SECON D DIVISION Date Filed: June 29 , 2007 No. 1-05-1470 THE PEOPLE OF THE STATE OF I LLINOIS, ) A ppeal from the ) C ircuit Court o f Pla intiff-Appelle e, ) C ook County. ) v. ) N o. 03 CR 00969 ) CLINTON MOORE, ) H onorable ) J oseph Kazmiers ki, Def endant-Appella nt. ) Judge Presiding . JUSTICE HALL delivered the opinion ofthe court: The defen dant, Clinton Moore was char ged by indictment with firstdegree murder (720 IL CS 5/9-1(a)(1) , (a)(2) (West2002)), firstdegree murderwhile committing a f orcible felony (aggravated p ossession of astolen motor vehicle) (720 ILCS 5/9- 1(a)(3) (West 2002)), first degree murder while committi ng a forcible felon y (burglary) ( 720 ILCS 5/9-1 (a)(3) (West 2 002)), aggrava ted possession of a stolen motorvehicle (625 ILCS 5/4-103.2 (a)(7)(A) (Wes t 2002)), burgla ry (720 ILCS 5 /19-1(a) (West2002)), and p ossession of b urglary tools (720 ILC S 5/19-2 (West2002)). The charges stemme d from a colli sion in which a stolenvehicle drive n by the defen dant collided with a vehicledriven by Jerry Love. At the time of the collisi on, the defend ant was being pursued by the police. Mr. Love die d as a result of the collisi on. Following

a jury trial, the defendantwas found gui lty of felony murder and burglary. The trial cou rt imposed con current senten ces of 30 year s' and 7 years' impriso nment on the f elony murder a nd burglary co nvictions, respectively. This appeal f ollowed. On appeal , the defendan t contends tha t the offense of burglary wa s complete priorto the policechase, and th erefore, he wa s not guilty o f felony murder. We ag ree and revers e the defendan t's felony mur der conviction . The evide nce at trial e stablished thefollowing fac ts. On Novemb er 24, 2002, Richard Abolins discov ered that his tan 1984 Buick Century autom obile was missing fr om where he ha d parked it ea rlier that day . He reported the

### No. 1-05-1470

1 

### At the time of her testimony, Ms. McQueen was in custody on 2 missing Buick to the police. He had not g iven anyone pe rmission to dr ive the Buick. On Nov ember 25, 2002 , Chicago poli ce officers, S tack and Conwa y, were on patrol in a n unmarked pol ice vehicle wh en they respon ded to a messa ge regarding two black males wi th a gun in a gray Oldsmobil e Cutlass. Pr oceeding to the scene, Officer Stack believed he sp otted the Olds mobile at Cice ro Avenue and beg an to follow i t. A check ofthe license p late revealed that the suspect vehicl e had been sto len. Activati ng their vehic le's oscillati ng headlights and

siren, the of ficers pursued the suspect v ehicle. As the c hase continued , 5 to 10 poli ce vehicles jo ined in the pu rsuit. The cars proce eded through s top signs and the wrong way down one-way s treets. At Kostner Ave nue and Madiso n Street, a ma rked police ca r, driven by O fficer Dorsey, took t he lead as thepursuit conti nued. The sus pect vehicle p roceeded through a red light at Pulas ki Avenue and Madison Street , striking a r ed Hyundai on thedriver's door . As a resultof the collis ion, Mr. Love, the driver of the Hyundai, was k illed. The dr iver of the su spect vehicle, later identified as the defendant, fled on foot but was appreh ended by polic e. Following

the accident, Officer Stack observed thatthe vehicle h e had been pursuing was actually atan Buick. T he Buick's ste ering column h ad been "peeled," mean ing that the p lastic around it had been br oken, and ther e was a screwdriver onthe front sea t. Officer Do rsey detained Misty McQueen, the defendant's pa ssenger. Acco rding to Offic er Dorsey, thekeys to the B uick were in the ig nition. The t an Buick was l ater determine d to be Mr. Ab olins's Buick. According

to Ms. McQuee n, on November24, 2002, shesaw the defen dant sitting in a t an Buick parke d at Rockwell Gardens. 1 On November25, 2002,

### No. 1-05-1470

drug charges. 3 she again saw the tan Buick parked at the Rockwell Garde ns; the defend ant was sitting in thedriver's seatof the Buick. She asked hi m for a ride t o buy drugs. When t hey arrived attheir destina tion, a policecar pulled upwith its blue lightflashing. Th e defendant hi t the accelera tor, and a cha se began. When M s. McQueen ask ed him to slow down so she c ould get out, the defendant refu sed saying the re was a warra nt out for him . She did notrecall telling the gr and jury that the defendant stated that th e Buick was st olen but conceded that she must have done so. The defendant was driving approx imately 70 miles per h our when they reached Kostne r Avenue. As the defendant approached theintersection of Pulaski Ave nue and Madiso n Street, the light turned red forhim, and a re d Hyundai ente red the inters ection. The H yundai was in the mid dle of the int ersection whenthe Buick col lided with it. After thedefendant wai ved his Miranda rights, he wa s questioned b y Detective Davi d March. The defendant ackn owledged drivi ng the tan Bui ck that was involved i n the collisio n. He did notknow who owne d the Buick. He had gotten the Bui ck from a frie nd of his, kno wn only as "Sl ick." The def endant noticed that t he steering co lumn had been peeled. He ha d to use a scr ewdriver to start the v ehicle so he a ssumed it was stolen. Whiledriving with Ms. McQueen, he no ticed an unmar ked police veh icle behind hi m. After poli ce activated thei r lights and t he defendant r ealized they w ere after him, he attempted to e scape because he believed th ere was a warr ant out for hi m for parole violati ons. He was a ware there was a traffic sig nal at the Pul aski Avenue and Mad ison Street in tersection, bu t he did not l ook to see if it was red or green; he just sped t hrough it. Th e defendant di d not know how fast he was going. Fo llowing the cr ash, he tried to flee but wa s apprehended by

### No. 1-05-1470

2 

### Prior to trial, the State dismissed the felony murder count based on aggravated possession of a stolen motor vehicle, based

on People v. Belk , 203 Ill. 2d 187, 784 N.E.2d 825 (2003). 4 police. DetectiveMarch acknowl edged that thedefendant tol d him that he had permission fro m Slick to dri ve the Buick. However, the detective deni ed that the defendant told him the s teering columnof the Buick had been peele d when the Buick was stolen from Sl ick. The defe ndant's statement was not re duced to writing. Following

the close of all the eviden ce, defense co unsel requeste d that the jury be in structed on th e offense of r eckless homici de, and the tr ial court agreed. In response, the State elec ted to dismiss all remaining charges but the felony

murder based on the commiss ion of a burgl ary and the bu rglary counts. 2 The defendan t's motion fora mistrial wa s denied. Thereckless homicide instr uction was notgiven. The jury returned a ver dict finding t he defendant g uilty of firstdegree murder and bur glary. Follow ing the denial of the defend ant's motion f or a new trial, the tri al court sente nced the defen dant to 30 yea rs' imprisonme nt for first degree murder and 7 ye ars' imprisonment for burgla ry and ordered the sentences to r un concurrentl y. Following the denial of his motion to reconsider sen tence, the def endant filed atimely noticeof appeal. ANALYSIS Sufficiency ofthe Evidence of Felony Murd er

I. Standard o f Review 

### When a court is faced with a challenge to the sufficiency of the evidence, the relevant inquiry is whether, after viewing the

### No. 1-05-1470

5

evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Campbell , 146 Ill. 2d 363, 374, 586 N.E.2d 1261 (1992). This standard applies in all cases, regardless of whether the evidence is direct or circumstantial. Campbell , 146 Ill. 2d at 374-75. The reviewing court will not substitute its judgment for that of the fact finder on questions involving the weight of the evidence or the credibility of the witnesses and will not reverse a criminal conviction unless the evidence is so unreasonable, improbable, or unsatisfactory as to justify a reasonable doubt of the defendant's guilt. Campbell , 146 Ill. 2d at 375. II. Discussio n The indic tment in this case charged t he defendant w ith committing the offenses of fi rst degree mur der and burgla ry on or aboutNovember 25, 2002. A person commi ts first degre e murder when he "kills an i ndividual with out lawful justifi cation *** if, in performing the acts whic h cause the de ath: he is attempting or committing a forcible fel ony." 720 ILC S 5/9-1(a)(3) (West 2002). In theinstant case the forcible f elony was the burglary. See Belk , 203 Ill. 2d at193; 720 ILCS 5/2-8 (West 2 002). A perso n commits the offense of burglary wh en "without au thority he kno wingly enters or without aut hority remains withina *** motor v ehicle *** or any part there of, with inten t to commit a felon y or theft." 720 ILCS 5/19- 1 (West 2002). The defen dant maintains that his conv iction for fel ony murder bas ed on the burglary o f the Buick mu st be reversed because he ha d reached a pl ace of

### No. 1-05-1470

6

temporary safe ty prior to th e police chasein which Mr. Love was kille d. The State responds that the defe ndant never re ached a place of temporary s afety because: (1) t he defendant w as simultaneou sly committing and in the pr ocess of escaping from the November 2 4, 2002, burgl ary at the time of the Novem ber 25, 2002, collisio n with Mr. Lov e's Hyundai; o r (2) the defe ndant committe d a second burglar y of the Buick on November 2 5, 2002, and w as in the proc ess of escaping at th e time of the collision withthe Hyundai. The offen se of burglary is complete when the illega l entry is mad e with the requisite intent. See People v. Sans one , 94 Ill. App. 3d 271, 273-7 4, 418 N.E.2d 862 (19 81) ("the crime of burglary was complete u pon showing th e defendant's en try without au thority with t he intent to s teal, and it w as not essential to p rove that anyt hing was actua lly taken"). Nonetheless, t he State maintains thatthe defendantwas still com mitting the No vember 24, 200 2, burglary of th e Buick when M r. Love was ki lled. The Sta te reasons tha t the November 24, 2 002, burglary of the Buick w as ongoing sin ce the defenda nt never relinquished p ossession of t he Buick betwe en the time hetook the Buic k on November 24, 2 002, until thecollision wit h Mr. Love's H yundai. The State 's argument dr aws an unneces sary distincti on between the completion of the offense ofburglary in t his case and t he escape from it. In Illinois, "lia bility attache s under the fe lony-murder ru le for any dea th proximately re sulting from t he unlawful ac tivity." People v. Lowe ry , 178 Ill. 2d 462, 465, 6 87 N.E.2d 973 (1997). "A fe lon is liable for those deat hs which occur during afelony and wh ich are the fo reseeable cons equence of his initial criminal acts. " Lowery , 178 Ill. 2d at 470; see al so People v. Nixo n , 371 Ill. 318, 20 N .E.2d 789 (193 9) (the supreme court upheld the defendant 's felony murder conviction whe re the victim was killed aft er the defenda nt entered her re sidence to com mit a theft).

### No. 1-05-1470

7

Illinois courts have he ld that "[a] k illing that oc curs during th e course of an escape f rom a forciblefelony is wit hin the operat ion of the fel onymurder rule." People v. Kleb anowski , 221 Ill. 2d 538, 549, 852 N.E.2d 813 (2006); see People v. Hick man , 59 Ill. 2d 8 9, 94, 319 N.E .2d 511 (1974) (the period of timeand activitie s involved in escaping to a place of safet y are part of the cr ime itself). The felony-esc ape rule was e xplained in People v. Bongiorno , 358 Ill. 171 , 192 N.E.2d 8 56 (1934), as follows: "It is also a recognized pri nciple of law that where twoor more perso ns are engaged ina conspiracy to commit robb ery and an off icer is murder ed while in immed iate pursuit o f either or bo th of the offe nders who are attempting esc ape from the s cene of the cr ime with the f ruits of the robbery, eithe r in possessio n of one or bo th, the crime of robbery is not complete a t the time of the murder, in asmuch as the conspirators h ad not then won t heir way, evenmomentarily, to a place of temporary safety, and th e possession o f the plunder was nothing mo re than a scrambling pos session." Bongiorno , 358 Ill. at 173. Therefore , we must dete rmine whether at the time ofthe collision , the defendant was in the process of escaping f rom the commis sion of the bu rglary as the State m aintains or, a s the defendan t maintains, h ad reached a p lace of temporary safe ty. The State argu es the fact th at the defenda nt was not bei ng pursued by the police on the evening of Nov ember 24, 2002 , does not imp ly that he had reached a place of saf ety because th ere is no evid ence that the police were pu rsuing him. We disagr ee. In People v. John son , 55 Ill. 2d 6 2, 302 N.E.2d 20 (1973), the defendant participated i n the robbery of a tavern. After taking t he money, the def endant and theother robber left. However , the other ro bber

### No. 1-05-1470

3 

### The facts in Pierce are somewhat complicated. The van was initially stolen by the owners' daughter, Sarah. Sarah, along with the defendant and his girlfriend, April Worley, had been 8 returned a few

seconds laterand shot the victim. The d efendant was f ound guilty of felo ny murder beca use he and theother robber had not yet wo n their way to a placeof safety at the time the v ictim was kill ed. Johnson , 55 Ill. 2d at 69. Thedeterminationthat the defe ndant had not reached a plac e of temporary safe ty was not bas ed on the lack of a police c hase. Therefo re, we reject the Sta te's argument that reaching a place of te mporary safety requires a pol ice chase. We believ e the evidenceestablished t hat the defend ant had reache d a place of safet y prior to thecollision in which Mr. Lovewas killed. First, the evidence e stablished tha t the Buick wa s taken on Nov ember 24, 2002 . While there was no d irect evidencethat the defe ndant took theBuick from th e location whereMr. Abolins p arked it, Ms. McQueen testif ied that on No vember 24, 2002, she saw the defend ant seated in the Buick park ed at the Rockwell Gardens. Ms. McQueen furth er testified t hat on Novembe r 25, 2002, sh e again saw the defend ant seated in the Buick at R ockwell Garden s. The eviden ce establishes th at for almost 24 hours, the defendant had enjoyed the us e of the stolen Buick, unmolested by the police. T hese facts dis tinguish this case from, Hickman , Johnson and Bongiorno in which the courts appliedthe felonymurder escape rule. In reachi ng our determi nation, we fin d State v. Pierc e , 23 S.W.3d 28 9 (Tenn. 2000), to be instruct ive. While fl eeing from pol ice in a van h e had stolen 20 days before, the d efendant coll ided with a po lice vehicle, killing a deputy. 3 The defendan t was found gu ilty of felony murder. On a ppeal, the

### No. 1-05-1470

passengers in the van together with Sarah's parents. Due to an argument, Sarah drove off in the van leaving her parents behind. She thereafter requested that the defendant take over the driving. Some 20 days later, the crash occurred when police pursued the stolen vehicle. 9 reviewing cour t noted that, in determining whether a kil ling was "in perpetration o f" a felony, c ourts have con sidered whethe r the killing and the felony were cl osely related in time, place , causation an d continuity o f action. Pierce , 23 S.W.3d at294. If the felony and kil ling occur as part of a continuous c riminal transa ction, the fel ony-murder rul e applies. Pierce , 23 S.W.3d at 294. However, whe re there is a break in the c hain of events between the felony and

the killing, the felony-mur der rule does not apply. Pierce , 23 S.W.3d at 295. One of the m ost important factors to con sider in determining whether there has been a bre ak in the chai n of events is whether the f elon has reached a plac e of temporary safety. Pierce , 23 S.W.3d at295. With rega rd to the lastfactor, the c ourt noted as follows: "In this case, the appellantreached a pla ce of temporar y safety when he arrived and re sided in the B ristol, Virgin ia area for tw enty days prio r to the killing . The appella nt was not bei ng actively an d continuously pursued by pol ice during thi s time, nor wa s he attemptin g to hide from the police. I ndeed, he, alo ng with Worley and Sarah, we re daily drivi ng the stolen veh icle to variou s cities in Te nnessee. Clea rly, they had reached a plac e of safety be fore the killi ng occurred. While there wa s an attenuated causal connect ion between th e initial taki ng of the vehicle and th e killing sinc e the appellan t was attempti ng to evade arrest for the ft of the vehi cle when the c ollision occur red, this

### No. 1-05-1470

4 

### For some unexplained reason, the court remanded the case for a new trial. Pierce , 23 S.W.3d at 297. 10 tenuous causal connection wa s insufficientin light of t he fact that t he killing was co mpletely uncon nected to the initial taking of the vehicl e in time, place , and continui ty of action." Pierce , 23 S.W.3d at297. 4 The court conc luded that theevidence was insufficient t o support the defendant's co nviction for f elony murder. Pierce , 23 S.W.3d at297. People v. Gill is , 474 Mich. 10 5, 712 N.W.2d 419 (2006), re lied on by the State, is dist inguishable. In that case, the defendant committed a ho me invasion and t hen drove away . The homeown er alerted pol ice. Spotting the defendant's ca r, a state tro oper gave chas e. The defend ant's car coll ided with another v ehicle, killin g the occupant s. The collis ion occurred 1 8 minutes after the home invas ion was report ed. The defen dant was found guilty of felony murd er which, unde r Michigan law , required tha t the murder b e committed in t he perpetratio n of or attemp t to perpetrat e the home inv asion. The Gillis court conclud ed that the de fendant was "i n perpetrationof" the home invas ion at the time the collisio n resulting inthe deaths oc curred. In reaching th at conclusion, the court fou nd that the ju ry could reaso nably infer from thedefendant's a ctions that hewas aware tha t the homeowne r had spotted him atthe scene of the home invas ion and could properly consi der this inference as e vidence that t he defendant h ad not truly r eached a pointof temporary safe ty. Gillis , 474 Mich. at134 n.15, 712 N.W.2d at 436 . In contras t to Gillis , the jury in this case coul d not reasonab ly infer from the evide nce that the d efendant was i n the process of escaping fr om the police as he s at in the Buic k at the Rockw ell Gardens onNovember 24, 2002. Both the defen dant and the B uick were seenon that date by Ms. McQueen ,

### No. 1-05-1470

11

indicating tha t the defendan t had made no attempt to con ceal himself o r the Buick from any one, including the police. The Statethen argues t hat the defend ant was escapi ng from the No vember 25, 2002, burg lary of the Bu ick. The Stat e maintains th at each time t he defendant ente red the Buick, he committed a new burglary . In support of its argument, the State relies o n the dissent in People v. Dunc an , 261 Ill. App . 3d 957, 634 N. E.2d 13 (1994) (McCuskey, J. , dissenting), and People v. Washington , 50 Cal. App. 4th 568, 57 C al. Rptr. 2d 7 74 (1996). We need n ot address tho se cases becau se, even if th e defendant co mmitted a second burgl ary when he re entered the Bu ick on Novembe r 25, 2002, the evidence estab lishes that th e defendant ha d reached a pl ace of tempora ry safety prior t o the collisio n with Mr. Lov e. When Ms. M cQueen observe d the defendant on N ovember 25, 20 02, he was sea ted in the Bui ck in plain si ght, making no atte mpt to hide. There was no e vidence of how long the defe ndant had been seate d in the Buick before Ms. Mc Queen arrived. Moreover, th e fact that the defen dant felt secu re enough to a ssist Ms. McQu een and drove the Buick to make a drug purchas e established that he had re ached a place of temporary safe ty. The Stateargues that p arking the Bui ck on a publicstreet does n ot establish thatthe defendantreached a pla ce of temporar y safety, rely ing on People v. Step pan , 105 Ill. 2d 310, 473 N.E.2 d 1300 (1985). Steppan is distinguishabl e. In that ca se, the owner observed two men in his vehi cle, which was park ed on the stre et. The defen dant and his c ompanion were arrested as they exited

the vehicle. In contrast, the defendant entered and sa t in the Buick for an u ndetermined am ount of time p rior to Ms. Mc Queen's reques t for a ride to buy dr ugs. In addit ion, the fact that the defen dant felt secu re enough to agre e to such an e rrand establis hed that he ha d reached a pl ace of

### No. 1-05-1470

12

temporary safe ty. Inasmu ch as the evid ence establish ed that the de fendant had re ached a place of tempo rary safety, w e conclude tha t the evidencewas insuffici ent to prove the defe ndant guilty o f felony murde r based upon t he burglary inthis case. Therefo re, the defend ant's convicti on for felony murder and the sentence impos ed thereon arereversed. Th e defendant's conviction and sentence for b urglary are af firmed. Decid ing this case as we do, we n eed not address the re maining issues raised by thedefendant. Reversed in part and af firmed in part . WOLFSON, P.J., and SOUT H, J., concur.

### No. 1-05-1470

13