People v. Davis
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Docket No. 105092.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
JERMAINE DAVIS, Appellant.
Opinion filed May 21, 2009.
JUSTICE THOMAS delivered the judgment of the court, with
opinion.
Chief Justice Fitzgerald and Justices Freeman, Kilbride, Garman,
Karmeier, and Burke concurred in the judgment and opinion.
OPINION
Defendant, Jermaine Davis, was charged with aggravated battery,
armed robbery and first degree murder. The first degree murder
charge was brought under three different theories–intentional murder,
knowing murder (also called strong probability murder), and felony
murder. See 720 ILCS 5/9–1(a) (West 2004). The intentional and
strong probability murder counts each alleged that defendant and his
two codefendants–Maurice Thomas and Edward Durant–beat and
killed the victim “with their fists, feet and a board.” The felonymurder count alleged that defendant and the others beat and killed the
victim “with their fists, feet and a board during the commission of a
forcible felony, to wit: aggravated battery.” The aggravated battery
count likewise alleged that defendant and the others beat the victim
“with their fists, feet and a board.” A jury in the circuit court of Cook
County returned a general verdict of guilty against defendant on the
first degree murder charge, as well as a guilty verdict on the offense
of aggravated battery. Defendant was sentenced to serve 25 years in
prison.
Defendant appealed, arguing, inter alia, that (1) the cause must be
remanded for a hearing under Batson v. Kentucky, 476 U.S. 79, 90 L.
Ed. 2d 69, 106 S. Ct. 1712 (1986), because the trial court improperly
collapsed the three-step Batson process and allowed the State’s
peremptory challenge of an African-American venire member without
engaging in the third stage of the analysis, and (2) because the
conduct forming the basis of his aggravated battery was inherent in
the murder, the trial court erred in instructing the jury it could convict
him of felony murder predicated on aggravated battery. The appellate
court rejected those claims and affirmed defendant’s convictions and
sentence. No. 1–05–1251 (unpublished order under Supreme Court
Rule 23). We allowed defendant’s petition for leave to appeal. 210 Ill.
2d R. 315.
On our initial consideration of this case, we agreed with defendant
that the trial court impermissibly collapsed the three-step Batson
process. Accordingly, we remanded the cause for a full Batson
hearing, beginning with the prima facie stage and with the
understanding that it was possible that the Batson inquiry could end
there if defendant failed to establish a prima facie case of racial
discrimination. See People v. Davis, 231 Ill. 2d 349, 369 (2008). We
also urged the trial court to make a proper record with findings of fact
and conclusions of law, while at the same time we recognized that
some determinations might be difficult to make now that several
years had elapsed since the voir dire proceedings. See Davis, 231 Ill.
2d at 364, 366, 368-69.
On January 16, 2009, the trial court conducted the hearing
required by our remand and then entered a written order, specifying
its findings of fact and conclusions of law. The trial court ultimately
concluded that defendant failed to establish a prima facie case of
racial discrimination. The case now comes back to us for our
resolution of the Batson issue in light of the proceedings conducted
below and the trial court’s findings. We also now address the
remaining pending issue related to the felony-murder instruction.
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BACKGROUND
The relevant facts prior to remand were fully set forth in our
previous opinion. We will reiterate the necessary facts so as to
provide a proper framework for our disposition, including facts
relative to the issue that resulted in remand.
Defendant’s trial began on February 20, 2004, with voir dire.
Defense counsel questioned venireman Robert Hicks in the course of
selecting the jury. That questioning revealed that Hicks was a retired
janitor, who had lived in Chicago since 1970. When asked if he could
be a fair juror if selected, Hicks said, “I think so.” Defense counsel
followed this up by asking if Hicks was “comfortable [that he could]
be fair.” Hicks responded, “I am comfortable.” The prosecutor did not
ask any questions of Hicks.
Voir dire proceeded, and after one additional prospective juror
was questioned, the prosecutor announced that he would exercise a
peremptory challenge to Hicks. At that point, defense counsel
requested a discussion with the court off the record. Upon returning
to the record, the trial court decided to conduct its own inquiry into
whether the State had committed a Batson violation in its challenge
to Hicks.
During its inquiry, however, the trial court did not follow the
methodical three-step approach delineated by Batson and required by
our case law as follows: (1) the defendant must make out a prima
facie showing that the prosecutor exercised a peremptory challenge
on the basis of race; (2) the burden then shifts to the prosecutor to
provide a race-neutral reason for excluding the juror in question; and
(3) the trial court then weighs the evidence and determines if the
defendant proved purposeful discrimination. People v. Easley, 192 Ill.
2d 307, 323-24 (2000); People v. Munson, 171 Ill. 2d 158, 174
(1996). The trial court did not consider the first step and made no
finding that a prima facie case had been established. Instead, the trial
court jumped to the second step, found that the State’s proffered
rationale for excluding Hick’s was race neutral, and then ended its
analysis there.
Voir dire was eventually completed and the case proceeded to the
evidentiary portion of the trial, where it was established that a group
of men beat Demetrius Thomas unconscious on October 10, 1999,
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near a Chicago housing project. A Chicago Housing Authority police
officer responded to a call about the incident and found Demetrius
Thomas lying in a garbage dumpster. The victim was taken to a
hospital and remained in a coma for two months before he died of an
infection that resulted from the brain injuries he suffered in the
beating.
Quincy Campbell was a key witness that testified on behalf of the
State. He had a criminal record and was a suspect in the case until he
gave a statement to police. At trial, he stated that he witnessed a
group of men beat the victim. Campbell had difficulty at trial,
however, with names and events, claiming that he did not remember
any of the names of the people involved in the beating. But he did
acknowledge at trial that he had given a written statement to police on
January 3, 2000, about the incident. According to Campbell’s written
statement, he knew from the neighborhood four of the five men who
beat the victim. They were Maurice Thomas, Pee Wee (a.k.a. Edward
Durant), Hip Hop, and Kevin. Campbell identified defendant as Hip
Hop at trial.
Campbell’s written statement further indicated that during the
encounter, Pee Wee struck the victim with a stick three times.
Campbell described the stick used to beat the victim as a piece of cut
lumber. At one point, the victim got on his feet and ran. But Thomas,
Pee Wee, Kevin and defendant chased him around a building, where
the others began beating him again. When the victim fell to the
ground, defendant began striking him with his feet. At one point, Pee
Wee went through the victim’s pockets. While Campbell was
watching the beating, Thomas asked Campbell to act as a look out for
police, but Campbell refused. When the beating ended, defendant
picked up the victim by the collar and pants and tossed him into a
garbage dumpster. Campbell denied participating in the beating and
denied that the victim’s sister, Samara Sadler, was present.
Other evidence presented revealed that police conducted a lineup
on January 22, 2000, in which Campbell identified defendant. Later
that day, police confronted defendant with the fact of that
identification. Defendant then gave a written statement to an assistant
State’s Attorney in which defendant admitted his involvement in the
incident. According to that statement, defendant was “hanging out”
in the area when he saw Maurice Thomas bring the victim outside
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from the building. The victim broke free of Maurice’s grasp, ran
around the back of the building and entered a hallway on the first
floor. Maurice ran after him, and Maurice and Pee Wee proceeded to
beat the victim. Defendant “kept watch” from about two feet away to
make sure no one saw what was going on or tried to interfere. After
Maurice and Pee Wee finished the beating, the victim was lying face
down and unconscious. Defendant then grabbed him by the back of
his pants and shirt and threw him into a dumpster.
Samara Sadler, sister of the victim, testified for the defense. She
observed the victim come out of the building with Campbell and
Maurice Thomas. Campbell and Maurice then began hitting the
victim. She knew both Campbell and Maurice from the
neighborhood. The group ran around the building and Sadler
followed. When she got there, she observed the victim lying on the
ground and unconscious. Two or three men were around the victim,
and she did not know if one of them was defendant. She knew
defendant from the neighborhood, but testified that she did not see
defendant strike the victim at any time.
During its closing argument, the State argued that it was not
necessary that it prove defendant intended to kill the victim, but only
that defendant or one for whom he was accountable combined to do
an unlawful act, such as commit an aggravated battery and that the
victim was killed by one of the parties committing that act. Because
defendant was a part of the aggravated battery, he was legally
responsible for the victim’s death. The State noted that there were
three options for first degree murder, but it only had to prove one. The
State further argued that Durant (Pee Wee) knew there was a strong
probability of death when he hit the victim and that defendant was
accountable. However, even if the jury did not believe this, defendant
was still guilty of murder if he or someone he was accountable for
committed aggravated battery.
The jury was instructed on all three theories of first degree murder
as follows:
“A person commits the offense of first degree murder when
he kills an individual if in performing the acts which cause the
death, he intends to kill or do great bodily harm to that
individual, or he knows that such acts will cause death to that
individual, or he knows that such acts create a strong
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probability of death or great bodily harm to that individual, or
he is committing the offense of aggravated battery.” See
Illinois Pattern Jury Instructions, Criminal, No. 7.01 (4th ed.
2000).
The jury was also instructed that defendant could be held legally
accountable for the murder as follows:
“To sustain a charge of first degree murder, the State must
prove the following propositions:
First: That the defendant or one for whose conduct he is
legally responsible performed the acts which caused the death
of Demetrius Thomas, and second: That when defendant or
one for whose conduct he is legally responsible did so, he
intended to kill or do great bodily harm to Demetrius Thomas,
or he knew that his acts created a strong probability of death
or great bodily harm to Demetrius Thomas, or he was
committing the offense of aggravated battery.” See Illinois
Pattern Jury Instructions, Criminal, No. 7.02 & Committee
Note (4th ed. 2000).
Defendant objected to these instructions at trial on the basis that
they contained “accountability language.” Defendant, however, did
not object at trial to the instructions on the basis that they improperly
informed the jury that it could convict him of felony murder based on
aggravated battery. Defendant also did not object to the submission
of a general verdict form. The jury returned a general verdict finding
defendant guilty of first degree murder, and he was ultimately
sentenced to 25 years in prison.
Defendant filed a posttrial motion, claiming that the trial court
erred in ruling on the Batson issue that arose after the State’s use of
a peremptory challenge to an African-American venireman.
Defendant additionally argued that the court erred in giving IPI
Criminal 4th Nos. 7.01 and 7.02 because those instructions informed
the jury that it could convict defendant of felony murder based on
aggravated battery. Also, defendant argued that he was denied the
effective assistance of trial counsel when counsel failed to request a
special verdict form. The trial court denied the motion.
Defendant appealed, contending first that the cause should be
remanded for a new Batson hearing because the trial court improperly
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collapsed the three-step process. Defendant’s second contention was
that the trial court erred in instructing the jury that it could find him
guilty of felony murder predicated on aggravated battery. Defendant
did not argue, however, that his counsel was ineffective in failing to
request a special verdict form.
The appellate court first set out the three-step process for a Batson
claim as follows: (1) defendant must make a prima facie showing that
the prosecutor exercised a peremptory strike on the basis of race; (2)
the burden then shifts to the prosecutor to provide a race-neutral
reason for excluding the juror in question; and (3) the trial court then
weighs the evidence and determines if the defendant proved
purposeful discrimination. See No. 1–05–1251 (unpublished order
under Supreme Court Rule 23). The appellate court then found that
the State’s proffered reason was valid and rejected defendant’s claim
that the cause should be remanded for a Batson hearing. In so doing,
it affirmed the trial court’s finding that the prosecutor’s stated reason
for excluding Hicks was race neutral. The appellate court did not
address whether the trial court failed to consider the third stage of
Batson or whether it erred in asking for reasons for the State’s
challenge in the absence of a specific finding that a prima facie case
existed. Instead, the appellate court itself looked at jurors who gave
answers similar to venireman Hicks’ answers about whether they
could be fair, and it then determined from its review of the record that
each of these jurors possessed additional characteristics that might
have prompted the State to find them acceptable; therefore, it
concluded that the State’s articulated reasons were not pretextual. See
No. 1–05–1251 (unpublished order under Supreme Court Rule 23).
The appellate court next considered defendant’s claim that the
trial court committed reversible error in instructing the jury on felony
murder predicated on aggravated battery where the predicate felony
is inherent in the act of murder itself. See People v. Morgan, 197 Ill.
2d 404, 447 (2001). The appellate court found that even assuming
that the trial court erred in so instructing the jury, any error was
harmless. No. 1–05–1251 (unpublished order under Supreme Court
Rule 23), citing People v. Ruiz, 342 Ill. App. 3d 750, 756 (2003). The
court noted that Illinois law is clear that “ ‘ “where an indictment
contains several counts arising out of a single transaction, and a
general verdict is returned[,] the effect is that the defendant is guilty
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as charged in each count.” ’ ” No. 1–05–1251 (unpublished order
under Supreme Court Rule 23), quoting Morgan, 197 Ill. 2d at 448,
quoting People v. Thompkins, 121 Ill. 2d 401, 455 (1988). Thus, if
defendant is charged with intentional murder, strong probability
murder and felony murder, and the jury returns a general verdict
finding defendant guilty of murder, it raises a presumption that the
jury found that the defendant committed the most serious crime
charged, which is intentional murder. No. 1–05–1251 (unpublished
order under Supreme Court Rule 23), citing Morgan, 197 Ill. 2d at
448. Any error in instructing the jury on felony murder was therefore
harmless. No. 1–05–1251 (unpublished order under Supreme Court
Rule 23).
ANALYSIS
I. The Batson Issue
During the course of our initial review of this case, defendant
argued that we should remand the cause for a Batson hearing because
the trial court improperly collapsed the methodical three-step Batson
approach. Defendant claimed that the trial court omitted the first step
altogether and went directly to the second step of asking the State to
provide its reason for excusing Hicks. According to defendant, the
trial court then found the reason race neutral, but stopped there
without considering the third step, at which it was required to
evaluate the prosecutor’s explanation in light of all the circumstances
of the case and determine if defendant had proven purposeful
discrimination. Defendant contended that the prosecutor’s stated
reason for striking Hicks was pretextual, as it applied equally to jurors
who were not struck. Specifically, defendant pointed to answers given
by jurors Roy Hunninghaus, Kimberly Katulka and Peter Pick and
claimed that these jurors had equivocated in the same manner as
Hicks when asked whether they could be fair.
We noted in our initial opinion that when a trial court acts sua
sponte to conduct a Batson hearing, as it did here, it “ ‘must make an
adequate record consisting of all relevant facts, factual findings, and
articulated bases’ for its finding of a prima facie case.” People v.
Rivera, 227 Ill. 2d 1, 5 (2007), quoting People v. Rivera, 221 Ill. 2d
481, 515 (2006). Here, the trial court never even explained whether
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it had found a prima facie case of discrimination that would warrant
proceeding to the second stage of a Batson inquiry. We further noted
that our review was hampered by the inadequacy of the record made
at the initial hearing that was held below and that the cause therefore
had to be remanded for a Batson hearing that could potentially end at
stage one, depending on whether defendant was able to establish a
prima facie case. Davis, 231 Ill. 2d at 369. With respect to the first
stage of the inquiry, we noted that a court must consider “ ‘the totality
of the relevant facts’ and ‘all relevant circumstances’ surrounding the
peremptory strike to see if they give rise to a discriminatory purpose.”
Davis, 231 Ill. 2d at 360, quoting Batson, 476 U.S. at 93-94, 96-97,
90 L. Ed. 2d at 85-86, 88, 106 S. Ct. at 1721, 1723. We further noted
seven factors to consider when determining whether a defendant has
made a prima facie showing that a peremptory challenge was based
on race:
“(1) the racial identity between the party exercising the
peremptory challenge and the excluded venirepersons; (2) a
pattern of strikes against African-Americans on the venire; (3)
a disproportionate use of peremptory challenges against
African-Americans; (4) the level of African-American
representation in the venire compared to the jury; (5) the
prosecutor’s questions and statements of the challenging party
during voir dire examination and while exercising peremptory
challenges; (6) whether the excluded African-American
venirepersons were a heterogeneous group sharing race as
their only common characteristic; and (7) the race of the
defendant, victim and witnesses.” Davis, 231 Ill. 2d at 362,
citing Rivera, 221 Ill. 2d at 501.
Additionally, we noted that an important tool in assessing the
existence of a prima facie case is “ ‘comparative juror analysis,’
which examines ‘a prosecutor’s questions to prospective jurors and
the jurors’ responses, to see whether the prosecutor treated otherwise
similar jurors differently because of their membership in a particular
group.’ ” Davis, 231 Ill. 2d at 361, quoting Boyd v. Newland, 467
F.3d 1139, 1145 (9th Cir. 2006); see also Mitleider v. Hall, 391 F.3d
1039, 1049 n.9 (9th Cir. 2004) (conducting comparative-juror
analysis to discern whether differing life experiences justified the use
of a peremptory strike against an African-American venire member
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in a case where a prima facie showing had been made). But we
cautioned that comparative-juror analysis, standing alone, would not
necessarily be sufficient to prove purposeful discrimination. Davis,
231 Ill. 2d at 362, see also People v. Lenix, 44 Cal. 4th 602, 626, 187
P.3d 946, 963, 80 Cal. Rptr. 3d 98, 118 (2008). Rather, comparativejuror analysis is simply an additional form of evidence to be
considered and is just one factor in the totality of the circumstances
that the court should take into consideration in considering the
existence of a prima facie case. Davis, 231 Ill. 2d at 362; People v.
Lenix, 44 Cal. 4th at 626, 187 P.3d at 963, 80 Cal. Rptr. 3d at 118.
The trial court began the January 16, 2009, proceeding on remand
by first hearing from defense counsel. Counsel presented an official
Batson challenge to the peremptory strike of venireman Hicks. The
crux of the defense argument was that Hicks gave a similar answer to
three white jurors–i.e., Hunninghaus, Katulka and Pick–on the
question of whether he could be a fair juror. After hearing defense
counsel’s argument, the court asked a number of questions of defense
counsel relative to the seven Rivera factors. At the conclusion of the
hearing, the trial court made a preliminary finding that the defense
had not established a prima facie case. This finding was to be
followed by a written order.
In its written order entered on January 23, 2009, the trial court
duly noted the principles mentioned above that govern the prima facie
stage of a Batson hearing. The court then applied the law to its factual
findings. It began with the seven factors noted above.
First, the court found that the two prosecutors that exercised the
peremptory challenge against Hicks are Caucasian and Hicks is
African-American. Second, the court found that there was no
evidence of a pattern of strikes used against African-Americans. The
only other African-American excused by a peremptory challenge was
Andre Honorable.1 Third, the court found that there was no evidence
1
The State initially moved to excuse Honorable for cause because he
hesitated before stating that he could not remember if he or a family
member had ever been a victim of a crime, even though he marked “yes”
to that question on his juror questionnaire. The trial court denied the
challenge for cause. The State then used a peremptory challenge to excuse
Honorable. Defendant did not object to that strike, and he makes no Batson
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of a disproportionate number of peremptory strikes used against
African-Americans. Fourth, the court noted that the record does not
show the representation of African-Americans in the venire compared
to the jury, and defense counsel at the hearing could offer nothing by
way of comment on this factor. Fifth, the court considered the factor
involving any question or comments by the prosecutor during the
examination of the prospective juror who was struck and noted that
the record showed that the State did not question Hicks. Rather,
defense counsel questioned Hicks, and it was because of Hick’s
response to the question of whether he could be fair that the State
chose to strike him.
The court next considered the sixth factor of whether the excluded
African-American members were a heterogeneous group sharing race
as their only common characteristic. The court noted that during his
voir dire examination, Honorable informed the court that he was
employed as a truck driver. The court also noted that Honorable
further stated that one of his family members or friends was a victim
of a crime, but Honorable could not explain the situation. Honorable
was also previously a party to a lawsuit that involved his employer.
He further indicated that he liked to bowl and watch television.
During additional questioning, he indicated that his wife was a cook,
he had three adult children, and he read the Chicago Sun-Times.
Hicks, on the other hand, informed the court that he was retired, but
that he had previously worked as a janitor and a machine operator.
Hicks had never married. He liked to fish, watch comedies and he
obtained his news from channel 9. He had no close friends or family
that were either police officers or prosecutors.
With respect to the seventh factor, the court determined that the
defendant, the victim and all eyewitnesses to the case were AfricanAmerican. The court also noted that there were white police officers
and a white assistant State’s Attorney who testified at trial.
Finally, the trial court engaged in a comparative-juror analysis of
Hicks with jurors Hunninghaus, Katulka and Pick. The court noted
that defense counsel identified these three as venire members that
were ultimately selected for the jury and who provided answers
argument with respect to Honorable before this court.
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similar to Hicks’ answers when asked about their ability to be fair
jurors. The court found, however, that there were significant
differences between Hicks and the three selected jurors in question.
The trial court specifically noted that Hunninghaus’ wife
practiced personal injury law and that Hunninghaus had previously
sat on a jury that reached a verdict. Also, Hunninghaus had been a
victim of a residential burglary, where the burglar was apprehended,
and Hunninghaus held no ill will against the police or the State’s
Attorney’s office as a result. The court found that these were
important characteristics and experiences applicable to Hunninghaus,
but not to Hicks, from which the prosecutors could have concluded
that Hunninghaus was a more favorable juror than Hicks despite his
answer to the voir dire question at issue.
The court made a similar finding with respect to Katulka, noting
that she had previously served on a jury that had reached a verdict.
She also watched the television show Law and Order. These were
significant favorable characteristics that defendant did not share with
Katulka. Additionally, the State may have considered her more
favorable because both the question asked of her and the response she
gave differed from the question and answer relative to Hicks. Katulka
responded “I believe I can” when asked by the prosecutor if she could
be fair to “both sides of the case.” This must be considered in
combination with the fact that just before her response noted above,
Katulka had answered “yes,” without any hesitation or qualification,
to the prosecutor’s question of whether she could sign a guilty verdict
if the State met its burden to prove defendant guilty beyond a
reasonable doubt.
Similarly, the court found that there was a key difference between
Pick and Hicks. Even though Pick and Hicks provided the same
response, the question presented to Pick was different from the
question presented to Hicks. The record shows that the question
posed to Hicks was whether he could be fair, but the question to Pick
was whether he could be fair to defendant. The court found that the
generality of the question posed to Hicks compared to the specificity
of the question asked of Pick justified a different interpretation of the
two venire members’ similar response of “I think so.”
In view of the above-noted factual findings, the trial court found
that the three venire members identified by defendant for comparison
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with Hicks possessed specific characteristics that differed from Hicks
from which it could be concluded that those jurors would be more
favorable to the State than Hicks. According to the trial court, the
State’s decision not to use a peremptory challenge on those venire
persons was therefore justified.
The trial court in its written order concluded that defendant failed
to establish a prima facie case of racial discrimination in connection
with the peremptory strike of Hicks, stating as follows:
“Considering the relevant factors when determining
whether a prima facie showing has been made that a Batson
violation occurred and after conducting comparative juror
analysis, this Court finds that the defense has failed to present
a prima facie case that a violation occurred. This finding is
based on the record, assertion of the attorneys, and the report
of proceedings.
Moreover, this Court notes that all of the attorneys
involved in this matter have appeared before this Court on
numerous occasions. Based on this long standing interaction,
this Court is of the opinion that State’s Attorneys [Greg]
Ahern and [Joe] Keating, along with Public Defenders
Brendan Max and Preston Jones, an African American, are
extremely professional and credible attorneys with the highest
ethical standards.”
We note that generally a trial court’s ultimate conclusion on a
Batson claim will not be overturned unless it is clearly erroneous; this
deferential standard is appropriate because of the trial court’s pivotal
role in the evaluation process. Davis, 231 Ill. 2d at 364, citing Snyder
v. Louisiana, 552 U.S. ___, ___, 170 L. Ed. 2d 175, 181, 128 S. Ct.
1203, 1207-08 (2008); see also Munson, 171 Ill. 2d at 175 (court’s
findings with respect to a Batson inquiry are entitled to great
deference, and this includes the ultimate determination on
discriminatory intent, which is subject to the “clearly erroneous”
standard of review).2 Moreover, the party asserting a Batson claim has
2
We are mindful that Rivera, 227 Ill. 2d at 11-12, applied a de novo
standard of review to the ultimate conclusion in a Batson case. But it did
so where the trial court affirmatively found that a prima facie case existed
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the burden of proving a prima facie case and preserving the record,
and any ambiguities in the record will be construed against that party.
Davis, 231 Ill. 2d at 365.
After carefully reviewing the record pertaining to the original voir
dire proceeding and the hearing on remand, we conclude that the trial
court correctly found that defendant failed to establish a prima facie
case for a Batson violation. The court correctly concluded that the
seven Rivera factors, taken as a whole, do not support an inference of
a discriminatory purpose in the successful challenge to Hicks. There
was no evidence of any pattern of striking African-Americans from
the jury, nor was there any evidence that African-Americans were
disproportionately represented on the jury compared to the venire or
that a disproportionate number of strikes were used against AfricanAmericans. The facts pertaining to the other Rivera factors were
unremarkable in the overall context of this case. Additionally, the
comparison of the jurors in question to Hicks revealed that there were
significant and legitimate differences that distinguished Hicks from
those jurors, making them a better choice for the State. Under the
circumstances, we are unable to say that trial court’s determination on
remand was clearly erroneous.
II. The Felony-Murder Instruction
Defendant next argues that the trial court erred when it instructed
the jury that it could convict him of murder based on aggravated
battery. He maintains that the first degree murder counts were
predicated on the same acts as alleged in the aggravated battery
count–defendants beat the victim “with their fists, feet and a board.”
Defendant insists that under the authority of People v. Morgan, 197
Ill. 2d 404, 447 (2001), and People v. Pelt, 207 Ill. 2d 434, 442
even though no party had even raised a Batson objection at any point. The
standard of review enunciated in Rivera is not applicable here, however,
because the trial court did not act to find that a prima facie case existed,
and defendant on remand specifically raised a formal Batson objection and
was fully allowed to make all arguments in support of his objection. Thus,
the usual “clearly erroneous” standard of review is applicable.
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(2003), an aggravated battery count cannot serve as a basis for felony
murder when the predicate felony is inherent in the murder itself.
In response, the State contends that the appellate court correctly
concluded that any error was harmless under the one-good-count
presumption. We agree with the State that any error with the felonymurder instruction was harmless.
Defendant was charged with three different theories of first degree
murder–intentional, knowing and felony murder–for the single
killing. Our first degree murder statute describes three mental states
or conduct that can accompany the acts that cause the murder. A
defendant can (1) intend to kill or do great bodily harm to the victim
(intentional murder), (2) know that his acts create a strong probability
of death or great bodily harm to the victim (knowing murder, also
known as strong probability murder), or (3) attempt or commit a
forcible felony other than second degree murder (felony murder). See
720 ILCS 5/9–1(a) (West 2004). Here, a general verdict form was
submitted to the jury and it returned a general verdict of guilty of first
degree murder. Defendant did not object to the general verdict form.
It is well settled that when an indictment alleges three forms for a
single murder–intentional, knowing and felony murder–and a general
verdict is returned, the net effect is that the defendant is guilty as
charged in each count and there is a presumption that the jury found
that the defendant committed the most serious of the crimes alleged,
which is intentional murder. Morgan, 197 Ill. 2d at 448; People v.
Cardona, 158 Ill. 2d 403, 411 (1994); People v. Thompkins, 121 Ill.
2d 401, 455 (1988).
In Morgan, the defendant was indicted on eight counts for killing
his grandparents. The defendant obtained a gun to shoot himself, but
instead fired off a shot in his grandparents’ bathroom at a bottle. The
defendant claimed that he feared for his life when he saw how angry
his grandfather became over the incident, so the defendant shot the
grandfather. He then shot the grandmother in the back as she
attempted to flee the house. Regarding each victim, the defendant was
charged with three separate theories of murder, including first degree
murder predicated on aggravated battery. Defendant was found guilty
of the first degree murder of the grandmother and the second degree
murder of the grandfather. This court held that the trial court erred in
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instructing the jury on felony murder where the predicate felony arose
from and was inherent in the murder. Morgan, 197 Ill. 2d at 447-48.
In so holding, this court distinguished People v. Viser, 62 Ill. 2d
568 (1975), on the basis that there the charges of felony murder arose
from the cause and effect relationship between the crime
committed–aggravated battery–and the resulting murder. Morgan,
197 Ill. 2d at 446-47. In Viser, the victim died of abdominal injuries
two weeks after he was beaten by a group of men. Morgan found that
the “cause and effect relationship between the crime committed and
the resulting murder [was] not so clear” in the case before it. Morgan,
197 Ill. 2d at 447. Morgan noted that it was arguable that “it was not
the predicate felonies which resulted in and caused the murders of
[the grandparents], but rather it was the murders *** which gave rise
to the predicate felonies.” Morgan, 197 Ill. 2d at 447. This court
agreed with the appellate court that every shooting necessarily
encompasses conduct constituting aggravated battery and that
potentially all fatal shootings could be charged as felony murder
predicated on aggravated battery, effectively eliminating the second
degree murder statute and the need to prove an intentional and
knowing murder in most cases. Morgan, 197 Ill. 2d at 447. This court
also agreed with the appellate court’s holding that “the predicate
felony underlying [the] charge of felony murder must have an
independent felonious purpose.” Morgan, 197 Ill. 2d at 458.
Even though this court found error, however, it did not end its
analysis there. Morgan next found that the error was not a reversible
one because the jury returned a general verdict of guilty of first degree
murder. Morgan noted that it is well settled that “ ‘ “where an
indictment contains several counts arising out of a single transaction,
and a general verdict is returned[,] the effect is that the defendant is
guilty as charged in each count.” ’ ” Morgan, 197 Ill. 2d at 448,
quoting People v. Thompkins, 121 Ill. 2d 401, 455 (1988), quoting
People v. Lymore, 25 Ill. 2d 305, 308 (1962). A general verdict
charging three theories of murder raises the presumption that the
defendant committed the most serious crime alleged: intentional
murder. Morgan, 197 Ill. 2d at 448. Thus, this court in Morgan
presumed that the jury found defendant guilty of the most serious
crime alleged, the intentional murder of the grandmother. Morgan,
197 Ill. 2d at 448.
-16-
Defendant argues that the one-good-count presumption as set
forth in Morgan should not apply in this case because here defendant
was charged with and convicted of aggravated battery, whereas the
defendant in Morgan was not. He further complains that the
prosecutor emphasized at closing argument that if defendant was
guilty of aggravated battery he had to be guilty of felony murder.
Defendant also attempts to distinguish Morgan on the basis that
felony murder predicated on accountability was not an instruction
given in Morgan. According to defendant, an accountability
instruction directs the jury’s attention away from other counts of
murder by telling it that none of the participants had to intend to kill
the victim, but only had to commit aggravated battery.
We do not find defendant’s arguments persuasive. In Cardona,
the defendant was also charged with and convicted of the underlying
felony that formed the basis of the felony-murder conviction and the
jury was given an accountability instruction, yet this court still
applied the presumption that defendant was guilty of intentional
murder when the jury returned a general verdict. Cardona, 158 Ill. 2d
at 411-13. Cardona found that it was enough that there was
“sufficient evidence” presented from which it could be concluded that
the defendant was guilty, under a theory of accountability, of the
offense of murder committed with the intent to kill or do great bodily
harm. Cardona, 158 Ill. 2d at 412-13. Similarly, as we will explain
more fully below, the evidence here was sufficient to show that
defendant committed intentional or knowing murder under a theory
of accountability.
Defendant additionally points to two juror affidavits that he
attached to his posttrial motion to show that the jury relied upon the
felony-murder count to reach a guilty verdict of first degree murder.
Defendant’s reliance on the affidavits, however, is not proper. It is
well settled that evidence which relates to the motive, method, or
process of deliberations is inadmissible to impeach a verdict. People
v. Nitz, 219 Ill. 2d 400, 426 (2006).
Finally, defendant relies upon the principle that when one of the
theories that the trial court submits to the jury is unconstitutional, the
error is not cured by a general verdict. See, e.g., Stromberg v.
California, 283 U.S. 359, 368-70, 75 L. Ed. 1117, 1122-23, 51 S. Ct.
532, 535-36 (1931) (conviction based on a general verdict could not
-17-
stand where one of the three possibilities rested on a provision that
was unconstitutional under the first amendment); Williams v. North
Carolina, 317 U.S. 287, 292, 87 L. Ed. 279, 282, 63 S. Ct. 207, 210
(1942); Sandstrom v. Montana, 442 U.S. 510, 526, 61 L. Ed. 2d 39,
52, 99 S. Ct. 2450, 2460 (1979); but cf. Yates v. United States, 354
U.S. 298, 312, 1 L. Ed. 2d 1356, 1371, 77 S. Ct. 1064, 1073 (1957)
(court extended, in sub silentio fashion, the holding of Stromberg to
include nonconstitutional errors).
In Griffin v. United States, 502 U.S. 46, 116 L. Ed. 2d 371, 112
S. Ct. 466 (1991), the Supreme Court appeared to limit Stromberg
and its progeny, upon which defendant relies. Griffin observed that
Stromberg “do[es] not necessarily stand for anything more than the
principle that, where a provision of the Constitution forbids
conviction on a particular ground, the constitutional guarantee is
violated by a general verdict that may have rested on that ground.”
Griffin, 502 U.S. at 53, 116 L. Ed. 2d at 379, 112 S. Ct. at 471.
Griffin noted that Stromberg was based on the fact that the statute in
question criminalized conduct that was protected by the first
amendment. On the other hand, Griffin noted that there was a long
historical practice of validating general verdicts returned on
multicount indictments where one or more of the counts were legally
defective, so long as the general verdict was legally supportable on
one of the submitted grounds, even though there was no assurance
that the valid ground, rather than an invalid one, was actually the
basis of the jury’s action. Griffin, 502 U.S. at 49-51, 116 L. Ed. 2d at
376-77, 112 S. Ct. at 469-70. Thus, Griffin saw a difference between
counts that were invalid because they violated a provision of the
constitution as opposed to counts that were merely invalid because
they were legally defective. In the present case, the felony-murder
count would, at most, be legally invalid, not constitutionally invalid.
Griffin also discussed at length the Court’s decision in Yates,
which extended the holding in Stromberg. Yates involved a federal
prosecution where one of the counts included in the general verdict
was barred by the statute of limitations and thus was simply legally
defective, not constitutionally defective. Yet, Yates refused to apply
the one-good-count presumption. Griffin criticized Yates, noting that
it was an “unexplained extension” of Stromberg, and that it did not
even invoke the “unlikely basis” of the due process clause. Griffin,
-18-
502 U.S. at 55-56, 116 L. Ed. 2d at 380, 112 S. Ct. at 472. In the end,
however, the Griffin Court noted that its “continued adherence to the
holding of Yates is not at issue in this case.” Griffin, 502 U.S. at 56,
116 L. Ed. 2d at 380, 112 S. Ct. at 472. This was because the
petitioner in Griffin was seeking to set aside the general verdict
merely because it was unsupported by sufficient evidence, not
because it was unconstitutional as in Stromberg or even illegal as in
Yates. Griffin, 502 U.S. at 56, 116 L. Ed. 2d at 380, 112 S. Ct. at 472.
Defendant argues that applying the presumption in this case
would violate due process, claiming the challenged instruction
allowed a conviction on a nonexistent offense–namely, felony murder
predicated on aggravated battery–and this was akin to permitting the
jury to convict without finding every element of a valid theory of an
offense. Defendant initially cites Johnson v. United States, 805 F.2d
1284, 1288 (7th Cir. 1986), Adams v. Murphy, 653 F.2d 224, 225 (5th
Cir. 1981), and Evanchyk v. Stewart, 340 F.3d 933, 941 (9th Cir.
2003), for this proposition. We note, however, that these cases
address due process in the context of convictions and punishment for
nonexistent crimes. See Johnson, 805 F.2d at 1288; Adams, 653 F.2d
at 224-25; Evanchyk, 340 F.3d at 941; see also Osborne v. Ohio, 495
U.S. 103, 122-25, 109 L. Ed. 2d 98, 117-19, 110 S. Ct. 1691, 1703-05
(1990). In contrast, felony murder predicated on aggravated battery
is a legally existent crime in Illinois. The Code of Criminal Procedure
of 1961 expressly defines felony murder predicated on aggravated
battery as a crime. See 720 ILCS 5/9–1(a)(3) (West 2006); 720 ILCS
5/2–8 (West 2006). Moreover, this court in People v. Viser, 62 Ill. 2d
568, 580 (1975), held that felony murder predicated on aggravated
battery is a valid and existing crime under nearly identical
circumstances to the present case. Viser has never been overruled by
this court, and was essentially reaffirmed by our most recent decision
in this area in People v. Davis, 213 Ill. 2d 459, 475 (2004). Thus,
defendant’s argument that there was a due process violation in this
case is not supportable based on Johnson, Adams and Evanchyk.
While the instant case was on remand to the trial court for a new
Batson hearing, the United States Supreme Court decided Hedgpeth
v. Pulido, 555 U.S. ___ , 172 L. Ed. 2d 388, 129 S. Ct. 530 (2008)
(per curiam). We allowed defendant leave to cite this case as
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additional authority to support his argument that the one-good-count
presumption should not be applied to this case.
In Pulido, the defendant was convicted by a California state court
jury of felony murder. On direct appeal, the defendant sought to
vacate his conviction on the basis that jury instructions erroneously
permitted him to be convicted of felony murder if he formed the
intent to aid and abet the underlying felony only after the murder. The
California Supreme Court held that this theory was invalid under
California law, but upheld the conviction on the ground that the
defendant was not prejudiced by this error. Defendant obtained
habeas relief in federal district court, which was affirmed by the
Court of Appeals, Ninth Circuit. See Pulido v. Chrones, 487 F.3d 669
(9th Cir. 2007) (per curiam). The court of appeals held that the jury
instruction error was a “ ‘structural error,’ ” which required that the
conviction be set aside “without regard to whether the flaw in the
instructions prejudiced the defendant.” Pulido, 555 U.S. at ___, 172
L. Ed. 2d at 390, 129 S. Ct. at 530.
The Supreme Court vacated the judgment of the court of appeals
and remanded the cause to determine if the defendant was prejudiced
by the error. Pulido, 555 U.S. at ___, 172 L. Ed. 2d at 392, 129 S. Ct.
at 533. The Supreme Court noted that the court of appeals had based
its “structural error” analysis upon Stromberg, which addressed the
validity of a general verdict that rested on an instruction that indicated
that the defendant could be found guilty of constitutionally protected
conduct. Pulido, 555 U.S. at ___, 172 L. Ed. 2d at 391, 129 S. Ct. at
531. Pulido then observed that Yates extended the reasoning of
Stromberg to a conviction resting on multiple theories of guilt when
one of those theories is not unconstitutional, but is otherwise legally
flawed. Pulido, 555 U.S. at ___, 172 L. Ed. 2d at 391, 129 S. Ct. at
531-32. The Supreme Court in Pulido did not discuss Griffin and its
criticism of Yates. Moreover, the issue before the Supreme Court in
Pulido did not involve the full scope of the Stromberg rule or the
continued viability of the one-good-count presumption. Instead, the
limited issue was whether a Stromberg/Yates type error is a
“structural error” that requires automatic reversal or whether such an
error is instead subject to a harmless-error analysis. Relying upon
analogous cases, the Supreme Court in Pulido easily concluded that
in cases where a jury is instructed on multiple theories of guilt, one
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of which is improper, a harmless-error analysis is applicable. Pulido,
555 U.S. at ___, 172 L. Ed. 2d at 391, 129 S. Ct. at 532 (citing Neder
v. United States, 527 U.S. 1, 10-11, 144 L. Ed. 2d 35, 47-48, 119 S.
Ct. 1827, 1834-35 (1999) (omission of material element from jury
instructions was harmless), California v. Roy, 519 U.S. 2, 136 L. Ed.
2d 266, 117 S. Ct. 337 (1996) (erroneous aider and abettor
instruction), Pope v. Illinois, 481 U.S. 497, 95 L. Ed. 2d 439, 107 S.
Ct. 1918 (1987) (misstatement of an element of an offense), and Rose
v. Clark, 487 U.S. 570, 92 L. Ed. 2d 460, 106 S. Ct. 3101 (1986)
(erroneous burden-shifting as to an element of an offense)); Chapman
v. California, 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967)
(constitutional errors can be harmless).
The Court continued its analysis by stating as follows:
“[W]e emphasized in Rose that ‘while there are some errors
to which [harmless-error analysis] does not apply, they are the
exception and not the rule.’ [Citation.] And Neder makes
clear that harmless-error analysis applies to instructional
errors so long as the error at issue does not categorically ‘
“vitiat[e] all the jury’s findings.” ’ [Citation.] An instructional
error arising in the context of multiple theories of guilt no
more vitiates all the jury’s findings than does omission or
misstatement of an element of the offense when only one
theory is submitted.
In fact, drawing a distinction between alternative-theory
error and the instructional errors in Neder, Roy, Pope, and
Rose would be ‘patently illogical,’ given that such a
distinction ‘ “reduces to the strange claim that, because the
jury ... received both a ‘good’ charge and a ‘bad’ charge on
the issue, the error was somehow more pernicious than ...
where the only charge on the critical issue was a mistaken
one.” ’ [Citations.]” (Emphases in original.) Pulido, 555 U.S.
at ___, 172 L. Ed. 2d at 391-92, 129 S. Ct. at 532.
In so finding, the Pulido Court emphasized that both Stromberg
and Yates were decided before Champman concluded that
constitutional errors can be harmless. Pulido, 555 U.S. at ___, 172 L.
Ed. 2d at 391, 129 S. Ct. at 532. Accordingly, neither Stromberg nor
Yates had any reason to address whether the errors they identified
could be reviewed for harmlessness, or instead required automatic
-21-
reversal. Pulido, 555 U.S. at ___, 172 L. Ed. 2d at 391, 129 S. Ct. at
532.
We note that defendant after remand has cited our recent decision
in People v. Smith, Nos. 104685, 105575 cons. (April 2, 2009), to
support his argument that the one-good-count rule should not apply
to insulate from review any error with respect to the felony-murder
instruction. He also claims that Smith supports his contention that any
such alternate-theory instructional error should not be subject to a
harmless-error analysis. We find Smith inapplicable to the present
case.
Smith involved a defendant who was charged with three theories
for a single murder (intentional, knowing and felony murder), plus the
underlying felony of attempted armed robbery. He specifically
requested a special verdict form, but that request was denied by the
trial court. A general verdict form was then used, and the jury
returned a general verdict of guilty of murder. At sentencing, the trial
court found that the defendant clearly committed intentional murder.
The court imposed a 60-year sentence for murder and a consecutive
8-year sentence for attempted armed robbery. The appellate court
observed that had the jury found defendant guilty of felony murder
premised on attempted armed robbery and not guilty of both
intentional and knowing murder, defendant would not have been
eligible to be sentenced to a consecutive sentence on the attempted
armed robbery conviction. People v. Smith, 372 Ill. App. 3d 762, 771
(2007). The appellate court found it was error to refuse the
defendant’s request for a special verdict form in such a case, but
nevertheless affirmed the murder conviction and modified the eightyear sentence to run concurrently. Smith, 372 Ill. App. 3d at 771-72.
This court in Smith affirmed the murder conviction, but vacated
the conviction and sentence for attempted armed robbery. In so doing,
this court’s holding was narrow: “where, as here, specific findings by
the jury with regard to the offenses charged could result in different
sentencing consequences, favorable to the defendant, specific verdict
forms must be provided upon request and the failure to provide them
is an abuse of discretion.” (Emphasis added.) Smith, slip op. at 17.
This court was also careful to note that the defendant was not arguing
that his convictions for murder should be set aside and was not
repudiating the “one good count rule.” Smith, slip op. at 16. This
-22-
court concluded by finding that the error of refusing the defendant’s
request where it could ultimately be key to his receiving more severe
sentencing was not subject to a harmless-error analysis. Smith, slip
op. at 16, 18.
The present case is a world away from Smith. Here, defendant did
not object to the general verdict form and did not request a special
verdict form. Again, the holding of Smith was conditioned on the trial
court’s refusal to grant such a request and did not establish a rule that
the court must act sua sponte to give a specific verdict form.
Additionally, defendant is challenging the validity of the one-goodcount rule, something which was expressly not done in Smith. Finally,
we note that Stromberg-like errors, such as the one here, have now
been specifically held by the United States Supreme Court to be
subject to a harmless-error analysis and are not structural defects that
require automatic reversal. Pulido, 555 U.S. at ___, 172 L. Ed. 2d at
391, 129 S. Ct. at 532.
Turning to the case before us, we note that even if we were to find
that a constitutional due process error occurred in instructing the jury
on felony murder or that the one-good-count presumption is
questionable, it would still not require automatic reversal of
defendant’s murder conviction. See Pulido, 555 U.S. ___, 172 L. Ed.
2d 388, 129 S. Ct. 530; Chapman, 386 U.S. 18, 17 L. Ed. 2d 705, 87
S. Ct. 824. The Supreme Court has applied a harmless-error analysis
to a wide variety of errors and has recognized that most constitutional
errors are subject to a harmless-error analysis. See, e.g., Pulido, 555
U.S. at ___, 172 L. Ed. 2d at 391, 129 S. Ct. at 532-33; Neder, 527
U.S. at 10-11, 144 L. Ed. 2d at 47-48, 119 S. Ct. at 1834-35
(omission of material element from jury instructions was harmless).
Accordingly, we hold that the instant felony-murder instruction, even
if erroneous, was a typical trial error that did not amount to a
structural defect that required automatic reversal. It would be
analogous to the Apprendi cases that we have decided such as People
v. Nitz, 219 Ill. 2d 400 (2006), and People v. Thurow, 203 Ill. 2d 352
(2003), where we found that the error of not submitting every
essential element of an offense to the jury for consideration was
subject to either a harmless-error analysis if defendant made a trial
objection or a plain-error analysis if defendant did not object. Under
plain-error review, which is applicable to this case due to defendant’s
-23-
lack of an objection at trial,3 the defendant has the burden to persuade
the court that the error was prejudicial, that is, defendant must show
that the evidence was so closely balanced that the error alone
threatened to tip the scales of justice against him. Nitz, 219 Ill. 2d at
410, 414.
Again, we note that in the case before us, defendant did not object
to the general verdict form, nor did he object to the felony-murder
instruction on the basis that it was improperly predicated on
aggravated battery. Thus, a plain-error analysis is appropriate,
assuming arguendo that defendant is correct in his contention that a
straightforward application of the one-good-count presumption would
be faulty.
It is axiomatic that a defendant is legally accountable for the
crimes of his codefendants where defendant aids and abets the
commission of those crimes during their actual commission. Here,
defendant was legally accountable for the actions and mental states
of his codefendants. The two good counts–the intentional and strong
probability murder counts–only required the State to prove that
defendant, or one for whom he was legally accountable, either
intended to do great bodily harm to the victim or knew that his acts
that caused the death created a strong probability of great bodily
harm. See 720 ILCS 5/9–1(a)(1), (a)(2) (West 2004). Here, the record
shows that defendant and his co-assailants repeatedly beat the victim
until he reached a state of unconsciousness. After defendant saw the
victim lapse into unconsciousness, defendant picked him up and
threw him into a dumpster. Defendant acknowledged, and it was
undisputed, that he acted as a look out to facilitate the beating, during
which Edward Durant (Pee Wee) intentionally struck the victim
several times with a piece of lumber. The brain injuries suffered by
the victim were so serious that he never came out of his coma before
dying. Under these circumstances, we conclude that the evidence of
3
See People v. Enoch, 122 Ill. 2d 176, 186 (1988) (“Both a trial
objection and a written post-trial motion raising the issue are required for
alleged errors that could have been raised during the trial” (emphasis
omitted)). This principle encourages a defendant to raise issues before the
trial court, thereby allowing the court to correct its errors before the
instructions are given. People v. Piatkowski, 225 Ill. 2d 551, 564 (2007).
-24-
intentional and strong probability murder based on accountability was
not closely balanced, and therefore any error in instructing the jury on
felony murder was harmless.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the appellate
court, which affirmed defendant’s convictions and sentence.
Affirmed.
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