the central issue in this case is the trial court iranis plea instructing the jury that it could convict davis of felony murder based on aggravated battery precedents from this court dating back to two thousand and one hold that were an aggravated battery is inherent in the homicide and there's no independent felonious purpose it cannot serve as a predicate offense for felony murder this rule which the state would have this court discard is fully consistent with the legislature's inten intentional or knowing murder those two parts of the homicide statute would essentially be rendered superfluous this court will not presume that the legislature intake and they could then as a meaningless gesture also since second degree murder is only a clickable to intentional and knowing murder the state could prevent that arsenal defense from ever being raised by the simple expedient of only charging felony murder again this court will not presume that the legislature enacted the murder this court she declined the request to do so this is a matter of statutory interpretation and vies it was decided in the preventive homicides that she's at the time visor was decided it was unclear whether voluntary manslaughter applied to felony murder but the present a second degree murder statute clearly does not apply different statues call for different interpretations and there's simply no basis to resurrect visor the state proposes that to address the second degree murder concerns this court simply carve an exception to visor where there is evidence of second degree murder felony murder should not be submitted to the jury know whether it was a felony murder determination or and passion there is some strong indications here that it was in fact only murder because we can under morgan we can look at the other things the jury did in that case the in morning the jury convicted the defendant of second degree murder so in the circumstance of that case they must have found the defendant guilty of intentional murder in this case we have the the jury convicted mr davis of the predicate felony aggravated battery which sort of automatically flowed into the fel presumption has to be predicated on something at trial under morgan and here from the trial we simply can't presume that the that the jury convicted  defendant intentionally knowing murder then there is also the problem that since felony murder predicated on aggravated battery that violates morgan and health simply is not an offense under illinois law so that means one of the things that was submitted to this jury enabled them to convict mr davis without ever actually finding him guilty of an offense under illinois law this court in pelf said that because the jury in that case was a conviction predicated on something that was not of the now here one of the three doesn't exist so there and sense to convict somebody predicated on an offense that does not exist  law is a violation of the due process clause that means one of the alternative submitted to the jury violating i also would return to the discussion of the erroneous part of this or the other part of this issue is that under morgan and help they clearly establish this rule that if th aggravated battery and in the the murder count as having beaten the the scene with an ans feet and a bore in both counts so these acts are very clearly inherent in error by instructing the jury on the felony murder theory a first degree murder under the facts of this case there is absolutely nothing unconstitutional no constitutional infirmity with  on an aggravated battery that is committed against the same victim and defendant does not claim otherwise he does not claim that there is anything in firm about such a theory of liability under murder there's also nothing in our criminal code that precludes instruction on such a theory in fact the legislature has expressly included aggravated battery in the definition of forcible felony and chosen not to exclude aggravated battery as a permissible predicate for  under the a three section of the murder statute which is the felony murder theory in so far as defendant claims that allowing for a felony murder predicated on aggravated battery of the same victim somehow renders the knowing or intentional theories of first degree murder superfluities his argument is not persuasive felony murder a felony murder theory no more runners knowing an intentional murder superfluous than a knowing theory of murder renders intentional murder superfluous since every intentional murder could also be prosecuted under a theory of knowing murder i legislature has created one offense of first degree murder and set forth three means by which a defendant may commit such an offense and be convicted of first degree murder the felony murder section section eighty three is intended to defect or is intended to deter the commission of forcible felony including aggravated battery by holding the perpetrator responsible for murder if a death results during the course of that felony any theoretical concerns regarding the effect of elimination of the second degree murder of france had been addressed by the legislature through it exclusion of conduct which constitutes second degree murder as a predicate for felony murder here it must be noted that there is decidedly no merger problem as it has been called either actual or theoretical there was no issue of mitigated mental state in this case the facts of this case were that defendant and two confederates savagely beat demetrius thomas there was no evidence put forth bad with the state or the defense that there was any mitigated mental state or provocation or self defense after the savage beating which resulted in demetrius which did not end until demetrius was unconscious and face down on the ground defendant threw his body into a garbage dumpster and then he and his confederates went in socialized outside a building these facts are strikingly similar to those that were presented in vines or where this court held that felony murder predicated on ag bad of the same victim was a proper charge and visor the defendants beat t off duty police officers and one officer died as a result of his injuries the felony murder theory was predicated on the aggravated battery of the same officer who died and like to me trace in this case that officer died two weeks later in this case it was two months later as a result from complications that arose from the initial injuries during the assault and up holding the felony murder aggravated battery count and that invited her this court recognize that sept the inherent separation murder this court must must defer to the express mandate of the legislature because felony murder predicated on aggravated battery is expostulate permitted under illinois law this court should find that there was no error in instructing so instructing a jury in this case on the three occasions since that this court has addressed situations where there have been felony murder charges or instructions predicated on some form of assaultive conduct against the same victim this court has explicitly and implicitly noted its concern that by allowing such a theory of liability for first degree murder the state could eliminate second degree murder altogether and avoid proving an intentional or knowing murder by charging every murder as a felony murder again that they're concerned exists in this case because in this case the state proceeded on all three theories of first degree murder trial which i think defendants one good counterargument kind of gets away from what the the correct analysis says that really what counsel claim that the one good count presumption must be based on something and that something is the quality of the proof admitted at trial here the proof the evidence you do see a trial certainly supported the entry of judgment on intentional murder which is what the trial court did in this case the severity of the beating the  the fact that they resumed the beating at one point demetrius was able to escape this attack and he ran to the back the building defendant and his confederates chased him to the back of the building resumed the beating and did not stop until he was unconscious they then concealed the body in a dumpster and shining or at least minimizing any chance of aid that in their minimizing any chance that he would receive immediate medical attention this added and certainly demonstrates that the defendant and his cohorts this was a direct and accountability theory case y was exactly the same as the claimed infirmity here that is an aggravated battery theory predicated on excuse me a felony murder theory predicated on aggravated battery of the same victim the fact that the court applied the one good count presumption in that case  suggest that it should do likewise in this case and actually i would submit that under the facts of this case there is even because there is no issue of medicated mental state whereas there was in morgan and i think that's maybe what what what drove the analysis and looking at the other th there were two victims and morgan so looking at what the jury did with respect to the other victim that the concerns about second degree murder drove that analysis and that and morgan whereas here there are no concerns about second degree murder so really this court need look no further than the fact that the proof the evidence from trial at trial supports intentional murder in this case as we discussed in our brief the concern any concerns that that may have driven this court to is somewhat elastic or conduct based analysis and morgan and then again in power and also in  need to implement a judicial limitation on the felony murder rule in illinois the legislature has already addressed it by enumerating which forcible felony is may serve as predicates for murder and by excluding second degree murder as far as defendant claims that visor the visor analysis is somehow no more political because of changes in the code specifically the change of voluntary manslaughter to second degree murder that that argument is is really not persuasive because when the when the legislature change second degree murder or change into voluntary manslaughter to second degree or degree murder and when they allowed for and as this court how they believe it was in morgan that second degree murder is not a defense to murder they could have very easily added aggravated battery to a theory of the murder statute just as they excluded second degree murder they could have also been in reaction to visor if they disagreed with this court's holding advisor they could have excluded aggravated battery from section eighty three of the murder statute and they did not  the state is not as defendant contends and and has through his arguments and any way relieved of its burden of proving a mental state for the murder for a murder offense when a jury is instructed as it was in this case on all three theories of murder all felony murders whether the predicate is an assault of conduct or not involve a full loneliest mental state element they involve whatever the the mental state is for the underlying forcible felony the legislature has determined that when any perpetrator commits a forcible felony with the the requisite mental state to prove that forcible felony and a death results that that equals first degree murder that is what that and allege that is the third theory of first degree murder defendant's attack on the instructions on this basis really amounts to a generalized attack on the felony murder doctrine in illinois which clearly is would not be persuasive  in short the felony murder aggravated battery instruction in this case was not a ronnie s it was permissible under illinois law the court should honor the plain language of the criminal code and not read into it a limitation on the felony murder doctrine that does not exist and that is contrary to the legislature's intent that the felony murder that liability for felony murder attach that the broadest level of attachment for liability of and davis this you know error occurred in this case i would direct this tension specifically to its last paragraph in davis where it noted that the outcome in davis was wholly consistent with  that because and then went through the facts and visor and said that even under davis these guys are still good and since the facts here are exactly that those that were invited or the theory is still viable under illinois  defendant has not demonstrated a violation of due process the one count presumption in illinois should be applied as it has been consistently the fact that to defend it was also convicted of aggravated battery as we point out in cardona there was a can there was a conviction for the underlying predicate felony that i think eliminates or minimises i defend its argument in that respect and for these reasons we would ask that you affirm defendant's conviction and also we stand on our brief with respect to the batson issue know i why i recognizing obviously the cases that say that once a court asked of the state to to articulate a race neutral reason any any examination of prima fascia case is somewhat moot i think it certainly would this record even what that the race of these three other jurors the races of these three other jurors are so i'm rusty i mean it's it's really a great leap of conjecture and speculation to assume that those three jurors were not minorities as out that defendants entire comparison on appellate review is really without basis in the record even if the races were known it's clear as we outlined in our brief that there were other legitimate reasons first of all that  a few of those individuals did not equivocate in the same manner that mr hicks did and that there were other a trip others that he was asked whether he could be fair and he said i think so m miss ms let's say mr harding how subsequently clarified his answer and stated that he had no hesitation that he could be fair venir person could tool we point out first the questioning of mr hicks in the record is not very extensive he was asked if he could be fair and he said i think so if i hope he does equate the exact quote yes other than questions about his background and his personal characteristics that was the that well no he did when he was subsequently indicated that he that he was comfortable that he could be fair however as the case as outlined in our brief say his initial equivocation still is maintained as a facially race neutral and found that there was that there was no bats in violation which necessarily find no purposeful discrimination did generally claim that other jurors had had said i don't i don't know there he did it he wasn't prevented from making any argument by the course there's no indicated don't think that can be read from the record it's  that that while maybe this was a a bit of a complicated colloquy there doesn't seem to be any type of truncation by the trial court of defense counsel and the prevention of making an argument and i think if we look at the attorney to ask the court to express a finite make a determination of whether he was finding a prima fascia case of discrimination certainly that would have been better that would have been profitable however that did not occur and the fact that there was arguably a collapse in the first and second stage doesn't change the fact that there were appropriate second and third stage proceedings held and a property terminations was made that should be granted the appropriate  apparently there had been some discussion about something concerning this particular jury strike off the record but the trial but it was also very clear that no formal batson and yet made but the trial court nonetheless decided to request for the prosecutor to give his reasons for making the strike so immediately jumped over one stage and then the and then counsel had had to you know contest those explanations basically saying there were other people who equivocated in the same manner or supposedly with late kate in the same manner and then the trial court actually sort of launched into a digraph in about  allegations are easy to nake and then seem to be accusing the defense of accusing the prosecutors of being racists and it sort of went off from there and return to i believe at that point a second juror that hadn't been that strike which had actually been challenged so the proceedings here were barely resemble the prescribe the baton procedure i think is correct that it would have been because the defense attempted make a proper motion after percy's return to the record and the as i said this route sort of went off in this aggression about what actually was involved in proceeding was basically unrecognisable and there are two questions there are really two questions here one are the are the explanations of race neutral on their face which is essentially anything but i struck this jerk because he or she was a member of a minority or because of her gender and also there is a second question is this where is the race neutral reason pretextual those are those are two distinct questions in the part of these in the race as well council didn't state that there were other people who equivocate in a similar fashion and under some of the case law here is there was no objection from the state saying wait these people were were also minorities or you know they didn't equivocate in the same way so in some of the cases here where you have a statement like that you can take it as a given that those strikes were also relevant visor itself promulgated a very broad rule any aggravated battery can serve as a predicate for any felony murder it did not conduct a factual analysis to come to this conclusion of the facts at hand in  therefore it's discussion of the facts there isn't necessarily germane to the to the facts in this case because initially it was totally unnecessary to the court's conclusion in the facts there could have been anything and the result five zero nine two people versus jermaine davis will be taken under advisement