People v. Kidd
State: Illinois
Court: 4th District Appellate
Docket No: 4-95-0523
Case Date: 03/20/1998
NO. 4-95-0523
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Sangamon County
ANTONIO D. KIDD, ) No. 94CF0571
Defendant-Appellant. )
) Honorable
) Stuart H. Shiffman,
) Judge Presiding.
_________________________________________________________________
JUSTICE COOK delivered the opinion of the court:
After a jury trial, defendant was found guilty of first
degree murder (felony murder) and the aggravated battery of
Anthony Lipsey. 720 ILCS 5/9-1(a)(3), 12-4(a) (West 1994). On
appeal, defendant argues (1) the trial court erred in refusing
his proposed jury instructions for second degree murder, and (2)
his sentence of imprisonment should be credited with one addi-
tional day.
On October 6, 1994, Anthony Lipsey (the victim) and
Edwin Jones were walking down the street together when a man
farther down the street yelled "hey" at them. The man signaled
to a porch full of men to join him. Lipsey and Jones were then
surrounded by additional people who came from a nearby alley. A
white car pulled up near them and four or five people from the
car joined the crowd, including the defendant, Antonio Kidd, and
Donnie Brown. Defendant asserts he "wasn't thinking of nothing"
when he walked up to where Lipsey and Jones were standing. Jones
backed away from the crowd and stood across the street. An
argument ensued between Lipsey and the man who had yelled "hey,"
and the man hit Lipsey in the face.
A fight then broke out between Lipsey and several
members of the group, lasting approximately 5 to 10 minutes.
There is some dispute about who initiated the fight. Defendant
and Brown contend that Lipsey struck defendant on the side of the
head with his hand, while holding a can, causing defendant to
stagger backward. Jones, however, maintains that Lipsey did not
strike anyone before he was struck and that Lipsey threw punches
only in an attempt to defend himself. Jones did not see Lipsey
holding anything in his hands.
After Lipsey allegedly hit defendant, Brown and another
man grabbed Lipsey as he tried to run away and pulled him back
into the fight. Brown and the other man hit Lipsey until defen-
dant hit Lipsey "no more than three" times--twice in the face and
"probably" in the chest area. Defendant estimates 30 to 60
seconds elapsed between the time Lipsey struck defendant and
defendant hit Lipsey. During that time defendant decided it was
"time *** to get [his] licks in." Defendant admitted that at the
time he hit Lipsey, Lipsey did not put him in fear of his safety,
since Lipsey was being beaten by the other two men.
After the fight, all the men left the area. Jones went
over to Lipsey, helped him up, and walked him home. Lipsey
reported the incident to the police. Officer John Kohler of the
Springfield police department was on duty on October 6, 1994,
when Lipsey flagged him down. Lipsey told Kohler that he had
just been beaten up by four black males, who had also robbed him
about one week earlier. Lipsey explained that they beat him up
because they did not want him to press charges against them for
the prior robbery. Lipsey identified one of the men as defendant
Kidd. At trial, Edwin Jones testified that the people who beat
Lipsey were talking about someone taking money from Lipsey.
Cortessa Williams testified that on October 5, 1994, one day
before the fight, she heard a conversation between Sylvester
Anderson and defendant Kidd regarding someone they wanted to get
even with. Kidd stated that he had to get "him" for telling the
police on them, but did not name anyone in particular.
Lipsey remained at home the evening of October 6.
Lipsey's mother and father, Betty and Joe, noticed bruises and
swelling around his right eye, lip, and his right temporal area.
Lipsey refused suggestions by his parents to go to the hospital.
Betty checked on him periodically throughout the night. When she
checked around 6:15 a.m. on October 7, she noticed white liquid
coming from his mouth, and his difficulty in breathing. Lipsey
did not respond when Joe shook him, and he eventually stopped
breathing. An ambulance took Lipsey to the hospital, where
efforts to resuscitate him were unsuccessful.
On November 18, 1994, the State issued a two-count
indictment against Antonio Kidd. In count I, the State charged
defendant with first degree murder (felony murder), in that
"while committing a forcible felony, Aggravated Battery, ***
[defendant] struck Anthony Lipsey in the head with his hand and
thereby caused the death of Anthony Lipsey." 720 ILCS 5/9-
1(a)(3) (West 1994). Count II charged defendant with aggravated
battery in that he "intentionally caused great bodily harm to
Anthony Lipsey in that he struck Anthony Lipsey in the head with
his fist." 720 ILCS 5/12-4(a) (West 1994). Defendant was tried
by a jury, along with codefendant Donnie Brown.
During the jury trial, defendant testified that when he
hit Lipsey on October 6, 1994, he did not believe his punches
could have killed or caused great bodily harm to Lipsey. During
the fight, he had no idea that Lipsey would die. Dr. Victor Lary
performed Anthony Lipsey's autopsy on October 7, 1994, and
concluded that the cause of Lipsey's death was a traumatic head
injury resulting in an epidural hematoma, a large and relatively
recent clot of blood located between the skull and the brain
pressing downward on the brain. Dr. Lary could not determine how
much force created Lipsey's head injury, but said that blows to
the head with a fist could cause an epidural hematoma.
During the jury instructions conference, defendant's
attorney tendered instructions for second degree murder based on
provocation. The trial court refused to give the second degree
murder instructions, apparently finding the evidence insufficient
to allow those instructions to be given and concluding that the
case only raised the issue of whether defendant committed aggra-
vated battery, the predicate offense for the felony murder
charge. The jury subsequently found defendant guilty of first
degree murder (felony murder) and aggravated battery. 720 ILCS
5/9-1(a)(3),12-4(a) (West 1994). The trial court sentenced defen-
dant to 25 years' imprisonment and awarded him credit for 228
days served.
Defendant filed a posttrial motion arguing the trial
court erred in not instructing the jury on second degree murder.
Defendant argued those instructions should have been given
because the evidence showed defendant had no felonious intent
prior to being struck in the head by Lipsey. In addition,
because Lipsey struck defendant first, Lipsey was the initial
aggressor, which caused the defendant to act under a sudden and
intense passion resulting from serious provocation by Lipsey.
The court denied defendant's posttrial motion. This appeal
followed.
Prior to 1987, Illinois defined voluntary manslaughter
to include the situation where the defendant "is acting under a
sudden and intense passion resulting from serious provocation."
Ill. Rev. Stat. 1985, ch. 38, par. 9-2(a). Since 1987, provoca-
tion has been addressed by the second degree murder statute,
which made significant changes in that defense. 720 ILCS 5/9-
2(a)(West 1994).
Defendant recognizes that in most felony murder cases
it should not be a defense that a defendant is provoked, but he
argues the defense is available in this case, citing People v.
Williams, 164 Ill. App. 3d 99, 109, 517 N.E.2d 745, 751 (1987).
A person who intends to rob a shopkeeper or rape an individual is
not allowed to claim that he was provoked by his victim or to
raise any other affirmative defense if, in the course of commit-
ting the original felony, the intended victim or any other person
is killed. Williams, 164 Ill. App. 3d at 109, 517 N.E.2d at 751.
The argument that a defendant was provoked to commit the robbery
or rape in which the victim was killed similarly has no merit.
Mental state is irrelevant. "It is immaterial whether the
killing in such case is intentional or accidental, or is commit-
ted by a confederate without the connivance of the defendant."
Ill. Ann. Stat. ch. 38, par. 9-1, Committee Comments--1961, at 16
Smith-Hurd (1979). Williams held, however, that in the unusual
fact situation before it the provocation defense should have been
available.
In People v. Viser, 62 Ill. 2d 568, 343 N.E.2d 903
(1975), the court considered whether felony murder could be
charged when the predicate felony was the aggravated battery that
resulted in the victim's death. In Viser, a chance dispute
between two groups of people who did not know each other resulted
in the aggravated battery of two victims, one of whom died a few
days later. The supreme court recognized that other states had
held that an assault upon the person killed could not be made the
basis of a felony murder charge. Viser, 62 Ill. 2d at 579, 343
N.E.2d at 909. The court was troubled, however, that in the case
before it the argument was only a technical one: if the indict-
ment had charged that the deceased victim had been killed during
the commission of an aggravated battery on the surviving victim,
the indictment would have been proper. Viser, 62 Ill. 2d at 578,
343 N.E.2d at 908.
The supreme court noted that most felony murders
involve an aggravated battery or an assault, and it declined to
rule out felony murder prosecutions in such cases simply because
of the absence of an intention to commit another felony, espe-
cially in light of the legislature's "forthright characterization
of aggravated battery as one of the forcible felonies that will
trigger a charge of felony murder." Viser, 62 Ill. 2d at 579-80,
343 N.E.2d at 909; see 720 ILCS 5/2-8 (West 1994) (definition of
"forcible felony"). If a person chooses to engage in dangerous
conduct from which death is likely to result (and forcible felo-
nies constitute such conduct), that person should be liable for
felony murder whether the dangerous conduct consists of robbery,
criminal sexual assault, or aggravated battery resulting in great
bodily harm.
There are reasons why a prosecutor, seeking a first
degree murder conviction, might choose to charge felony murder
under section 9-1(a)(3), even when a charge of intentional or
knowing murder is possible under section 9-1(a)(1) or (a)(2).
First, the prosecutor will not have to show that there was any
intent to kill when the charge is felony murder. Second, the
provocation defense may not be available when the charge is
felony murder. Viser clearly held the first proposition to be
the law. "What was intended was to deter the commission of any
of the enumerated forcible felonies, including aggravated bat-
tery, by holding the perpetrator responsible for murder if death
results." Viser, 62 Ill. 2d at 580, 343 N.E.2d at 909. Viser
did not hold the second proposition to be law. An instruction on
the provocation defense was given in Viser, and the supreme court
held that it would have been error to have refused that instruc-
tion. Viser, 62 Ill. 2d at 583, 343 N.E.2d at 911. There were
also charges of intentional and knowing murder in Viser, for
which the instruction clearly would have been appropriate, but it
appears the jury returned a guilty verdict on only the felony
murder count.
It is not the law that a prosecutor may avoid the
provocation defense in an intentional or knowing murder case by
charging felony murder based upon an aggravated battery upon the
person killed. The procedure to be followed in that situation
was addressed in Williams, where the court concluded there should
be an instruction on the defense, even though provocation is not
a defense to aggravated battery and is not usually a defense to
felony murder. Williams would not allow the defense where the
provocation occurred during the commission of the forcible
felony, as where a shopkeeper resisted a robber. Williams, 164
Ill. App. 3d at 109, 517 N.E.2d at 751. However, where provoca-
tion occurs prior to the time that a defendant forms a felonious
intent or commits an aggravated battery, defendant is entitled to
the defense. Williams, 164 Ill. App. 3d at 110, 517 N.E.2d at
752. Otherwise prosecutors could avoid the defense in every case
of first degree murder, even in cases that are clearly intention-
al or knowing murder cases.
The State argues that, in 1987, when the legislature
adopted the second degree murder statute, it specifically provid-
ed that the defense of provocation applied only to intentional or
knowing murder and could never apply to felony murder. See 720
ILCS 5/9-2(a) (West 1994) ("A person commits the offense of
second degree murder when he commits the offense of first degree
murder as defined in paragraphs (1) or (2) of subsection (a) of
Section 9-1***"). The State did not make that argument in the
trial court. That argument would effectively eliminate the
second degree murder statute in intentional or knowing murder
cases. If the prosecutor has the evidence to defeat a claim of
provocation, he may charge knowing or intentional murder. If he
does not have that evidence, he may prevent the claim from being
raised by charging felony murder, based on aggravated battery.
See Viser, 62 Ill. 2d at 578-79, 343 N.E.2d at 908-09.
Did the legislature really intend an illusory second
degree murder statute, one that exists at the choice of the
prosecutor and will be applied only in cases in which it could be
of no benefit to the defendant? We should avoid a construction
of a statute that renders any part of it meaningless. The courts
presume that the General Assembly, in passing legislation, did
not intend absurdity, inconvenience or injustice, and a statute
will be interpreted so as to avoid a construction that would
raise doubts as to its validity. Harris v. Manor Healthcare
Corp., 111 Ill. 2d 350, 363, 489 N.E.2d 1374, 1379 (1986). A
court should avoid an interpretation under which a statute is
"explained away, or rendered insignificant, meaningless, inopera-
tive, or nugatory." Pliakos v. Illinois Liquor Control Comm'n,
11 Ill. 2d 456, 460, 143 N.E.2d 47, 49 (1957). In order to give
some meaning to the second degree murder statute, there must be
some limit on a prosecutor's ability to charge felony murder in
cases such as this. We need not consider what that limit should
be, however, as we may decide this case on the issue addressed in
the trial court, whether defendant presented sufficient evidence
to warrant the giving of the provocation instruction.
It does not appear that the prosecutor in this case
charged felony murder when the proper charge was intentional or
knowing murder. Defendant did not use any weapon and may have
hit Lipsey only two or three times with his fists, and Lipsey
walked away from the altercation. Lipsey did not believe his
injuries were so serious as to require medical attention.
Perhaps defendant did not "intend[] to kill or do great bodily
harm to" Lipsey or "know[] that such acts will cause death" or
"know[] that such acts create a strong probability of death or
great bodily harm." 720 ILCS 5/9-1(a)(1), (a)(2) (West 1994).
It may be that if the State had made the argument in the trial
court that it makes now, the trial court could have refused the
provocation instruction on that basis. The State did not do so,
however, and the question before us is whether defendant present-
ed sufficient evidence to warrant the instruction.
A person commits second degree murder when "[a]t the
time of the killing he is acting under a sudden and intense
passion resulting from serious provocation by the individual
killed or another whom the offender endeavors to kill, but he
negligently or accidentally causes the death of the individual
killed." 720 ILCS 5/9-2(a)(1) (West 1994). The Criminal Code of
1961 defines "serious provocation" as "conduct sufficient to
excite an intense passion in a reasonable person." 720 ILCS 5/9-
2(b) (West 1994). The defendant must be acting under a sudden
and intense passion spurred from serious provocation that the law
recognizes as reasonable. People v. Garcia, 165 Ill. 2d 409,
429, 651 N.E.2d 100, 110 (1995). Illinois courts recognize four
categories of provocation: (1) substantial physical injury or
substantial physical assault, (2) mutual quarrel or combat, (3)
illegal arrest, and (4) adultery with the offender's spouse.
Garcia, 165 Ill. 2d at 429, 651 N.E.2d at 110. Mutual quarrel or
combat is a "fight or struggle which both parties enter willingly
or where two persons, upon a sudden quarrel and in hot blood,
mutually fight upon equal terms and where death results from the
combat." People v. Austin, 133 Ill. 2d 118, 125, 549 N.E.2d 331,
334 (1989).
Whether to issue a specific jury instruction is within
the province of the trial court, and such a decision will not be
reversed unless it is an abuse of discretion. Garcia, 165 Ill.
2d at 432, 651 N.E.2d at 111; Austin, 133 Ill. 2d at 124-25, 549
N.E.2d at 333-34. If there is evidence that if believed by the
jury would reduce a crime from first degree murder to second
degree murder, defendant's requested second degree murder in-
struction must be granted. However, the defendant has the burden
of proving that at least "some evidence" of serious provocation
exists, otherwise the trial court may deny giving the instruc-
tion. Austin, 133 Ill. 2d at 125, 549 N.E.2d at 334.
We hold the trial court did not abuse its discretion in
refusing to give defendant's second degree murder provocation
instruction because defendant did not present sufficient evidence
to warrant giving that instruction. No real evidence exists that
shows defendant was acting under a sudden and intense passion
resulting from serious provocation at the time he beat Lipsey.
Defendant argues that when he beat Lipsey he acted
under a sudden and intense passion from serious provocation, but
he does not specify under which of the four recognized categories
of provocation the situation falls. It appears the only possible
applicable category would be mutual quarrel or combat. However,
we hold that this situation did not constitute mutual combat;
consequently, defendant was not entitled to present the second
degree murder instructions to the jury.
Defendant did not satisfy the mutual combat or quarrel
standard as he presented no evidence indicating Lipsey willingly
entered into the struggle or that the fight was on equal terms.
Clearly this was not a one-on-one situation as Lipsey was ini-
tially surrounded by approximately 16 men. Furthermore, there is
evidence that indicates defendant and the others may have planned
this incident in response to Lipsey reporting them to the police
for previously robbing him and to prevent him from pressing
charges against them. Even if Lipsey struck defendant in the
head, this was not serious provocation, as Lipsey was probably
trying to break free from the crowd, not instigate an alterca-
tion. Lipsey did try and escape the crowd once, but was pulled
back by two of the men. It was during the time these two men
were beating Lipsey that defendant decided it was "time to get
[his] licks in."
Defendant also contends that his sentence of imprison-
ment must be credited with one additional day as he served 229
days in the Sangamon County jail and the trial court only credit-
ed his sentence with 228 days. The State agrees that defendant
is entitled to 229 days of credit. The Unified Code of Correc-
tions provides that a defendant shall be given credit on his
sentence for time he spent in custody. 730 ILCS 5/5-8-7(b) (West
1994); People v. Donnelly, 226 Ill. App. 3d 771, 779, 589 N.E.2d
975, 980 (1992). Defendant was in custody from November 6, 1994,
through June 22, 1995, a total of 229 days, and is entitled to
229 days of credit on his sentence.
For the foregoing reasons, the judgment of the circuit
court of Sangamon County is affirmed as modified and remanded for
issuance of an amended judgment of sentence reflecting defen-
dant's entitlement to 229 days' credit on his sentence.
Affirmed as modified and remanded with directions.
McCULLOUGH, J., concurs.
STEIGMANN, J., specially concurs. JUSTICE STEIGMANN, specially concurring:
In 1986, the legislature enacted Public Act 84-1450 (Pub.
Act 84-1450, eff. July 1, 1987 (1986 Ill. Laws 4222)), which
renamed the offense of murder to first degree murder, abolished the
offense of voluntary manslaughter, and replaced it with second
degree murder. As the supreme court explained in People v.
Jeffries, 164 Ill. 2d 104, 111, 646 N.E.2d 587, 590 (1995), "[t]he
intent of the legislature in enacting Public Act 84-1450 was to
remedy the confusion and inconsistency that had developed in regard
to the murder and voluntary manslaughter statutes." Part of that
confusion and inconsistency dealt with the relationship of
voluntary manslaughter to murder when a defendant was charged under
the felony murder provision of the former murder statute.
In Williams, this court struggled with that relationship,
noting that in most instances in which a defendant is charged with
murder under the former statute, "the reduction in culpability
[that is, a reduction to a voluntary manslaughter conviction] due
to passion should not be available as a partial defense to a felony
murder charge." Williams, 164 Ill. App. 3d at 108, 517 N.E.2d at
751. However, the court then noted that "under the unusual fact
situation presented by defendant's testimony in the instant case,
the jury should have been given the provocation-voluntary man-
slaughter instruction in conjunction with the felony murder
charge." Williams, 164 Ill. App. 3d at 108, 517 N.E.2d at 751. In
support, the Williams court cited Viser, in which--according to the
Williams court--the supreme court stated that it would have been
error for the trial court to refuse to give a voluntary manslaugh-
ter instruction in a case involving a charge of felony murder.
However, Williams provides no support for the majority's
holding here because (1) the legislature changed the voluntary man-
slaughter statute upon which Williams is based when it created the
offense of second degree murder; and (2) part of the reason the
legislature did so was specifically to reject the position the
majority now adopts. In other words, as Viser and Williams
demonstrate, confusion existed under the "old law" regarding
whether a voluntary manslaughter conviction could result when the
defendant was charged only with felony murder. Note that in
defining voluntary manslaughter, section 9-2(a) of the Criminal
Code of 1961 (Code) stated simply that "[a] person who kills an
individual without lawful justification commits voluntary man-
slaughter" if at the time of the killing, he acted under serious
provocation or an imperfect self-defense. Ill. Rev. Stat. 1985,
ch. 38, par. 9-2(a). On the other hand, second degree murder as
now defined in section 9-2(a) of the Code provides, in relevant
part, that a person commits that offense "when he commits the
offense of first degree murder as defined in paragraphs (1) or (2)
of subsection (a) of Section 9-1 of this Code" and either mitigat-
ing factor is present. (Emphasis added.) 720 ILCS 5/9-2(a) (West
1994).
First degree murder can be committed in either of the
following separate and distinct ways: (1) "knowing or intentional"
murder (sections 9-1(a)(1) and (a)(2) of the Code), or (2) felony
murder (section 9-1(a)(3) of the Code). By specifically referring
to subsections 9-1(a)(1) and (a)(2) of the Code in defining second
degree murder, the legislature made clear that second degree murder
can be committed only when a defendant commits "knowing or
intentional" murder. This is no oversight. If the legislature had
intended to include felony murder as a possible basis (when either
section 9-2(a) mitigating factor is present) for second degree
murder, all it needed to say in defining second degree murder is
that a person commits that offense when he commits the offense of
first degree murder and either of the mitigating factors is
present--the same language, in other words, that the legislature
had used to describe (under the "old law") when a charge of murder
could serve as a possible basis for voluntary manslaughter.
Other than to change the name of the offense, Public Act
84-1450 left section 9-1 of the Code (defining murder) the same in
all particulars. Under Public Act 84-1450, the primary change to
section 9-2 of the Code (besides the change of name) was to place
the burden of proof on a defendant who asserts the presence of
mitigating factors. (Note that the statutory definition of
mitigating factors was not changed from the old section 9-2 to the
new statute.) In fact, other than shifting the burden of proof,
the single biggest change between voluntary manslaughter and second
degree murder is the new definition of second degree murder which--
on its face--omits the possibility that second degree murder can be
based upon felony murder.
The question that the majority should address is this:
other than the result I claim was intended when the legislature
enacted the statute--namely, to achieve the specific result of
ensuring that second degree murder could never be based upon felony
murder--what possible explanation can the majority provide for this
change in the language of section 9-2(a)?
Assuming, for the moment, that the legislature did not
wish to permit felony murder to serve as a predicate for second
degree murder, how could it possibly have made its views more
clear? I suggest the only way it could have done so is by using a
legislative device that it heretofore has never used--namely, by
adding the following sentence to section 9-2 of the Code (perhaps
as a new subsection (b)): "The omission of any reference to
paragraph (3) of subsection (a) of section 9-1 of this Code within
the definition of second degree murder was intentional to ensure
that felony murder may not constitute the predicate for a second
degree murder conviction."
Defining criminal offenses--and providing for mitigated
homicides, if that is the legislature's wish--lies entirely within
the legislature's province. It was not compelled to provide that
the presence of mitigating factors would reduce a defendant's
commission of first degree murder to second degree murder, a lesser
mitigated offense. See Jeffries, 164 Ill. 2d at 122, 646 N.E.2d at
595. Nor, once the legislature decided to make some first degree
murders (the "intentional or knowing" murders) capable of being
mitigated into second degree murders, was it compelled to make all
first degree murders (including felony murders) capable of being
mitigated into second degree murders. (For a comprehensive
discussion of the changes in Illinois' murder statute and the
policies underlying those changes, see D. Shanes, Murder Plus
Mitigation: The "Lesser Mitigated Offense" Arrives in Illinois, 27
J. Marshall L. Rev. 61 (1993).)
The majority simply disapproves of how the legislature
has chosen to define second degree murder and thinks it should be
defined broadly enough so that second degree murder could result
when a defendant is charged only with felony murder. The
majority's holding is inconsistent with the words of the supreme
court in Jeffries, when that court spoke of the deference due the
legislature in enacting statutes--indeed, the very statutes at
issue in this case:
"[W]e recognize that the judicial role in
construing statutes is to ascertain legisla-
tive intent and give it effect. To accomplish
this goal, a court will seek to determine the
objective the legislature sought to accomplish
and the evils it desired to remedy."
Jeffries, 164 Ill. 2d at 110, 646 N.E.2d at
590.
Regarding the Pliakos case--which holds that a court
should avoid an interpretation under which a statute is explained
away, or rendered insignificant, meaningless, inoperative, or
nugatory--the essential point is that section 9-2 of the Code in
defining second degree murder neither requires nor permits an
interpretation; that statute is clear on its face in that it refers
only to knowing and intentional murder under section 9-1(a)(1) or
(a)(2) of the Code--not 9-1(a)(3), defining felony murder.
The majority's concern that, under my view, second degree
murder would no longer exist is not supported by experience. Ten
years have now passed since the enactment of the first and second
degree murder statute, and there has been no shortage of juries
either being instructed upon--or finding defendants guilty of--
second degree murder.
The Code was enacted in 1961 (at which time the modern
versions of murder and voluntary manslaughter were enacted), which
means that 25 years passed before an appellate court (Williams)
held that--under limited circumstances--voluntary manslaughter
could be premised upon a felony murder count. And during the 10
years that have passed since Williams was decided, not a sin-
gle case has similarly held that second degree murder can be based
upon a felony murder count.
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