NO. 5-00-0513

	IN THE

	APPELLATE COURT OF ILLINOIS

	FIFTH DISTRICT

________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS,	)  Appeal from the

							)  Circuit Court of

     Plaintiff-Appellee,				)  Madison County.  

							)

v.							)  No. 99-CF-2

							)

JERRY D. GREER,				)  Honorable

							)  Charles V. Romani, Jr.,

     Defendant-Appellant.				)  Judge, presiding.  

________________________________________________________________________

	JUSTICE WELCH delivered the opinion of the court:

	Jerry D. Greer (defendant) appeals from his conviction for felony murder.  He was

convicted in a jury trial in the circuit court of Madison County.  On June 16, 2000, defendant

was sentenced to serve 30 years in the Illinois Department of Corrections.  His argument on

appeal is straightforward: he claims that he could not be convicted of felony murder based

on the commission of armed violence predicated on unlawful possession of a controlled

substance with intent to deliver because armed violence based on unlawful possession with

intent to deliver is not a forcible felony.  The parties agree that the issue is one of law and

that our review is de novo.  See People v. Daniels, 187 Ill. 2d 301, 307 (1999).  We will set forth 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 intent

to deliver, he performed acts which caused the death by shooting of the victim.  Defendant

received a telephone call asking him to deliver cocaine to the residence where the victim was

staying.  Defendant had delivered cocaine to this residence before, and the resident owed him money for past drug deliveries.  Defendant asked his cousin, Gregory Greer, to go

along.  Gregory had also delivered drugs to this residence before, and the resident owed him

money as well.  Defendant intended to negotiate the sale of cocaine, while Gregory intended

to try to get some of the money owed to him.  Gregory showed defendant a gun that he

intended to, and did, take along in order to scare the resident into paying him the money she

owed him.  Defendant advised Gregory not to point the gun at the resident until after

defendant had completed his drug sale.

	Defendant and Gregory entered the kitchen of the residence and were met by the

resident.  Defendant was trying to negotiate the drug deal when the victim came into the

kitchen.  The victim set $63 on the kitchen counter.  Either Gregory or defendant grabbed

some of the money, and the victim rushed Gregory.  Gregory fired the gun, which was in his

pocket, into the victim's abdomen.  The victim backed off and grabbed a knife, with which

he 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 or

committing a forcible felony other than second degree murder."  (Emphasis added.)  720 ILCS 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 assault

of 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 disability

or disfigurement[,] and any other felony which involves the use or threat of physical force or violence against any individual."  (Emphasis added.)  720 ILCS 5/2-8 (West 2000).

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

felony murder statute.

	A person commits armed violence when he uses a firearm in the commission of a

felony offense.  720 ILCS 5/33A-2 (West 2000).  Unlawful possession of a controlled

substance with intent to deliver is a felony offense.  720 ILCS 570/401 (West 2000).  But

is armed violence based on the commission of this felony a forcible felony?  Armed violence

is not specified as a forcible felony in the statute defining that term.  720 ILCS 5/2-8 (West

2000).  But does it fall within the residuary clause of that statute as a "felony which involves

the 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, involving

a different underlying offense and, on the facts of that case, reaching a conclusion different

than the one we reach herein.  Nevertheless, its analysis is dispositive of the case at bar.  In People v. Belk, No. 1-00-0371 (November 14, 2001), the defendant was charged with felony murder based on the commission of aggravated possession of a stolen motor vehicle.  The

defendant had stolen an automobile and then fled police, driving the stolen vehicle in a

reckless manner and ultimately colliding with another vehicle, killing its two occupants.  The

defendant argued on appeal that his conviction for felony murder could not stand because

aggravated possession of a stolen motor vehicle was neither a specified forcible felony nor

a felony involving the use or threat of physical force or violence.  Relying on our supreme

court’'s decision in People v. Golson, 32 Ill. 2d 398 (1965), the First District answered that the test to be applied in determining whether the felony murder doctrine is applicable is not

whether the underlying felony is normally classified as nonviolent, but whether, under the

facts of a particular case, it is contemplated by the defendant that violence might be

necessary to enable the defendant to carry out the offense.  Belk, slip op. at 3.  The First District pointed out that the Illinois Supreme Court has thus interpreted the residual category

of unspecified felonies that may serve as the predicate felony for the purpose of a felony

murder 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 motor vehicle is not a specified forcible felony, but it stated, "What is at issue is whether, under the

facts of this case, the crime of aggravated possession of a stolen vehicle involved the use or

threat of physical force or violence against the victims"–that is, whether it was contemplated

by the defendant that violence might be necessary to enable him to steal the vehicle and

escape arrest.  Belk, slip op. at 3.  In light of the fact that the defendant's actions in ramming his vehicle into that of the victims were reckless and not intentional, the First District

concluded, in that case, that aggravated possession of a stolen motor vehicle was not a

forcible 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 out with the intention of stealing from automobiles.  They brought along a gun, which they

placed under the dashboard of their car.  They did not find any autos to rob, so they decided

to steal mail sacks from a loading dock.  Driving away with the mail sacks, they were

stopped by two postal inspectors.  During the ensuing arrest, the postal inspectors were shot

and 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 the

United States mails is a nonforcible felony which would not normally involve any danger

to human life.  The Illinois Supreme Court held that the test to be applied in determining

whether the felony murder doctrine is applicable is not whether the felony is normally

classified as nonviolent, but whether, under the facts of a particular case, it is contemplated

that 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 men had participated in the purchase of an ammunition clip for the gun and that they all knew

that it had been secreted in the car before they embarked on their illicit scheme.  The postal

inspectors were shot while the perpetrators were attempting to escape from the scene of the

crime.  Thus, there was sufficient evidence from which the jury could infer that the

perpetrators intended to forcibly resist any attempt to arrest them.  Such a plan comes within

the doctrine of felony murder since it was contemplated that violence might be necessary to

enable the perpetrators to carry out their common purpose.  Golson, 32 Ill. 2d at 407-08; see also People v. Auilar, 59 Ill. 2d 95, 101 (1974).  

	In People v. Guest, 115 Ill. 2d 72, 101 (1986), in comparing the residuary clause of the statutory definition of forcible felony to a similar definition that appears in the California

Penal Code, the Illinois Supreme Court reiterated that the residuary clause has been

interpreted 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 that

he planned to use it to scare the resident into paying him the money owed from prior illegal

drug transactions.  There can be little doubt that defendant contemplated that the threat of

violence would be used to carry out the scheme upon which the two had embarked.  Under

these circumstances, defendant cannot escape responsibility for the murder by arguing that

the conduct which resulted in death was not a forcible felony.  We believe that under these

circumstances, armed violence based on unlawful possession of a controlled substance with

intent 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.  Defendant

correctly argues that the mere presence of a gun during the commission of a felony does not

determine whether a crime is a forcible felony.  Thus, the offense of armed violence is not

inherently a crime involving "the use or threat of physical force or violence" within the

meaning of the residuary clause.  Nor is the offense of unlawful possession of a controlled substance with intent to deliver inherently or necessarily a forcible felony.  It does not

inherently "involve the use or threat of physical force or violence."  However, applying the

test set forth by the Illinois Supreme Court in Golson, we find that under the facts of this case 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 death

did not occur during the course of unlawful possession of a controlled substance with intent

to deliver because that offense had been completed before the victim was shot.  The

evidence 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.  Right

up until the moment of the shooting, defendant was in unlawful possession of a controlled

substance with intent to deliver it, and the shooting occurred during the commission of this

felony.

	Finally, we feel compelled to address defendant's argument that we should adopt the

meaning given to the term "crime of violence" in cases interpreting the Alcoholism and

Other 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 terms

in the definition of "forcible felony" in the Criminal Code of 1961, including the identical

residuary clause.  20 ILCS 301/1-10 (West 2000).  Defendant argues that this court has held

that armed violence is not a "crime of violence" within the meaning of the Drug Dependency

Act (see People v. Robinson, 255 Ill. App. 3d 1067, 1070-71 (1993)).  Defendant argues that therefore 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 to

determine the meaning of forcible felony as used in the felony murder statute, in light of the

Illinois Supreme Court's decisions in Golson, Auilar, and Guest, we note that the courts have used nearly the same test in determining what is a crime of violence as the one the Illinois Supreme 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 an offense is a crime of violence within the residuary clause of the definition, "the court must

consider 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 may involve force or violence and thereby constitute a crime of violence, in the case before the

court, the aggravated criminal sexual abuse involved no force or violence and was not a

crime of violence.  The court stated, "In sum, the facts of the present case did not amount

to a violent crime ***."  Freeman, 167 Ill. App. 3d at 747.

	Similarly, in People v. Robinson, 255 Ill. App. 3d 1067, 1070 (1993), the court examined the facts and circumstances of the particular crime in determining that the armed

violence based on unlawful possession of a controlled substance with intent to deliver

committed there was not a crime of violence.  In that case, the defendant was observed

placing a gun into the trunk of his car.  The defendant was arrested for unlawfully carrying

a weapon.  A search of his person found a controlled substance, and the defendant was

charged with armed violence based on unlawful possession of a controlled substance with

intent to deliver.  Upon the defendant's conviction, the trial court held that the offense was

a crime of violence within the meaning of the Drug Dependency Act.  On appeal, the court

examined the nature of the crime to determine whether it involved force or violence, and the

court determined that it did not.  The court determined that the record contained no evidence

that the offense involved physical force or the threatened use of force.  Accordingly, the

crime 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 crime

demonstrate that at least the threat of physical force was contemplated.  

	For the foregoing reasons, the judgment of the circuit court of Madison County is

hereby affirmed.

	Affirmed.

	GOLDENHERSH and KUEHN, JJ., concur.

                                     	NO. 5-00-0513

	IN THE

	APPELLATE COURT OF ILLINOIS

	FIFTH DISTRICT

___________________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS,	)  Appeal from the

							)  Circuit Court of

     Plaintiff-Appellee,				)  Madison County.  

							)

v.							)  No. 99-CF-2

							)

JERRY D. GREER,				)  Honorable

							)  Charles V. Romani, Jr.,

     Defendant-Appellant.				)  Judge, presiding.  

___________________________________________________________________________________

Opinion Filed:		January 9, 2002	

___________________________________________________________________________________

Justices:	Honorable Thomas M. Welch, J.

	Honorable Richard P. Goldenhersh, J., and

	Honorable Clyde L. Kuehn, J.,

	Concur

___________________________________________________________________________________

Attorneys	Daniel M. Kirwan, Deputy Defender, Michelle A. Zalisko, Assistant Defender,

for	Office of the State Appellate Defender, Route 15 East, P.O. Box 2430, Mt. Vernon,

Appellant	IL 62864-0047

___________________________________________________________________________________

Attorneys	Hon. William Haine, Madison County State's Attorney, 157 N. Main, Edwardsville,

for	IL 62025; Norbert J. Goetten, Director, Stephen E. Norris, Deputy Director, Patrick

Appellee	D. Daly, Staff Attorney, Office of the State's Attorneys Appellate Prosecutor, Route

	15 East, P.O. Box 2249, Mt. Vernon, IL 62864

___________________________________________________________________________________