People v. O'Neal

• Citation: 66 N.E.3d 390,408 Ill.Dec. 598
• Decision Date: 29 September 2016
• Docket Number: No. 1–13–2284.,1–13–2284.
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Jauan O'NEAL, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

66 N.E.3d 390
408 Ill.Dec. 598

The PEOPLE of the State of Illinois, Plaintiff–Appellee,
v.
Jauan O'NEAL, Defendant–Appellant.

No. 1–13–2284.

Appellate Court of Illinois, First District, Fourth Division.

Sept. 29, 2016.

66 N.E.3d 392

Michael J. Pelletier, Alan D. Goldberg, and Robert N. Melching, all of State Appellate Defender's Office, of Chicago, for appellant.

Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg, John Walters, and Brian A. Levitsky, Assistant State's Attorneys, of counsel), for the People.

OPINION

Presiding Justice ELLIS delivered the judgment of the court, with opinion.

408 Ill.Dec. 600

¶ 1 During a street party on May 29, 2010, on a portion of South Laflin Street that served as an approximate boundary between rival Chicago street gangs, a van drove the wrong way down the one-way street toward the group of people gathered at the party. Many people at the party noticed the slow-moving van and began to shout. Defendant Jauan O'Neal, who claimed he was acting as "security" for the party, fired multiple shots at the van, claiming that he believed it was being driven by rival gang members and that he was acting in self-defense. At the time defendant fired the shots, his friend Darius Murphy was sitting in a car across the street. One of the bullets defendant fired at the van struck Murphy in the head, killing him.

¶ 2 The State charged defendant with, among other things, three different forms of first degree murder—intentional murder, strong-probability murder, and felony murder based on the predicate felony of aggravated discharge of a firearm. The jury was instructed on self-defense as to all counts. On the charges of intentional and strong-probability murder, the jury was also instructed as to second-degree murder, based on the mitigating factor of unreasonable self-defense.

¶ 3 The jury found defendant guilty of first-degree murder based on felony murder. On the intentional and strong-probability murder counts, the jury reduced the conviction to second-degree murder based on the mitigating factor of unreasonable self-defense. The jury also convicted defendant of aggravated discharge of a firearm.

¶ 4 We reverse the felony-murder conviction and remand for resentencing on

408 Ill.Dec. 601

66 N.E.3d 393

the second-degree murder conviction. The felony-murder conviction was predicated on the offense of aggravated discharge of a firearm, i.e., defendant's act of shooting at the van. But that was the same act causing Murphy's death—an act that the jury found warranted only a second-degree murder conviction based on unreasonable self-defense. Allowing defendant's felony-murder conviction to stand would effectively license the State to ify a second-degree murder verdict in any case where a defendant shoots at one individual under the subjective but unreasonable belief that he was acting in self-defense but misses and mistakenly kills another person. The State cannot be permitted to use felony murder to obtain a first-degree murder conviction that it otherwise could not secure. We reverse the felony-murder conviction, affirm defendant's other convictions for second-degree murder and aggravated discharge of a firearm, and remand for resentencing.

¶ 5 I. BACKGROUND

¶ 6 On May 29, 2010, a group of people, including defendant, were drinking and smoking marijuana near the intersection of 51st Street and South Laflin Street in Chicago. The decedent, defendant's friend Darius Murphy, was sitting in a parked car on the opposite side of the street. Many of the people at the party, including defendant, were members of the Black P. Stone gang, which was involved in a conflict with the La Raza gang.

¶ 7 Defendant was acting as "security" for the party that night and was carrying a 9–millimeter handgun. Murphy's brother Deandre and his cousin Nikevis testified that they understood defendant's responsibility as the "security" was to protect the people at the party from rival gangs. None of the witnesses at trial testified that they saw other partygoers carrying firearms.

¶ 8 During the party, a van with tinted windows approached, traveling the wrong way down Laflin Street. People at the party yelled, "on that van" or "on that car," and defendant fired his gun at the van. After defendant fired, the van drove away. People then realized that Murphy had been shot in the head.

¶ 9 The amount of shots defendant fired was unclear. Deandre testified that he heard 6 or 7 shots, Nikevis testified that he heard 4 or 5, and Derreon, Murphy's other brother, testified that he heard 8 or 10. The police found five cartridge cases and one bullet jacket on the scene, as well as a bullet core in Murphy's head.

¶ 10 There was also conflicting evidence regarding who was in the van and whether any of its occupants were armed. Deandre and Nikevis both testified that there was only one 40–year–old Hispanic man driving the van. They did not see anyone in the van with a weapon. Samuel Walton, a defense witness, testified that there were four Hispanic men inside the van, including a passenger who was holding a gun out of the window. Andre Lacour, another defense witness, also saw multiple people inside the van, but he could not say how many. Andre testified that he saw the people in the van "arguing or fumbling with something." Terry McCauley, the final defense witness, testified that there was one passenger in the van in the front seat who raised something that Terry thought may have been a gun. Terry said that he could not be certain because it was dark and the van's windows were tinted.

¶ 11 After defendant's arrest, he was interrogated by Detective Scott Reiff. Reiff testified that defendant admitted firing at the van. The first time Reiff questioned defendant, he said that there were three Hispanic men in the van, one of

408 Ill.Dec. 602

66 N.E.3d 394

whom was holding a gun out the front passenger window and flashing gang signs. The second time Reiff questioned defendant, he said that there was only one passenger in the van and that he did not see a gun, only a flash.

¶ 12 At the close of the State's case, defendant moved for a directed finding on the felony-murder charge, arguing that the same act that formed the basis of the underlying felony of aggravated discharge of a firearm, i.e., shooting at the van, was also the act that caused Murphy's death. Defense counsel argued, "If I'm shooting at someone, intending to kill them, and I miss and kill the person behind [him], that's straight up murder. That's not felony murder. This is essentially that case." The trial court denied the motion, noting that "the offense of aggravated discharge of a firearm currently and has been for the last couple of years the main predicate underlying offense in these various shootings that have taken place in the city of Chicago."

¶ 13 During the jury instruction conference, defense counsel proposed instructions that would tell the jury that it had to conclude that, with respect to the felony-murder charge, the jury had to find both that the acts forming the basis of the predicate felony were not inherent in the acts that caused Murphy's death and that defendant's "felonious purpose" when committing the predicate felony was different from his felonious purpose when committing the murder. The court denied the instructions on the basis that they would confuse the jury and the instructions were not taken from the Illinois Pattern Jury Instructions, Criminal (4th ed.2000).

¶ 14 The State proposed an instruction informing the jury that an individual could not be justified in the use of force if he was committing the offense of aggravated discharge of a firearm. Defense counsel objected to the instruction, but the trial court allowed it.

¶ 15 The jury was instructed as to first-degree intentional murder, first-degree strong-probability murder, first-degree felony murder, self-defense, second-degree murder, and aggravated discharge of a firearm. With respect to the felony murder charge, the jury was not instructed to consider whether the mitigating factor for second-degree murder (an unreasonable belief in the need for self-defense) was present.

¶ 16 During the jury's deliberations, the jurors sent out a note asking, "What is the definition of justification under the law?" Defense counsel pointed out that the jurors had already been instructed on the definition of justification. The court responded, "You have already been given a definition for the justified use of force in your instruction packet."

¶ 17 The jury found defendant guilty of felony-murder, second-degree murder, and aggravated discharge of a firearm. The jury further found that defendant personally discharged the firearm that proximately caused Murphy's death.

¶ 18 In his motion for a new trial, defendant argued that the felony murder count should be vacated because the "act constituting aggravated discharge of a firearm [was] precisely the same as [the] act constituting second degree murder." Defendant argued:

"The jury found [defendant] guilty of second

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