
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