THE PEOPLE OF T HE STATE OF I LLINOI S, Plaintiff-Appellee,

v. RONALD R OSENTHA L,

Defendant-Appellant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Appeal from the Circuit Court of Cook County

Hon ora ble Marcus R. Salone, Judge Presiding. SECONDDIVISI ON Decem ber 31, 2008

No. 1-05-4085

JUSTICE KARNE ZIS delivered the opinion of the court. Defendant Ronald Rosenth al was convicted of felony m urder predicated on aggravated battery w ith a firearm (720 ILC S 5/9-1(a)(3) (West 2000)) and was sentenced to 45 years ’ imprisonm ent. On appeal, defendant argues : (1) his conviction should be r eversed because th e State fail ed to prove an i ndependent fel onious pur pose for the aggrava ted battery with a fi rearm; (2) the trial court erred i n denying de fendant’s1-05-4085

2

m otion to d ism iss the ind ictm ent; (3)the j ury was given an errone ous instr uction; ( 4) the trial court improperly allowed the S tate to present prej udicial evidence of defendant’s prior bad acts; (5) the trial court abused its discretion when it found tha t a potential witness had a valid fifth am endme nt right against self-incrimination; and (6) the State repeatedly m isstated the evidence in closing argum ent. In People v. Rosenthal , 383 Ill. App. 3d 32 (2008), w e reversed defendant's conv iction and sentence. On Septe m ber 24, 2 008, pur suant to its sup ervisory authority , the I llinois suprem e court directed this court to vacate its order in Rosenthal , 383 Ill. App. 3d 32, and cons ider whether in light of the holding in People v. K naff , 196 Ill. 2d 460, 478 (2001), conviction and rem and to t he t rial cour t fo r se nte ncin g on agg rav ate d ba tte ry w ith afire armis appropriate. For the following reasons, w e reverse defendant’s conviction. BACKGROUND Defendant was initiall y charged w ith 12 counts of first degree m urder, three countsof att em pt first d egree m urder, on e count of aggra vated b attery with afirearm and two counts of aggravated bat tery. These charges aros e from the shooting death of Sherm an Mays and the wounding of TanyaGriffin. Prior to trial, the State nol-prossed all counts except cou nt VI II, w hich was felony m urder pre dicated o n aggrav ated bat tery wi th a f i re ar m. Count V III alleged that de fendant “shot a nd killed She rm an Ma ys w ith a firearm during the com mission of a fo rcible felony, to wit: aggravated battery with a firearm , and during the com mission of the offense of first degree m urder, Ronald Rosenthal1-05-4085

3

personally discharged a firearm that prox imately caused death, in violation of Chapter 720 Act 5 Section 9-1( a)(3) of the Il lino is Complied Statues 19 92." Although Tanya Griffin mentioned in other counts, including those counts of aggravated battery with a firearm that w

ere dismissed, G riffin was not m entioned as a victim in Count VIII. Prior to trial, defense counsel m oved to dism iss the felony m urder count arguing that because the s hooting of Mays and Griffin was one contem poraneous act, the predicate felonies for the felony m urder charges were inherent in the act of killing. In addition, the State m oved to preclude defense couns el from present ing evidence that defendant acted in self-defense. The trial court denied the m otion and ruled that the defense would be allowed to present a defens e of jus tification, despite the sole count of felony murder, because “there is som e evidence that there w as provocation.” The following evidence was ad duced at trial. Defendant w as on his way

to a party on the eveni ng of May 17, 2002. He was armed w ith three guns, two of which belonged to a friend. Defendant’s gun was a 9 m illi meter and was fully loaded with 10 rounds. Whi le driving he stopped to talk to Versaille Peynesta, w ho was s tanding outside the apartm ent building where the party w as being held. Several witness es testified that they saw

defendant and Pey nesta talking. W hile they were talking, Sherm an Mays came up to them and began “talking crazy.” Evidence es tablished that at the tim e of his death, Mays had a blood alcohol conten t of .2 04. The t hree m en then wen t to th e porch of the a partm ent building, w here defendant sat dow n and put his 9 m illi meter on his lap. Several witnesses testified that1-05-4085

4

they saw three m en on the porch. Def endant had previously drawn the gun wh en he was talking to P eynesta. M ays asked defendant if he could see his gun. Defendant gave Mays the gun to look at and M ays then pointed the gun at defendant’s head. A fter defendant asked M ays to return the gun, Mays fired the w eapon past defendant’s head. Defendant then ran up t he stairs and into the apartm ent where t he party was being held. Mays shot

at him aga in. Several witnesses testified that they heard at least one sh ot. Defendant then ex ited the apartm ent through the back do or and walked hom e, leaving his car at the party. Defendant testified that he later returned to t he party to retrieve his car. As he was about

to enter his car, Jerm ond Jenkins wa lked up to defendant and told him that Mays w as willing to give him his gun back. Jenkins pointed to the car that Mays w as sitting in. Defendant walked to t he car’s passenger d oor and spoke to M ays. Defendant testified that he did not know that Tanya Griffin was in the car. When defendant asked M ays for his gun back, M ays aimed the gun at defendant an d shot at him. D efendant pulled out his two gunsand started shooting at M ays. Mays suffered 10 fatal bullet wounds. A fter the shooting, defendant fled to M ississippi. He was arrested a m onth later when he ret urned to Chicago. Tanya Griffin testified that when she an d Mays, her boyfriend, got into her car aft er t hey

left thepar ty toge the r, h e did not

hav e a g un. Ho w eve r, G riff in ha d pr evio usly told prosecutors that there w as a gun under the pass enger seat w here Mays w as sitting. Griffin testified that defendant walked up to the passenger side of her car and started1-05-4085

5

firing, shooting nonstop at close range. Griffin further stated that Mays did not have a gun in hi s hand, nor di d she see him reach for a gun. Jenki ns and Dwayne Baker also testified that they did not see a gun in M ays’ hand and did not see Mays shoot at defendant. After hearing all of the evidence, the j ury was instructed. Interestingly, there w as no mention of Tanya Gri ffin in any of the instr uctions pro vided to the jury. Ulti mately, the jury found defendant guilty of felony m urder predicated on aggravated battery w ith a fire arm . Th e tr ial c our

t se nte nce d de fen dan t to45 year s’ im pris onm ent . I t is fro m this judgm ent that defenda nt now appeals. ANALY SIS Defendant first argues that his conviction for felony murder m ust be reversed because the predicate offense , aggravated battery w ith a firearm, w as inherent in the shooting of the decedent. A person com mits the offense of felony m urder when he, without lawf ul justification, causes anot her’s death w hile attempting or com mitting a forcible felony other than second degree m urder. 720 ILCS 5/9-1(a)(3) (W est 2000). A fo rcible felony includes aggravated battery w ith a firearm. 720 I LCS 5/2-8 (West 2000); People v. Hall , 291 Ill. App. 3d 411 (1997). The purpose of the felony m urder statute is to limit the violence that accom panies the com mission of forcible felonies, so that a perso n eng age d in s uch viol enc e w ill be autom atically sub j ect to am urd er p ros ecu tion sho uld1-05-4085

6

som eone be killed in the course of a forcible felony. People v. Belk , 203 Ill. 2d 187, 192 (2003). As such, under the felony m urder statute, an offender is responsible for the direct and foreseeable consequences of his initial criminal act. Belk , 203 Ill, 2d at 192. Defendant argues that, similar to People v. Morgan , 197 Ill. 2d 404 (2001), the act of aggravated battery with a firearmwas inherent in the offe nse of m urder and therefore cannot support a conviction for felony m urder. In Morgan , the defendant admitted th at he shot his grandfather, and then his grandm other as she attem pted to flee, because he feared for his life. He w as charged w ith two counts of felony m urder predicated on aggravated battery and aggravated discharge of a firearm . The defendant was ultimately convicted of felony murder p redicated on aggravated discharge of a firearm. Morgan , 197 Ill. 2d at 444. On a ppe al toour

sup rem e co urt , th e de fen dan t ar gue d th at h is c onv icti on s hou ld be overturned because the predicate felony, aggravated discharge of a firearm , was not independent of the killings. Morgan , 197 Ill. 2d at 444-45. The Morgan court agreed, finding that the offense of aggravated discharge of a firearm could not support a convict ion for felon y m urder because, g iven the f acts o f the c ase, ag gravate d batte ry and aggravate d discharg e of a firear m w ere inhe rent in the murders of the defendant’s grandparents. Morgan, 197 Ill. 2d at 447. In discussing the felony m urder doctrine, the Morgan court expres sed concern that, s ince the State w as not required to prove intent to kill in the prosecution of a felony murder charge, the State w ould be absolved from its1-05-4085

7

duty to prove that a defendant has either an intent to kill or to do great bodily harm

. Morgan, 197 Ill. 2d a t 44 7. T he cour t no ted “ev ery

[ac t of ] sh oot ing n ece ssa rily

encom passes conduct constituting aggravated battery, i.e. , gr eat bod ily h arm , asw ell as conduct const ituting aggravated discharge of a firearm , i.e. , dis cha rgin g a f irea rm in the direction of another. Morgan , 197 Ill. 2d at 447. Consequently, t he Morgan court held that a defendant cannot be convicted of felony m urder when the predicate felony “arose f rom and [w

as] inhere nt in the m urder[ ] .” Morgan , 197 Ill. 2d at 447. The cou rt concluded that “the predicate felony underlying a charge of felony m urder mus t have an independen t feloniouspurpose .” Morgan , 197 Ill. 2d at 458. The State argues th at the case at bar i s not control led by Morgan because defendant’s act of

firing shots into the car had an independent felonious purpose other than killing Mays. At oral argum ent, the State suggested that defenda nt intended to “shoot everyon e in the c ar.” The Stateargues that th e facts of this case are m ore similar to those in People v. Toney , 337 Ill. App. 3d 122 (2003). In Toney , the defendant was convicted of felony m urder predicated on aggravated discharge of a firearm on a th eory of accountability. Toney, 337 Ill. App. 3d at 129. The def endant knowingly drove codefenda nts to confront rival gang m embers and a shootout took place where an innocent bystander was killed. Toney , 33 7 Ill. Ap p. 3 d at 140 . Th is court upheld the defendant’s conviction on appeal finding that the predicate felony of aggravated di scharge of a fi rearm “was m otivated by an independ ent feloni ous purpose other than the killing of [the victim]. That conduct involved the independent felonious1-05-4085

8

purposeof disch arging firearm s in the d irection of the Four Corner H ustlers * * * .” Toney , 337 Ill. App. 3d at 135. The court further noted that the victim “w as not even present whe n that gun battle began. Ra ther, he wa s shot at a different location several

m inutes af

ter the initial exch ange of gunfire by the tw o rival gangs .” Toney , 337 Ill. App. 3d at 135. To parse out the parties’ argum ents, we m ust, in accordance w ith Morgan , review the fac

ts of the case to determ ine whether the predicate felony “arose from” o r was “inherent in” the m urder of the victim : if so, a felony m urd er c har ge isnot lega lly proper, but if not, a felony murder c harge is appropriate. See Toney , 337 Ill. App. 3d at 132 (“the factual contex t surrounding the m urder is critical in determining whether the forcible felony can serve as a predicate felony fo r felony m urder”); see also People v. Pelt , 207 Ill. 2d 434, 442-43 (2003) ( the predicate felony underlying the charge of felony murder m ust invol ve conduct with a felo nious pur pose other than th e conduct which killed the victim). As previously discussed, the State proceeded to trial on one count, Count VIII of the indictment, of felony m urder predicated on aggravated battery w ith a firearm. The only victim nam ed in that count was Sherm an Mays. Griffin was not nam ed as a victim

. Nonethele ss, prior to the comm encement of trial , the State indi cated that, with respect to Coun t VII I, it intend ed to pro ve that defenda nt was com m itting an ag gravate d batte ry with a firearm against Griffin and while doing so “shot and killed Sherm an Mays w ith a1-05-4085

9

firearm during the com mission of a fo rcible felony, to wit: aggravated battery with a fire arm , an d du ring thecom m iss ion o f th e of fen se of fir

st d egr ee m urd er, Ron ald Rosenthal personally discharged a firearm tha t proxim ately caused death, in violation of Chapter 720 Act 5 Section 9-1(a)(3) of the Illinois Complied Statues1992." Despite its statem ent to the contrary, t he State actually proceeded on t he theory that M ays wa s the victim of the aggravated battery w ith a firearm. As the record in this case indicates, t he State repeatedly argued that defendant had “m otive” to shoot Mays, that he did it for “revenge,” that he “executed” M ays, and that he did it in “cold blood.” This type of argument certainly does not support the State ’s the ory tha t defen dant inten ded to com m it an aggra vated b attery with afirearm against Griffin. Likewise, the State used the theory of transferred intent to explain to the jury that it could find defendant intentionally caused injury to Griffin by transferring defendant’s intent to com mit an aggravated battery against M ays to Griffin. The State argued in closing:

“In this case the defendant intended to shoot or com mit aggravated battery w ith a firearm to S herman Mays, but he hit, even if it was unintended, Tanya Griffin which I don’t believe the evidence bearsout. I believe he knew Tanya w as in the car. * * * I’m telling you what the evi dence shows, and I beli eve the evide nce shows he knew Tanya was in the car. But even if you don’t believe that, the intent, if he1-05-4085

10

intended to shoot at Sherm an, that intent follows the bu llet right to Tanya. * * * Even if the defendant only intended to shoot at Sherm an Mays, if you find that he did so, his intent follows the bullet and he’s still guil ty of aggravated battery. * * * Even if he in tended to shoot at Sher man, his intent i s transferred and he’s guilty of aggravated battery w ith a firearm of Tanya G riffin.”

In addition, while criminal defendants are norm ally not allowed to assert selfdefens e against

a charg e of felon y m urder ( Peopl e v. Moo re , 95 Ill. 2d 404, 411 (1983) (self-defense cannot be raised as a def ense to felony m urder); see also 720 ILCS 5/7- 4(a) (W est 2004)), def endant was allo wed to assert self-defe nse in thi s case because the trial court found that there w as som e evidence of provocation. When he testified, def end ant adm itte d th at h e intent iona lly s hot Ma ys bec aus e M ayssho t at him ; th e on ly question was whether his acti ons were justified. The evi dence establ ished that Mays had been shot 10 tim es, while Griffin only sustained one gunshot w ound to the arm

. Defendant testified that he did not even know tha t Griffin was in the car. A s a result, the jury heard a considerable amount of evidence supporting the theory that M ays wa s the i nt en de d v i ct i m of

th e a gg ra va te d b at te ry wi th a f i re ar m. Considering the record before us, and tak ing the parties’ theories of the case into consideration, we find that the facts of this case a re more similar to those in Morgan1-05-4085

11

than Toney . In Morgan , as in the case sub judice , th e sa m e ac t th at f orm ed t he b asis for the predicate felony was also the sam e act inherent in the m urders. In short, the aggravated battery w ith a firearm in this case w as inherent in the killi ng of Mays. An independent felonious purpose for the aggravated battery w ith a firearm sim ply was not charged or proven. Thi s is especi ally tr ue in thi s case given the amount of evi dence presented suggesting that defen dant intentionally shot Mays and the instructions and verdict form s subm itted to the jury

. That being said, the State sugges ts that should we find defendant’s conviction for felo ny m urd er p red icated o n ag gra vated b att ery w ith afire armto b e im pro per in t his case, we should reman d for resentencing on the lesser included offense of aggravated battery w ith a firearm. The S tate asserts that the aggravated battery w ith a firearm of Griffin is a lesser included offense of the felony m urder charge. In support, t he State relies on People v. K

naff , 196 Ill. 2d 460 (2001), and Peopl e v. Wi lli ams , 267 Ill. App. 3d 870, 879-80 (1994). In Knaff , the defendant w

as charged w ith two counts of unlawful delivery of a controlled substance within 1,000 feet of public housing and two counts of unlawful delivery of a controlled substance. Prior to trial, the State dism issed the two counts of unlawful delivery of a controlled substance and proceeded to trial on the greater cha rge s of

unla w ful d elive ry o f a cont rolle d su bstanc e w ithin 1,0 00 f eet of p ublic housing. Knaff

, 196 Ill. 2d at 462-64.1-05-4085

12

At the close of the State’s cas e, the trial court granted the defendant’ s m otion for a directed verdict finding that the State failed to prove the location elem ent of the charge, i.e., that the delivery of the con trolled substance occurred w ithin 1,000 feet of public housing. The court found that the evidence w as sufficient to prove the lesser offense of unlaw

ful delivery of a controlled substance and allowed the State to am end the indictment. The jury w as instructed on the lesser offens es and the defendant w as ultimately convicted of the lesser offenses of unlaw ful delivery of a controlled substance. Knaff , 196 Ill. 2d at 463. On review, the de fendant argued that the t rial court violated his constitutional and sta tutory righ t ag ains t do ublej eop ard y w hen it a llowed t he S tat e topro cee d ag ains t him on the lesser-included offenses after the cou rt found the evidence insufficient on the gre ate r of

fen sesdueto t he S tat e’sinab ility to p rov e locatio n. O ur s upr em e co urt

uph eld the decision of the trial court finding that the defendant’s rights against double j eopardy were not v iolated because courts have long recognized a court’ s ability to reverse a conviction while ordering the entry of a j udgme nt on a lesser-included offense. Knaff , 196 Ill. 2d at 477-78. In Williams, the defendant w as charged w ith possession with intent to deliver more t hat 100 but less than 400 gram s of cocaine. Following his conviction, the defendant appealed and argued that the State failed to prove that defenda nt possessed more than 100 grams but less than 400 grams of cocaine be cause, despit e the parti es’1-05-4085

13

stipulations to the findings of the chem ist, the chem ist could have only confirmed 56.76 gramsof the substance contained cocaine. Will iams , 267 Ill. App. 3d at 878. This court agreed with defendant and found that although the S tate failed to prove the charged offens e, it did prove defendant guilty of possession of m ore than 15 gramsbut less than 100 gram s of cocaine. Will iams , 267 Ill. App. 3d at 879. I ndicating its authority under Suprem e Court Rule 615(b)(3) (134 Ill.2d R. 615(b)(3)) to reduce the degree of the offense f or which defendant was co nvicted, as well as the principle that a defendant “m ay be convicted of an of fense not ex pressly included in the charging inst rum ent

if t hat off ens e is a ‘l ess er in clud ed o ffe nse ’ of theoff ens e ex pre ssl y charged”, the Will

iams court reduced the defenda nt’s conviction and rem anded for resentencing. Will

iams , 267 Ill. App. 3d at 880. W e have n o issue w ith the S tate’s conten tion that

in this cas e aggrav ated bat tery with a firearm is a lesser included offense of felony m urder. See People v. S mith , 183 Ill. 2d 425, 4732 (1998). However, we find Knaff and Williams inapplicable to the facts of this case. The question presented in Knaff was w hether a lesser-included offense not expressly charged by an indictment would be barred by double j eopardy. Knaff , 19 6 Ill. 2d at 477. Notw ithstanding that we are not dealing with double jeopardy here, Knaff involved a relatively simple unlawful possession w ith intent to deliver; the only question

waswhe ther tha t delivery took placewithin 1,000 f eet of p ublic housing. Afte r the co urt concluded it did not, the State am ended the indictment to include the lesser offense of1-05-4085

14

straight unlaw

ful posse ssion w ith intent to deliver and the ca se was subm itted to t he j ury with the corresponding instructions and verdict forms . Sim ilarly, i n Will iams , it was not que stio ned tha t th e de fen dan t po sse sse d an d intend ed to de liver thecocaine ; ra the r, it was sim ply a mat

ter of how muc h cocaine defendant posses sed. After the Will iams court found that th e State actuall y only proved that defendant po ssessed 56.76 grams, the court reduced the c harge to the lesser offense of possession w ith intent to deliver less than 100 gram s. The question presented here is not as neatly pac kaged as those in Knaff and Will iams . In this case w

e have one count of felony murder p redicated on aggravated battery w ith a firearm, tw o victims, ne ither of whomwere clearly identified as the actual vi ct i m, e vi de nc e t ha t wa s a l l ov er th e ma p, an d i ns tr uc ti on s a nd ve rd i ct fo rms th at na me Mays as t he victim but n ot Griffin, despite the State’s indication that Griffin was the actual victim of the aggravated battery w ith a firearm. In ad dition, we add to that o ur finding that the State failed to charge or prove an independent felonious intent for the aggravated battery w ith a firearm. The St atew ould hav e usbelie ve t hat all o f th is isirre leva nt b eca usethej ury in this case found beyond a reas onable doubt that defendant com mitted aggravated battery w ith a firearm as the predicate felony for the felony m urder count. The j ury was instructed as follo ws:

“To sustain the charge of first degree m urder, the State m ust prove that when the d efendant perform ed the acts w hich caused the death of S herman1-05-4085

15

Mays, the defendant was com mitting the offens e of aggravated battery with a firearm beyond a reasonable doubt. Accordingly, you may find the defendant guilty of first degree murder only if you also find the def endant was

com mitting the offense of aggravated battery w ith a firearm beyond a reasonable doubt.” Thus, t he Sta te claim s, inheren t in the v erdict finding defenda nt guilty of m urder, the jury also found defendant guilty beyond a reasonable doubt of the predicate aggravated battery w ith a firearm of Griffin. Consequ ently, reman ding for resentencing is justified. The State is operating on the m istaken belief here that because it indicated its intent to proceed as if Griffin was t he intended victim of t he aggravated battery w ith a firearm, outs ide the presence of the j ury, the j ury necessarily m ade that finding. Given thearg um ents ad van ced by theSt ateand thej ury inst ruc tion s an d th e ve rdic

t fo rm s in this cas e, it is clear

that j urors w

ere free to basetheir verd ict on an aggrava ted bat tery

w ith afire armto M ays . Fu rth erm ore , be cau se t he in str uct ions and ver dict for m s did not differentiate between an aggravated battery w ith a firearm to Griffin and an agg rav ate d ba tte ry w ith afire armto M ays , so m e j uro rs m ay h avecon clud ed t hat Grif fin was the victim of the aggravated battery w ith a firearm w hile some m ay have concluded that Mays was the victim. Whil e we can only speculate as to w hat the j ury found, the abundant irregularities and confusion in this case undermines our confidence t hat the jury could have possi bly reache d a unanimous verdict , thereby vio lati ng defendant’s constitu tional rights ( See Ill. C onst.1 970, art . I § 13 ; 725 IL CS 5/ 115-4 (West 2002) (a1-05-4085

16

defendant has right to a unanim ous jury verdict)). Accordingly, it would be im proper and unjust

for this court to rem and this case for resentencing on a lesser offense of aggravated battery w ith a firearm. Based on the foregoing, the judgm ent of the trial court is reversed. As this issue is dispo sitive , we need not address defenda nt’s remaining i ssues. Reversed. KARNE ZIS, P.J., with HOFFM AN and HA LL, J.J., conc urring.