dissenting:
After a jury trial, 15-year-old defendant, Lavelle Hudson, was convicted of first degree murder based on the commission of a felony (felony murder). The charge of murder was premised on the death of Chrispin Thomas, who was shot and killed by an off-duty police officer who happened to be a customer in the barbershop that defendant and Thomas attempted to rob. The issue on appeal is whether the jury was properly instructed regarding proximate cause in relation to felony murder. The majority affirms defendant’s conviction, finding that the State’s proffered non-IPI jury instruction correctly states the law. I disagree.
As I explained in People v. Klebanowski, 221 Ill. 2d 538 (2006), I continue to maintain, as I did in People v. Dekens, 182 Ill. 2d 247, 257 (1998) (Bilandic, J., dissenting, joined by McMorrow, J.), that, “[wjhere 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.” Accordingly, under the proximate cause theory of liability for felony murder, a cofelon may not be held liable for murder when a third party kills an active coparticipant in the underlying felony. In my view, the felony-murder doctrine simply “does not apply to render a surviving felon guilty of murder where a cofelon is killed by a nonparticipant in the felony.” People v. Dekens, 182 Ill. 2d at 255 (Bilandic, J., dissenting, joined by McMorrow, J.).
Here, as in Klebanowski, the notion that the cofelon’s own participation in the felony is the most direct cause of his death is made particularly apparent by the facts. In the case at bar, defendant and Thomas entered a barbershop with the intent to commit a robbery therein. Both carried guns, although defendant’s gun was inoperable. Inside the barbershop, Thomas took charge and demanded that the customers throw their money on the floor. When Thomas was not looking, an off-duty police officer, who happened to be a customer in the shop, drew his service revolver and announced, “Police, drop the gun” or “Freeze, police.” Despite repeated warnings, Thomas pointed his gun at the officer, who responded by shooting Thomas in the right arm. Thomas, however, was not dissuaded. He transferred his gun to his left arm and tried to point it at the officer. The officer walked up to Thomas and, placing his gun on Thomas’ chest, ordered Thomas to “Drop the gun, man.” Thomas still refused to comply. Instead, Thomas tried to point his gun at the officer. Only after the officer shot Thomas in the chest twice, at point-blank range, did Thomas drop the gun. Thomas died as a result of his injuries from these gunshots.
It is abundantly clear from the above facts that Thomas’ conduct, not defendant’s, “set in motion” the chain of events which proximately caused Thomas’ death at the hands of the officer. While it is true that defendant participated in the underlying felony of armed robbery, nothing he did during the course of the felony led to the death of his cofelon. In my view, the public policy reasons for holding the felon criminally liable for murder are inapplicable in these circumstances. Thus, I would hold that a conviction for murder in these cases is fundamentally unjust. For this reason, I dissent.