concurring in part and dissenting in part:
I agree with the majority that the issue of seemingly inconsistent verdicts in this case is resolved by our recent decision in People v. Jones, 207 Ill. 2d 122 (2003). I write separately, however, to express my concern with the majority’s application of People v. Morgan, 197 Ill. 2d 404 (2001), as it pertains to the question of whether defendant’s conviction of aggravated battery of a child, under the facts of this case, may serve as the predicate felony for a conviction of felony murder.
In Morgan, the 14-year-old defendant did not deny that he intentionally shot and killed his grandparents. Rather, his defense was that he shot his grandfather in self-defense, or, in the alternative, that the killing of his grandfather was mitigated by “sudden and intense passion resulting from serious provocation” (720 ILCS 5/9— 2(a)(1) (West 1994)), based on his grandfather’s beating him with a leather strap shortly before the shooting and his grandfather’s previous threats to kill him. He claimed to have shot his grandmother while acting under the same serious provocation. People v. Morgan, 307 Ill. App. 3d 707, 709-10 (1999). He was convicted of second degree murder for the killing of his grandfather and of first degree murder for the killing of his grandmother. Morgan, 307 Ill. App. 3d at 710. The verdict forms did not reveal whether the jury’s verdict of first degree murder was based on a finding of intentional murder, knowing murder, or felony murder. Morgan, 307 Ill. App. 3d at 712.
A person who kills another without lawful justification commits first degree felony murder if “in performing the acts which cause the death *** he is attempting or committing a forcible felony other than second degree murder.” 720 ILCS 5/9 — 1(a)(3) (West 1996). Morgan argued on appeal that when he shot his grandmother he was not attempting or committing the forcible felony of aggravated battery and discharge of a firearm. He admitted that he shot her with the intent to kill. Thus, he argued, he could be convicted of intentional or knowing murder (720 ILCS 5/9 — 1(a)(1), (a)(2) (West 1994)), or of second degree murder (720 ILCS 5/9 — 2 (West 1994)), but not of felony murder. Morgan, 307 Ill. App. 3d at 712.
The appellate court recognized that if the felony-murder rule could be applied in such a case, any deliberate killing and any fatal shooting could be charged as felony murder, effectively eliminating both a defendant’s ability to argue that his offense constituted second degree murder and the State’s burden of proving intentional or knowing murder. Morgan, 307 Ill. App. 3d at 712. After reviewing our case law and the scholarly commentary regarding felony murder, the appellate court held that “the predicate felony underlying a charge of felony murder must involve conduct with a felonious purpose other than the killing itself.” (Emphasis added.) Morgan, 307 IU. App. 3d at 714.
This court affirmed that portion of the appellate court judgment dealing with the scope of the felony-murder statute. In formulating its holding, however, this court, perhaps unintentionally, altered the focus of the inquiry. Instead of asking whether the defendant had an independent felonious purpose when he committed the act that resulted in the killing, this court asked whether the act constituting the forcible felony arose from and was inherent in the act of murder itself. Morgan, 197 Ill. 2d at 447.
The rule formulated by the appellate court distinguished felony murder from other forms of first degree murder on the basis of the killer’s mental state. If the killer intends to kill, or acts with knowledge that his conduct is likely to kill, he is guilty of first degree intentional or knowing murder. If, however, he does so “under a sudden and intense passion resulting from serious provocation” (720 ILCS 5/9 — 2(a)(1) (West 1996)), or in the sincere but unreasonable belief in the need for self-defense (720 ILCS 5/9 — 2(a)(2) (West 1996)), his offense is mitigated to second degree murder. In such a case, he may not be convicted of felony murder because he lacks the intent to commit an independent forcible felony. See Morgan, 307 Ill. App. 3d at 713 (citing People v. Pugh, 261 Ill. App. 3d 75 (1994), and People v. Jenkins, 190 Ill. App. 3d 115 (1989) (felony-murder conviction is proper where defendant intended to commit aggravated battery or aggravated discharge of a firearm and a death resulted from the use of violence)).
In contrast, the rule formulated by this court, instead of requiring that a charge of felony murder be based on “conduct with a felonious purpose other than the killing itself” (emphasis added) (Morgan, 307 Ill. App. 3d at 714), requires that the charge be based on conduct other than the killing itself (Morgan, 197 Ill. 2d at 447). This rule, which focuses on the defendant’s conduct rather than his mental state, if literally applied, would preclude a charge of felony murder unless the defendant engaged in forcible felonious conduct in addition to the act that caused the killing. Thus, a charge of felony murder could not be predicated on aggravated battery or aggravated discharge of a firearm unless the defendant’s felonious conduct included acts other than the shooting or the beating that killed the victim. This rule misapprehends the very nature of the felony murder rule — to impute the intent to kill to one who intends to commit a forcible felony, including aggravated battery and aggravated discharge of a firearm, if he kills while doing so.
Applying the conduct-based rule of Morgan to the present case, the majority states that its task is “to discern from defendant’s conduct whether defendant’s aggravated battery was an act that was inherent in, and arose out of, the killing of the infant.” (Emphasis added.) 207 Ill. 2d at 442. Further, the majority finds, “[l]ike Morgan, the cause and effect relationship between the aggravated battery and the killing is muddled.” 207 Ill. 2d at 442.
The relationship between the defendant’s actions and the resulting killing in Morgan, however, was not “muddled.” Indeed, the relationship was crystal clear— Morgan admitted that he aimed a gun at his grandmother and pulled the trigger with the intent to kill her. Thus, a charge of felony murder could not lie because he lacked intent to commit any felony other than the murder itself. The only proper question for the jury in Morgan was whether the defendant had proven facts that would mitigate his offense to second degree murder.
In the present case, an infant died as a result of multiple blunt force trauma. Defendant admitted that he threw the crying infant against a dresser and also that he fell on the baby. Whether he intended to kill the child, or knew that his acts created a strong probability of death, or intended to commit the felony of aggravated battery is a question for the jury to decide based on its finding of fact as to his mental state at the time.
The present case offers this court the opportunity to remedy its imprecise formulation of the holding in Morgan and to put the focus of the inquiry where it properly belongs — on the mental state of the defendant when he committed the acts that resulted in the killing. If, as in the present case, there is no conceivable set of facts under which the defendant’s actions might constitute second degree murder and the defendant’s mental state is unknown, the question of whether he committed intentional, knowing, or felony murder is a question of fact properly decided by the jury.
The need for such clarification is supported by the fact that this court, in adopting Morgan, did not overrule its earlier decision in People v. Viser, 62 Ill. 2d 568 (1975), which predates the amendments to our murder statute creating the offense of second degree murder. In Viser, two armed but off-duty police officers encountered the seven defendants, who were on their way from a tavern to a party. Words were exchanged. After the officer’s drew their guns and identified themselves, the confrontation escalated. The defendants disarmed the officers and threw them to the ground, kicking and beating them. One defendant jumped with both feet on the chest of one of the officers. He died two weeks later as a result of his injuries. The defendants were charged with felony-murder in the death of one victim and attempted murder as to the other victim. Viser, 62 Ill. 2d at 575-76.
The defendants argued that they could not be charged with felony murder based on the underlying felony of aggravated battery committed against the same victim, because aggravated battery is an “included offense” of murder. Viser, 62 Ill. 2d at 577. This court acknowledged that “[m]ost felony murders, if not all of them, involve an aggravated battery” (Viser, 62 Ill. 2d at 579), but rejected the defendants’ “theory of merger,” based on the existing statute’s “forthright characterization of aggravated battery as one of the forcible felonies that will trigger a charge of felony murder.” Viser, 62 Ill. 2d at 579-80, citing Ill. Rev. Stat. 1973, ch. 38, par. 2 — 8. Further, in rejecting the additional charge of attempted murder, this court noted that “the distinctive characteristic of felony murder is that it does not involve an intention to kill.” Viser, 62 Ill. 2d at 581. The Viser court clearly understood that it is the mental state of the actor that determines whether a charge of felony murder may lie.
Although the statute has since been amended, the definition of “forcible felony” continues to include aggravated battery as well as robbery, burglary, arson, kidnaping, sexual assault, and “any other felony which involves the use or threat of physical force or violence against any individual.” 720 ILCS 5/2 — 8 (West 2000). Thus, any of the enumerated forcible felonies, with the exception of second degree murder, may be the predicate felony for a charge of felony murder (720 ILCS 5/9— 1(a)(3) (West 1996)), unless, as in Morgan, the defendant commits the act with the specific intent to kill.
This court’s opinion in Viser, combined with a more precise formulation of the rule adopted in Morgan, would resolve the present case and would provide our circuit courts and prosecutors with the guidance they need regarding the proper application of the felony-murder rule. I, therefore, dissent from the portion of the majority opinion reversing defendant’s conviction for felony murder.