Opposition Brief — John Givens, Petitioner v. Illinois

No. 18-9761

In the Supreme Court of the United States

__________

JOHN GIVENS, PETITIONER,

v.

ILLINOIS, RESPONDENT.

__________

On Petition for a Writ of Certiorari

to the Illinois Appellate Court

__________

BRIEF IN OPPOSITION

__________

KWAME RAOUL

Attorney General of Illinois

JANE ELINOR NOTZ*

Solicitor General

SARAH A. HUNGER

Deputy Solicitor General

MICHAEL M. GLICK

Criminal Appeals Division Chief

ERIN M. O’CONNELL

Assistant Attorney General

100 West Randolph Street

Chicago, Illinois 60601

(312) 814-5376

jnotz@atg.state.il.us

*Counsel of Record

Attorneys for Respondent

i

QUESTION PRESENTED

Whether certiorari review is warranted of a state intermediate appellate

court’s unpublished, non-precedential decision that the Constitution allows a State

to hold those who intentionally commit forcible felonies responsible for foreseeable

deaths caused by their conduct, where that decision turned on the application of

settled legal principles without implicating any split in authority.

ii

RELATED CASES



People of the State of Illinois v. John Givens, No. 12 CR 9682,

Circuit Court of Cook County. Conviction and sentence entered

on June 15, 2015.



People of the State of Illinois v. John Givens, No. 1-15-2031,

Illinois Appellate Court, First District. Opinion affirming

conviction and sentence filed on October 9, 2018, modified on

denial of rehearing on November 13, 2018.



People of the State of Illinois v. John Givens, No. 124331, Illinois

Supreme Court. Order denying petition for leave to appeal

entered on March 20, 2019.

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED ............................................................................................. i

RELATED CASES ......................................................................................................... ii

TABLE OF AUTHORITIES ......................................................................................... iv

ILLINOIS STATUTES INVOLVED ............................................................................ vi

STATEMENT ................................................................................................................. 2

REASONS FOR DENYING THE PETITION .............................................................. 7

I.

II.

Petitioner’s Due Process Challenge To His Felony Murder Conviction

Does Not Warrant Certiorari.............................................................................. 8

A.

Petitioner’s question depends on a mischaracterization of Illinois’s

felony murder statute............................................................................... 8

B.

The state appellate court correctly held that petitioner’s felony

murder conviction did not violate due process. ..................................... 11

C.

Although States differ in their treatment of felony murder as a

result of their unique statutory and common-law schemes, these

differences present no conflict on any federal constitutional

question................................................................................................... 15

Petitioner’s Eighth Amendment Claim, Which Was Not Addressed By

The Lower Court, Does Not Warrant Certiorari ............................................. 18

CONCLUSION............................................................................................................. 20

iv

TABLE OF AUTHORITIES

Page(s)

Cases:

Adarand Constructors, Inc. v. Mineta, 534 U.S. 103 (2001) ................................. 18-19

Apprendi v. New Jersey, 530 U.S. 466 (2000) ......................................................... 9, 11

Commonwealth v. Redline, 137 A.2d 472 (Pa. 1958) .................................................. 16

Davis v. Fox, 735 S.E.2d 259 (W.Va. 2012) ................................................................. 17

Graham v. Florida, 560 U.S. 48 (2010) ....................................................................... 19

Harmelin v. Michigan, 501 U.S. 957 (1991) ............................................................... 19

Hopkins v. Reeves, 524 U.S. 88 (1998) ........................................................................ 12

Morissette v. United States, 342 U.S. 246 (1952) .................................................. 10, 16

Patterson v. New York, 432 U.S. 197 (1977) ......................................................... 15, 18

People v. Belk, 784 N.E.2d 825 (Ill. 2003) ................................................................... 13

People v. Benson, 480 N.Y.S.2d 811 (N.Y. Sup. Ct. 1984) .......................................... 12

People v. Causey, 793 N.E.2d 169 (Ill. App. Ct. 2003) .................................................. 9

People v. Colbert, 1 N.E.3d 610 (Ill. App. Ct. 2013) ................................................ 9, 13

People v. Davis, 821 N.E.2d 1154 (Ill. 2004) ................................................................. 9

People v. Graham, 791 N.E.2d 724 (Ill. App. Ct. 2003) .............................................. 13

People v. Jones, 876 N.E.2d 15 (Ill. App. Ct. 2007) .................................................. 3, 8

People v. Klebanowski, 852 N.E.2d 813 (Ill. 2006) ....................................................... 9

People v. Lowery, 687 N.E.2d 973 (Ill. 1997) .............................................................. 13

v

Rochin v. California, 342 U.S. 165 (1952) .................................................................. 13

State v. Brown, 310 P.3d 29 (Ariz. Ct. App. 2013)...................................................... 12

State v. Canola, 374 A.2d 20 (N.J. 1977) .................................................................... 17

State v. Martin, 573 A.2d 1359 (N.J. 1990) ................................................................ 18

State v. O’Kelly, 84 P.3d 88 (N.M. Ct. App. 2003) ................................................ 15, 16

State v. Oimen, 516 N.W.2d 399 (Wis. 1994) ........................................................ 18, 20

State v. Ortega, 817 P.2d 1196 (N.M. 1991) ................................................................ 16

State v. Pina, 233 P.3d 71 (Idaho 2010) ...................................................................... 17

Tison v. Arizona, 481 U.S. 137 (1987) ................................................................... 11, 12

United States v. U.S. Gypsum Co., 438 U.S. 422 (1978) .............................................. 8

Weems v. United States, 217 U.S. 349 (1910) ............................................................. 19

Wooden v. Commonwealth, 284 S.E.2d 811 (Va. 1981) .............................................. 17

Statutes:

720 Ill. Comp. Stat. 5/2-8 (2012) ...................................................................... vi, 13, 14

720 Ill. Comp. Stat. 5/9-1(a) (2012) .............................................................................. vi

730 Ill. Comp. Stat. 5/5-4.5-20(a) (2012) ....................................................................... 4

vi

ILLINOIS STATUTES INVOLVED

Illinois’s first degree murder statute, 720 Ill. Comp. Stat. 5/9-1(a) (2012),

provides:

A person who kills an individual without lawful

justification commits first degree murder if, in performing

the acts which cause the death . . . he is attempting or

committing a forcible felony other than second degree

murder.

Illinois’s criminal code defines “forcible felony,” 720 Ill. Comp. Stat. 5/2-8

(2012), as:

treason, first degree murder, second degree murder,

predatory criminal sexual assault of a child, aggravated

criminal sexual assault, criminal sexual assault, robbery,

burglary, residential burglary, aggravated arson, arson,

aggravated kidnaping, kidnaping, aggravated battery

resulting in great bodily harm or permanent disability or

disfigurement and any other felony which involves the use

or threat of physical force or violence against any

individual.

1

BRIEF IN OPPOSITION

In 2012, Petitioner John Givens and two accomplices were detected breaking

into an electronics store in the middle of the night. Police arrived on the scene,

surrounded the store, and ordered them to surrender. But the offenders did not

comply. Instead, they attempted to escape by driving a van—which they had

continued to fill with stolen goods—through a closed garage door, hitting a

responding officer standing on the other side of the door. Other officers, believing

the struck officer was injured or trapped under the van, fired their weapons at the

van, killing one of petitioner’s accomplices. Because Illinois has chosen, as a matter

of policy, to hold those who intentionally commit forcible felonies responsible for

foreseeable deaths caused by their conduct, petitioner was convicted of felony

murder.

Petitioner now seeks review from this Court, arguing that his conviction

violates the Due Process Clause of the United States Constitution because Illinois

law purportedly makes felony murder a “strict liability” offense and creates a

“mandatory irrebuttable presumption” of guilt. The question petitioner presents,

however, is based on a misapprehension of Illinois law; contrary to petitioner’s

suggestion, Illinois’s felony murder rule (like the rule in other States) requires the

prosecution to prove that the defendant intended to commit a forcible felony. To be

sure, consistent with the leeway granted under the Constitution, the States have

2

taken various approaches to felony murder, but those differences derive from States’

unique statutory and common-law schemes, not a disagreement over the dictates of

the federal Due Process Clause. Thus, not only is petitioner’s question not

presented by this case, but the Illinois Appellate Court’s resolution of his due

process claim also does not implicate a split among state high courts. This Court’s

review therefore is unwarranted.

There is likewise no basis to review petitioner’s Eighth Amendment claim; a

twenty-year sentence for felony murder is not grossly disproportionate to his crime.

In any event, this case would be a poor vehicle to resolve the Eighth Amendment

question, as it was not addressed by the state appellate court below.

STATEMENT

1.

Following the death of petitioner’s accomplice, David Strong, the State

indicted petitioner and his other accomplice, Leland Dudley, for the first degree

murder of Strong, alleging that, in committing burglary, “they set in motion a chain

of events that caused [Strong’s] death.” C75. The men were also charged with the

aggravated battery of Officer Michael Papin (who was struck by their fleeing

vehicle), burglary, and possession of a stolen motor vehicle. C80, C86-87.

2.

At the joint jury trial, petitioner and Dudley contested their guilt of

felony murder on the theory that the officers’ shooting at the van constituted

excessive force and thus relieved them of responsibility for Strong’s death. See

3

R.GG134-141 (defendants’ opening statements); R.HH183-196 (defendants’ closing

arguments); see also generally People v. Jones, 876 N.E.2d 15, 29 (Ill. App. Ct. 2007)

(it is a defense to felony murder that the victim’s death “result[ed] from a source

unconnected [to] or independent of” the defendant’s actions).

The evidence at trial showed that Sergio Hernandez, who lived in an

apartment above the electronics store, R.GG144, was awakened by the sounds of

someone entering the closed store and called the police to report a burglary,

R.GG147-148. Within minutes, officers began arriving on the scene. R.GG150, 214215; R.HH6. Hernandez met a few of the officers at the back door to the building

and let them into a common hallway. R.GG219-220.

One of the officers who entered the building, Daniel Lopez, attempted to kick

down an interior door while stating, “police officers, come out, you’re surrounded,

just come out.” R.GG221-223. After kicking in a portion of the door, Officer Lopez

got onto his knees and continued stating, “police, step out, you’re surrounded.”

R.GG225. From his position, Officer Lopez heard the slam of doors and the start of

a vehicle’s engine, and he saw white taillights come on. R.GG225-226. He started

to yell to any officers standing outside, “they’re going to bust out, get out of the

way.” R.GG227. Almost immediately, the van crashed through the closed garage

door, and Officer Lopez saw “an officer directly ahead of [him] in all blue just

4

completely disappear.” Ibid. He fired his gun at the driver six times “to eliminate

the threat of the vehicle hurting anybody else.” R.GG229-230.

Officer Papin was standing outside, directly in front of the garage door, when

he heard the “loud revving of an engine” and an officer yell. R.HH80-81. He had

no time to react before the van crashed through the door in reverse and struck him

in the hip. R.HH81-82.

Officer Terrance Pratscher was standing “a few feet away” when he saw the

van strike Officer Papin. R.HH13-14. Officer Pratscher lost sight of Officer Papin

and believed that he had been dragged underneath the van. R.HH14. Officer

Pratscher fired his weapon at the driver in an effort to stop its movement. R.HH1415. The van crashed into another vehicle, lurched forward, then came to a stop.

R.HH15-16. Officer Michael Curry was also standing close by when Officer Papin

was hit and he, too, responded by firing at the van. R.HH43-46.

3.

Petitioner’s jury was instructed that “[a] person commits the offense of

a burglary when he, without authority, knowingly enters [a] building with intent to

commit therein the offense of theft.” R.HH235. It was also instructed that “[a]

person commits the offense of first degree murder when he kills an individual if, in

performing the act which caused the death, he is committing the offense of

burglary,” R.HH227; and “[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

5

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

commission of the offense of burglary,” R.HH230. To show “that the acts of the

defendant caused the death of David Strong,” the jury was instructed that the State

had to prove that “the defendant’s acts” were “a contributing” factor and that “the

death did not result from a cause unconnected with the defendant.” R.HH229.

The jury convicted petitioner and Dudley of burglary, murder, aggravated

battery, and possession of a stolen vehicle. R.MM253.

4.

At sentencing, petitioner faced a range of twenty to sixty years for

murder. See 730 Ill. Comp. Stat. 5/5-4.5-20(a) (2012). The court considered that

petitioner “did not have murder in his heart that day”; although petitioner “had

some stealing in his heart, some larceny,” petitioner was not “looking for things to

end the way they did.” Supp. R.A27. Finding that “the minimum sentences will

clearly meet the needs of justice in this case,” the court sentenced petitioner to

twenty years for murder and to concurrent terms on the remaining counts. Supp.

R.A28.

5.

Petitioner challenged his felony murder conviction by appealing to the

Illinois Appellate Court. He argued that “the evidence was insufficient to establish

that Strong’s death was a foreseeable consequence of his burglary offense because it

was directly attributable to the police shooting.” Pet. App. 7a. Alternatively,

petitioner argued that Illinois’s felony murder rule violated due process, and he

6

urged the court to abandon Illinois’s “proximate cause theory” in favor of the

“agency theory of liability for felony murder” adopted by some other jurisdictions.

Id. at 9a.

The appellate court affirmed, deeming it “well-settled that encountering

resistance during the commission of a forcible felony, even in the form of deadly

force, is a direct and foreseeable consequence of that felony.” Id. at 8a. The

appellate court further noted that it was foreseeable under the circumstances that

police would respond with deadly force, given that officers repeatedly announced

their presence outside of the electronics store, and petitioner and his accomplices

“had reason to know that once the van crashed through the garage door, a police

officer would be in the vehicle’s path.” Id. at 10a-11a. The appellate court thus

rejected the suggestion that the shooting was not foreseeable, reasoning that the

offenders used a vehicle as a “deadly weapon” as they attempted to escape. Id. at

11a.

The court also declined petitioner’s invitation to jettison Illinois’s “proximate

cause” theory of felony murder. Acknowledging that some other jurisdictions had

taken a different approach to felony murder, the court reasoned that Illinois’s

“statutory and case law dictate a different,” and indeed “preferable, result.” Id. at

10a. The court explained that “[t]he purpose behind [Illinois’s] felony murder

statute is to limit the violence accompanying forcible felonies, by automatically

7

subjecting felons to a murder prosecution . . . when someone is killed during the

commission of a forcible felony.” Ibid. And, here, “the proximate cause theory

serves that purpose because defendant committed a forcible felony and Strong was

killed as a result of the violence accompanying that felony.” Ibid.

Although petitioner’s appellate brief also asserted that his conviction and

sentence violated the Eighth Amendment, see Brief of Defendant-Appellant, People

v. Givens, No. 1-15-2031, at 23-24, the appellate court’s opinion did not expressly

address that claim.

6.

Petitioner filed a petition for leave to appeal to the Illinois Supreme

Court, raising his due process and Eighth Amendment challenges, Pet. App. 38a44a, but the court denied his petition, id. at 23a.

REASONS FOR DENYING THE PETITION

Petitioner asks this Court to decide whether his felony murder conviction

violated the Due Process Clause and Eighth Amendment, because the Illinois felony

murder statute purportedly does not require the State to prove intent. But that

question is not presented by this case. To obtain a conviction for felony murder in

Illinois (as in other States), the prosecution must prove that the defendant intended

to commit a forcible felony. And it did so here: the State presented evidence

showing petitioner’s intent to commit burglary and, although not required,

petitioner’s intentional use of force during the attempted escape. This case,

8

moreover, does not highlight a debate among the States over the scope of the Due

Process Clause’s protections, as petitioner claims. This Court’s precedents do not

preclude States from making the decision to hold felons accountable for deaths

foreseeably resulting from their conduct. Thus, any differences in their approaches

to felony murder are based solely on policy choices made by state legislatures.

As a final matter, petitioner’s Eighth Amendment theory was not passed

upon by the state appellate court below and, in any event, lacks merit because his

sentence was not disproportionate to his crime.

I.

Petitioner’s Due Process Challenge To His Felony Murder Conviction

Does Not Warrant Certiorari.

A.

Petitioner’s question depends on a mischaracterization of

Illinois’s felony murder statute.

Petitioner’s due process challenge to his felony murder conviction rests on

two mistaken premises: (1) that Illinois makes felony murder a “strict liability”

crime; and (2) that the instructions given petitioner’s jury on felony murder created

a “mandatory irrebuttable presumption” of guilt. Pet. 16-20.

First, in Illinois, felony murder is not a “strict liability” offense in the sense

that it attaches criminal liability to an action committed without intent. See United

States v. U.S. Gypsum Co., 438 U.S. 422, 436-437 (1978). Instead, under Illinois

law, “‘[f]elony murder derives its mental state from the underlying intended

offense.’” Pet. App. 9a-10a (quoting People v. Jones, 876 N.E.2d 15, 28 (Ill. App. Ct.

2007)). “[T]o commit felony murder, the defendant need not have had the intent to

9

kill; rather, the defendant must have had the intent to commit the predicate forcible

felony.” People v. Colbert, 1 N.E.3d 610, 614 (Ill. App. Ct. 2013); see also People v.

Davis, 821 N.E.2d 1154, 1161-1163 (Ill. 2004) (holding that felony murder provision

may be used only to prosecute defendant who had intent to commit predicate felony

rather than intent to kill).

The cases cited by petitioner to support his “strict liability” theory, Pet. 16,

are not to the contrary. Indeed, to the extent Illinois decisions discuss “strict

liability” in connection with felony murder, it is in reference to the lack of a specific

intent to kill, not the lack of intent to commit the underlying felony. See People v.

Causey, 793 N.E.2d 169, 178 (Ill. App. Ct. 2003) (asserting that felony murder is

“premised on strict liability” because “[t]he State is not required to prove . . . that

the defendant intended to commit murder; it merely must show that the defendant

intended to commit the underlying felony”); see also People v. Klebanowski, 852

N.E.2d 813, 821 (Ill. 2006) (restating rule that requisite intent is intent to commit

underlying felony).

And whether a defendant had the requisite intent to commit felony murder is

a question submitted to the jury, as this Court’s precedents require. See, e.g.,

Apprendi v. New Jersey, 530 U.S. 466, 477 (2000) (constitutional protections “entitle

a criminal defendant to a jury determination that he is guilty of every element of

the crime with which he is charged, beyond a reasonable doubt”) (internal

10

quotations and alteration omitted). Thus, petitioner’s jury was instructed that he

could be convicted of burglary only if he entered a building with the intent to

commit a theft. R.HH235. Petitioner could be convicted of felony murder, in turn,

only if he had that intent (such that he was committing burglary) when he set in

motion the events causing Strong’s death. R.HH227. Therefore, Illinois’s felony

murder scheme does not impose strict liability.

Second, petitioner’s claim that the jury instructions on felony murder created

an “impermissible mandatory presumption,” Pet. 18, of the type in at issue in

Morissette v. United States, 342 U.S. 246 (1952), is also incorrect. The Constitution

prohibits instructing juries to presume the required intent solely from a defendant’s

conduct: if the “intent of the accused is an ingredient of the crime charged, its

existence is a question of fact which must be submitted to the jury.” Id. at 274.

Here, as explained, the jury was instructed that to convict defendant of burglary

and felony murder, the State needed to prove that petitioner entered the electronics

store with the intent to commit a theft. R.HH.230, 235. Relying on the evidence,

the jury found that the State had proved this intent. R.MM253. Accordingly, there

is no merit to petitioner’s contention that Illinois law violates due process because it

“relieves the prosecution of its burden to prove beyond a reasonable doubt that the

defendant had any conceivable mental state for the killing.” Pet. 20.

11

B.

The state appellate court correctly held that petitioner’s felony

murder conviction did not violate due process.

Petitioner’s theory does not warrant review by this Court for the independent

reason that the Illinois Appellate Court’s decision was correct. Petitioner’s

conviction under Illinois’s felony murder statute—which derives the requisite

mental state from the underlying felony—does not run afoul of the Due Process

Clause for the simple reason that it required a finding of intent by the jury. See

Apprendi, 530 U.S. at 477.

Even petitioner assumes that due process is not violated by the “agency”

approach to felony murder, which by definition requires that intent to kill be

imputed to the defendant. Pet. 17. Instead, petitioner asserts that due process

limits States to holding offenders accountable for felony murder to cases where

intent to kill can be imputed from a third-party accomplice with whom the

defendant shared a mental state. See ibid. This distinction—which treats thirdparty accomplices differently than any other third party—is not based on any

federal constitutional principle. On the contrary, this Court has recognized that

mens rea for murder cannot be narrowly focused on an “intent to kill,” as that would

exclude murders stemming from a “reckless indifference to the value of human life”

or from “knowingly engaging in criminal activities known to carry a grave risk of

death.” Tison v. Arizona, 481 U.S. 137, 157-158 (1987). In the same vein, this

Court has rejected attempts by lower courts to require “States to alter their

12

definitions of felony murder to include a mens rea requirement with respect to the

killing.” Hopkins v. Reeves, 524 U.S. 88, 100 (1998) (discussing principle in context

of capital punishment). And finally, this Court has favorably described state laws

that allow for felony murder convictions absent a specific intent to kill. See ibid.

(analyzing state felony murder statute that did not require “proof of intent to kill”);

Tison, 481 U.S. at 154 (noting “apparent consensus” among state courts “that

substantial participation in a violent felony under circumstances likely to result in

the loss of innocent human life may justify the death penalty even absent an ‘intent

to kill’”).

Accordingly, Illinois’s decision to expand the felony murder rule to include all

deaths foreseeably arising out of a forcible felony is a constitutionally permissible

policy choice entrusted to the States. See, e.g., People v. Benson, 480 N.Y.S.2d 811,

814 (N.Y. Sup. Ct. 1984) (explaining, about New York’s proximate-cause approach

to felony murder, that “in New York, intent to kill is not an element of felony

murder,” and “[a]ll the courts which have addressed this issue have ruled that the

lack of the element of intent does not violate due process of law”); State v. Brown,

310 P.3d 29, 38 (Ariz. Ct. App. 2013) (explaining that Arizona’s supreme court

sustained that State’s felony murder rule, which allows felon to be convicted of

murder when killing was carried out by someone not participating in underlying

felony, against due process and other constitutional challenges). “In our federal

13

system the administration of criminal justice is predominantly committed to the

care of the States.” Rochin v. California, 342 U.S. 165, 168 (1952). Thus, the

Constitution places “restrictions upon the manner in which the States may enforce

their penal codes,” rather than “restrictions upon the powers of the States to define

crime.” Id.

This does not mean, however, that felony murder is unlimited in Illinois, as

petitioner suggests. Pet. 19. It is imposed only if a defendant commits one of a list

of enumerated crimes or another felony that “involves the use or threat of physical

force or violence.” 720 Ill. Comp. Stat. 5/2-8 (2012); see, e.g., Colbert, 1 N.E.3d at

614 (mob action is forcible felony); People v. Graham, 791 N.E.2d 724, 732 (Ill. App.

Ct. 2003) (home invasion is forcible felony). “It is the contemplation that force or

violence against an individual might be involved combined with the implied

willingness to use force or violence against an individual that makes a felony a

forcible felony.” People v. Belk, 784 N.E.2d 825, 828 (Ill. 2003). Illinois further

limits felony murder by the requirement that the death be foreseeable. See, e.g.,

People v. Lowery, 687 N.E.2d 973, 977-978 (Ill. 1997). “[W]hen a felon’s 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,” the felon is “held

responsible for any death which by direct and almost inevitable sequence results

from the initial criminal act.” Id. at 976.

14

This case illustrates these principles. Petitioner does not contest that he

intended to commit the forcible felony of burglary. 720 Ill. Comp. Stat. 5/2-8 (2012).

And his willingness to use force in committing that felony goes well beyond the

merely theoretical: petitioner and his accomplices blindly drove a van through a

closed garage door to escape a building they knew to be surrounded by police

officers. R.GG221-227. Petitioner is therefore responsible for the foreseeable death

of Strong that occurred when officers responded to petitioner’s use of force with

their own force.

Petitioner nevertheless contends that “he was not permitted to introduce

evidence in support of a defense that Strong’s death was not foreseeable.” Pet.

20. But petitioner presented this theory in his closing arguments, R.HH192-196,

and the jury was instructed that Strong’s death needed to be “a direct and

foreseeable consequence of a chain [of] events set into motion by [petitioner’s]

commission of the offense of burglary,” R.HH230. The trial court excluded one piece

of evidence—the police department’s policy concerning the use of force against

vehicles—reasoning that the policy governed “internal matters . . . between the

department and the officers that work for it,” did not have the force of law, and

might confuse the jury. R.HH158-159. Although petitioner argued on appeal in

state court that this evidentiary ruling was an abuse of discretion, see Pet. App.

12a-13a (state appellate court’s rejection of argument), he does not press that

15

argument here, and the state courts’ purported misapplication of state evidentiary

law would not warrant certiorari in any event.

C.

Although States differ in their treatment of felony murder as a

result of their unique statutory and common-law schemes,

these differences present no conflict on any federal

constitutional question.

That other States have, consistent with the leeway granted them by the

Constitution, see Patterson v. New York, 432 U.S. 197, 201-202 (1977), defined

felony murder differently than Illinois presents no conflict of federal constitutional

dimension, contrary to petitioner’s suggestion. See Pet. 21, 24. The differences

derive from policy choices enshrined in state statutes and the development of statespecific common law, not from disagreement over any constitutional question. And

the States’ divergent approaches to felony murder as a matter of state law and

policy do not satisfy the criteria for certiorari.

The crux of petitioner’s argument on this point is his contention that in

rejecting a proximate-cause theory of liability, “many state courts conclude[d] that it

[runs] afoul of this Court’s jurisprudence.” Pet. 22. Petitioner fails, however, to

identify a single case so holding. Petitioner cites State v. O’Kelly, 84 P.3d 88 (N.M.

Ct. App. 2003), a decision of New Mexico’s intermediate appellate court, for this

proposition, Pet. 22, but that case did not find that a proximate-cause theory

16

violates the Constitution.1 Instead, O’Kelly underscores that each State’s felony

murder doctrine rests on its unique statutory scheme and common law

development. See 84 P.3d at 97 (recognizing that other States follow the proximatecause approach to felony murder but explaining that “[a] review of New Mexico case

law and policy reveals . . . that the agency approach fits with New Mexico’s unique

felony murder doctrine”).

Other cases cited by petitioner as having rejected the proximate-cause theory

of liability for felony murder likewise do not support his argument. None of these

cases doubted that felony murder could, consistent with the Constitution, be

expanded to hold offenders accountable for a death at the hands of a non-accomplice

third party. Instead, these cases ultimately reached holdings under state law. In

Commonwealth v. Redline, 137 A.2d 472 (Pa. 1958), for instance, the Pennsylvania

Supreme Court rejected a proximate-cause theory of felony murder, not because

such prosecutions would violate the Constitution, but because it was the province of

Pennsylvania’s legislature to expand criminal liability in that fashion. Id. at 474 (if

Pennsylvania “should deem it necessary to the public’s safety and security that

The appellate court in O’Kelly referenced an earlier decision of that State’s

supreme court, State v. Ortega, 817 P.2d 1196 (N.M. 1991), which had stated that

Morissette, 342 U.S. 246, prompted it to adopt an intent requirement for felony

murder “identical to the intent requirement for second degree murder.” O’Kelly, 84

P.3d at 94. As explained, this Court’s precedents, including Morissette, do not

preclude States from holding offenders accountable absent a showing that the

defendant acted with the mens rea for murder. See supra pp. 10-12.

1

17

felons be made chargeable with murder for all deaths occurring in and about the

perpetration of their felonies,” then “the legislature should be looked to for

competent exercise of the State’s sovereign police power to that end”) (emphasis in

original).

State supreme courts in West Virginia, Idaho, New Jersey, and Virginia have

also concluded that the authority to expand the felony murder doctrine lies with the

legislature rather than the courts. See Davis v. Fox, 735 S.E.2d 259, 265 (W.Va.

2012) (emphasizing that court would adhere to agency theory “until such time as

the Legislature sees fit to . . . amend” felony murder statute); State v. Pina, 233

P.3d 71, 78 (Idaho 2010) (stating that “Idaho has consistently applied the agency

theory of the felony-murder rule,” and “[a]ny change of that rule lies in the province

of the legislature”); Wooden v. Commonwealth, 284 S.E.2d 811, 816 (Va. 1981)

(holding that Virginia statute did not permit felony murder conviction for death

caused by third party and noting that expansion of liability “should be accomplished

by legislative action rather than by judicial fiat”); State v. Canola, 374 A.2d 20, 30

(N.J. 1977) (declining to adopt proximate-cause theory because “if the course of the

law as understood and applied in this State for almost 200 years is to be altered so

drastically, it should be by express legislative enactment”). Notably, New Jersey’s

legislature responded to the narrow construction of felony murder adopted in

18

Canola by amending the statute to expand felony murder liability. See State v.

Martin, 573 A.2d 1359, 1370-1371 (N.J. 1990).

Such variations in state law do not raise any questions of federal law, as is

required for this Court’s intervention. Rather, as these cases suggest, petitioner’s

arguments are properly presented to the State’s legislative body. See State v.

Oimen, 516 N.W.2d 399, 407-408 (Wis. 1994) (concerns underlying “agency

approach” were “not unreasonable”; however, “that policy determination is one for

the legislature to make and the Wisconsin legislature’s determination is to the

contrary”). This Court should therefore decline petitioner’s invitation to limit “the

constitutional scope of the felony murder rule,” Pet. 24, as it “should not lightly

construe the Constitution so as to intrude upon the administration of justice by the

individual States,” Patterson, 432 U.S. at 201.

II.

Petitioner’s Eighth Amendment Claim, Which Was Not Addressed By

The Lower Court, Does Not Warrant Certiorari.

Petitioner’s alternative theory—that his felony murder conviction violated

the Eighth Amendment—likewise does not warrant review by this Court. To begin,

petitioner acknowledges that the state appellate court did not address this

argument, Pet. 8, the whole of which is contained in a single paragraph in the

petition, Pet. 20-21. This Court “ordinarily do[es] not decide in the first instance

issues not decided below,” Adarand Constructors, Inc. v. Mineta, 534 U.S. 103, 109

19

(2001) (per curiam) (internal quotations omitted), and should not make an exception

here.

Setting aside that the issue was not passed upon below, review is further

unwarranted because petitioner’s claim lacks merit. Like his due process challenge,

petitioner’s Eighth Amendment claim rests on the false premise that petitioner was

“found guilty in the absence of a discernible mens rea.” Pet. 20. But, as explained,

see supra pp. 8-9, petitioner’s felony murder conviction is based on his intent to

commit burglary.

Furthermore, petitioner’s complaint that Illinois law subjects him “to the

same punishment for felony murder as those defendants convicted of intentional or

knowing murder,” Pet. 20, does not state a claim under the Eighth Amendment.

The Eighth Amendment simply implements “the ‘precept of justice that punishment

for crime should be graduated and proportioned to [the] offense.’” Graham v.

Florida, 560 U.S. 48, 59 (2010) (quoting, with alteration, Weems v. United States,

217 U.S. 349, 367 (1910)). That principle is violated only when a punishment is

“grossly disproportionate” to the offense for which it is imposed. Id. at 59-60; see

also Harmelin v. Michigan, 501 U.S. 957, 1001-1005 (1991) (Kennedy, J.,

concurring) (emphasizing that only proper Eighth Amendment analysis is

proportionality and holding that life sentence for possession of 650 grams of cocaine

was not grossly disproportionate). Here, petitioner cannot possibly establish that

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his twenty-year sentence was disproportionate to his crime: murder. See Oimen,

516 N.W.2d at 408-409 (concluding that under Harmelin, felony murder sentence

did not violate Eighth Amendment).

Accordingly, because the lower court did not pass upon the question, and

because the claim lacks merit, petitioner’s Eighth Amendment claim provides no

basis for certiorari.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

KWAME RAOUL

Attorney General of Illinois

JANE ELINOR NOTZ*

Solicitor General

SARAH A. HUNGER

Deputy Solicitor General

MICHAEL M. GLICK

Criminal Appeals Division Chief

ERIN M. O’CONNELL

Assistant Attorney General

100 West Randolph Street

Chicago, Illinois 60601

(312) 814-5376

jnotz@atg.state.il.us

*Counsel of Record

OCTOBER 2019

Attorneys for Respondent