{ "id": 864520, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. CODY DEKENS, Appellee", "name_abbreviation": "People v. Dekens", "decision_date": "1998-04-16", "docket_number": "No. 82839", "first_page": "247", "last_page": "261", "citations": [ { "type": "official", "cite": "182 Ill. 2d 247" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "1 Ill. App. 3d 566", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5313033 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/ill-app-3d/1/0566-01" ] }, { "cite": "178 Ill. 2d 462", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 385575 ], "weight": 6, "year": 1997, "pin_cites": [ { "page": "465" }, { "page": "466" }, { "page": "466" }, { "page": "467" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/178/0462-01" ] }, { "cite": "359 Ill. 246", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5277484 ], "weight": 2, "year": 1935, "pin_cites": [ { "page": "255" } ], "opinion_index": 0, "case_paths": [ "/ill/359/0246-01" ] }, { "cite": "56 Ill. 2d 536", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5405478 ], "weight": 2, "year": 1974, "pin_cites": [ { "page": "545" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/56/0536-01" ] }, { "cite": "59 Ill. 2d 89", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2957904 ], "weight": 3, "year": 1974, "pin_cites": [ { "page": "94" }, { "page": "95" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/59/0089-01" ] }, { "cite": "607 S.W.2d 153", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 9928546 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/sw2d/607/0153-01" ] }, { "cite": "184 Wis. 2d 423", "category": "reporters:state", "reporter": "Wis. 2d", "case_ids": [ 8665954 ], "weight": 2, "year": 1994, "opinion_index": 0, "case_paths": [ "/wis-2d/184/0423-01" ] }, { "cite": "12 Ill. App. 3d 412", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2854088 ], "weight": 2, "year": 1973, "pin_cites": [ { "page": "417" }, { "page": "417" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/12/0412-01" ] }, { "cite": "178 Ill. 2d 462", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 385575 ], "weight": 4, "year": 1997, "pin_cites": [ { "page": "469" }, { "page": "469" }, { "page": "465", "parenthetical": "intended victim shot and killed innocent bystander" }, { "page": "465" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/178/0462-01" ] }, { "cite": "56 Ill. 2d 536", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5405478 ], "year": 1974, "pin_cites": [ { "page": "545", "parenthetical": "police officer shot by another officer" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/56/0536-01" ] }, { "cite": "59 Ill. 2d 89", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2957904 ], "year": 1974, "pin_cites": [ { "page": "91-92", "parenthetical": "police officer shot and killed another officer" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/59/0089-01" ] }, { "cite": "178 Ill. 2d 462", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 385575 ], "year": 1997, "opinion_index": 2, "case_paths": [ "/ill-2d/178/0462-01" ] }, { "cite": "359 Ill. 246", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5277484 ], "weight": 2, "year": 1935, "pin_cites": [ { "page": "255" } ], "opinion_index": 2, "case_paths": [ "/ill/359/0246-01" ] }, { "cite": "487 N.W.2d 880", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 10647524 ], "weight": 3, "year": 1992, "pin_cites": [ { "page": "881" }, { "page": "881-82" } ], "opinion_index": 2, "case_paths": [ "/nw2d/487/0880-01" ] }, { "cite": "391 Pa. 486", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 1276839 ], "year": 1958, "pin_cites": [ { "page": "495" } ], "opinion_index": 2, "case_paths": [ "/pa/391/0486-01" ] }, { "cite": "137 A.2d 472", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1958, "pin_cites": [ { "page": "476" } ], "opinion_index": 2 }, { "cite": "73 N.J. 206", "category": "reporters:state", "reporter": "N.J.", "case_ids": [ 1944457 ], "year": 1977, "pin_cites": [ { "page": "211-12" } ], "opinion_index": 2, "case_paths": [ "/nj/73/0206-01" ] }, { "cite": "374 A.2d 20", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1977, "pin_cites": [ { "page": "23" } ], "opinion_index": 2 } ], "analysis": { "cardinality": 951, "char_count": 27178, "ocr_confidence": 0.774, "pagerank": { "raw": 2.2477147289326902e-07, "percentile": 0.7808573009468892 }, "sha256": "04abd1cdbc90ac735c75db6b36b16d6621301638c8d5776e3ac915a215448905", "simhash": "1:d124b75ae6494b2f", "word_count": 4488 }, "last_updated": "2023-07-14T18:59:33.883421+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. CODY DEKENS, Appellee." ], "opinions": [ { "text": "JUSTICE MILLER\ndelivered the opinion of the court:\nThis appeal presents the question whether a defendant may be charged with first degree murder, on a felony-murder theory, when the decedent is a cofelon who is killed by an intended victim of the defendant and cofelon.\nThe defendant was charged in the circuit court of Kankakee County with murder, criminal drug conspiracy, and attempted armed robbery. Prior to trial, the defendant moved to dismiss the murder charge, which was based on a felony-murder theory. The defendant contended that he could not be charged with that offense because the decedent in this case was a cofelon, who was shot and killed by the victim of the robbery attempt. For purposes of resolving the defendant\u2019s motion, the prosecution and the defense stipulated to the facts underlying the case. According to the parties\u2019 stipulation, an undercover police officer arranged to buy drugs from the defendant at a residence in Kankakee on January 5, 1996. Prior to the meeting, the defendant and the decedent, Peter Pecchenino, formulated a plan to rob the officer. During the drug transaction, the defendant pointed a shotgun at the officer and threatened him. In response, the officer fired several shots at the defendant. As the officer was leaving the residence, he was grabbed by Pecchenino. The officer shot Pecchenino, who later died as a result of those wounds. The defendant was subsequently charged with Pecchenino\u2019s murder, under a felony-murder theory. 720 ILCS 5/9 \u2014 1(a)(3) (West 1996).\nThe trial judge granted the defendant\u2019s motion to dismiss the murder charge. The judge believed that he was required to follow the appellate court opinion in People v. Morris, 1 Ill. App. 3d 566 (1971), which had held that a defendant could not be liable under a felony-murder theory for the death of a cofelon when the act causing the cofelon\u2019s death was not done in furtherance of the common design to commit the felony. The State appealed the dismissal of the charge pursuant to Supreme Court Rule 604(a)(1) (145 Ill. 2d R. 604(a)(1)), and the appellate court affirmed the trial judge\u2019s ruling. In an unpublished order, the appellate court relied on a rationale different from the one used by the trial judge yet reached the same result. From a review of the case law in this area, the appellate court believed that liability under a felony-murder theory could extend only to innocent victims. We allowed the State\u2019s petition for leave to appeal (166 Ill. 2d R. 315(a)), and we now reverse the judgments of the courts below and remand the cause to the circuit court of Kankakee County for further proceedings.\nIn People v. Lowery, 178 Ill. 2d 462 (1997), this court recently reviewed the nature of the felony-murder doctrine and the opposing theories on which liability may be based. As Lowery explains, Illinois follows the \u201cproximate cause\u201d theory of liability for felony murder. Under that theory, liability attaches \u201cfor any death proximately resulting from the unlawful activity\u2014 notwithstanding the fact that the killing was by one resisting the crime.\u201d Lowery, 178 Ill. 2d at 465. The other principal theory of liability under the felony-murder doctrine is the agency theory, which is followed by a majority of jurisdictions. Under the agency theory, \u201c \u2018the doctrine of felony murder does not extend to a killing, although growing out of the commission of the felony, if directly attributable to the act of one other than the defer dant or those associated with him in the unlawful enterprise.\u2019 [Citations.]\u201d Lowery, 178 Ill. 2d at 466. There is no liability under the agency theory when the homicide is committed by a person resisting the felony. Morris, relied on by the trial judge in this case, is an expression of the agency theory of liability.\nAlthough we have never addressed the precise question raised here, this court has, over the years, addressed similar questions concerning the scope of the felony-murder doctrine and the proximate cause theory. A review of these cases is instructive. In People v. Payne, 359 Ill. 246 (1935), several persons tried to rob two brothers. One of the robbers pointed a gun at one of the brothers, who drew his own gun and fired at the robbers; the robbers fired back. The second brother was killed in the gunfire, but it could not be determined whether his brother or one of the robbers had shot him. The defendant was charged with murder, on a felony-murder theory, for the. brother\u2019s death. Applying the proximate cause theory, the court explained that the identity of the person who fired the shot that killed the decedent was immaterial to the murder charge:\n\u201cIt reasonably might be anticipated that an attempted robbery would meet with resistance, during which the victim might be shot either by himself or someone else in attempting to prevent the robbery, and those attempting to perpetrate the robbery would be guilty of murder.\u201d Payne, 359 Ill. at 255.\nA later case, People v. Allen, 56 Ill. 2d 536 (1974), reaffirmed Payne and the proximate cause theory. In that case, the court concluded that the drafters of section 9 \u2014 1 of the Criminal Code of 1961 had intended to incorporate the holding in Payne. Allen upheld a conspirator\u2019s murder conviction for the death of a police officer in an attempted robbery of an armored car. This court rejected the defendant\u2019s argument that his conviction for murder could not stand because the slain officer had been shot by another officer. The court stated, \u201c[T]he defendant in this case may be held liable for the death of Officer Singleton whether the fatal shot was fired by a co-felon *** or by another police officer in opposition to the attempted robbery.\u201d Allen, 56 Ill. 2d at 545.\nA similar result was reached in People v. Hickman, 59 Ill. 2d 89 (1974). In Hickman the defendant and cofelons fled after they were observed by police committing a burglary. A police officer who was pursuing the burglars was mistakenly shot and killed by another officer, who mistook him for a burglar. Two defendants were convicted of the police officer\u2019s murder on a felony-murder theory. The trial judge later entered an order arresting the judgment in the case, however, and the State appealed from that order. Citing Payne and Allen, this court rejected the two defendants\u2019 argument that they could not be guilty of murder because the police officer who fired the fatal shot was acting justifiably. The court stated:\n\u201cThe commission of the burglary, coupled with the election by defendants to flee, set in motion the pursuit by armed police officers. The shot which killed Detective Loscheider was a shot fired in opposition to the escape of the fleeing burglars, and it was a direct and foreseeable consequence of defendants\u2019 actions.\u201d Hickman, 59 Ill. 2d at 94.\nMore recently, in People v. Lowery, 178 Ill. 2d 462 (1997), we revisited the scope of the felony-murder doctrine in a case in which the intended victim of an armed robbery shot at one of the fleeing robbers and struck an innocent bystander instead, killing her. The defendant asked the court to overrule Payne and Hickman and to adopt in this state the agency theory of liability for felony murder. Lowery, 178 Ill. 2d at 466. This we declined to do. We explained:\n\u201cIt is equally consistent with reason and sound public policy to hold that when a felon\u2019s attempt to commit a forcible felony sets in motion a chain of events which were or should have been within his contemplation when the motion was initiated, he should be held responsible for any death which by direct and almost inevitable sequence results from the initial criminal act. Thus, there is no reason why the principle underlying the doctrine of proximate cause should not apply to criminal cases. Moreover, we believe that the intent behind the felony-murder doctrine would be thwarted if we did not hold felons responsible for the foreseeable consequences of their actions. [Citations.]\u201d Lowery, 178 Ill. 2d at 467.\nAlthough Lowery, Hickman, Allen, and Payne did not address the precise question raised in this appeal, we believe that our case law compels application of the felony-murder doctrine to the circumstances of this case. As Lowery noted, Illinois follows the proximate cause theory of felony murder, as opposed to the agency theory. Consistent with the proximate cause theory, liability should lie for any death proximately related to the defendant\u2019s criminal conduct. Thus, the key question here is whether the decedent\u2019s death is the direct and proximate result of the defendant\u2019s felony. As our cases make clear, application of the felony-murder doctrine does not depend on the guilt or innocence of the person killed during the felony or on the identity of the person whose act causes the decedent\u2019s death.\nWe believe that a charge of felony murder is appropriate in these circumstances. In Lowery we determined that a defendant may be charged with the offense when an intended victim mistakenly shoots and kills a bystander. Here, the intended victim shot and killed the defendant\u2019s cofelon. We do not believe that the defendant should be relieved from liability for the homicide simply because of the decedent\u2019s role in the offense. Nor do we believe that application of the doctrine depends on whether or not the decedent was an innocent party. To hold otherwise would import the agency theory of felony murder into our law. As we have noted, Illinois has long followed the proximate cause theory. Consistent with that view, then, we conclude that a defendant may be charged with murder under a felony-murder theory when an intended victim of the felony shoots and kills a cofelon of the defendant. We note that other states that adhere to the proximate cause theory also\nrecognize liability for felony murder when the decedent is a cofelon of the defendant. See State v. Baker, 607 S.W.2d 153 (Mo. 1980); State v. Oimen, 184 Wis. 2d 423, 516 N.W.2d 399 (1994).\nIn opposition to our result, the defendant argues that the felony-murder doctrine should not apply when the person killed in the felony is an accomplice of the defendant. The defendant offers several reasons in support of this argument, but we find these contentions unpersuasive. First, the defendant believes that this court has already endorsed the limitation he urges here. The defendant notes that the appellate court opinion in People v. Hickman, 12 Ill. App. 3d 412, 417 (1973), though following the proximate cause theory, stated that the doctrine was applicable only when the decedent was innocent, and that this court\u2019s subsequent opinion in the case stated that the appellate court had \u201ccorrectly interpreted the felony-murder statute\u201d (Hickman, 59 Ill. 2d at 95). The limitation imposed by the appellate court in that case was dicta, however, and this court\u2019s later approval of the appellate court\u2019s reasoning should be understood as extending only to the issue actually decided \u2014 whether the defendant in that case was liable for murder when the decedent was a police officer who had been shot and killed by another officer.\nThe defendant also maintains that limiting the scope of the felony-murder doctrine to innocent victims is consistent with the proximate cause theory on which it rests in this state. The defendant cites again to the appellate court opinion in Hickman, referring to the court\u2019s statement in that case that liability should not lie for the death of a cofelon because \u201che assisted in setting in motion a chain of events which was the proximate cause of his death and therefore in the criminal law as in the civil law there is no redress for the victim.\u201d Hickman, 12 Ill. App. 3d at 417. As we understand the argument, the defendant seems to be urging a sort of contributory fault theory, under which no liability could attach for the death of a cofelon because his guilty participation in the offense should preclude his own recovery. We do not agree. We do not believe that a cofelon\u2019s blameworthiness should shield the defendant from liability for the death. As we have noted, the focus of the proximate cause theory is on the chain of events set in motion by the defendant, not on the individual guilt or innocence of the decedent.\nThe defendant further suggests that his proposed limitation is consistent with the purposes of the felony-murder doctrine. Again, we do not agree. In explaining the intended scope of the doctrine in Illinois, the committee comments to section 9 \u2014 1 of the Criminal Code of 1961 state:\n\u201cIt is immaterial whether the killing in such a case is intentional or accidental, or is committed by a confederate without the connivance of the defendant *** or even by a third person trying to prevent the commission of the felony.\u201d 720 ILCS Ann. 5/9 \u2014 1, Committee Comments\u2014 1961, at 12-13 (Smith-Hurd 1993).\nWe believe that denying liability when the decedent is a cofelon would conflict with the legislature\u2019s adoption of the proximate cause theory.\nFor the reasons stated, the judgments of the appellate court and of the circuit court of Kankakee County are reversed, and the cause is remanded to the circuit court of Kankakee County for further proceedings.\nAppellate court judgment reversed; circuit court judgment reversed;\ncause remanded.", "type": "majority", "author": "JUSTICE MILLER" }, { "text": "JUSTICE BILANDIC,\ndissenting:\nI 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.\nAs codified in Illinois, the felony-murder doctrine permits a defendant to be convicted of first degree murder if, \u201cin performing the acts which cause the death *** he is attempting or committing a forcible felony.\u201d 720 ILCS 5/9 \u2014 1(a)(3) (West 1996). Under this doctrine, the defendant need not have intended, nor even contemplated, causing anyone\u2019s death. Rather, the defendant\u2019s 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\u2019 imprisonment to natural life imprisonment. 730 ILCS 5/5 \u2014 8\u20141(a) (West 1996).\nThe justification for the felony-murder rule is that forcible felonies are so \u201cinherently dangerous\u201d that a death occurring in the course thereof is strongly probable. Lowery, 178 Ill. 2d at 469. Obviously, the \u201cinherent danger\u201d 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\u2019s concern for \u201cprotecting the general populace.\u201d 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.\nThere 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\u2019s 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\u2019s participation in the attempted armed robbery, the same attempted armed robbery which Pecchenino himself planned and carried out.\nThe majority concludes that, because defendant\u2019s attempt to commit the armed robbery \u201cset in motion a chain of events\u201d which resulted in Pecchenino\u2019s death, defendant may rightly be charged with murder for Pecchenino\u2019s death. When a defendant\u2019s 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:\n\u201c[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 ***. ***\nA 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\u2019s willing participation into account ***.\u201d W. LaFave & A. Scott, 2 Substantive Criminal Law \u00a7 7.5, at 217-18 (1986).\nThe 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\u2019s holding is simply that the proximate cause theory \u201ccompels\u201d this result. The only question, according to the majority, is \u201cwhether the decedent\u2019s death is the direct and proximate result of the defendant\u2019s felony.\u201d 182 Ill. 2d at 252. The majority then concludes that defendant\u2019s attempted armed robbery proximately caused Pecchenino\u2019s 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\u2019s participation in the felony, not the defendant\u2019s acts. Contrary to the majority\u2019s characterization, this distinction does not go to the \u201cguilt or innocence\u201d of the decedent. Rather, this distinction pertains to the \u201cproximate cause\u201d 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\u2019s felony results in the death of an innocent party and where it results in the death of an active participant in the felony.\nThe majority nonetheless holds that \u201cour cases make clear\u201d that application of the felony-murder doctrine does not depend on the \u201cguilt or innocence\u201d 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\u2019s 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 \u201cwhether the felony-murder rule applies where the intended victim of an underlying felony *** fired the fatal shot which killed an innocent bystander.\u201d (Emphasis added.) Lowery, 178 Ill. 2d at 465.\nThe majority also refers to an excerpt from the committee comments to section 9 \u2014 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 \u2014 1(a), Committee Comments \u2014 1961, at 12-13 (Smith-Hurd 1993). The comments are silent with regard to the identity of the decedent.\nAccordingly, no prior precedent of this court or any expression of legislative intent \u201ccompels\u201d 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\u2019s failure to conduct such an analysis has led it to reach what I consider to be an unjust result. I therefore dissent.\nJUSTICE McMORROW joins in this dissent.", "type": "dissent", "author": "JUSTICE BILANDIC," }, { "text": "JUSTICE HEIPLE,\nalso dissenting:\nAlthough I joined this court\u2019s opinion in People v. Lowery, 178 Ill. 2d 462 (1997), I have changed my view of the matter. For the reasons given below, I believe the court should reexamine and reject the proximate cause theory of liability in felony-murder cases.\nThe felony-murder doctrine originated in England to impose liability for murder upon a criminal defendant whose conduct in committing or attempting a felony brought about an unintended death. State v. Branson, 487 N.W.2d 880, 881 (Minn. 1992). At the time the doctrine was conceived, few offenses were classified as felonies, and all felonies were punishable by death. Branson, 487 N.W.2d at 881-82. Since the advent of the felony-murder doctrine, however, many less serious offenses have been added to the felony category. In response, many American jurisdictions have narrowed the doctrine\u2019s application, while England has abandoned the doctrine altogether. Branson, 487 N.W.2d at 882 & n.3.\nIn Illinois, the only type of first degree murder which does not require proof of a specific mens rea, or intent, on the part of the defendant is felony murder. See 720 ILCS 5/9 \u2014 1(a) (West 1996). The felony-murder doctrine thus stands as a substitute for intent in cases where the defendant\u2019s commission of a felony causes another person\u2019s death. This principle is sound when the death actually results from an action taken by the defendant. When the death is caused by the conduct of a third person, however, the rationale for the felony-murder\ndoctrine fails, because the doctrine operates as a rule of intent, not of causation. As one court held on facts similar to those of the instant case, \u201cthe thing which is imputed to a felon for a killing incidental to his felony is malice and not the act of killing.\u201d (Emphasis omitted.) Commonwealth v. Redline, 391 Pa. 486, 495, 137 A.2d 472, 476 (1958). In other words, although the State, to obtain a conviction for felony murder, need not prove intent to kill or knowledge that bodily harm will result, it still must prove that the defendant performed the acts which caused the death.\nThis analysis applies with particular force to the Illinois felony-murder statute, which provides as follows:\n\u201cA person who kills an individual without lawful justification commits first degree murder if, in performing the acts which cause the death-.\n* * *\n(3) he is attempting or committing a forcible felony other than second degree murder.\u201d (Emphasis added.) 720 ILCS 5/9 \u2014 1(a)(3) (West 1996).\nThis language clearly requires the State to prove that the defendant personally killed the decedent by \u201cperforming the acts which cause [d] the death.\u201d\nThe majority cites a passage from the committee comments on section 9 \u2014 1 to support its reading of the statute. 182 Ill. 2d at 254. This passage states that the death upon which a felony-murder conviction is based may have been caused \u201ceven by a third person trying to prevent the commission of the felony.\u201d 720 ILCS Ann. 5/9 \u2014 1, Committee Comments \u2014 1961, at 12-13 (SmithHurd 1993). The only authority given by the Committee for this statement is this court\u2019s opinion in People v. Payne, 359 Ill. 246 (1935). In Payne, this court held that the defendant could be found guilty of murder even if the shot that killed the decedent had been fired by another victim of the underlying felony. Payne, 359 Ill. at 255. This court\u2019s holding in Payne, however, is flawed for the same reason as is the majoritys analysis in the instant case: namely, the State failed to prove that the defendant performed the acts which caused the death. Other than this brief reference by a nonlegislative committee to an opinion of this court, there is no evidence that the General Assembly intended to sanction a conviction for felony murder where the death was caused by the actions of a person other than the defendant. Moreover, comments on a statute cannot alter the plain language of the statute. Giving the statute a fair reading, I cannot see how the comments could have been made in the first place, and I certainly do not see how those comments can now be given any validity or weight.\nAs the majority notes, most United States jurisdictions have rejected the proximate cause standard in favor of an agency theory of liability. Under the agency theory, \u201cthe doctrine of felony murder does not extend to a killing, although growing out of the commission of the felony, if directly attributable to the act of one other than the defendant or those associated with him in the unlawful enterprise.\u201d State v. Canola, 73 N.J. 206, 211-12, 374 A.2d 20, 23 (1977). Illinois also should adopt the agency theory, not because the majority of other states have done so, but rather because that theory represents a reasonable and just interpretation of the law. For this reason, I respectfully dissent.", "type": "dissent", "author": "JUSTICE HEIPLE," } ], "attorneys": [ "James E. Ryan, Attorney General, of Springfield, and Michael Kick, State\u2019s Attorney, of Kankakee (Barbara A. Preiner, Solicitor General, William L. Browers and Kartik K. Raman, Assistant Attorneys General, of Chicago, and Norbert J. Goetten, John X. Breslin and J. Paul Hoffman, of the Office of the State\u2019s Attorneys Appellate Prosecutor, of Ottawa, of counsel), for the People.", "Michael J. Pelletier, Deputy Defender, and Ronald S. Packowitz, Assistant Defender, of the Office of the State Appellate Defender, of Chicago, for appellee." ], "corrections": "", "head_matter": "(No. 82839.\nTHE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. CODY DEKENS, Appellee.\nOpinion filed April 16, 1998.\nRehearing denied June 1, 1998.\nBILANDIC, J., joined by McMORROW, J., dissenting.\nHEIPLE, J., dissenting.\nJames E. Ryan, Attorney General, of Springfield, and Michael Kick, State\u2019s Attorney, of Kankakee (Barbara A. Preiner, Solicitor General, William L. Browers and Kartik K. Raman, Assistant Attorneys General, of Chicago, and Norbert J. Goetten, John X. Breslin and J. Paul Hoffman, of the Office of the State\u2019s Attorneys Appellate Prosecutor, of Ottawa, of counsel), for the People.\nMichael J. Pelletier, Deputy Defender, and Ronald S. Packowitz, Assistant Defender, of the Office of the State Appellate Defender, of Chicago, for appellee." }, "file_name": "0247-01", "first_page_order": 259, "last_page_order": 273 }