{ "id": 45696, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTONIO D. KIDD, Defendant-Appellant", "name_abbreviation": "People v. Kidd", "decision_date": "1998-03-20", "docket_number": "No. 4\u201495\u20140523", "first_page": "160", "last_page": "171", "citations": [ { "type": "official", "cite": "295 Ill. App. 3d 160" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "589 N.E.2d 975", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "pin_cites": [ { "page": "980" } ], "opinion_index": 0 }, { "cite": "226 Ill. App. 3d 771", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5238160 ], "year": 1992, "pin_cites": [ { "page": "779" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/226/0771-01" ] }, { "cite": "549 N.E.2d 331", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1989, "pin_cites": [ { "page": "334" }, { "page": "333-34" }, { "page": "334" } ], "opinion_index": 0 }, { "cite": "133 Ill. 2d 118", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3260454 ], "weight": 3, "year": 1989, "pin_cites": [ { "page": "125" }, { "page": "124-25" }, { "page": "125" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/133/0118-01" ] }, { "cite": "651 N.E.2d 100", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1995, "pin_cites": [ { "page": "110" }, { "page": "110" }, { "page": "111" } ], "opinion_index": 0 }, { "cite": "165 Ill. 2d 409", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 483561 ], "weight": 3, "year": 1995, "pin_cites": [ { "page": "429" }, { "page": "429" }, { "page": "432" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/165/0409-01" ] }, { "cite": "143 N.E.2d 47", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1957, "pin_cites": [ { "page": "49" } ], "opinion_index": 0 }, { "cite": "11 Ill. 2d 456", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2785795 ], "year": 1957, "pin_cites": [ { "page": "460" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/11/0456-01" ] }, { "cite": "489 N.E.2d 1374", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1986, "pin_cites": [ { "page": "1379" } ], "opinion_index": 0 }, { "cite": "111 Ill. 2d 350", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3167435 ], "year": 1986, "pin_cites": [ { "page": "363" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/111/0350-01" ] }, { "cite": "343 N.E.2d 903", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 7, "year": 1975, "pin_cites": [ { "page": "909" }, { "page": "908" }, { "page": "909" }, { "page": "909" }, { "page": "911" }, { "page": "908-09" } ], "opinion_index": 0 }, { "cite": "62 Ill. 2d 568", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2971333 ], "weight": 7, "year": 1975, "pin_cites": [ { "page": "579" }, { "page": "578" }, { "page": "579-80" }, { "page": "580" }, { "page": "583" }, { "page": "578-79" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/62/0568-01" ] }, { "cite": "517 N.E.2d 745", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "year": 1987, "pin_cites": [ { "page": "751" }, { "page": "751" }, { "page": "751" }, { "page": "752" } ], "opinion_index": 0 }, { "cite": "164 Ill. App. 3d 99", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3582674 ], "weight": 4, "year": 1987, "pin_cites": [ { "page": "109" }, { "page": "109" }, { "page": "109" }, { "page": "110" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/164/0099-01" ] }, { "cite": "27 J. Marshall L. Rev. 61", "category": "journals:journal", "reporter": "J. Marshall L. Rev.", "year": 1993, "opinion_index": 1 }, { "cite": "646 N.E.2d 587", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1995, "pin_cites": [ { "page": "590" }, { "page": "595" }, { "page": "590" } ], "opinion_index": 1 }, { "cite": "164 Ill. 2d 104", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 477012 ], "weight": 3, "year": 1995, "pin_cites": [ { "page": "111" }, { "page": "122" }, { "page": "110" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/164/0104-01" ] }, { "cite": "517 N.E.2d 745", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1987, "pin_cites": [ { "page": "751" }, { "page": "751" } ], "opinion_index": 1 }, { "cite": "164 Ill. App. 3d 99", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3582674 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "108" }, { "page": "108" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/164/0099-01" ] } ], "analysis": { "cardinality": 1089, "char_count": 29080, "ocr_confidence": 0.763, "pagerank": { "raw": 1.6768000160791825e-07, "percentile": 0.6968371515096053 }, "sha256": "8f7e991352533374deaa2cbcb7ddd771282cda3fa7baf1bb24e37df9b7834dcf", "simhash": "1:aa366e5265d31fd6", "word_count": 4857 }, "last_updated": "2023-07-14T18:51:11.490834+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTONIO D. KIDD, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE COOK\ndelivered the opinion of the court:\nAfter a jury trial, defendant was found guilty of first degree murder (felony murder) and the aggravated battery of Anthony Lipsey. 720 ILCS 5/9 \u2014 1(a)(3), 12 \u2014 4(a) (West 1994). On appeal, defendant argues (1) the trial court erred in refusing his proposed jury instructions for second degree murder, and (2) his sentence of imprisonment should be credited with one additional day.\nOn October 6, 1994, Anthony Lipsey (the victim) and Edwin Jones were walking down the street together when a man farther down the street yelled \u201chey\u201d at them. The man signaled to a porch full of men to join him. Lipsey and Jones were then surrounded by additional people who came from a nearby alley. A white car pulled up near them and four or five people from the car joined the crowd, including the defendant, Antonio Kidd, and Donnie Brown. Defendant asserts he \u201cwasn\u2019t thinking of nothing\u201d when he walked up to where Lipsey and Jones were standing. Jones backed away from the crowd and stood across the street. An argument ensued between Lipsey and the man who had yelled \u201chey,\u201d and the man hit Lipsey in the face.\nA fight then broke out between Lipsey and several members of the group, lasting approximately 5 to 10 minutes. There is some dispute about who initiated the fight. Defendant and Brown contend that Lipsey struck defendant on the side of the head with his hand, while holding a can, causing defendant to stagger backward. Jones, however, maintains that Lipsey did not strike anyone before he was struck and that Lipsey threw punches only in an attempt to defend himself. Jones did not see Lipsey holding anything in his hands.\nAfter Lipsey allegedly hit defendant, Brown and another man grabbed Lipsey as he tried to run away and pulled him back into the fight. Brown and the other man hit Lipsey until defendant hit Lipsey \u201cno more than three\u201d times \u2014 twice in the face and \u201cprobably\u201d in the chest area. Defendant estimates 30 to 60 seconds elapsed between the time Lipsey struck defendant and defendant hit Lipsey. During that time defendant decided it was \u201ctime *** to get [his] licks in.\u201d Defendant admitted that at the time he hit Lipsey, Lipsey did not put him in fear of his safety, since Lipsey was being beaten by the other two men.\nAfter the fight, all the men left the area. Jones went over to Lip-sey, helped him up, and walked him home. Lipsey reported the incident to the police. Officer John Kohler of the Springfield police department was on duty on October 6, 1994, when Lipsey flagged him down. Lipsey told Kohler that he had just been beaten up by four black males, who had also robbed him about one week earlier. Lipsey explained that they beat him up because they did not want him to press charges against them for the prior robbery. Lipsey identified one of the men as defendant Kidd. At trial, Edwin Jones testified that the people who beat Lipsey were talking about someone taking money from Lipsey. Cortessa Williams testified that on October 5, 1994, one day before the fight, she heard a conversation between Sylvester Anderson and defendant Kidd regarding someone they wanted to get even with. Kidd stated that he had to get \u201chim\u201d for telling the police on them, but did not name anyone in particular.\nLipsey remained at home the evening of October 6. Lipsey\u2019s mother and father, Betty and Joe, noticed bruises and swelling around his right eye, lip, and his right temporal area. Lipsey refused suggestions by his parents to go to the hospital. Betty checked on him periodically throughout the night. When she checked around 6:15 a.m. on October 7, she noticed white liquid coming from his mouth, and his difficulty in breathing. Lipsey did not respond when Joe shook him, and he eventually stopped breathing. An ambulance took Lipsey to the hospital, where efforts to resuscitate him were unsuccessful.\nOn November 18, 1994, the State issued a two-count indictment against Antonio Kidd. In count I, the State charged defendant with first degree murder (felony murder), in that \u201cwhile committing'a forcible felony, Aggravated Battery, *** [defendant] struck Anthony Lip-sey in the head with his hand and thereby caused the death of Anthony Lipsey.\u201d 720 ILCS 5/9 \u2014 1(a)(3) (West 1994). Count II charged defendant with aggravated battery in that he \u201cintentionally caused great bodily harm to Anthony Lipsey in that he struck Anthony Lipsey in the head with his fist.\u201d 720 ILCS 5/12 \u2014 4(a) (West 1994). Defendant was tried by a jury, along with codefendant Donnie Brown.\nDuring the jury trial, defendant testified that when he hit Lipsey on October 6, 1994, he did not believe his punches could have killed or caused great bodily harm to Lipsey. During the fight, he had no idea that Lipsey would die. Dr. Victor Lary performed Anthony Lip-sey\u2019s autopsy on October 7, 1994, and concluded that the cause of Lipsey\u2019s death was a traumatic head injury resulting in an epidural hematoma, a large and relatively recent clot of blood located between the skull and the brain pressing downward on the brain. Dr. Lary could not determine how much force created Lipsey\u2019s head injury, but said that blows to the head with a fist could cause an epidural hematoma.\nDuring the jury instructions conference, defendant\u2019s attorney tendered instructions for second degree murder based on provocation. The trial court refused to give the second degree murder instructions, apparently finding the evidence insufficient to allow those instructions to be given and concluding that the case only raised the issue of whether defendant committed aggravated battery, the predicate offense for the felony murder charge. The jury subsequently found defendant guilty of first degree murder (felony murder) and aggravated battery. 720 ILCS 5/9 \u2014 1(a)(3), 12 \u2014 4(a) (West 1994). The trial court sentenced defendant to 25 years\u2019 imprisonment and awarded him credit for 228 days served.\nDefendant filed a posttrial motion arguing the trial court erred in not instructing the jury on second degree murder. Defendant argued those instructions should have been given because the evidence showed defendant had no felonious intent prior to being struck in the head by Lipsey. In addition, because Lipsey struck defendant first, Lipsey was the initial aggressor, which caused the defendant to act under a sudden and intense passion resulting from serious provocation by Lipsey. The court denied defendant\u2019s posttrial motion. This appeal followed.\nPrior to 1987, Illinois defined voluntary manslaughter to include the situation where the defendant \u201cis acting under a sudden and intense passion resulting from serious provocation.\u201d Ill. Rev. Stat. 1985, ch. 38, par. 9 \u2014 2(a). Since 1987, provocation has been addressed by the second degree murder statute, which made significant changes in that defense. 720 ILCS 5/9 \u2014 2(a) (West 1994).\nDefendant recognizes that in most felony murder cases it should not be a defense that a defendant is provoked, but he argues the defense is available in this case, citing People v. Williams, 164 Ill. App. 3d 99, 109, 517 N.E.2d 745, 751 (1987). A person who intends to rob a shopkeeper or rape an individual is not allowed to claim that he was provoked by his victim or to raise any other affirmative defense if, in the course of committing the original felony, the intended victim or any other person is killed. Williams, 164 Ill. App. 3d at 109, 517 N.E.2d at 751. The argument that a defendant was provoked to commit the robbery or rape in which the victim was killed similarly has no merit. Mental state is irrelevant. \u201cIt is immaterial whether the killing in such case is intentional or accidental, or is committed by a confederate without the connivance of the defendant.\u201d Ill. Ann. Stat. ch. 38, par. 9 \u2014 1, Committee Comments \u2014 1961, at 16 (Smith-Hurd 1979). Williams held, however, that in the unusual fact situation before it the provocation defense should have been available.\nIn People v. Viser, 62 Ill. 2d 568, 343 N.E.2d 903 (1975), the court considered whether felony murder could be charged when the predicate felony was the aggravated battery that resulted in the victim\u2019s death. In Viser, a chance dispute between two groups of people who did not know each other resulted in the aggravated battery of two victims, one of whom died a few days later. The supreme court recognized that other states had held that an assault upon the person killed could not be made the basis of a felony murder charge. Viser, 62 Ill. 2d at 579, 343 N.E.2d at 909. The court was troubled, however, that in the case before it the argument was only a technical one: if the indictment had charged that the deceased victim had been killed during the commission of an aggravated battery on the surviving victim, the indictment would have been proper. Viser, 62 Ill. 2d at 578, 343 N.E.2d at 908.\nThe supreme court noted that most felony murders involve an aggravated battery or an assault, and it declined to rule out felony murder prosecutions in such cases simply because of the absence of an intention to commit another felony, especially in light of the legislature\u2019s \u201cforthright characterization of aggravated battery as one of the forcible felonies that will trigger a charge of felony murder.\u201d Viser, 62 Ill. 2d at 579-80, 343 N.E.2d at 909; see 720 ILCS 5/2 \u2014 8 (West 1994) (definition of \u201cforcible felony\u201d). If a person chooses to engage in dangerous conduct from which death is likely to result (and forcible felonies constitute such conduct), that person should be liable for felony murder whether the dangerous conduct consists of robbery, criminal sexual assault, or aggravated battery resulting in great bodily harm.\nThere are reasons why a prosecutor, seeking a first degree murder conviction, might choose to charge felony murder under section 9 \u2014 1(a)(3), even when a charge of intentional or knowing murder is possible under section 9 \u2014 1(a)(1) or (a)(2). First, the prosecutor will not have to show that there was any intent to kill when the charge is felony murder. Second, the provocation defense may not be available when the charge is felony murder. Viser clearly held the first proposition to be the law. \u201cWhat was intended was to deter the commission of any of the enumerated forcible felonies, including aggravated battery, by holding the perpetrator responsible for murder if death results.\u201d Viser, 62 Ill. 2d at 580, 343 N.E.2d at 909. Viser did not hold the second proposition to be law. An instruction on the provocation defense was given in Viser, and the supreme court held that it would have been error to have refused that instruction. Viser, 62 Ill. 2d at 583, 343 N.E.2d at 911. There were also charges of intentional and knowing murder in Viser, for which the instruction clearly would have been appropriate, but it appears the jury returned a guilty verdict on only the felony murder count.\nIt is not the law that a prosecutor may avoid the provocation defense in an intentional or knowing murder case by charging felony murder based upon an aggravated battery upon the person killed. The procedure to be followed in that situation was addressed in Williams, where the court concluded there should be an instruction on the defense, even though provocation is not a defense to aggravated battery and is not usually a defense to felony murder. Williams would not allow the defense where the provocation occurred during the commission of the forcible felony, as where a shopkeeper resisted a robber. Williams, 164 Ill. App. 3d at 109, 517 N.E.2d at 751. However, where provocation occurs prior to the time that a defendant forms a felonious intent or commits an aggravated battery, defendant is entitled to the defense. Williams, 164 Ill. App. 3d at 110, 517 N.E.2d at 752. Otherwise prosecutors could avoid the defense in every case of first degree murder, even in cases that are clearly intentional or knowing murder cases.\nThe State argues that, in 1987, when the legislature adopted the second degree murder statute, it specifically provided that the defense of provocation applied only to intentional or knowing murder and could never apply to felony murder. See 720 ILCS 5/9 \u2014 2(a) (West 1994) (\u201cA person commits the offense of second degree murder when he commits the offense of first degree murder as defined in paragraphs (1) or (2) of subsection (a) of Section 9 \u2014 1 ***\u201d). The State did not make that argument in the trial court. That argument would effectively eliminate the second degree murder statute in intentional or knowing murder cases. If the prosecutor has the evidence to defeat a claim of provocation, he may charge knowing or intentional murder. If he does not have that evidence, he may prevent the claim from being raised by charging felony murder, based on aggravated battery. See Viser, 62 Ill. 2d at 578-79, 343 N.E.2d at 908-09.\nDid the legislature really intend an illusory second degree murder statute, one that exists at the choice of the prosecutor and will be applied only in cases in which it could be of no benefit to the defendant? We should avoid a construction of a statute that renders any part of it meaningless. The courts presume that the General Assembly, in passing legislation, did not intend absurdity, inconvenience or injustice, and a statute will be interpreted so as to avoid a construction that would raise doubts as to its validity. Harris v. Manor Healthcare Corp., 111 Ill. 2d 350, 363, 489 N.E.2d 1374, 1379 (1986). A court should avoid an interpretation under which a statute is \u201cexplained away, or rendered insignificant, meaningless, inoperative, or nugatory.\u201d Pliakos v. Illinois Liquor Control Comm\u2019n, 11 Ill. 2d 456, 460, 143 N.E.2d 47, 49 (1957). In order to give some meaning to the second degree murder statute, there must be some limit on a prosecutor\u2019s ability to charge felony murder in cases such as this. We need not consider what that limit should be, however, as we may decide this case on the issue addressed in the trial court, whether defendant presented sufficient evidence to warrant the giving of the provocation instruction.\nIt does not appear that the prosecutor in this case charged felony murder when the proper charge was intentional or knowing murder. Defendant did not use any weapon and may have hit Lipsey only two or three times with his fists, and Lipsey walked away from the altercation. Lipsey did not believe his injuries were so serious as to require medical attention. Perhaps defendant did not \u201cintend [ ] to kill or do great bodily harm to\u201d Lipsey or \u201cknow[ ] that such acts will cause death\u201d or \u201cknow! ] that such acts create a strong probability of death or great bodily harm.\u201d 720 ILCS 5/9 \u2014 1(a)(1), (a)(2) (West 1994). It may be that if the State had made the argument in the trial court that it makes now, the trial court could have refused the provocation instruction on that basis. The State did not do so, however, and the question before us is whether defendant presented sufficient evidence to warrant the instruction.\nA person commits second degree murder when \u201c[a]t the time of the killing he is acting under a sudden and intense passion resulting from serious provocation by the individual killed or another whom the offender endeavors to kill, but he negligently or accidentally causes the death of the individual killed.\u201d 720 ILCS 5/9 \u2014 2(a)(1) (West 1994). The Criminal Code of 1961 defines \u201cserious provocation\u201d as \u201cconduct sufficient to excite an intense passion in a reasonable person.\u201d 720 ILCS 5/9 \u2014 2(b) (West 1994). The defendant must be acting under a sudden and intense passion spurred from serious provocation that the law recognizes as reasonable. People v. Garcia, 165 Ill. 2d 409, 429, 651 N.E.2d 100, 110 (1995). Illinois courts recognize four categories of provocation: (1) substantial physical injury or substantial physical assault, (2) mutual quarrel or combat, (3) illegal arrest, and (4) adultery with the offender\u2019s spouse. Garcia, 165 Ill. 2d at 429, 651 N.E.2d at 110. Mutual quarrel or combat is a \u201cfight or struggle which both parties enter willingly or where two persons, upon a sudden quarrel and in hot blood, mutually fight upon equal terms and where death results from the combat.\u201d People v. Austin, 133 Ill. 2d 118, 125, 549 N.E.2d 331, 334 (1989).\nWhether to issue a specific jury instruction is within the province of the trial court, and such a decision will not be reversed unless it is an abuse of discretion. Garcia, 165 Ill. 2d at 432, 651 N.E.2d at 111; Austin, 133 Ill. 2d at 124-25, 549 N.E.2d at 333-34. If there is evidence that if believed by the jury would reduce a crime from first degree murder to second degree murder, defendant\u2019s requested second degree murder instruction must be granted. However, the defendant has the burden of proving that at least \u201csome evidence\u201d of serious provocation exists, otherwise the trial court may deny giving the instruction. Austin, 133 Ill. 2d at 125, 549 N.E.2d at 334.\nWe hold the trial court did not abuse its discretion in refusing to give defendant\u2019s second degree murder provocation instruction because defendant did not present sufficient evidence to warrant giving that instruction. No real evidence exists that shows defendant was acting under a sudden and intense passion resulting from serious provocation at the time he beat Lipsey.\nDefendant argues that when he beat Lipsey he acted under a sudden and intense passion from serious provocation, but he does not specify under which of the four recognized categories of provocation the situation falls. It appears the only possible applicable category would be mutual quarrel or combat. However, we hold that this situation did not constitute mutual combat; consequently, defendant was not entitled to present the second degree murder instructions to the jury.\nDefendant did not satisfy the mutual combat or quarrel standard as he presented no evidence indicating Lipsey willingly entered into the struggle or that the fight was on equal terms. Clearly this was not a one-on-one situation as Lipsey was initially surrounded by approximately 16 men. Furthermore, there is evidence that indicates defendant and the others may have planned this incident in response to Lipsey reporting them to the police for previously robbing him and to prevent him from pressing charges against them. Even if Lipsey struck defendant in the head, this was not serious provocation, as Lipsey was probably trying to break free from the crowd, not instigate an altercation. Lipsey did try and escape the crowd once, but he was pulled back by two of the men. It was dining the time these two men were beating Lipsey that defendant decided it was \u201ctime to get [his] licks in.\u201d\nDefendant also contends that his sentence of imprisonment must be credited with one additional day as he served 229 days in the Sangamon County jail and the trial court only credited his sentence with 228 days. The State agrees that defendant is entitled to 229 days of credit. The Unified Code of Corrections provides that a defendant shall be given credit on his sentence for time he spent in custody. 730 ILCS 5/5 \u2014 8\u20147(b) (West 1994); People v. Donnelly, 226 Ill. App. 3d 771, 779, 589 N.E.2d 975, 980 (1992). Defendant was in custody from November 6, 1994, through June 22, 1995, a total of 229 days, and is entitled to 229 days of credit on his sentence.\nFor the foregoing reasons, the judgment of the circuit court of Sangamon County is affirmed as modified and remanded for issuance of an amended judgment of sentence reflecting defendant\u2019s entitlement to 229 days\u2019 credit on his sentence.\nAffirmed as modified and remanded with directions.\nMcCullough, j., concurs.", "type": "majority", "author": "JUSTICE COOK" }, { "text": "JUSTICE STEIGMANN,\nspecially concurring:\nIn 1986, the legislature enacted Public Act 84 \u2014 1450 (Pub. Act 84 \u2014 1450, eff. July 1, 1987 (1986 111. Laws 4222)), which renamed the offense of murder to first degree murder, abolished the offense of voluntary manslaughter, and replaced it with second degree murder. As the supreme court explained in People v. Jeffries, 164 Ill. 2d 104, 111, 646 N.E.2d 587, 590 (1995), \u201c[t]he intent of the legislature in enacting Public Act 84 \u2014 1450 was to remedy the confusion and inconsistency that had developed in regard to the murder and voluntary manslaughter statutes.\u201d Part of that confusion and inconsistency dealt with the relationship of voluntary manslaughter to murder when a defendant was charged under the felony murder provision of the former murder statute.\nIn Williams, this court struggled with that relationship, noting that in most instances in which a defendant is charged with murder under the former statute, \u201cthe reduction in culpability [that is, a reduction to a voluntary manslaughter conviction] due to passion should not be available as a partial defense to a felony murder charge.\u201d Williams, 164 Ill. App. 3d at 108, 517 N.E.2d at 751. However, the court then noted that \u201cunder the unusual fact situation presented by defendant\u2019s testimony in the instant case, the jury should have been given the provocation-voluntary manslaughter instruction in conjunction with the felony murder charge.\u201d Williams, 164 Ill. App. 3d at 108, 517 N.E.2d at 751. In support, the Williams court cited Viser, in which \u2014 according to the Williams court \u2014 the supreme court stated that it would have been error for the trial court to refuse to give a voluntary manslaughter instruction in a case involving a charge of felony murder.\nHowever, Williams provides no support for the majority\u2019s holding here because (1) the legislature changed the voluntary manslaughter statute upon which Williams is based when it created the offense of second degree murder; and (2) part of the reason the legislature did so was specifically to reject the position the majority now adopts. In other words, as Viser and Williams demonstrate, confusion existed under the \u201cold law\u201d regarding whether a voluntary manslaughter conviction could result when the defendant was charged only with felony murder. Note that in defining voluntary manslaughter, section 9 \u2014 2(a) of the Criminal Code of 1961 (Code) stated simply that \u201c[a] person who kills an individual without lawful justification commits voluntary manslaughter\u201d if at the time of the killing, he acted under serious provocation or an imperfect self-defense. 111. Rev. Stat. 1985, ch. 38, par. 9 \u2014 2(a). On the other hand, second degree murder as now defined in section 9 \u2014 2(a) of the Code provides, in relevant part, that a person commits that offense \u201cwhen he commits the offense of first degree murder as defined in paragraphs (1) or (2) of subsection (a) of Section 9 \u2014 1 of this Code\u201d and either mitigating factor is present. (Emphasis added.) 720 ILCS 5/9 \u2014 2(a) (West 1994).\nFirst degree murder can be committed in either of the following separate and distinct ways: (1) \u201cknowing or intentional\u201d murder (sections 9 \u2014 1(a)(1) and (a)(2) of the Code), or (2) felony murder (section 9 \u2014 1(a)(3) of the Code). By specifically referring to subsections 9 \u2014 1(a)(1) and (a)(2) of the Code in defining second degree murder, the legislature made clear that second degree murder can be committed only when a defendant commits \u201cknowing or intentional\u201d murder. This is no oversight. If the legislature had intended to include felony murder as a possible basis (when either section 9 \u2014 2(a) mitigating factor is present) for second degree murder, all it needed to say in defining second degree murder is that a person commits that offense when he commits the offense of first degree murder and either of the mitigating factors is present \u2014 the same language, in other words, that the legislature had used to describe (under the \u201cold law\u201d) when a charge of murder could serve as a possible basis for voluntary manslaughter.\nOther than to change the name of the offense, Public Act 84\u2014 1450 left section 9 \u2014 1 of the Code (defining murder) the same in all particulars. Under Public Act 84 \u2014 1450, the primary change to section 9 \u2014 2 of the Code (besides the change of name) was to place the burden of proof on a defendant who asserts the presence of mitigating factors. (Note that the statutory definition of mitigating factors was not changed from the old section 9 \u2014 2 to the new statute.) In fact, other than shifting the burden of proof, the single biggest change between voluntary manslaughter and second degree murder is the new definition of second degree murder which \u2014 on its face \u2014 omits the possibility that second degree murder can be based upon felony murder.\nThe question that the majority should address is this: other than the result I claim was intended when the legislature enacted the statute \u2014 namely, to achieve the specific result of ensuring that second degree murder could never be based upon felony murder \u2014 what possible explanation can the majority provide for this change in the language of section 9 \u2014 2(a)?\nAssuming, for the moment, that the legislature did not wish to permit felony murder to serve as a predicate for second degree murder, how could it possibly have made its views more clear? I suggest the only way it could have done so is by using a legislative device that it heretofore has never used \u2014 namely, by adding the following sentence to section 9 \u2014 2 of the Code (perhaps as a new subsection (b)): \u201cThe omission of any reference to paragraph (3) of subsection (a) of section 9 \u2014 1 of this Code within the definition of second degree murder was intentional to ensure that felony murder may not constitute the predicate for a second degree murder conviction.\u201d\nDefining criminal offenses \u2014 and providing for mitigated homicides, if that is the legislature\u2019s wish \u2014 lies entirely within the legislature\u2019s province. It was not compelled to provide that the presence of mitigating factors would reduce a defendant\u2019s commission of first degree murder to second degree murder, a lesser mitigated offense. See Jeffries, 164 Ill. 2d at 122, 646 N.E.2d at 595. Nor, once the legislature decided to make some first degree murders (the \u201cintentional or knowing\u201d murders) capable of being mitigated into second degree murders, was it compelled to make all first degree murders (including felony murders) capable of being mitigated into second degree murders. (For a comprehensive discussion of the changes in Illinois\u2019 murder statute and the policies underlying those changes, see D. Shanes, Murder Plus Mitigation: The \u201cLesser Mitigated Offense\u201d Arrives in Illinois, 27 J. Marshall L. Rev. 61 (1993).)\nThe majority simply disapproves of how the legislature has chosen to define second degree murder and thinks it should be defined broadly enough so that second degree murder could result when a defendant is charged only with felony murder. The majority\u2019s holding is inconsistent with the words of the supreme court in Jeffries, when that court spoke of the deference due the legislature in enacting statutes \u2014 indeed, the very statutes at issue in this case:\n\u201c[W]e recognize that the judicial role in construing statutes is to ascertain legislative intent and give it effect. To accomplish this goal, a court will seek to determine the objective the legislature sought to accomplish and the evils it desired to remedy.\u201d Jeffries, 164 Ill. 2d at 110, 646 N.E.2d at 590.\nRegarding the Pliakos .case \u2014 which holds that a court should avoid an interpretation under which a statute is explained away, or rendered insignificant, meaningless, inoperative, or nugatory \u2014 the essential point is that section 9 \u2014 2 of the Code in defining second degree murder neither requires nor permits an interpretation-, that statute is clear on its face in that it refers only to knowing and intentional murder under section 9 \u2014 1(a)(1) or (a)(2) of the Code \u2014 not 9 \u2014 1(a)(3), defining felony murder.\nThe majority\u2019s concern that, under my view, second degree murder would no longer exist is not supported by experience. Ten years have now passed since the enactment of the first and second degree murder statute, and there has been no shortage of juries either being instructed upon \u2014 or finding defendants guilty of \u2014 second degree murder.\nThe Code was enacted in 1961 (at which time the modern versions of murder and voluntary manslaughter were enacted), which means that 25 years passed before an appellate court (Williams) held that \u2014 under limited circumstances \u2014 voluntary manslaughter could be premised upon a felony murder count. And during the 10 years that have passed since Williams was decided, not a single case has similarly held that second degree murder can be based upon a felony murder count.", "type": "concurrence", "author": "JUSTICE STEIGMANN," } ], "attorneys": [ "Daniel D. Yuhas and Michele A. Knapp, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.", "Patrick W. Kelley, State\u2019s Attorney, of Springfield (Norbert J. Goetten, Robert J. Biderman, and Kathy Shepard, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTONIO D. KIDD, Defendant-Appellant.\nFourth District\nNo. 4\u201495\u20140523\nOpinion filed March 20, 1998.\nSTEIGMANN, J., specially concurring.\nDaniel D. Yuhas and Michele A. Knapp, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.\nPatrick W. Kelley, State\u2019s Attorney, of Springfield (Norbert J. Goetten, Robert J. Biderman, and Kathy Shepard, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0160-01", "first_page_order": 180, "last_page_order": 191 }