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Black on White Crime – Alton Illinois 20 Blacks kicked White Race Richard Skeleton to death

In Uncategorized on February 2, 2017 at 12:36 am

Supreme Court of Illinois.

The PEOPLE of the State of Illinois, Appellee, v. Taiwan M. DAVIS, Appellant.

No. 95614.

    Decided: December 16, 2004

Daniel M. Kirwan, Deputy Defender, and E. Joyce Randolph, Assistant Defender, of the Office of the State Appellate Defender, Mt. Vernon, for appellant, and Taiwan M. Davis, Centralia, appellant pro se. Lisa Madigan, Attorney General, Springfield, and William Haine, State’s Attorney, Edwardsville (Gary Feinerman, Solicitor General, and Linda D. Woloshin and Jay Paul Hoffmann, Assistant Attorneys General, Chicago, of counsel), for the People.

On October 1, 1998, defendant Taiwan Davis was charged by indictment with two counts of first degree murder of Richard Skelton.   Count I alleged first degree knowing murder (720 ILCS 5/9-1(a)(2) (West 1998)), and count II alleged first degree felony murder predicated on mob action (720 ILCS 5/25-1(a)(1) (West 1998)).   At the jury instructions conference, the circuit court of Madison County indicated it would give defendant’s tendered involuntary manslaughter instructions only as an alternative to count I knowing murder.   The State then moved to dismiss count I, which the court allowed.   As a result, the trial court declined to give involuntary manslaughter instructions.   The jury convicted defendant of felony murder.

The appellate court affirmed.  335 Ill.App.3d 1102, 270 Ill.Dec. 116, 782 N.E.2d 310.   We granted leave to appeal (177 Ill.2d Rs. 315, 612(b)) to address two issues:  (1) whether defendant’s conviction for felony murder was based on a predicate felony inherent in the killing so that it must be vacated under People v. Morgan, 197 Ill.2d 404, 259 Ill.Dec. 405, 758 N.E.2d 813 (2001);  and (2) whether the trial court committed reversible error by refusing to give involuntary manslaughter instructions.   For the following reasons, we affirm the appellate court.

BACKGROUND

Late in the evening of August 10, 1998, Richard Skelton learned that his recently purchased television set was missing.   Richard believed his girlfriend and his two sisters had sold it for crack cocaine.   Richard’s younger brother, Fred, picked him up at a bar called Wick’s with Richard’s son Jason, Jason’s girlfriend Dawn Herrin, Richard’s daughter Shelly Garrett, and Jill Walter.   In two cars, the group drove to the 1100 block of Seventh Street in Alton, Illinois, where they believed the television may have been sold.

Members of the group exited the cars and began knocking on doors and asking about the television.   The group had some familiarity with the area.   During their search, Fred met a prior acquaintance, Bruce Stewart.   Fred asked Stewart about the television and then asked some men on a porch “if they had heard of any television set being sold in this area for drugs.”   Richard also asked individuals about the television.   Dawn testified that Jason was trying to get his father to leave before anything started, but Richard refused, saying that he was not going to leave until he got his television back.   The pair continued across the street to Timothy Lee’s duplex, where Lee and several friends were sitting on the porch.

An argument began, and Lee told them to get off his property.   Fred testified that, “they told us that we were in the wrong neighborhood to even be asking questions.”   Fred heard a door slam across the street, turned, and saw “several guys coming from behind [him].”   Fred stated, “It was a pretty scary situation at that time when they started coming at me.”   According to Fred, defendant was not part of either group;  however, Shelly was able to identify defendant at that time.   Fred turned back around and was “split in the head with a club” and “knocked out” for 20 to 30 seconds.   Shelly testified that she was also attacked by four or five persons.

When Fred woke up he saw “ten or better” men beating Richard.   Shelly stated that it was 20 men.  “Every one of them” was beating Richard.   They kicked Richard in the head, face, and ribs for about five minutes.  “He didn’t have a chance to fight back,” stated Fred.   According to Fred, “They was saying slurs, you know, shouldn’t have been in this area, and they’d kick him.   They was cussing and yelling and hollering like kind of rejoicing that he got whopped like he did.”   Shelly described the situation by stating, “They was actually pulling each other out of the way and they was, you know laughing, kick him, you know hitting him, kick his ass, and so, you know, everything was, I was trying to get to him.   I was yelling that’s my father.”   Jason testified similarly, stating, “Most all the guys that I could see that was there was participating in it like it was, you know, fun or something, a game to them.”   The crowd “was cheering them on and rooting them on and trying to get in there to help their friends basically kill him.”   None of the group around Richard attempted to stop the incident, according to Jason.

Shelly identified defendant hitting Richard more than six times with a stick.   Fred saw defendant with a stick in his hand, and observed defendant throw the stick down as he fled.   Jason testified that he saw defendant in the group around Richard, but did not see anyone with a stick.   Jason did not know if defendant hit Richard because Jason was trying to get his girlfriend out of the fray.   Dawn Herrin did not see the crowd of 15 or 20 people hit Richard, but did see defendant holding something as he was crossing the street to join the crowd.   Jill testified that she was a block away and saw a fight with Richard in the center, but could not identify anyone specifically in the beating.   Each of the witnesses admitted that they omitted reference to defendant in their initial reports to police, but, according to the witnesses, such omissions were because they were not asked or they were still emotional from the incident.

As the police were arriving, the group beating Richard fled.   Alton police officer Michael Bazzell was called to the scene of a fight “around midnight.”   He observed a “white male laying partially in the roadway.”   Richard was not conscious and did not have a pulse.   Bazzell unsuccessfully performed cardiopulmonary resuscitation.   He observed “the majority of his face was covered with blood.”   The victim arrived by ambulance at the Alton Memorial Hospital emergency room in cardiac arrest.   According to a nurse, Richard had abrasions on his forehead and bruises to both sides of his face.   After attempts to revive Richard failed, Richard was pronounced dead at 12:50 a.m. on August 11, 1998.

Dr. Raj Nanduri performed a postmortem examination on the victim.   Dr. Nanduri testified to bruises, abrasions, and scratches about Richard’s face.   He stated there was a “massive hemorrhage underneath the scalp in the temple region” and that the wounds were consistent with blunt force injury to the head.   Dr. Nanduri did not observe fractures of the skull or intracranial hemorrhage.   Richard’s chest exhibited a wound consistent with blunt-force injuries and the left fifth and sixth ribs were broken.   There were injuries to the back of the neck consistent with a beating of the victim.   Dr. Nanduri additionally stated that Richard had very advanced coronary atherosclerosis and a 0.183 blood-alcohol level.   He determined the cause of death to be “cardiac arrythmia precipitated by blunt trauma to head and chest in patient with advanced atherosclerotic cardiovascular disease” with “acute ethanol intoxication” being a significant contributing condition of death.

Dr. Nanduri testified it was possible that a stick could have caused some of Richard’s blunt-force injuries.   However, he could not state whether the blunt-force injuries were actually caused by a stick.   Dr. Nanduri explained, “[A] stick can cause a pattern which is consistent with the object.   And if you have that, then you can for sure take the dimensions and measurements of the stick and the injuries on the body and you would be able to say that, in all probability this weapon or similar object would have caused the particular injury.”   He did not find that pattern in this case.   Dr. Nanduri would expect that if someone hit a victim six times directly with a stick, then a pattern would be observable on the victim.

Several police officers canvassed the area soon after the incident.   Officer Anthony Ventimiglia, the crime scene technician, arrived to the scene after Richard had been removed.   The beating occurred around a Ford Escort parked on the south side of 7th Street.   A light blue broomstick was found just to the west of the Ford Escort.   Ventimiglia identified the broomstick in court, which was approximately three feet in length and one-half inch in diameter.   Photographs also depicted Richard’s eyeglass lens, a wristwatch, medical supplies, and “some blood that was in the roadway” near the Ford Escort.   Photographs depicted numerous severe bruises and lacerations about Richard’s head.   Ventimiglia did not notice any blood on the stick.

Alton detective Scott Golike testified that he first saw defendant in a duplex belonging to Lisa Haynes at 1118 East 7th Street at approximately 2 a.m., August 11, 1998.   Golike testified that defendant stated that he had been inside and did not see the incident.   In a witness statement at 2:23 a.m. on August 11, defendant stated that he heard a commotion outside, so he looked outside through the window.   He saw Timothy Lee arguing with a bunch of people about a television set, but he never saw a fight because his friend’s mom told them to stay out of it.

Golike interviewed defendant again several hours later at the police station.   After being advised of his constitutional rights, defendant altered his story.   According to Golike, defendant stated, with a tear in his eye, that he had, in fact, beaten the victim three or four times with a stick.   In his written statement, signed at 7:45 a.m. on August 11, defendant stated that he previously lied because he was scared.   He stated that he had been sitting on Lisa Hayne’s front porch with friends when the two cars pulled up.   After the argument started, he saw a man he knew as T.A. hit Fred on the head.   Fred fell to the ground.   At this point, defendant ran across the street to the fight, carrying a broomstick that he already had in his hand.   He stated, “I don’t know why, but when this fight started, I got excited and wanted to get in it.   I don’t know why I did it because this dude hadn’t done nothing to me.   But I ran across the street with a bunch of other people to help beat him up.”   Defendant’s statement continued,

“I think I hit him twice on his head, but I didn’t really mean to hit him there.   I meant to hit him on his body, but he kept moving around and it was hard to hit him right where I wanted to.   I’m sure I hit him only three or four times and one or two of those times were just on his body somewhere.   After I hit him the last time, I threw the stick down on top of him and took off running back to Lisa’s house.   This older guy was hurt pretty bad and this was when I realized that I done something wrong and I felt bad about it.  * * * The last time I saw the white dude, he was still laying in the street and everybody was running away from him.   I heard later that he died.   I’ll admit that I hit him in the head a couple times, but I did not mean for the guy to die.”

Defendant was 17 years old at the time of his arrest and was 5 feet 8 inches tall and weighed 160 pounds.   At trial, defendant stated that he twice swung the stick into the crowd, but that he did not hit Richard.   He hit Bruce Stewart instead.   Defendant denied telling the police otherwise.   At trial, he stated that when he swung the stick at Richard, “I know he would probably get hurt, but I didn’t think the man would die.”   Defendant testified that he was not part of any mob, but he also stated, “By me being there, I’m pretty sure I was involved.”

Defendant called Kathryn Kessler and Lisa Haynes as witnesses at trial.   Kessler stated that she saw the incident, but did not see anyone with a stick, but admitted she had told police after the incident that she had.   Haynes testified that defendant was in her house during the entire incident, but admitted she reported to the police after the incident that “Taiwan Davis then ran from the altercation and went inside of Haynes residence.”

On August 12, 1998, the State information charged defendant by information with knowing first degree murder (720 ILCS 5/9-1(a)(2) (West 1998)).   On September 3, 1998, the grand jury returned a three-count indictment against defendant for knowing first degree murder (720 ILCS 5/9-1(a)(2) (West 1998)), armed violence (720 ILCS 5/33A-2 (West 1998)), and mob action (720 ILCS 5/25-1(a)(1) (West 1998)).   This indictment was superceded by the October 1, 1998, two-count amended indictment noted above.

After the evidence described above was adduced before the jury, the trial court denied defendant’s motion for acquittal on both the knowing-murder and felony-murder counts.

At the instructions conference, defense counsel asked for an instruction on involuntary manslaughter, stating, “If they believe Mr. Davis, if they believe what he told them, they can find involuntary manslaughter.”   Defense counsel also argued that the evidence demonstrated that defendant was not acting together with the mob.   The State responded that because there was no evidence of recklessness, defendant was not entitled to an involuntary manslaughter instruction.   The State also raised the possibility of inconsistent verdicts.   Defense counsel replied, “Well, I mean we want a just verdict and we think that the jury can reach a just verdict.   And we think, in fact, the just verdict would be involuntary manslaughter.”   Relying on People v. DiVincenzo, 183 Ill.2d 239, 233 Ill.Dec. 273, 700 N.E.2d 981 (1998), the court allowed the involuntary manslaughter instruction on count I (knowing first degree murder).   However, the court did not allow the instruction on count II because involuntary manslaughter was not a lesser-included offense of felony murder.

The State sought to dismiss count I and proceed only on count II, felony murder.   Over the defense objection, the trial judge granted the motion to dismiss count I.

The jury was instructed, inter alia, that “a person commits the offense of mob action involving violent infliction of injury when he, acting together with one or more persons and without authority of law, knowingly disturbs the public peace by the use of force or violence;  and one of the participants in the mob action violently inflicts injury to the person of another.”   The jury deliberated and found defendant guilty of felony murder premised on mob action.   The trial court denied defendant’s posttrial motion.   On April 30, 1999, the trial court sentenced defendant to 20 years’ imprisonment.

On appeal, after reviewing the evidence, the appellate court concluded that “[t]he trial court’s refusal to allow involuntary manslaughter instructions was a proper use of its discretion where the evidence established that defendant did not act recklessly.”  335 Ill.App.3d at 1108-09, 270 Ill.Dec. 116, 782 N.E.2d 310.   We granted defendant’s petition for leave to appeal.   177 Ill.2d Rs. 315, 612(b).

ANALYSIS

Defendant argues:  (1) his conviction for felony murder must be vacated under the reasoning set forth in our decision in People v. Morgan, 197 Ill.2d 404, 259 Ill.Dec. 405, 758 N.E.2d 813 (2001);  and (2) the trial court committed reversible error by refusing to give the involuntary manslaughter instruction.

Felony Murder

The State preliminarily maintains that the first argument is waived because it was not included in defendant’s petition for leave to appeal nor was it presented to the appellate court.   We note that this court released the Morgan decision after this case was argued in the appellate court and before that court filed its opinion.   Defense counsel acknowledges his failure to raise the Morgan issue in a supplemental brief to the appellate court or in the petition for leave to appeal.   Under Supreme Court Rules 341(e)(7) and 315(g), a party is required to raise its arguments and provide citation to legal authority in its appellate brief and in its petition for leave to appeal to avoid waiver.   177 Ill.2d R. 315(g);  188 Ill.2d R. 341(e)(7);  see also People v. Patterson, 154 Ill.2d 414, 454-55, 182 Ill.Dec. 592, 610 N.E.2d 16 (1992).   Waiver limits the parties’ ability to raise an issue, not this court’s ability to consider an issue.  People v. Kliner, 185 Ill.2d 81, 127, 235 Ill.Dec. 667, 705 N.E.2d 850 (1998).   We choose to address the merits.

The Criminal Code of 1961 defines the offense of felony murder as:

“(a) A person who kills an individual without lawful justification commits first degree murder if, in performing the acts which cause death:

* * *

(3) he is attempting or committing a forcible felony other than second degree murder.”  720 ILCS 5/9-1(a)(3) (West 2002).

The Code defines the term “forcible felony” to encompass several enumerated felonies, including “aggravated battery resulting in great bodily harm or permanent disability or disfigurement” as well as “any other felony which involves the use or threat of physical force or violence against any individual.”  720 ILCS 5/2-8 (West 2002).   The Code section at issue here defines “mob action” as consisting of “[t]he use of force or violence disturbing the public peace by 2 or more persons acting together and without authority of law.”  720 ILCS 5/25-1(a)(1) (West 2002).   Defendant makes no argument that the felony of mob action is not a “forcible felony” within the felony-murder statute.

The lack of an intent to kill for felony murder distinguishes it from the other forms of first degree murder, which require the State to prove either an intentional killing (720 ILCS 5/9-1(a)(1) (West 2002)) or a knowing killing (720 ILCS 5/9-1(a)(2) (West 2002)).   Given this fact, we have acknowledged a concern that the State will effectively eliminate second degree murder and will avoid the burden of proving an intentional or knowing killing in first degree murder cases by often charging felony murder because certain predicate felonies tend to accompany all murders.  Morgan, 197 Ill.2d at 447, 259 Ill.Dec. 405, 758 N.E.2d 813;  People v. Pelt, 207 Ill.2d 434, 441, 279 Ill.Dec. 610, 800 N.E.2d 1193 (2003).   This problem is particularly prevalent in cases where the same evidence is used to prove the underlying felony as to prove the killing.   See, e.g., Morgan, 197 Ill.2d 404, 259 Ill.Dec. 405, 758 N.E.2d 813 (predicate felonies of aggravated battery and aggravated discharge arose from the shooting which also caused the killing);  Pelt, 207 Ill.2d 434, 279 Ill.Dec. 610, 800 N.E.2d 1193 (predicate felony of aggravated battery of a child arose from the throwing of an infant which also caused the killing).   In these cases, it is difficult to conclude that the predicate felony underlying the charge of felony murder involved a felonious purpose other than the killing of the victim.  Pelt, 207 Ill.2d at 442, 279 Ill.Dec. 610, 800 N.E.2d 1193.

Thus, where the evidence of the conduct underlying the felony and the killing is the same, the felony-murder statute may absolve the State of its duty to prove to the fact finder that the defendant possessed either an intent to kill or do great bodily harm or knowledge of a strong probability of death or great bodily harm, thereby allowing the State to take a shortcut to a murder conviction.   To address this problem, we held in Morgan that where “the acts constituting forcible felonies arise from and are inherent in the act of murder itself, those acts cannot serve as predicate felonies for a charge of felony murder.”  Morgan, 197 Ill.2d at 447, 259 Ill.Dec. 405, 758 N.E.2d 813;  see also Pelt, 207 Ill.2d at 441, 279 Ill.Dec. 610, 800 N.E.2d 1193.   This holding ensured that in this type of case, the prosecution must prove an intentional or knowing killing to the fact finder in order to punish the defendant like a murderer.  Pelt, 207 Ill.2d at 442, 279 Ill.Dec. 610, 800 N.E.2d 1193.

We review the facts of Morgan and Pelt to illustrate this problem.   In Morgan, the 14-year-old defendant was indicted on eight counts for killing his grandparents, Lila and Keith Cearlock.   Following an argument between the defendant and Keith about the defendant receiving detention in school, Keith administered corporal punishment on the defendant with a razor strap and also attempted to punch him.   The defendant retrieved Keith’s gun shortly thereafter, intending to use it to kill himself in the bathroom.   Instead, the defendant fired the gun at a bottle on the bathtub.   The defendant exited the bathroom to find Lila screaming.   Keith had threatened in the past to kill him, so he feared for his life when he saw how angry Keith had become.   The defendant shot Keith as he approached to prevent Keith from reaching him.   He then shot Lila in the back as she tried to flee the house.  Morgan, 197 Ill.2d at 411-12, 259 Ill.Dec. 405, 758 N.E.2d 813.   Regarding each victim, the defendant was charged with first degree intentional murder (720 ILCS 5/9-1(a)(1) (West 1994)), first degree knowing murder (720 ILCS 5/9-1(a)(2) (West 1994)), first degree felony murder (720 ILCS 5/9-1(a)(3) (West 1994)) predicated on aggravated battery (720 ILCS 5/12-4(a) (West 1994)), and first degree felony murder predicated on aggravated discharge of a firearm (720 ILCS 5/24-1.2(a)(2) (West 1994)).  Morgan, 197 Ill.2d at 444, 259 Ill.Dec. 405, 758 N.E.2d 813.   The defendant was found guilty of first degree murder of Lila and second degree murder of Keith.

The defendant argued on appeal that he could not be found guilty of first degree felony murder of Lila because the charged predicate felonies were not independent of the killing.  Morgan, 197 Ill.2d at 444-45, 259 Ill.Dec. 405, 758 N.E.2d 813.   We agreed and held that the trial court erred in instructing the jury on felony murder.  Morgan, 197 Ill.2d at 447-48, 259 Ill.Dec. 405, 758 N.E.2d 813.   We noted that defendants cannot be convicted of felony murder when the predicate felonies “arose from and were inherent in the murders.”  Morgan, 197 Ill.2d at 447-48, 259 Ill.Dec. 405, 758 N.E.2d 813.

In People v. Pelt, the defendant was found guilty of aggravated battery of a child, his infant son, and first degree felony murder predicated on aggravated battery of a child.   The evidence showed that the defendant threw the infant into a dresser causing injuries which led to the infant’s death.   We held that aggravated battery improperly served as the predicate for felony murder.  Pelt, 207 Ill.2d at 442-43, 279 Ill.Dec. 610, 800 N.E.2d 1193.   Following the same analysis we created in Morgan, we focused on whether the “defendant’s aggravated battery was an act that was inherent in, and arose out of, the killing of the infant.”  Pelt, 207 Ill.2d at 442, 279 Ill.Dec. 610, 800 N.E.2d 1193.   We found that the act of throwing the infant formed the basis of the aggravated battery conviction and that it was also the same act underlying the killing.  Pelt, 207 Ill.2d at 442-43, 279 Ill.Dec. 610, 800 N.E.2d 1193.   We could not conclude that the predicate felony underlying the charge of felony murder involved conduct with a felonious purpose other than the conduct which killed the infant.  Pelt, 207 Ill.2d at 442-43, 279 Ill.Dec. 610, 800 N.E.2d 1193.   This case demonstrated our apprehension that to permit such a felony-murder charge of this nature would “ ‘eliminate the need for the State to prove an intentional or knowing killing in most murder cases.’ ”  Morgan, 197 Ill.2d at 447, 259 Ill.Dec. 405, 758 N.E.2d 813, quoting People v. Morgan, 307 Ill.App.3d 707, 712, 240 Ill.Dec. 725, 718 N.E.2d 206 (1999).   It was improper to find the defendant to be a first degree murderer when the predicate felony was inherent in the killing and when the State had failed to prove another form of first degree murder to the jury.  Pelt, 207 Ill.2d at 442, 279 Ill.Dec. 610, 800 N.E.2d 1193.

With these precedents in mind, we turn to the facts of the instant case.   The evidence at trial demonstrates defendant’s conduct was not an act that was inherent in, and arose out of, the killing of Richard Skelton.   Simply stated, the same evidence was not used to prove both the predicate felony, mob action, and the murder.   The following evidence was adduced at trial.   Defendant joined the crowd after the argument began.   According to defendant’s statement, he hit Richard twice in the head, and once or twice on the body.   Defendant testified that he swung twice at Richard, but did not hit him.   The only person he succeeded in hitting, according to defendant’s testimony, was Bruce Stewart.   The testimony of Richard’s family and friends-save Shelly Garrett, who testified that defendant struck Richard six or more times-was unclear as to whether defendant actually hit Richard.   It is undisputed that many of the blows Richard received were from the 10 to 20 other assailants.   The jury found that defendant acted together with one or more persons without authority of law;  knowingly disturbed the public peace by the use of force or violence;  and one of the participants in the mob action violently inflicted injury to Richard.   In essence, to convict defendant of mob action, it was not necessary to prove that defendant struck Richard, much less performed the act that caused the killing.   Unlike Morgan and Pelt, we are able to conclude that the predicate felony underlying the charge of felony murder involved conduct with a felonious purpose other than the conduct which killed Richard.   Therefore, under the facts of the instant case, mob action was a proper predicate felony for felony murder.   Our holding in Morgan does not preclude defendant’s felony-murder conviction.

We further note that this outcome is consistent with our holding in People v. Viser, 62 Ill.2d 568, 343 N.E.2d 903 (1975), a case preceding Morgan.   In Viser, there was an altercation among approximately seven men and two off-duty law enforcement officers, Smith and Jordan.   Although guns were present, injuries to the officers were inflicted through punching and kicking rather than gunshots.   Jordan died two weeks later due to severe abdominal injuries he received during the confrontation.  Viser, 62 Ill.2d at 573-74, 343 N.E.2d 903.   As here, it was not obvious which of the defendants caused the fatal blow to the victim, who died two weeks later “of pancreatitis caused by severe abdominal injuries he received” during the beating.  Viser, 62 Ill.2d at 576, 343 N.E.2d 903.   Therefore, the individual conduct of each defendant in beating the victim, which formed the basis of the individual forcible felonies of aggravated battery for each defendant, did not arise from nor was inherent in the killing itself.

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