Petition for Writ of Certiorari — John Givens, Petitioner v. Illinois

Supreme Court briefJun 18, 2019

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No.

IN THE

SUPREME COURT OF THE UNITED STATES

JOHN GIVENS, Petitioner,

-vsPEOPLE OF THE STATE OF ILLINOIS, Respondent.

On Petition For Writ Of Certiorari

To The Appellate Court Of Illinois

PETITION FOR WRIT OF CERTIORARI

JAMES E. CHADD

State Appellate Defender

PATRICIA MYSZA

Deputy Defender

KATHLEEN FLYNN

Supervisor and Counsel of Record

Office of the State Appellate Defender

First Judicial District

203 N. LaSalle St., 24th Floor

Chicago, IL 60601

(312) 814-5472

1stDistrict@osad.state.il.us

COUNSEL FOR PETITIONER

Of Counsel:

Rachel M. Kindstrand

Assistant Appellate Defender

QUESTION PRESENTED FOR REVIEW

Whether Illinois' proximate cause theory of liability for felony murder, which

allows a criminal defendant to be convicted of felony murder when the decedent is

killed by a third party, violates the Due Process Clauses and the Cruel and Unusual

Punishment Clause of the United States Constitution because it allows for a conviction

in the absence of an applicable mental state, creates a mandatory irrebuttable

presumption, and punishes a defendant as a murderer in the absence of a mental state.

TABLE OF CONTENTS

Question Presented for Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

Opinion Below ............. ................... ..................... .. 1

Statement of Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Constitutional and Statutory Provisions Involved . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Reasons for Granting the Petition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Illinois' proximate cause theory of liability for felony murder violates the

Due Process Clauses and the Cruel and Unusual Punishment Clause of

the United States Constitution because it allows for a conviction in the

absence of an applicable mental state, creates a mandatory presumption

of guilt, and punishes a defendant as a murderer in the absence of a

mental state. .................................... ........ 10

II.

There is a conflict among the state courts on this issue, and it

implicates the proper administration of criminal justice. . . . . . . . . . 21

Conclusion ........... ................ ................. ............. 25

INDEX TO APPENDIX

Appendix A: Illinois Appellate Court decision, People v. John Givens, 2018 IL

App (1st) 152031-U (Nov. 13, 2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . la

Appendix B: Illinois Supreme Court order denying leave to appeal, People v.

John Givens, 119 N.E.2d 1033 (March 20, 2019) . . . . . . . . . . . . . . . . . . . . . . . . . . 23a

Appendix C: Illinois Appellate Court order denying rehearing

(Nov. 8,2018)........... ................................ ........... 24a

Appendix D: Illinois Pattern Jury Instructions—Criminal, No. 7.15A

(contained in the appellate record at C. 188) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25a

Appendix E: Petition for Leave to Appeal filed in the Illinois Supreme Court

in People u. Givens, No. 124331 (Dec. 13, 2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . 26a

TABLE OF AUTHORITIES

Page

Cases:

Apprendi v. New Jersey, 530 U.S. 466 (2000) . . . . . . . . . . . . . . . . . . . . . . 12, 13,17, 21

Dennis u. U.S., 341 U.S. 494 (1951) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11

Enmund v. Florida, 458 U.S. 782 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 21

Francis u. Franklin, 471 U.S. 307 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

In re Winship, 397 U.S. 358 (1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 17, 18

Patterson v. New York, 432 U.S. 197 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Pinkerton v. U.S., 328 U.S. 640 (1946) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

McMillan v. Pennsylvania, 477 U.S. 79 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Morissette v. U.S., 342 U.S. 246 (1952) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Mullaney v. Wilbur, 421 U.S. 684 (1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 21

Sandstrom v. Montana, 442 U.S. 510 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 20

Speiser v. Randall, 357 U.S. 513 (1958) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Robinson v. California, 370 U.S. 660 (1962) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

U.S. v. Balint, 258 U.S. 250 (1922) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

U.S. v. U.S. Gypsum Co., 438 U.S. 422 (1978) . . . . . . . . . . . . . . . . . . . . . . . 10, 11, 17

Weems v. U.S., 217 U.S. 349 (1910). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

State Cases:

Butler v. People, 18 N.E. 338 (Ill. 1888) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Campbell u. State, 444 A.2d 1034 (Md. 1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 23

Commonwealth v. Redline, 137 A.2d 472 (Pa. 1958) . . . . . . . . . . . . . . . . . . . . passim

iii

Commonwealth v. Brown, 81 N.E.3d 1173 (Mass. 2017) . . . . . . . . . . . . . . . . . . 23, 24

Danis u. Fox, 735 S.E.2d 259 (Va. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Palmer v. State, 704 N.E.2d 124 (Ind. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

People v. Aaron, 299 N.W.2d 304 (Mich. 1980) . . . . . . . . . . . . . . . . . . . . . . . . . passim

People v. Brackett, 510 N.E.2d 877 (Ill. 1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

People v. Causey, 793 N.E.2d 169 (Ill. App. Ct. 2003) . . . . . . . . . . . . . . . . . . . . . . . 16

People v. Dekens, 695 N.E.2d 474 (Ill. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 16

People v. Garippo, 127 N.E. 75 (Ill. 1920) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

People v. Hernandez, 624 N.E.2d 661 (N.Y. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . 22

People u. Hickman, 319 N.E.2d 511 (Ill. 1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

People u. Hudson, 856 N.E.2d 1078 (Ill. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

People v. Klebanowski, 852 N.E.2d 813 (Ill. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . 16

People v. Lowery, 687 N.E.2d 973 (Ill. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

People u. Martinez, 795 N.E.2d 870 (Ill. App. Ct. 2003) . . . . . . . . . . . . . . . . . . . . . . 19

People u. Moore, 447 N.E.2d 1327 (Ill. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

State u. Baker, 607 S.W.2d 153 (Mo. 1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

State v. Canola, 374 A.2d 20 (N.J. 1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 22

State u. Jackson, 697 S.E.2d 757 (Ga. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

State v. Jennings, 100 N.E.3d 93 (Ohio Ct. App. 2017) . . . . . . . . . . . . . . . . . . . . . . 22

State v. Lopez, 845 P.2d 478 (Ariz. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

State v. Oimen, 516 N.W.2d 399 (Wis. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

State v. O'Kelly, 84 P.3d 88 (N.M. Ct. App. 2003). . . . . . . . . . . . . . . . . . . . . . . . 22, 23

State v. Pina, 233 P.3d 71 (Idaho 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Witherspoon v. State, 33 So.3d 625 (Ala. Crim. App. 2009) . . . . . . . . . . . . . . . . 21, 22

Wooden v. Virginia, 284 S.E.2d 811 (Va. 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Constitutional Provisions:

U.S. Const. amend. V . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

U.S. Const. amend. VIII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

U.S. Const. amend. XIV, §1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Statutes:

725 ILCS 5/9-1(a)(3) (West 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 24

730 ILCS 5/5-4.5-20(a) (West 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Other Authorities:

Birdsong, Leonard, "Felony Murder: A Historical Perspective by Which to

Understand Today's Modern Felony Murder Rule Statutes," 32 T. Marshall L. Rev. 1

(Fa112006) ...................................................... 13,14

No.

IN THE

SUPREME COURT OF THE UNITED STATES

JOHN GIVENS, Petitioner,

-vsPEOPLE OF THE STATE OF ILLINOIS, Respondent.

On Petition For Writ Of Certiorari

To The Appellate Court Of Illinois

The petitioner, John Givens, respectfully requests that a writ of certiorari issue

to review the judgment below.

OPINION BELOW

The decision of the Illinois Appellate Court on direct appeal is reported at 2018

IL App (1st) 152031-U, but is not published. (App. 1a-22a) The order of the Illinois

Supreme Court denying leave to appeal is reported at 119 N.E.2d 1033. (App. 23a)

-1-

JURISDICTION

The Illinois Appellate Court issued a decision on direct appeal on October 9,

2018. On November 8, 2018, the appellate court denied atimely-filed petition for

rehearing. (App. 24a) On November 13, 2018, the appellate court issued a modified

decision upon its denial of rehearing. (App. 1a-22a) The Illinois Supreme Court denied

a timely-filed petition for leave to appeal on March 20, 2019. (App. 23a) This Court has

jurisdiction over this matter pursuant to 28 U.S.C. §1257(a).

-2-

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The Fifth Amendment of the United States Constitution provides, in relevant

part, "No person shall ... be deprived of life, liberty, or property, without due process

of law." U.S. Const. amend. V.

The Eighth Amendment of the United States Constitution provides, "Excessive

bail shall not be required, nor excessive fines imposed, nor cruel and unusual

punishments inflicted." U.S. Const. amend. VIII.

The Fourteenth Amendment of the United States Constitution provides, in

relevant part, "No State shall ... deprive any person of life, liberty, or property, without

due process of law." U.S. Const. amend. XIV, §1.

The Illinois felony murder statute, 725 ILCS 5/9-1(a)(3) (West 2012), provides:

(a)

A person who kills an individual without lawful justification commits first

degree murder if, in performing the acts which cause the death:

(3)

he is attempting or committing a forcible felony other than second degree

murder.

-3-

STATEMENT OF THE CASE

Factual Background

John Givens, along with co-defendant Leland Dudley, was charged with felony

murder based on the death of a co-offender, David Strong, during the commission of a

burglary at an electronics store. (C. 75) The burglary and ensuing shooting were

recorded on surveillance cameras located within and outside of the store. (R. GG181;

P. Ex. 73AA-1) The men entered the electronics store a little after 2 a.m. on Apri130,

2012. (P. Ex. 73AA-1, 2:11:21) A tenant living in an apartment above the store called

the police. (R. GG148) Nineteen Chicago police officers responded to the call. (R.

HH140) As the officers arrived at the scene, they turned off their sirens to avoid

detection. (R. GG238, 244; HH23-24, 40-41, 98) The officers announced their office to

the men, but received no response. (R. HH9-10, 21, 101-02) The surveillance footage

showed the men loading electronic equipment into a minivan parked inside a garage

bay attached to the store. (P. Ex. 73AA-1, 2:35-2:40) There were no windows facing in

or out of the garage bay to the street, and the garage door was closed. (P. Ex. 73AA-1,

2:41-2:44)

One of the officers, Officer Lopez, kicked a hole in an interior door leading to the

garage bay. (R. GG222-23, 225) Through the hole, Lopez saw the van's lights turn on.

(R. GG225-26) Lopez gave a verbal warning to the other officers to get out of the way.

(R. GG227, 229) At trial, the officers denied hearing a radio dispatch from a fellow

officer minutes before the shooting, warning the others that the van might come out

of the garage. (R. HH29-31, 71, 80-81, 92)

Around 2:45 a.m., Dudley backed the minivan out of the garage, hitting the

garage door and another red minivan that was parallel-parked in the garage driveway.

(P. Ex. 73AA-2, file 9-d, 2:45:47) Officer Papin was standing near the garage door, and

he claimed that he was "hip-checked" by the reversing van but suffered no significant

injuries. (R. HH82, 86-87, 94) Papin then ran in the opposite direction and bumped into

Officer Curry, who subsequently opened fire on the van, emptying his magazine. (P.

Ex. 73AA-2, file 9-d, 2:45:48-50) At least eight officers fired on the van, shooting 77

rounds. (R. HH140-43) The front seat passenger, Strong, was killed, and Givens, the

backseat passenger, was shot six times and is confined to a wheelchair. (R. HH85, 10912) Dudley, the driver, was also shot multiple times but survived. (R. HH150)

Under Illinois' version of the felony murder rule, a defendant in Givens' position

maybe charged with felony murder even if the actual cause of death was the action of

a third party, i.e.: the commission of a shooting by one or more police officers. Described

by Illinois courts and those of other states as the "proximate cause theory," this

permutation of the felony murder rule allows for a co-offender of the underlying felony

to be responsible for a death "proximately resulting from the unlawful activity" even

if the death was caused by another. People u. Lowery, 687 N.E.2d 973, 975-76 (Ill.

1997). Givens' case was tried before a jury, and the Illinois jury instruction on

causation in felony murder cases states that a person commits first degree murder

when he commits burglary, and a death results "as a direct and foreseeable

consequence of a chain of events set into motion by his commission of the offense of

burglary." (C. 188); Illinois Pattern Jury Instruction-Criminal, No. 7.15A (eff. Jan. 30,

2015) (attached at App. 25a). Further, the instruction states, "It is immaterial whether

the killing is intentional or accidental or committed by a third person trying to prevent

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the commission of the offense of burglary." (App. 25a)

At trial, Givens argued that the officers used excessive force and therefore

Strong's death was not a foreseeable consequence of the burglary. (R. HH186-87, 19196) The trial court denied Givens' request to introduce a Chicago Police Department

general order, which prohibits an officer from firing at a moving vehicle when the

vehicle was the only force used against the officers, except to prevent great bodily harm

or death to another. (R. HH158-60) The order also required the officers to get out of the

way of the moving vehicle. (R. HH158-60)

Multiple officers testified that they opened fire on the van because they did not

know if Officer Papin had been hurt, and because they thought he might be

underneath the van. (R. HH13-14, 28, 64-65) The officers also claimed that they

continued to fire when they saw Dudley, the driver, make an up and down movement

with his arm, and saw the van lurch forward. (R. GG229-30; HH15-16) The

surveillance video shows that after the van struck the red minivan in its path and a

squad car, it sunk to the ground. (P. Ex. 79, 3:44) An investigating detective testified

that after the shooting, he observed the van's gearshift in drive. (R. HH144-46)

During deliberations, the jury sent out a note asking if it had to follow the letter

of the law, or whether it could interpret the law in a manner of its choosing. (R.

MM251) After the trial court informed the jury that it was given the law that applied

to the case, the jury rendered a guilty verdict for, inter alia, felony murder predicated

on burglary. (R. MM251, 253) Givens was sentenced to a term of 20 years in prison for

felony murder. (Supp. R. A28)

Proceedings Below

On direct appeal, Givens challenged the constitutionality of Illinois' proximate

cause theory of liability for felony murder.l (App. 26a-48a) Givens argued that

notwithstanding astate's authority to define what constitutes a criminal offense, the

proximate cause theory of felony murder violated federal due process because it

allowed for a murder conviction in the absence of any mens rea. (App. 38a-40a)

Historically, a death occurring during the commission of a felony could be considered

a murder because the malice element for murder was "constructively imputed" by the

malice accompanying the underlying felony. Id. In Givens' case, however, he could

never share a mens rea with the officers who actually killed Strong since the officers

were not co-offenders in the underlying felony. Id. Illinois' proximate cause theory of

felony murder as applied in Givens' case violated a basic tenet of American

jurisprudence, namely that an injury can only amount to a crime when inflicted with

intention. Id. As Illinois' proximate cause theory creates a strict liability offense of

felony murder, it violates the due process guarantees of the federal constitution. Id.

Additionally, Givens argued that Illinois' proximate cause theory violated due

process by creating a conclusive presumption of guilt for murder once the state proves

that he committed an underlying, independent predicate felony. (App. 40a-43a) While

1 As explained infra, at page 8, the Illinois Appellate Court failed to address

Givens' federal constitutional claims in its decision. Givens' appellate brief raised

seven claims of error. In order to demonstrate that his federal constitutional claims

were raised in the Illinois courts, and in the interests of brevity, Givens is attaching

a copy of the petition for leave to appeal filed in the Illinois Supreme Court in which

he challenged the lower court's decision on his claim that the proximate cause

theory of felony murder violated federal due process and the Eighth Amendment.

-7-

the jury was instructed that a defendant commits first degree murder when he

commits a burglary and a death results as a direct and foreseeable consequence of a

chain of events set into motion by the burglary, it was further told that it did not

matter whether the death was "intentional or accidental or committed by a third

person trying to prevent the commission of [burglary]" and that the state did not have

to prove that Givens intended to kill Strong. Id. "Direct and foreseeable" was not

otherwise defined for the jurors. Givens argued that a reasonable juror would have

understood the instructions as mandatory, and that once the juror found Givens guilty

of burglary he or she had no choice but to find him guilty of felony murder. Id.

Finally, Givens argued that by imposing the same punishment (a 20-year prison

term) against him as it would for a defendant found guilty of either intentional or

knowing murder, Illinois violated the Eighth Amendment's prohibition on cruel and

unusual punishment. (App. 43a) Givens argued that because Illinois' proximate cause

theory of liability for felony murder created a strict liability offense devoid of any mens

rea, it was unconstitutional to punish him to the same sentence applicable to those

convicted of intentional or knowing murder. Id.

In its decision, the Illinois Appellate Court failed to address any of the above

arguments. (App. 7a-lla) Instead, the appellate court reiterated that Illinois employs

the proximate cause theory of liability for felony murder, and stated that Givens failed

to show that the felony murder statute was unconstitutional. (App. 8a-l0a) While

acknowledging that "felony murder derives its mental state from the underlying

offense," the appellate court indicated that the theory served a deterrent effect and was

analogous to tort law. (App. 9a-10a) It also asserted that Strong's death was a

foreseeable consequence of the burglary. (App. 10a-11a)

Givens filed a petition for rehearing and a petition for leave to appeal, arguing

that his due process right to a full and fair appeal was denied by the Illinois Appellate

Court's refusal to address his arguments. (App. 37a) He also asked both courts to

consider the foregoing_ arguments under the federal constitution, noting that Illinois

courts have never addressed his specific claims. (App. 37a-38a) Both petitions were

denied. (App. 23a-24a)

REASON FOR GRANTING CERTIORARI

Illinois' proximate cause theory of liability for felony murder violates

the Due Process Clauses and the Cruel and Unusual Punishment

Clause of the United States Constitution because it allows for a

conviction in the absence of an applicable mental state, creates a

mandatory presumption of guilt, and punishes a defendant as a

murderer in the absence of a mental state.

The Due Process Clause and a state's authority to define and

prosecute a crime.

As this Court has acknowledged, it is generally within the province of the states

to determine what conduct constitutes a criminal offense. Patterson v. New York, 432

U.S. 197, 201(1977). Nonetheless, the state's administration of its law may violate the

Due Process Clause if "`it offends some principle of justice so rooted in the traditions

and conscience of our people as to be ranked fundamental."' Patterson, 432 U.S. at 202,

quoting Speiser v. Randall, 357 U.S. 513, 523 (1958). While this Court has not precisely

defined the contours of the Due Process Clause with respect to a state's enaction or

administration of its own laws, it has provided some guidance on what it deems

"fundamental" to due process under both the Fifth and Fourteenth Amendments.

One tenet typically deemed "fundamental" to the American criminal justice

system is that "an injury can amount. to a crime only when inflicted by intention."

Morissette v. U.S., 342 U.S. 246, 250 (1952). Similarly stated, "`[t]he existence of a mens

rea is the rule of, rather than the exception to, the principles of Anglo-American

jurisprudence."' U.S. v. U.S. Gypsum Co., 438 U.S. 422, 436 (1978) (quoting Dennis v.

-10-

U.S., 341 U.S. 494, 500 (1951)). To that end, criminal statutes which do not include a

mental state as an element, thereby creating a strict liability offense requiring no proof

of mens rea, are generally disfavored. U.S. Gypsum Co., 438 U.S. at 436-38. When this

Court has upheld the constitutionality of strict liability offenses, it has done so in

limited circumstances such as those involving regulatory measures "where the

emphasis of the statute is evidently upon achievement of some social betterment rather

than the punishment of the crimes as in cases of mala in se." U.S. v. Balint, 258 U.S.

250, 252 (1922).

In other cases, this Court has determined that a given statute must be read to

include a mens rea as an element of the offense. U.S. Gypsum Co., 438 U.S. at 437-43.

To determine whether a statute must be interpreted to include a mens rea as an

element, this Court looks to the definition of the offense at common law. Morissette,

342 U.S. at 260-63, 273. If the offense as defined at common law was a "crimes of

intendment," proof of a mens rea as an element of the statutory offense is required.

U.S. Gypsum Co., 438 U.S. at 437 ("the holding in Morissette can be fairly read as

establishing, at least with regard to crimes having their origin in the common law, an

interpretative presumption that mens rea is required.").

Once this Court determines that a particular offense must include a mens rea

element, a number of other legal determinations necessarily follow from that holding.

Where intent is an element of a charged offense, the determination of whether the

accused acted with intent is a question of fact that must be determined by a jury.

Morissette, 342 U.S. at 274. A fact finder cannot presume intent from the commission

of the underlying act, because such a presumption "would conflict with the overriding

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presumption of innocence with which the law endows the accused and which extends

to every element of the crime." Id. at 275.

Further, as a matter of due process under the Fourteenth Amendment, a state

must prove beyond a reasonable doubt the existence of every fact necessary to

constitute a criminal offense prior to securing a conviction. In re Winship, 397 U.S. 358,

364 (1970). A state may not evade the requirement of Winship by shifting the burden

to the defendant to negate an essential element of the offense with proof of a lesser

mental state. Mullaney v. Wilbur, 421 U.S. 684, 691-92, 703 (1975). In sum, as this

Court stated in Apprendi u. New Jersey, "(1) constitutional limits exist to States'

authority to define away facts necessary to constitute a criminal offense," and "(2) a

state scheme that keeps from the jury facts that expose defendants to greater or

additional punishment may raise serious constitutional concern." 530 U.S. 466, 490-97

(2000) (quoting and paraphrasing McMillan v. Pennsylvania, 477 U.S. 79, 85-88

(1986)).

A framework for evaluating Illinois' proximate cause theory

under this Court's Due Process Clause jurisprudence.

Justice Thomas' concurring opinion in Apprendi provides a succinct framework

in which to analyze whether Illinois' proximate cause theory of felony murder violates

due process. Apprendi, 530 U.S. at 499-501 (Thomas, J., concurring). First, this Court

must determine what facts constitute the crime of felony murder. As Justice Thomas

explained, "[i]n order for an accusation of a crime (whether by indictment or some other

form) to be proper under the common law, and thus proper under the codification of the

common-law rights in the Fifth and Sixth Amendments, it must allege all elements of

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that crime." Id. at 500. Second, "in order for a jury trial of a crime to be proper, all

elements of the crime must be proved to the jury (and, under Winship, proved beyond

a reasonable doubt)." Id.

The common law felony murder rule.

At common law, there were three types of murder, "(1) justifiable, (2) excusable,

and (3) felonious." Commonwealth u. Redline, 137 A.2d 472, 475 (Pa. 1958). The third

form of murder has always been considered the most serious, and "occurs when a

person of sound memory and discretion unlawfully and feloniously kills any human

being in the peace of the sovereign with malice prepense or aforethought, express or

implied." 137 A.2d at 475 (citations omitted, emphasis in original). The felony murder

rule, which is rooted in English common law, developed as an exception to the

requirement that the malice essential to murder must be malice prepense or

aforethought, express or implied. Id. Under the felony murder rule, "an accidental or

unintentional homicide committed in the perpetration of or attempt to perpetrate a

felony is murder, the malice necessary to make the killing murder being constructively

imputed by the malice incident to the perpetration of the initial felony. Id.

In tracing the common law origins of the felony murder rule, some courts and

commentators cite to Lord Dacres' case. People v. Aaron, 299 N.W.2d 304, 307-08

(Mich. 1980); Birdsong, Leonard, "Felony Murder: A Historical Perspective by Which to

Understand Today's Modern Felony Murder Rule Statutes," 32 T. Marshall L. Rev. 1,

6-7 (Fa112006). As recounted by the Michigan court, Lord Dacres and his companions

formed an agreement to enter a park without permission to hunt, and to kill anyone

resisting them. Aaron, 299 N.W.2d at 307. While Lord Dacres was not present; a

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member of the group killed a gamekeeper who confronted them. Id. at 308..

Subsequently, Lord Dacres and his companions were convicted of murder and hanged.

Id. Some commentators assert that Lord Dacres was punished for murder because he

and his companions had undertaken an unlawful hunt, and during the course of which

a person was killed. Id. As the Michigan court construed the case, however, Lord

Dacres was liable as a principal for murder because he shared a mens rea for the

offense as a result of his prior agreement with his companions to kill anyone who

resisted the hunt, and because he was "constructively present" during the shooting. Id.

Modern development of the felony murder rule in the

states.

Notably, England abolished the felony murder rule in 1957, but the rule is a

common feature of state law in most jurisdictions within the United States. Birdsong,

32 T. Marshall L. Rev. at 16. The majority of states, but not all, have adopted what has

been termed the agency theory of liability for felony murder. People u. Dekens, 695

N.E.2d 474, 475-76 (Ill. 1998). Under the agency theory, "`the 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."' People v. Lowery, 687 N.E.2d 973, 976 (Ill. 1997)

(quoting State u. Canola, 374 A.2d 20, 23 (N.J. 1977)). The agency theory of liability is

consistent with the historical development of felony murder, in which the malice for

the underlying felony supplied the malice necessary to find the commission of a

murder, and with this Court's development of co-conspirator liability. Redline, 137 A.2d

at 476. It is also consistent with this Court's jurisprudence on co-conspirator liability.

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Pinkerton v. U.S., 328 U.S. 640, 646-48 (1946). When two or more defendants are coconspirators and are charged with separate overt acts in furtherance of the conspiracy,

an act committed by one co-conspirator can be attributed to another without offending

due process. 328 U.S. at 646-48. The rationale for the ruling is that "[t]he criminal

intent to do the act is established by the formation of the conspiracy," and "[m]otive or

intent may be proved by the acts or declarations of some of the conspirators in

furtherance of the common objective," namely, the unlawful agreement. Id. at 647. This

Court's holding in Pinkerton is consistent with the Michigan court's interpretation of

Lord Dacres' case, wherein he was liable for the death of the gamekeeper caused by a

companion based on the shared mens rea created by the agreement to kill one resisting

the unlawful hunt. Aaron, 299 N.W.2d at 308.

In the early twentieth century, Illinois' felony murder rule followed the common

law: "[n]o person can be held responsible for a homicide unless the act was either

actually or constructively committed by him; and in order to be his act it must be

committed by his hand, or by someone acting in concert with him, or in furtherance of

a common design or purpose." People v. Garippo, 127 N.E. 75, 77 (Ill. 1920) (quoting

Butler u. People, 18 N.E. 338, 339 (Ill. 1888)). Over time, however, Illinois courts

construed the state's felony murder statute to encompass the proximate theory of

liability. In distinguishing the law of accountability from the proximate cause theory

of liability for felony murder, the Illinois Supreme Court wrote:

Felony murder seeks to deter persons from committing forcible felonies by

holding them responsible for murder if a death results. Because of the extremely

violent nature of felony murder, we seek the broadest bounds for the attachment

of criminal liability. For that reason, in felony murder, a defendant's liability is

not limited to his culpability for commission of the underlying felony. A

defendant may be found guilty of felony murder regardless of a lack either of

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intent to commit murder, or even connivance with a codefendant. People v.

Klebanowski, 852 N.E.2d 813, 821 (Ill. 2006).

As a result of Illinois' adoption of the proximate cause theory of liability, Illinois courts

have upheld felony murder convictions when the death of an individual was caused by

a police officer. Klebanowksi, 852 N.E.2d at 823; Dekens, 695 N.E.2d at 476-78; People

v. Hickman, 319 N.E.2d 511, 512-14 (Ill. 1974).

The Illinois Supreme Court has upheld the proximate cause theory under three

rationales: (1) that the felony murder rule is analogous to civil tort law, and therefore

proximate cause should apply with equal force; (2) that sound public policy supports

holding felons liable for "foreseeable" deaths that result from a chain of events they set

in motion; and (3) that forcible felonies are so "inherently dangerous" that death should

be classified as a murder to protect the public and deter others. Lowery, 687 N.E.2d at

976-77. No Illinois court has previously addressed the constitutional challenge raised

by Givens.

Illinois' proximate cause theory of liability violates due process

because it allows for a murder conviction in the absence of a

mens rea.

Under the United States Constitution and this Court's jurisprudence, Illinois'

proximate cause theory of liability violates due process. As Illinois courts have stated,

the state's version of the felony murder rule is a "strict liability" offense, requiring no

proof of a mens rea for the murder or a "connivance with a codefendant." People v.

Causey, 793 N.E.2d 169, 178 (Ill. App. Ct. 2003) (noting that Illinois' felony murder

rule is based on strict liability); Klebanowski, 852 N.E.2d at 821. As noted above, strict

liability offenses are disfavored in the law, and when determining whether mens rea

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is an element of criminal offense, this Court has looked to the common law definition

of the offense. U.S. Gypsum Co., 438 U.S. at 438; Morissette, 342 U.S. at 273. The

common law origins of the felony murder rule do not support Illinois' proximate cause

theory. Even Lord Dacres' case involved felony murder liability for a death caused by

a co-conspirator with a shared mental state. Aaron, 299 N.W.2d at 308. As another

court wrote, "[i]n adjudging afelony-murder, it is to be remembered at all times that

the thing which is imputed to a felon for a killing incidental to his felony is malice and

not the act of killing. The mere coincidence of homicide and felony is not enough to

satisfy the requirements of the felony-murder doctrine." Redline, 137 A.2d at 476

(emphasis in original). In Givens' case, he could share no mental state with the

individuals responsible for killing Strong, because the officers were not participants in

the underlying burglary. Id. at 475-76. Therefore, the mental state necessary to prove

Givens' commission of a burglary could not be "constructively imputed" to establish his

guilt for felony murder, because neither Givens nor co-offender Dudley killed Strong.

Id. at 475. As Illinois' proximate cause theory allows for a felony murder conviction

under a circumstance where the prosecution can show no applicable mens rea for the

murder, it violates due process.

Because Illinois' proximate cause theory unconstitutionally eliminates the

requirement of a mens rea from the offense of felony murder, Givens' prosecution also

violated the due process protections guaranteed by Winship. 397 U.S. at 364; Apprendi,

530 U.S. at 500. By improperly defining felony murder to dispense with the

requirement that the prosecution prove any mens rea, the state violated Givens' right

to have every fact constituting an element of the offense proved to a jury beyond a

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reasonable doubt. Morissette, 342 U.S. at 274-75; Apprendi, 530 U.S. at 490-97. In

essence, Illinois' proximate cause theory allowed the jury to presume that Givens had

a mens rea for Strong's death based on the commission of the burglary, in violation of

the presumption of innocence that attaches to a criminal defendant. Morissette, 342

U.S. at 275.

Illinois' proximate cause theory creates an unconstitutional

mandatory presumption of guilt for felony murder.

In addition, Illinois' proximate cause theory violates due process by creating an

impermissible mandatory presumption of a defendant's guilt for felony murder as long

as the state proves the defendant committed an underlying, independent predicate

felony. Morissette, 342 U.S. at 275; Sandstrom v. Montana, 442 U.S. 510, 514-24

(1979). In Sandstrom, the defendant was charged with "deliberate murder," which

required the prosecution to show that he purposely or knowingly killed another. 442

U.S. at 512. The jury was instructed, however, that "the law presumes that a person

intends the ordinary consequences of his voluntary acts." 442 U.S. at 513. This Court

held that the jury instruction amounted to an impermissible mandatory presumption

because a reasonable juror would have likely concluded that the instruction was

conclusive on the element of the defendant's intent, and because it eliminated the

requirement that the state prove all essential elements of murder beyond a reasonable

doubt under Winship. 442 U.S. at 517-18, 520-24.

Similarly, Illinois' proximate cause theory, as embodied in the jury instructions

in this case, amounted to an impermissible mandatory presumption of Givens' guilt for

felony murder. The jury was instructed that it did not have to find that Givens

intended to kill Strong, and further, that "A person commits the offense of first degree

murder when he commits the offense of burglary, and the death of an individual results

as a direct and foreseeable consequence of a chain of events set into motion by his

commission of the offense of burglary." (App. 25a) The jury was further instructed that

"It is immaterial whether the killing is intentional or accidental or committed by a

third person trying to prevent the commission of the offense of burglary." Id. The

essence of these instructions is that the jury was advised that once it found that Givens

had committed a burglary, it had to find him guilty of felony murder.

While Illinois law purports to limit liability for felony murder to deaths that are

a "direct and foreseeable consequence," that phrase is meaningless where it is not

defined for the jurors, and where jurors are instructed that it is "immaterial" whether

the killing was intentional or accidental or committed by a third party. In practice,

Illinois courts have found any death arising during the course of a forcible felony to be

foreseeable. See e.g., People v. Brackett, 510 N.E.2d 877, 880-82 (Ill. 1987) (death of 85year-old woman weeks after rape, who suffered from underlying health problems, was

foreseeable). A reasonable juror would have understood the instructions as mandatory,

that is, once the juror found that Givens committed a burglary he or she had no choice

but to find him guilty of felony murder.

Moreover, Givens cannot "rebut" the conclusive presumption of guilt for felony

murder based on 5trong's death. Illinois courts have limited the availability of

traditional defenses to murder in felony murder cases. People v. Moore, 447 N.E.2d

1327, 1330 (Ill. 1983) (self-defense not a defense to felony murder). Although Illinois'

felony murder statute contains the phrase, "without lawful justification," the Illinois

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Appellate Court has held that justification is not an element of felony murder, and

"whether or not the person who actually committed the shooting was justified is

irrelevant to a defendant's guilt." People v. Martinez, 795 N.E.2d 870, 873-875 (Ill. App.

Ct. 2003). In Givens' case, he was not permitted to introduce evidence in support of a

defense that Strong's death was not foreseeable because the officers used excessive

force by violating the general order prohibiting the officers from firing at a moving

vehicle. As Illinois' proximate cause theory of felony murder creates a mandatory

presumption of guilt for any death that results from a forcible felony even if committed

by a third party, and relieves the prosecution of its burden to prove beyond a

reasonable doubt that the defendant had any conceivable mental state for the killing,

it violates due process. Sandstrom, 442 U.S. at 515-24; Francis v. Franklin, 471 U.S.

307, 313-25 (1985).

Illinois' proximate cause theory violates due process and the

Eighth Amendment.

Finally, by subjecting Givens to the same punishment for felony murder as those

defendants convicted of intentional or knowing murder, Illinois has violated both due

process and the prohibition against cruel and unusual punishment. 730 ILCS 5/5-4.520(a) (West 2012) (sentencing statute for murder). As outlined above, Illinois'

proximate cause theory has resulted in Givens being found guilty in the absence of a

discernible mens rea. This Court has held that a defendant convicted of felony murder

as an cider and abettor for a death occurring during the course of a robbery cannot be

sentenced to death under the Eighth Amendment. Enmund v. Florida, 458 U.S. 782,

797-801(1982). In its ruling, this Court indicated that "American criminal law has long

considered a defendant's intention—and therefore his moral guilt—to be critical to the

degree of his criminal culpability." 458 U.S. at 800, citing Mullaney, 421 U.S. at 698.

This Court has struck down laws as "unconstitutionally excessive in the absence of

intentional wrongdoing." Enmund, 458 U.S. at 800. For instance, this Court cited

Robinson u. California, 370 U.S. 660, 666-67 (1962), in which it struck down a state

law that criminally punished a defendant .for being a drug addict in violation of the

Eighth and Fourteenth Amendment. 458 U.S. at 800. It also cited Weems v. U.S., 217

U.S. 349, 363-82 (1910), in which this Court vacated a conviction for falsifying a

document which carried a 15-year prison sentence in the absence of proof of any intent

to injure as it constituted cruel and unusual punishment. 458 U.S. at 800. Similarly,

Illinois' proximate cause theory of liability for felony murder, which allows fora 20 to

60 year prison sentence in the absence of any proof of mens rea for the offense, violates

the Eighth and Fourteenth Amendment. This is particularly so where the jury was

prevented from finding a mens rea because Illinois' proximate cause theory

unconstitutionally removes that element from their consideration, yet it was required

to find Givens guilty of an offense on equal footing with other forms of felonious

homicide requiring proof of a mental state. Apprendi, 530 U.S. at 490.

II.

There is a conflict among the state courts on this issue, and it

implicates the proper administration of criminal justice.

Illinois is in a minority of states that utilize the proximate cause theory of

liability for felony murder. At least eight other state courts have upheld felony murder

convictions when the death was caused by one other than the participants in the

underlying felony. Witherspoon u. State, 33 So.3d 625, 627-31 (Ala. Crim. App. 2009)

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(co-felon killed by clerk resisting robbery); State v. Lopez, 845 P.2d 478, 481-82 (Ariz.

1992) (co-felon killed by police officer); State v. Jackson, 697 S.E.2d 757, 759-67 (Ga.

2010) (felony murder statute applied to defendants when co-felon killed by one

resisting felony); Palmer u. State, 704 N.E.2d 124, 125-26 (Ind. 1999) (co-felon killed

by police officer); State u. Baker, 607 S.W.2d153, 155-57 (Mo. 1980) (victim shot by

another victim); People v. Hernandez, 624 N.E.2d 661, 662-66 (N.Y. 1993) (police officer

killed by another officer while resisting felony); State u. Jennings, 100 N.E.3d 93, 99

(Ohio Ct. App. 2017) (co-felon killed by victim; appealed denied, 96 N.E.3d 299 (Ohio

2018)); State v. Oimen, 516 N.W.2d 399, 404-09 (Wis. 1994) (co-felon killed by victim).

In upholding the proximate cause theory of liability, those cases rely on the reasoning

employed by the Illinois Supreme Court, and some have quoted those holdings directly.

See e.g., Witherspoon, 33 So. 3d at 630-31 (quoting People u. Hudson, 856 N.E.2d 1078,

1083-84 (Ill. 2006)).

But the majority of states limit the application of felony murder to those deaths

caused by either the defendant or a co-offender to the underlying felony. Davis u. Fox,

735 S.E.2d 259, 262-65 (Va. 2012) (noting that the agency theory is the majority

position, and rejecting state's argument that statute allows for proximate cause theory

of liability); Wooden v. Virginia, 284 S.E.2d 811, 814-16 (Va. 1981); Campbell v. State,

444 A.2d 1034, 1037, 1042 (Md. 1982); State u. Dina, 233 P.3d 71, 74-78 (Idaho 2010);

State v. Canola, 374 A.2d 20, 21-30 (N.J. 1977). In rejecting proximate cause liability,

many state courts conclude that it ran afoul of this Court's jurisprudence and the

common law definition of felony murder cited in Commonwealth v Redline, 137 A.2d

472, 476 (Pa. 1958). See e.g., State v. O'Kelly, 84 P.3d 88, 93-98 (N.M. Ct. App. 2003),

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writ quashed, 106 P.3d 579 (2005). For example, the New Mexico Court of Appeals

declined to interpret its felony murder statute to extend liability when a victim

resisting a crime commits a fatal shooting. O'Kelly, 84 P.3d at 90, 93-98. In so ruling,

the New Mexico court quoted the portion of the Pennsylvania Supreme Court's decision

in Redline stating, "the thing which is imputed to a felon for a killing incidental to his

felony is malice and not the act of killing," and noted that the agency theory was the

majority approach. Id. at 93-98.

In addition, and contrary to the reasoning of Illinois courts, other state courts

have rejected any reliance on tort law as a ground for upholding the proximate cause

theory of liability. People v. Lowery, 687 N.E.2d 973, 975-79 (Ill. 1997); Campell, 444

A.2d at 1041. For example, the Maryland Supreme Court wrote, "the tort liability

concept of proximate cause has no proper place in prosecutions for criminal homicide,"

and "[b]ecause of the extreme penalty attaching to a conviction of felony murder, a

closer and more direct causal connection between the felony and the killing is required

than the causal connection ordinarily required under the tort concept of proximate

cause." Campbell, 444 A.2d at 1041 (citations omitted).

Even states that adhere to an agency theory of liability have further limited

their felony murder statutes. In Commonwealth v. Brown, 81 N.E.3d 1173, 178-79,

1191-99 (Mass. 2017), the Massachusetts Supreme Court ruled that in order to find one

guilty of murder based on participation in an underlying felony where the. defendant

did not actually commit the killing, the prosecution must show that the defendant

either had an intent to kill, to cause "grievous bodily harm," or "that a reasonable

person would have known that his actions created a strong likelihood that death would

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result." 81 N.E.3d at 1196; accord O'Kelly, 84 P.3d at 94-95. In so ruling, the court

indicated that a felony murder rule that punished all deaths "without the necessity of

proving the relation to the perpetrator's state of mind to the homicide, violates the

most fundamental principle of criminal law—criminal liability for causing a particular

result is not justified in the absence of some culpable mental state in respect to that

result." Brown, 81 N.E.3d at 1195 (internal quotations and citation omitted).

Illinois' proximate cause theory, as exemplified by John Givens' case, "violates

the most fundamental principle of criminal law," because it allows for a murder

conviction in the absence of proof of any applicable mens rea. Despite the

unconstitutionality of the proximate cause theory under basic tenets of the American

criminal justice system, Illinois courts have held steadfast to the theory even though

the language of the statute does not appear to require it. Lowery, 178 Ill. 2d 462,

465-69 (relying on the committee comments to 720 ILCS 5/9-1(a)(3) to uphold the

proximate cause theory). The minority of states which also adhere to the proximate

cause theory similarly violate this Court's jurisprudence, with the harsh penalty of

punishing one as a murderer in the absence of a mental state. This Court should utilize

this case to resolve the conflict among the states, and determine the constitutional

scope of the felony murder rule.

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CONCLUSION

For the foregoing reasons, petitioner, John Givens, respectfully prays that a writ

of certiorari issue to review the judgment of the Illinois Appellate Court.

Respectfully submitted,