concurring in part and dissenting in part:
I concur in the affirmance of defendant’s conviction of the felony murder of Michael Douglas based on accountability for the attempted robbery of Douglas. However, I write separately because I do not believe the majority’s analysis of the issue with regard to the murder of Bertha Diaz is legally or factually justifiable.
First, I believe it noteworthy that the majority justifies its affirmance of defendant’s conviction for the felony murder of Diaz by relying heavily on the factual assumption that defendant “held Bertha Diaz at gunpoint for approximately 45 minutes until Jackson returned.” 345 Ill. App. 3d at 243. The record contains no evidence that defendant’s role in the attempted robbery of Douglas was to hold Diaz hostage until Jackson and Echols returned to the apartment. Rather, the evidence admitted at trial showed only that Jackson handed defendant a small gun after Jackson and Douglas went upstairs so that Douglas could get dressed. Defendant said he believed the gun belonged to Douglas. He said he put the gun in his pocket and did not remove it until Jackson ordered him to leave the apartment. Defendant’s undisputed testimony also established that on the night of the offenses he was recovering from a gunshot wound to the left thigh, and he was unable to run. The evidence thus gave rise to reasonable inferences other than the “hostage-holding” theory pressed by the majority — i.e., defendant could have been left behind with Diaz because he was disabled, and defendant may have held Douglas’s gun so that Diaz could not retrieve it and use it against defendant.
Weaknesses in the State’s evidence of culpability for Diaz’s murder were not lost on the prosecution and readily explain the State’s shift in its theory on appeal. At trial, the prosecutor never attempted to show or argue to the jury that defendant or either of his codefendants intended to rob Diaz. Although the indictment did not name the intended victim of the robbery, the State’s evidence established that Douglas was the only person defendant and his cohorts intended to rob. Contrary to its position at trial, the State now argues that defendant is liable for Diaz’s murder based on accountability for a robbery or attempted robbery of Douglas.
Because the State’s primary argument in this appeal represents a new theory, it must be rejected. People v. Crespo, 203 Ill. 2d 335, 788 N.E.2d 1117 (2001). Further, in my opinion, the theory of culpability embraced by the majority based on the “felony-murder escape rule” is equally untenable under the facts proved at trial.
To sustain defendant’s conviction of the felony murder of Diaz, the majority opinion declares that “armed robbery is not complete until the conspirators have won their way to a place of temporary safety.” 345 Ill. App. 3d at 244. While this may be true in jurisdictions where asportation is an element of robbery (see, e.g., People v. Cooper, 53 Cal. 3d 1158, 811 P.2d 742, 282 Cal. Rptr. 450 (1991)), it is not the law of this state. People v. Dennis, 181 Ill. 2d 87, 692 N.E.2d 325 (1998). By declaring otherwise, the majority impermissibly stretches this state’s felony-murder escape rule to include conduct beyond the elements of the underlying felony.
To convict a defendant of felony murder, the State must prove that, in performing the acts that caused the decedent’s death, the defendant, or one for whom he is accountable, was attempting or committing a forcible felony other than second degree murder. 720 ILCS 5/9 — 1(a)(3) (West 2000). The act causing the death must both occur during the underlying felony and be the direct and proximate result of the felony. People v. McCarroll, 168 Ill. App. 3d 1020, 523 N.E.2d 150 (1988); People v. Dekens, 182 Ill. 2d 247, 695 N.E.2d 474 (1998). The duration of the underlying felony has been judicially extended by the felony-murder escape rule. Under this rule, if the act causing death did not occur contemporaneously with the commission of the predicate felony, it nevertheless will support a charge of felony murder if it occurred during flight or escape from the immediate scene of the underlying offense. See People v. Jackson, 333 Ill. App. 3d 962, 777 N.E.2d 626 (2002); People v. Burnom, 338 Ill. App. 3d 495, 790 N.E.2d 14 (2003); People v. Johnson, 55 Ill. 2d 62, 302 N.E.2d 20 (1973); People v. Bongiorno, 358 Ill. 171, 192 N.E. 856 (1934). Even so, escape is not an element of robbery and, where an escape is accomplished without force, a subsequent murder cannot be said to have occurred during the commission of the robbery. Dennis, 181 Ill. 2d 87, 692 N.E.2d 325. To illustrate the causal connection that must exist to impose felony-murder liability, Professor LaFave provides the following example: “A robber who, in flight from the scene, shoots a policeman who threatens to capture him may easily be found to have caused a death in the commission of the robbery; but if, during his flight, he should happen to spot his enemy and shoot him, this death, though equal to the policeman’s death in point of time and place, would lack the causal connection which existed in the policeman’s case.” W. LaFave, Substantive Criminal Law § 14.5(f)(2), at 465-66 (2d ed. 2003).
The question presented here is whether the attempted robbery of Douglas continued throughout the period of time it took for Jackson and Echols to drive over four miles from the scene of Douglas’s death on his mother’s front lawn in Peoria Heights to Diaz’s apartment in Peoria. Clearly, all of the elements of the predicate offense were completed before Jackson arrived at the apartment. Nevertheless, we must determine whether, accepting defendant’s liability as an accomplice in the attempted robbery and felony murder of Douglas, the State proved that the murder of Diaz occurred during flight or escape from the scene of the attempted robbery of Douglas. See Dennis, 181 Ill. 2d 87, 692 N.E.2d 325.
The majority cites no Illinois decisions where the felony-murder escape rule has been applied to impose accomplice liability for a homicide when the predicate offense was committed as remotely in time and distance as here. Johnson, a classic example of the outer limits of accomplice liability for felony murder committed during an “escape” from the predicate offense, is inapposite.
In Johnson, Johnson was a principal in armed robberies of a tavern owner and its patrons, and he was an accomplice to codefendant Clay’s felony murder of the tavern owner’s wife, who was an eyewitness to the robberies. Johnson’s culpability for the latter offense was established upon facts that (1) Johnson entered the tavern with a weapon, thereby proving that he participated in a common design to use deadly force if needed to commit the predicate offense; (2) a reasonable inference could be drawn that Johnson anticipated use of deadly force to avoid apprehension and to effect an escape, and (3) the murder occurred “on the premises where the robberies took place.” Johnson, 55 Ill. 2d at 69, 302 N.E.2d at 24. Because the murder was committed by codefendant Clay within seconds of the predicate offense and in the same vicinity, the causal connection between the robberies and the murder was unbroken and justified imposing accomplice liability on Johnson for the felony murder of the tavern owner’s wife. Johnson, 55 Ill. 2d 62, 302 N.E.2d 20.
By contrast, the evidence of a causal connection between the attempted robbery of Douglas and the shooting of Diaz was too speculative to support defendant’s accomplice liability for her death on a felony murder theory. Unlike in Johnson, the predicate felony began at the Shipman apartment, but ended with Douglas’s murder outside his mother’s house, more than four miles away. There was no indication that Jackson used force to make his escape from the immediate scene of the attempted robbery. Cf. Johnson, 55 Ill. 2d 62, 302 N.E.2d 20. Nor was there any evidence that Jackson was pursued by anyone en route to Bertha’s apartment. Cf. Bongiorno, 358 Ill. 171, 192 N.E. 856. The evidence established that Jackson’s escape from the attempted robbery was effectively completed when he entered his vehicle and fled the scene. Thus, for purposes of felony-murder liability, Jackson’s unmolested drive following the murder of Douglas broke the causal connection between the attempted robbery of Douglas and the murder of Diaz.
Diaz’s murder unquestionably was a cold-blooded, intentional execution of a witness. However, contrary to the majority, I do not find that the State produced sufficient evidence to prove that Jackson’s shooting of Diaz occurred during the commission of or escape from the attempted robbery of Douglas. The causal connection between Diaz’s murder and the attempted robbery of Douglas, no less than the murder of the robber’s enemy and the robbery in Professor LaFave’s illustration, was too tenuous to prove felony murder. Accordingly, I would reverse defendant’s conviction for the felony murder of Diaz.
Finally, I note that the trial court imposed a sentence of life imprisonment under the statute mandating such sentence for multiple murders (730 ILCS 5/5 — 8—l(c)(ii) (West 2000)). Based on my foregoing analysis, I would vacate defendant’s sentence and remand the cause for resentencing for the murder of Douglas, thereby obviating any discussion of defendant’s constitutional challenges to his life sentence.