People v. Toney

• Decision Date: 31 January 2003
• Docket Number: No. 1-97-2315.,1-97-2315.
• Citation: 271 Ill.Dec. 487,785 N.E.2d 138,337 Ill. App.3d 122
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Donald TONEY, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

785 N.E.2d 138

337 Ill. App.3d 122

271 Ill.Dec. 487

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Donald TONEY, Defendant-Appellant.

No. 1-97-2315.

Appellate Court of Illinois, First District, Sixth Division.

January 31, 2003.

Rita A. Fry, Cook County Public Defender, Chicago (Timothy J. Leeming, of counsel), for Appellant.

Richard A. Devine, Cook County State's Attorney, Chicago (Renee Goldfarb and Alan J. Spellberg, of counsel), for Appellee.

Justice FROSSARD delivered the opinion of the court:

Defendant, Donald Toney, appeals his convictions for first degree murder, attempted first degree murder, and aggravated discharge of a firearm. Codefendants Robert Foster and Frederick Luckett were tried by separate juries and are not involved in this appeal. On appeal, defendant contends that the trial court erred by (1) instructing the jury on felony murder with a predicate felony of aggravated discharge of a firearm; (2) refusing to instruct the jury on the mitigating offense of second degree murder where defendant was charged with intentional and knowing murder and the evidence warranted a second degree instruction; (3) admitting two weapons into evidence; and (4) imposing consecutive sentences. The defendant also contends the State failed to prove the identity of the shooter beyond a reasonable doubt and denied him a fair trial because of improper comments during closing arguments. Based on the facts of this case, it was reversible error for the trial judge to refuse to instruct the jury on the mitigating offense of second degree murder because defendant was charged with intentional and knowing murder and the evidence warranted a second degree instruction. We reverse and remand for a new trial.

BACKGROUND

At approximately 7 p.m. on October 10, 1995, Antoine Harris and his brother Terrance, members of the Four Corner Hustlers street gang, recognized defendant as he drove on 123rd Street past Halsted Street with his brother Luckett and Foster. Defendant, Luckett, and Foster were Gangster Disciples. A confrontation occurred during which threats were yelled, Antoine threw a bottle at defendant's car, and shots were fired. Defendant remained in the car. Luckett and Foster got out of the car and fired their guns. Toney drove away alone. Phillip Matthews died from gunshot wounds. Bobby Roberson, Terrance, and Antoine were not injured. Antoine knew defendant and told the police where he lived. Within an hour of the shooting, the police arrested defendant, Luckett, and Foster. Antoine and Terrance identified defendant, Foster, and Luckett in a lineup and Antoine identified the rifle that Foster fired.

Defendant denied involvement in the shootings, but when Detective Baker showed him the two recovered weapons and told him that he and his car had been identified, defendant admitted his involvement. At trial, he denied any plan or intent to shoot Four Corner Hustlers and maintained the shootings were in self-defense. A forensic expert who examined the firearms evidence including 15 fired cartridge casings concluded the casings were consistent with the two recovered weapons; however, three fired bullets, including a .38-caliber bullet from the body of Phillip Matthews, were not discharged from the two weapons fired by Luckett and Foster.

Defendant was indicted on eight counts: counts I and II charged defendant with first degree intentional and knowing murder (720 ILCS 5/9-1(a)(1), (a)(2) (West 1994)); counts III, IV and V charged defendant with attempted murder (720 ILCS 5/8-4, 9-1(a) (West 1994)); counts VI, VII and VIII charged defendant with aggravated discharge of a firearm (720 ILCS 5/24-1.2(a)(2) (West 1994)). The jury found defendant guilty of the first degree murder of Phillip Matthews, guilty of the attempted murder of Antoine Harris, Terrance Harris, and Bobby Roberson, and guilty of aggravated discharge of a firearm in connection to Antoine Harris, Terrance Harris, and Bobby Roberson. Defendant was sentenced to 35 years in prison for first degree murder, consecutive to 18 years for attempted murder, concurrent to 10 years for aggravated discharge of a firearm.

I. FELONY MURDER JURY INSTRUCTION

We review the trial court's decision regarding jury instructions under an abuse of discretion standard. People v. Kidd, 295 Ill.App.3d 160, 167, 229 Ill.Dec. 682, 692 N.E.2d 455 (1998). Defendant argues that the trial court erred by instructing the jury on felony murder because the shootings were reasonable acts of self-defense, the evidence failed to show that the defendant planned or participated in a forcible felony during which Phillip Matthews was murdered, and defendant was not charged with felony murder. Defendant additionally argues that aggravated discharge of a firearm cannot serve as a predicate felony for a felony murder charge. Our supreme court noted in People v. Dekens, 182 Ill.2d 247, 252, 230 Ill.Dec. 984, 695 N.E.2d 474 (1998), that Illinois follows the proximate cause theory of felony murder. "Consistent with the proximate cause theory, liability should lie for any death proximately related to the defendant's criminal conduct." (Emphasis added.) Dekens, 182 Ill.2d at 252,230 Ill.Dec. 984,695 N.E.2d 474. Thus, defendant is subject to the felony murder doctrine if the "decedent's death is the direct and proximate result of the defendant's felony." Dekens, 182 Ill.2d at 252,230 Ill.Dec. 984,695 N.E.2d 474.

We first address the defendant's argument that the evidence demonstrated the shooting was in self-defense and failed to show defendant planned or participated in a forcible felony during which Phillip Matthews was murdered. The State's theory was that Toney, together with Foster and Luckett, were the aggressors, and the murder of Phillip Matthews occurred as the result of Foster and Luckett shooting at Four Corner Hustlers. The State's evidence established that defendant asked Luckett and Foster to accompany him to rival gang territory as "backup" and knew that Luckett and Foster brought guns. Defendant drove Luckett and Foster, armed with weapons, into rival gang territory. Defendant stopped his vehicle, and Foster and Luckett exited the vehicle and shot at several rival gang members. Defendant drove away alone, but tried unsuccessfully to aid Foster and Luckett in leaving the scene of the shooting. Thus, the State provided evidence that the victim's death was a direct and proximate result of defendant's felonious conduct in aiding and facilitating Foster and Luckett's shooting at rival gang members. The defense presented a competing version of the shootings based on a theory of self-defense and we will address the argument that defendant's competing theory of self-defense warranted a second degree murder instruction in the next section. However, regarding the felony murder instruction, we find that based on the State's evidence, there was sufficient evidence in this record that defendant participated in a forcible felony during which Phillip Matthews was murdered and the trial court did not abuse its discretion by instructing the jury on felony murder.

Next we address defendant's argument that it was error for the trial court to instruct on felony murder because he was not charged with felony murder. The test is whether the indictment informed defendant of the offense charged with sufficient specificity to allow him to prepare his defense and protect him from double jeopardy. People v. Allen, 56 Ill.2d 536, 542-43, 309 N.E.2d 544 (1974). Defendant argues the felony murder instruction caused unfair surprise and prejudice because he was only charged with intentional and knowing first degree murder. 720 ILCS 5/9-1(a)(1), (a)(2) (West 1994). A jury may be instructed on felony murder even if felony murder was not specifically charged. People v. Maxwell, 148 Ill.2d 116, 170 Ill.Dec. 280, 592 N.E.2d 960 (1992). "[T]he law in Illinois recognizes only one offense of murder; thus, there is no requirement that a defendant be charged specifically under section 9-1(a)(3) [(Ill.Rev.Stat.1985, ch. 38, par. 9-1(a)(3) (now 720 ILCS 5/9-1(a)(3) (West 1996)))] in order to be convicted under the felony murder theory." People v. Jackson, 233 Ill.App.3d 1089, 1096, 175 Ill.Dec. 178, 599 N.E.2d 1192 (1992). The court in Jackson found the defendant was protected from double jeopardy because if defendant was charged and acquitted under section 9-1(a)(1), he could not be tried for the murder of the same individual under subparagraph (a)(2) or (a)(3). Jackson, 233 Ill. App.3d at 1097, 175 Ill.Dec. 178,599 N.E.2d 1192. The court in Jackson found no unfair surprise or prejudice because the defendant was aware of the felony murder theory from the instruction conference. Jackson, 233 Ill.App.3d at 1098,175 Ill. Dec. 178,599 N.E.2d 1192.

In this case, before trial the State informed defendant and the trial judge that it sought to add a felony murder charge to the charge of intentional and knowing murder. The trial judge denied the request but put the defense on notice that a felony murder instruction would be given if supported by the evidence. Defendant knew that it was necessary to prepare a defense against the charges of aggravated discharge of a firearm, contained in his indictment and serving as the predicate felony for the felony murder theory. Defendant was also well aware of the State's theory that the killing of Phillip Matthews occurred during the commission of this predicate felony. We find no abuse of discretion by the trial judge in instructing the jury on felony murder because defendant suffered no unfair surprise or prejudice and was informed of the offense with sufficient specificity to allow him to prepare his defense and to avoid double jeopardy.

Defendant additionally argues the felony murder instruction was improperly given because aggravated discharge of a firearm cannot serve as a predicate felony for felony murder. A defendant commits aggravated discharge of a firearm when he...