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People v. Comer

OPINION FILED DECEMBER 7, 1979.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

MARCUS COMER, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Rock Island County; the Hon. DAVID DeDONCKER, Judge, presiding.

MR. JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:

This is an appeal from an order of conviction entered by the circuit court of Rock Island County after jury trial finding the defendant, Marcus Comer, guilty of armed robbery under an accountability theory.

On January 6, 1978, at 1:30 a.m., two black males entered Jacob's Super Valu Grocery Store in Milan, Illinois. One, Reginald Pendleton, was wearing an orange coat and a blue hat and had an afro haircut; the other, the defendant, wore a dark coat and glasses and had a moustache and braided hair.

Defendant chose eight apples and then he and Pendleton went to the register to pay for them. Defendant handed the clerk, Patricia Upton, money for the apples. When Upton started to give defendant his change, Pendleton took a small revolver from under his coat, grabbed her by the arm, and told her to step back. Defendant told Pendleton to make Upton lie down on the floor. While on the floor Upton heard the cash drawer being taken out and put on the counter. She heard defendant tell Pendleton not to take the last 20. Upton explained that this bill was taped face down to a silent alarm system. Upton did not see defendant put his hand in the cash drawer, nor did she see him display a pistol.

Defendant and Pendleton then left the store.

The police were called. Upton told them that all currency, as well as the food stamps and checks, had been taken from the cash drawer.

The arresting officer received a radio transmission describing the two black males. He saw a car occupied by two men matching the descriptions and followed it, signaling it to stop. When the two occupants got out of the car a roll of pennies fell from the driver's side. No money was found on the defendant's person, nor was any weapon found on either the defendant or Pendleton or in the car, although one similar to the one used in the robbery was subsequently found along the route defendant and Pendleton travelled.

On the night the defendant was arrested he gave a statement to police denying that a robbery had occurred. At trial defendant testified that Pendleton had robbed the store but denied that he had participated in the robbery. He also denied any knowledge that Pendleton had intended to rob the store.

At the jury instructions conference the State tendered a modified form of the armed robbery issues instruction. That instruction was given over an objection by the defense.

On May 23, 1978, defendant was found guilty of armed robbery. On June 23, 1978, defendant was sentenced to a term of imprisonment from four to 10 years.

The sole issue on appeal is whether the trial court erred in giving a modified Illinois Pattern Jury Instruction which suggested to the jury that the defendant could be convicted of armed robbery under an accountability theory despite the fact that he acted without any intent to promote or facilitate the commission of the armed robbery.

The modified instruction tendered was:

"To sustain the charge of armed robbery, the State must prove the following propositions:

First: That the defendant or a person whom the defendant aided or abetted took United States Currency, checks and food stamps from the ...


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