dissenting:
I dissent. Unlike my colleague Justice Heiple, I do not believe that this court should now abandon its adoption of the proximate cause theory of liability for felony murder. In this case, however, the majority applies this theory without any consideration of the purposes sought to be achieved by the felony-murder doctrine. I would hold that the felony-murder doctrine does not apply to render a surviving felon guilty of murder where a cofelon is killed by a nonparticipant in the felony.
As codified in Illinois, the felony-murder doctrine permits a defendant to be convicted of first degree murder if, “in performing the acts which cause the death *** he is attempting or committing a forcible felony.” 720 ILCS 5/9 — 1(a)(3) (West 1996). Under this doctrine, the defendant need not have intended, nor even contemplated, causing anyone’s death. Rather, the defendant’s culpability for murder rests solely on his commission or attempt of one of a list of felonies. Accordingly, the ramifications of the felony-murder doctrine are harsh; a defendant who, it is conceded, intended only to commit a far less serious offense than murder is nonetheless made guilty of first degree murder. This is no small matter. First degree murder in this state carries with it a sentence ranging from 20 to 60 years’ imprisonment to natural life imprisonment. 730 ILCS 5/5 — 8—1(a) (West 1996).
The justification for the felony-murder rule is that forcible felonies are so “inherently dangerous” that a death occurring in the course thereof is strongly probable. Lowery, 178 Ill. 2d at 469. Obviously, the “inherent danger” referred to here is the danger to the victims of the felonies, or to bystanders or intervenors. It certainly was not the potential danger to the participants in the forcible felony which prompted the legislature to codify this form of murder. As this court stated recently in Lowery, the felony-murder rule reflects the legislature’s concern for “protecting the general populace.” Lowery, 178 Ill. 2d at 469. Given the harsh consequences of the felony-murder doctrine, I believe that it should be limited to those situations in which its application achieves the purpose underlying the rule. Extending the doctrine to render a defendant guilty of first degree murder when his cofelon is killed by the intended victim of the attempted felony so dilutes the justification for the felony-murder doctrine as to make it absurd and unfair.
There is no dispute in this case that Pecchenino, the decedent, was a willing and active participant in the attempted armed robbery. According to the stipulated facts, defendant and Pecchenino together planned the crime. Defendant did not intend Pecchenino’s death, nor did defendant perform the acts which caused his death. Rather, the stipulated facts reveal that Pecchenino was shot and killed by the undercover officer after Pecchenino grabbed the officer as he was attempting to leave. Thus, the only basis for rendering defendant guilty of murder in this case is defendant’s participation in the attempted armed robbery, the same attempted armed robbery which Pecchenino himself planned and carried out.
The majority concludes that, because defendant’s attempt to commit the armed robbery “set in motion a chain of events” which resulted in Pecchenino’s death, defendant may rightly be charged with murder for Pecchenino’s death. When a defendant’s commission of a forcible felony proximately results in the death of an innocent party, I agree that charging the defendant with murder may comport with notions of justice and fairness. There is, however, simply a qualitative difference between that situation and the situation presented here, where the death which resulted was that of a coparticipant in the underlying felony. As one renowned treatise on criminal law has noted:
“[I]t is now generally accepted that there is no felony murder liability when one of the felons is shot and killed by the victim, a police officer, or a bystander ***. ***
A more plausible explanation [for this conclusion] is the feeling that it is not justice (though it may be poetic justice) to hold the felon liable for murder on account of the death, which the felon did not intend, of a co-felon willingly participating in the risky venture. It is true that it is no defense to intentional homicide crimes that the victim voluntarily placed himself in danger of death at the hands of the defendant ***. But with unintended killings it would seem proper to take the victim’s willing participation into account ***.” W. LaFave & A. Scott, 2 Substantive Criminal Law § 7.5, at 217-18 (1986).
The majority provides no explanation for how the purpose of the felony-murder doctrine is served by applying it in cases such as this. Rather, the majority’s holding is simply that the proximate cause theory “compels” this result. The only question, according to the majority, is “whether the decedent’s death is the direct and proximate result of the defendant’s felony.” 182 Ill. 2d at 252. The majority then concludes that defendant’s attempted armed robbery proximately caused Pecchenino’s death. I disagree with this conclusion. Where a cofelon is killed by a third party, the most direct cause of the death is the cofelon’s participation in the felony, not the defendant’s acts. Contrary to the majority’s characterization, this distinction does not go to the “guilt or innocence” of the decedent. Rather, this distinction pertains to the “proximate cause” of the death. Significantly, we are not here considering an issue of tort liability, but an issue of imposing criminal liability for first degree murder with the severe consequences that entails. In my view, the distinction between a third party killing an innocent party and a third party killing a participant in the felony must be accorded weight. It is illogical to conclude that the same degree of guilt should attach where a defendant’s felony results in the death of an innocent party and where it results in the death of an active participant in the felony.
The majority nonetheless holds that “our cases make clear” that application of the felony-murder doctrine does not depend on the “guilt or innocence” of the decedent. 182 Ill. 2d at 252. Our prior cases, however, say nothing of the sort. As the majority concedes, none of this court’s prior decisions addressed a situation where the person killed was a participant in the underlying felony. See, e.g., People v. Lowery, 178 Ill. 2d 462, 465 (1997) (intended victim shot and killed innocent bystander); People v. Hickman, 59 Ill. 2d 89, 91-92 (1974) (police officer shot and killed another officer); People v. Allen, 56 Ill. 2d 536, 545 (1974) (police officer shot by another officer). Consequently, none of these decisions can be said to have considered or decided whether the felony-murder doctrine applies where the death is that of the cofelon. To the contrary, in the Lowery decision, this court expressly referred to the issue presented as “whether the felony-murder rule applies where the intended victim of an underlying felony *** fired the fatal shot which killed an innocent bystander.” (Emphasis added.) Lowery, 178 Ill. 2d at 465.
The majority also refers to an excerpt from the committee comments to section 9 — 1. Those comments do not address the question presented in this case, whether felony murder applies where the decedent is a cofelon killed by a third party. Those comments merely state that it is immaterial whether the killing was performed by the defendant or by a third person trying to prevent the commission of the felony. 720 ILCS Ann. 5/9 — 1(a), Committee Comments — 1961, at 12-13 (Smith-Hurd 1993). The comments are silent with regard to the identity of the decedent.
Accordingly, no prior precedent of this court or any expression of legislative intent “compels” any particular resolution of the issue presented in this case. The majority therefore should have engaged in an analysis of whether, consonant with notions of justice and fairness, liability for first degree murder should be imposed in the circumstances presented by this case. The majority’s failure to conduct such an analysis has led it to reach what I consider to be an unjust result. I therefore dissent.
JUSTICE McMORROW joins in this dissent.