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People v. Derr2/25/2004
e to be contemporaneous with the robbery; however, there must be some concurrence between the force used and the taking of the property."
Obviously, a death does not have to occur at the same time that a forcible felony is committed in order to constitute felony murder. A robbery victim can linger for months before dying and it is still felony murder, provided the acts that caused the belated death were performed during the commission of the robbery. A death and the conduct that causes the death are two very different things. Unfortunately, thinking that the judge was providing guidance and giving an answer to their question, jurors would not necessarily draw the distinction. They could easily conclude that the use of the word "death" in answer to their question was synonymous with the performance of the acts which caused the death. Hence, the trial judge's answer could have led jurors to incorrectly believe that the acts which caused Oberbeck's death did not have to be performed during the commission of a robbery.
The jury was not asking the judge to clarify whether Oberbeck had to die before the robbery was completed in order for the offense to constitute felony murder. Nor was the jury asking for guidance about the offense of robbery. The jury wanted to know whether the State had to prove that the acts which caused the death, the blows to Oberbeck's face, had been delivered during the commission of a robbery. The jury wanted to know if it was still felony murder if the property had been taken off Oberbeck's body at a time far removed from the delivery of the punches that caused the death.
By answering the question with two sentences from the State's proposed nonpattern instruction, the trial judge provided a decidedly misleading message, capable of guiding jurors to convict even though they harbored a reasonable doubt about whether the defendant struck Oberbeck during the commission of a robbery. The failure to provide a proper answer to the jurors' inquiry constituted an abuse of the trial judge's discretion and infected the trial's outcome with error. There is no way of knowing whether the jury's verdict would have been the same had the jurors received a different answer to their question. We believe that a reasonable possibility exists that a different result might have been reached in the absence of the message that the jurors received. Accordingly, we reverse the defendant's first-degree-murder conviction, and we remand for a new trial on any of the various homicide charges applicable to the facts of this case.
[Nonpublishable material under Supreme Court Rule 23 (166 Ill. 2d R. 23) removed here.]
For these reasons, we affirm in part and reverse in part, and we remand this cause for a new trial on the murder charge.
Affirmed in part and reversed in part; cause remanded.
HOPKINS and DONOVAN, JJ., concur.
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