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People v. Greer
State: Illinois
Court: 5th District Appellate
Docket No: 5-00-0513 Rel
Case Date: 01/09/2002

Notice
Decision filed 01/09/02.  The text of this decision may be changed or corrected prior to the filing of a Petition of Rehearing or the disposition of the same.


NO. 5-00-0513

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT

____________________________________________________________________________

THE PEOPLE OF THE STATE
OF ILLINOIS,

          Plaintiff-Appellee,

v.

JERRY D. GREER,

          Defendant-Appellant.

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Appeal from the
Circuit Court of
Madison County.


No. 99-CF-2

Honorable
Charles V. Romani, Jr.,
Judge, presiding


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JUSTICE WELCH delivered the opinion of the court:

Jerry D. Greer (defendant) appeals from his conviction for felony murder. He wasconvicted in a jury trial in the circuit court of Madison County. On June 16, 2000, defendantwas sentenced to serve 30 years in the Illinois Department of Corrections. His argument onappeal is straightforward: he claims that he could not be convicted of felony murder basedon the commission of armed violence predicated on unlawful possession of a controlledsubstance with intent to deliver because armed violence based on unlawful possession withintent to deliver is not a forcible felony. The parties agree that the issue is one of law andthat our review is de novo. See People v. Daniels, 187 Ill. 2d 301, 307 (1999). We will setforth the facts of the case only insofar as they are necessary for our decision.

Defendant was charged with felony murder in that, "in committing a forcible felony,[a]rmed [v]iolence," predicated on unlawful possession of a controlled substance with intentto deliver, he performed acts which caused the death by shooting of the victim. Defendantreceived a telephone call asking him to deliver cocaine to the residence where the victim wasstaying. Defendant had delivered cocaine to this residence before, and the resident owedhim money for past drug deliveries. Defendant asked his cousin, Gregory Greer, to goalong. Gregory had also delivered drugs to this residence before, and the resident owed himmoney as well. Defendant intended to negotiate the sale of cocaine, while Gregory intendedto try to get some of the money owed to him. Gregory showed defendant a gun that heintended to, and did, take along in order to scare the resident into paying him the money sheowed him. Defendant advised Gregory not to point the gun at the resident until afterdefendant had completed his drug sale.

Defendant and Gregory entered the kitchen of the residence and were met by theresident. Defendant was trying to negotiate the drug deal when the victim came into thekitchen. The victim set $63 on the kitchen counter. Either Gregory or defendant grabbedsome of the money, and the victim rushed Gregory. Gregory fired the gun, which was in hispocket, into the victim's abdomen. The victim backed off and grabbed a knife, with whichhe started stabbing Gregory. Gregory shot the victim several more times. The victim died. The drug sale was never completed.

Felony murder is the unjustified killing of an individual while "attempting orcommitting a forcible felony other than second degree murder." (Emphasis added.) 720ILCS 5/9-1(a)(3) (West 2000). A forcible felony is defined in the Criminal Code of 1961:

"treason, first degree murder, second degree murder, predatory criminal sexual assaultof a child, aggravated criminal sexual assault, criminal sexual assault, robbery,burglary, residential burglary, aggravated arson, arson, aggravated kidnaping,kidnaping, aggravated battery resulting in great bodily harm or permanent disabilityor disfigurement[,] and any other felony which involves the use or threat of physicalforce or violence against any individual." (Emphasis added.) 720 ILCS 5/2-8 (West2000).

The question before us is whether armed violence based on unlawful possession of acontrolled substance with intent to deliver is a forcible felony within the meaning of thefelony murder statute.

A person commits armed violence when he uses a firearm in the commission of afelony offense. 720 ILCS 5/33A-2 (West 2000). Unlawful possession of a controlledsubstance with intent to deliver is a felony offense. 720 ILCS 570/401 (West 2000). Butis armed violence based on the commission of this felony a forcible felony? Armed violenceis not specified as a forcible felony in the statute defining that term. 720 ILCS 5/2-8 (West2000). But does it fall within the residuary clause of that statute as a "felony which involvesthe use or threat of physical force or violence against any individual"? We conclude that,at least in this case, it does.

The Appellate Court, First District, recently addressed a similar question, involvinga different underlying offense and, on the facts of that case, reaching a conclusion differentthan the one we reach herein. Nevertheless, its analysis is dispositive of the case at bar. InPeople v. Belk, No. 1-00-0371 (November 14, 2001), the defendant was charged with felonymurder based on the commission of aggravated possession of a stolen motor vehicle. Thedefendant had stolen an automobile and then fled police, driving the stolen vehicle in areckless manner and ultimately colliding with another vehicle, killing its two occupants. Thedefendant argued on appeal that his conviction for felony murder could not stand becauseaggravated possession of a stolen motor vehicle was neither a specified forcible felony nora felony involving the use or threat of physical force or violence. Relying on our supremecourt's decision in People v. Golson, 32 Ill. 2d 398 (1965), the First District answered thatthe test to be applied in determining whether the felony murder doctrine is applicable is notwhether the underlying felony is normally classified as nonviolent, but whether, under thefacts of a particular case, it is contemplated by the defendant that violence might benecessary to enable the defendant to carry out the offense. Belk, slip op. at 3. The FirstDistrict pointed out that the Illinois Supreme Court has thus interpreted the residual categoryof unspecified felonies that may serve as the predicate felony for the purpose of a felonymurder conviction to include nonviolent felonies that might require force to perpetrate. Belk, slip op. at 3. The First District agreed that aggravated possession of a stolen motorvehicle is not a specified forcible felony, but it stated, "What is at issue is whether, under thefacts of this case, the crime of aggravated possession of a stolen vehicle involved the use orthreat of physical force or violence against the victims"-that is, whether it was contemplatedby the defendant that violence might be necessary to enable him to steal the vehicle andescape arrest. Belk, slip op. at 3. In light of the fact that the defendant's actions in ramminghis vehicle into that of the victims were reckless and not intentional, the First Districtconcluded, in that case, that aggravated possession of a stolen motor vehicle was not aforcible felony upon which a felony murder conviction could be based. Belk, slip op. at 4.

In People v. Golson, 32 Ill. 2d 398 (1965), the defendant and two other men set outwith the intention of stealing from automobiles. They brought along a gun, which theyplaced under the dashboard of their car. They did not find any autos to rob, so they decidedto steal mail sacks from a loading dock. Driving away with the mail sacks, they werestopped by two postal inspectors. During the ensuing arrest, the postal inspectors were shotand killed by one of the defendant's cohorts. The defendant was convicted of felony murder. On appeal, he argued that he could not be convicted of felony murder because theft from theUnited States mails is a nonforcible felony which would not normally involve any dangerto human life. The Illinois Supreme Court held that the test to be applied in determiningwhether the felony murder doctrine is applicable is not whether the felony is normallyclassified as nonviolent, but whether, under the facts of a particular case, it is contemplatedthat violence might be necessary to enable the perpetrators to carry out their purpose. Golson, 32 Ill. 2d at 407-08. The court found that the evidence showed that all three menhad participated in the purchase of an ammunition clip for the gun and that they all knewthat it had been secreted in the car before they embarked on their illicit scheme. The postalinspectors were shot while the perpetrators were attempting to escape from the scene of thecrime. Thus, there was sufficient evidence from which the jury could infer that theperpetrators intended to forcibly resist any attempt to arrest them. Such a plan comes withinthe doctrine of felony murder since it was contemplated that violence might be necessary toenable the perpetrators to carry out their common purpose. Golson, 32 Ill. 2d at 407-08; seealso People v. Auilar, 59 Ill. 2d 95, 101 (1974).

In People v. Guest, 115 Ill. 2d 72, 101 (1986), in comparing the residuary clause ofthe statutory definition of forcible felony to a similar definition that appears in the CaliforniaPenal Code, the Illinois Supreme Court reiterated that the residuary clause has beeninterpreted broadly to include nonviolent felonies which might require force to perpetrate.

In the instant case, defendant knew that Gregory was taking a gun with him and thathe planned to use it to scare the resident into paying him the money owed from prior illegaldrug transactions. There can be little doubt that defendant contemplated that the threat ofviolence would be used to carry out the scheme upon which the two had embarked. Underthese circumstances, defendant cannot escape responsibility for the murder by arguing thatthe conduct which resulted in death was not a forcible felony. We believe that under thesecircumstances, armed violence based on unlawful possession of a controlled substance withintent to deliver is a forcible felony within the meaning of the felony murder statute.

We are careful to limit our decision herein to the facts of this case. Defendantcorrectly argues that the mere presence of a gun during the commission of a felony does notdetermine whether a crime is a forcible felony. Thus, the offense of armed violence is notinherently a crime involving "the use or threat of physical force or violence" within themeaning of the residuary clause. Nor is the offense of unlawful possession of a controlledsubstance with intent to deliver inherently or necessarily a forcible felony. It does notinherently "involve the use or threat of physical force or violence." However, applying thetest set forth by the Illinois Supreme Court in Golson, we find that under the facts of thiscase defendant committed a forcible felony, and his conviction for felony murder will stand.

Defendant also argues that he cannot be convicted of felony murder because the deathdid not occur during the course of unlawful possession of a controlled substance with intentto deliver because that offense had been completed before the victim was shot. Theevidence belies this contention. The drug sale was not completed prior to the shooting. Indeed, defendant left the scene of the shooting with the cocaine still in his pocket. Rightup until the moment of the shooting, defendant was in unlawful possession of a controlledsubstance with intent to deliver it, and the shooting occurred during the commission of thisfelony.

Finally, we feel compelled to address defendant's argument that we should adopt themeaning given to the term "crime of violence" in cases interpreting the Alcoholism andOther Drug Abuse and Dependency Act (Drug Dependency Act) (20 ILCS 301/1-1 et seq.(West 2000)). That Act defines "crime of violence" in terms almost identical to the termsin the definition of "forcible felony" in the Criminal Code of 1961, including the identicalresiduary clause. 20 ILCS 301/1-10 (West 2000). Defendant argues that this court has heldthat armed violence is not a "crime of violence" within the meaning of the Drug DependencyAct (see People v. Robinson, 255 Ill. App. 3d 1067, 1070-71 (1993)). Defendant argues thattherefore armed violence cannot be a "forcible felony" under the felony murder statute.

While we find it unnecessary to look to the interpretation of another statute todetermine the meaning of forcible felony as used in the felony murder statute, in light of theIllinois Supreme Court's decisions in Golson, Auilar, and Guest, we note that the courts haveused nearly the same test in determining what is a crime of violence as the one the IllinoisSupreme Court directed us to use in determining what is a forcible felony. In People v.Freeman, 167 Ill. App. 3d 740, 745 (1988), this court held that, in determining whether anoffense is a crime of violence within the residuary clause of the definition, "the court mustconsider the nature of the crime to determine whether it involved force or violence." Thus,the court in Freeman held that, while in some cases aggravated criminal sexual abuse mayinvolve force or violence and thereby constitute a crime of violence, in the case before thecourt, the aggravated criminal sexual abuse involved no force or violence and was not acrime of violence. The court stated, "In sum, the facts of the present case did not amountto a violent crime ***." Freeman, 167 Ill. App. 3d at 747.

Similarly, in People v. Robinson, 255 Ill. App. 3d 1067, 1070 (1993), the courtexamined the facts and circumstances of the particular crime in determining that the armedviolence based on unlawful possession of a controlled substance with intent to delivercommitted there was not a crime of violence. In that case, the defendant was observedplacing a gun into the trunk of his car. The defendant was arrested for unlawfully carryinga weapon. A search of his person found a controlled substance, and the defendant wascharged with armed violence based on unlawful possession of a controlled substance withintent to deliver. Upon the defendant's conviction, the trial court held that the offense wasa crime of violence within the meaning of the Drug Dependency Act. On appeal, the courtexamined the nature of the crime to determine whether it involved force or violence, and thecourt determined that it did not. The court determined that the record contained no evidencethat the offense involved physical force or the threatened use of force. Accordingly, thecrime was not one of violence.

Defendant's reliance on cases decided under the Drug Dependency Act is misplaced. Those cases do not help defendant in this case, where the circumstances of his crimedemonstrate that at least the threat of physical force was contemplated.

For the foregoing reasons, the judgment of the circuit court of Madison County ishereby affirmed.

Affirmed.

GOLDENHERSH and KUEHN, JJ., concur.

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