In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15‐3531
MAURICE EVANS,
Petitioner‐Appellant,
v.
STEPHANIE DORETHY, Warden,
Respondent‐Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 14‐cv‐7018 — John W. Darrah, Judge.
____________________
ARGUED JULY 7, 2016 — DECIDED AUGUST 12, 2016
____________________
Before WOOD, Chief Judge, and BAUER and KANNE, Circuit
Judges.
PER CURIAM. An Illinois jury convicted Maurice Evans of
felony murder based on the felony “mob action,” which led
to the death of Daniel McKenzie. Evans argued on direct ap‐
peal that the trial court violated his Sixth Amendment right to
have a jury determine every factual element required for con‐
viction. He contended that the trial court should have allowed
the jury to determine whether the underlying offense of mob
2 No. 15‐3531
action had a felonious purpose independent of the killing. The
last state court to address this issue concluded that the trial
court “adequately apprised” the jury. Evans renewed his
claim in his petition for collateral relief under 28 U.S.C. § 2254,
but the district court denied relief. It reasoned that Evans’s
claim improperly asks a federal court to review a state court’s
interpretation of state law. We find that Evans’s petition does,
in fact, properly present a federal claim: the denial of his Sixth
Amendment right to have a jury determine each element of a
state crime. But Evans’s assertion that Illinois defines felony
murder to include “independent felonious intent” as a factual
element is wrong. We thus affirm the district court’s denial of
Evans’s petition.
Background
We recite the facts as found by the state court in reviewing
Evans’s direct appeal. See People v. Evans, 2013 IL App (1st)
111921‐U (Ill. App. Ct. Oct. 29, 2013). This case began with a
late‐night, gang‐related brawl on a Chicago “L” train. Evans
and three other young men were riding a northbound Red
Line train at about 2 a.m. when brothers Daniel and Michael
McKenzie and their friend, Rob Base, boarded the same car at
22nd Street. Evans approached Michael and asked “who he
be” (a reference to gang affiliation) and Michael replied that,
although he used to be a member of the Gangster Disciples,
he “wasn’t on that” and they just wanted to get somewhere.
Evans then asked the same question of Daniel, who didn’t an‐
swer. According to a fellow passenger, either Evans or one of
his companions then warned, “Oh, okay. You GD, huh. Yeah,
we at war with GD’s. We New Breeds.”
A fight ensued. Evans punched Daniel in the jaw, and the
men scuffled with fists, belt buckles, and a box cutter. The
No. 15‐3531 3
McKenzie brothers and their friend fled the train, but the
clash continued. Evans’s group chased the others across the
train’s platform. Michael and Rob Base got away, but Evans
caught Daniel when he picked up a trash can lid to defend
himself. CTA surveillance video, played for the jury, shows
Evans’s men kick Daniel and beat him with their belts until
Daniel tumbled from the platform onto the tracks. (It is un‐
clear whether he fell accidentally, jumped, or was pushed).
Daniel fell on the third rail and was electrocuted.
The state prosecuted Evans and his accomplices with fel‐
ony murder based on mob action. To obtain a felony‐murder
conviction in Illinois, the prosecution must prove two ele‐
ments: (1) that a defendant “kill[ed] an individual without
lawful justification” while (2) “he is attempting or committing
a forcible felony other than second degree murder.” 720 ILCS
5/9‐1(a)(3). Mob action, in turn, is “the knowing or reckless
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). Evans argued to the trial court that, in
addition to the above elements, the jury must also find a judi‐
cially created third element for a felony murder: that he com‐
mitted the underlying predicate felony of mob action with a
felonious purpose independent of the murder. Evans pro‐
posed two instructions that, he asserted, would properly ap‐
prise the jury of this additional element:
In order for you to find the defendant guilty, you
must find, beyond a reasonable doubt, that the acts
which constitute Mob Action do not arise from an
act of murder, and that the acts constituting Mob ac‐
tion are not inherent in an act of murder itself.
4 No. 15‐3531
In order for you to find the Defendant guilty, you
must find, beyond a reasonable doubt, that the de‐
fendant acted with a felonious purpose for Mob Ac‐
tion that was independent of a felonious purpose for
a murder.
The trial court refused both proffers and instructed the jury
using the two statutory elements noted above, from the Illi‐
nois Pattern Jury Instructions. The jury convicted Evans, and
he received a sentence of 28 years.
Evans appealed but obtained no relief. He argued on di‐
rect appeal that the court’s refusal to allow the jury to deter‐
mine whether he committed mob action with a felonious pur‐
pose independent of murder violated his right to have a jury
determine every fact necessary for conviction. Citing Illinois
law, he observed that “where the acts constituting forcible fel‐
onies arise from and are inherent in the act of murder itself,
those acts cannot serve as predicate felonies for a charge of
felony murder.” People v. Morgan, 758 N.E.2d 813, 838 (Ill.
2001). The Appellate Court of Illinois agreed with Evans’s de‐
scription of felony murder. But, the court continued, the trial
court properly instructed the jury. The Supreme Court of Illi‐
nois denied review.
Smith petitioned in federal court for a writ of habeas cor‐
pus. See 28 U.S.C. § 2254. He framed his jury‐instruction argu‐
ment as a denial of the Sixth Amendment right to have a jury
determine beyond a reasonable doubt every element required
for conviction. The district court denied his petition on the
ground that a federal court may not review a state court’s in‐
terpretation of state law. The district court then issued Evans
a certificate of appealability.
No. 15‐3531 5
Analysis
On appeal Evans continues to press his Sixth Amendment
Claim. He argues that, in addition to the statutory elements of
felony murder ((1) commission of a forcible felony (2) that
causes death), the Supreme Court of Illinois has added a third.
The third element, Evans contends, requires proof to a jury
that the defendant committed the predicate felony with a pur‐
pose independent from the act of murder itself. Because, Ev‐
ans continues, the state courts denied his Sixth Amendment
right—clearly established by the Supreme Court—to have a
jury determine every fact necessary for conviction, 28 U.S.C.
§ 2254(d) entitles him to relief.
The state acknowledges Evans’s constitutional right to
have a jury determine each element of the crime, but counters
that his argument rests on a misstatement of state law. The
state appellate court correctly determined that “independent
felonious purpose” is not an element of felony murder, the
state insists.
The district court was wrong to view Evans’s claim as pre‐
senting only an issue of state law. Although his petition re‐
quires an understanding of Illinois law, Evans contends that
the trial court violated his federal Sixth Amendment right to
have a jury determine whether he committed each element of
the charged crime. And that right is clearly established: “The
touchstone for determining whether a fact must be found by
a jury beyond a reasonable doubt is whether the fact consti‐
tutes an ‘element’ or ‘ingredient’ of the charged offense.” Al‐
leyne v. United States, 133 S. Ct. 2151, 2158 (2013); Hurst v. Flor‐
ida, 136 S. Ct. 616, 621–22 (2016) (applying principle that Sixth
Amendment and due process clause require “each element of
a crime be proved to a jury beyond a reasonable doubt” to
6 No. 15‐3531
hold unconstitutional a sentencing scheme where death pen‐
alty was imposed after a judge determined presence of aggra‐
vating factors); Mullaney v. Wilbur, 421 U.S. 684, 703–04 (1975)
(affirming grant of petition for a writ of habeas corpus where
state violated due process by shifting burden to defendant to
prove absence of heat of passion in order to reduce murder
charge to manslaughter). If felony murder in Illinois includes
as a third element “independent felonious intent,” then the
premise of Evans’s claim under the Sixth Amendment is sat‐
isfied.
The problem with Evans’s reasoning, however, is that he
cannot establish a Sixth Amendment violation because “inde‐
pendent felonious intent” is not an element of Illinois felony
murder. The cases on which Evans relies do not require that
the prosecution supply evidence of independent felonious in‐
tent. Rather, they require an inquiry into whether two
events—the predicate felony and the resulting death—are so
closely connected that the prosecution must prove murder in‐
stead of felony murder. “[W]here 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, 758 N.E.2d at 836–38. In Morgan, a
teenager who shot his grandparents was convicted of felony
murder based on the predicate crimes of aggravated battery
and aggravated discharge of a firearm. Id. at 818–19, 838. The
court ruled that the state should not have charged felony mur‐
der because the predicate felonies and the murders depended
on the same acts. Permitting the state to prosecute felony mur‐
der in that situation would enable the state to charge all fatal
shootings as felony murder, eliminating the need to prove in‐
tent to kill.
No. 15‐3531 7
Morgan is thus about the legal sufficiency of the facts un‐
derlying a charge of felony murder—a question for a judge,
not a jury. Morgan himself had moved to dismiss the charge
of felony murder before trial, confirming the high court’s
view that he challenged the legal sufficiency of the charge. Id.
at 836. Two years later the state’s high court confirmed this
view. It reversed as legally deficient a conviction for felony
murder because a single act formed the basis of both the al‐
leged underlying felony (aggravated battery) and the killing.
People v. Pelt, 800 N.E.2d 1193, 1197 (Ill. 2003). The Illinois Su‐
preme Court has also twice upheld as legally sufficient con‐
victions for felony murder where the underlying felony (mob
action, as in Evans’s case) is separate from the ensuing death.
See People v. Davis, 821 N.E.2d 1154, 1163 (Ill. 2004); People v.
Davison, 923 N.E.2d 781, 787 (Ill. 2010). In Davis, the court held
that mob action was a proper predicate felony because it was
sufficiently distinct from the killing: the state had to prove
that the defendant took part in a violent, group disturbance,
but the defendant need not have touched the victim. 821
N.E.2d at 1163. And the Davison court ruled that the state
could properly charge felony murder where the defendant
participated in a group pursuit and attack of the victim—thus
committing mob action—but had no intent to kill. 923 N.E.2d
at 787.
These cases establish that the trial court here committed
no Sixth Amendment violation because the trial judge did not
withdraw from the jury any factual questions. Evans’s mob
had “independent felonious intent” only if the mob’s beating
of him was sufficiently distinct from the death that the beating
caused. And this question about the separateness of those two
events was a legal one for the court, not the jury. Davison, 923
N.E.2d at 785 (“Because this appeal solely presents a question
8 No. 15‐3531
of law, we review it de novo.”). Evans’s trial counsel doubtless
understood this when, at the close of the state’s case in chief
and relying on the four cases just discussed, he moved for a
legal ruling that no felony murder had occurred. Because “in‐
dependent felonious intent” is a legal assessment of the sepa‐
rateness of two events, the Sixth Amendment did not require
a jury to decide the issue. Accordingly, we AFFIRM.