APPEAL from the Circuit Court of Winnebago County; the Hon.
JOHN S. GHENT, Judge, presiding.
MR. JUSTICE WOODWARD DELIVERED THE OPINION OF THE COURT:
Mr. JUSTICE WOODWARD delivered the opinion of the court:
Following a jury trial, defendant, Alexandria Karen Hanson, was found guilty of armed robbery and aggravated battery. The trial court vacated the verdict of guilty on the aggravated battery charge and sentenced defendant to 6 to 12 years' imprisonment on the armed robbery charge. Defendant appeals.
The complaining witness, Oak Malone, testified as set forth in this paragraph. On October 28, 1977, he cashed his paycheck of $278. About 1 a.m. the next morning, he was sitting in his automobile parked outside the house of an acquaintance, when a group of people, including defendant and her sister Millie, came up to him and asked him to take them some place; he agreed although he had never seen any of these people before. He drove the group to a club called the Tool Shed. When they arrived there, defendant took Malone's car keys from him and the group, including Malone, went into the club. After a while, Malone informed the defendant that he wished to leave. Malone, the defendant, and several others got back into his car and the defendant drove to a house; upon arrival defendant took the car keys and went inside. After a few minutes, Millie left the car and went inside. Defendant and Millie finally returned to the car and the defendant then drove to a house on Independence Street. Malone, Millie and the defendant went inside the house. Malone demanded his keys and threatened to call the police. He then went outside and removed the coil wire from his car. Defendant, Millie and a few others came out of the house and defendant asked him where he was going. Malone then took his keys from defendant; defendant and Millie began cutting him with razor blades and he stated that he thought another man was hitting him. The car keys were lost in the struggle. At this point Malone ran across the street, through a gas station and into a car wash. While Malone was on the ground in the car wash one of the women grabbed his money and said, "I got it." Malone did not know who made the statement but stated that it was a female voice. Malone did not recall ever having pulled out his money while he was with the defendant and Millie or telling them that he had any money, though during the evening he had removed the money from his shirt pocket and placed it in his pants pocket while looking for a match. Defendant, Millie and the other man ran back towards the house. Malone ran back to the street and alerted police officers.
Rockford police officer Charles McDonald testified that Malone informed his partner and him that he had been robbed and pointed towards Independence Street. McDonald and his partner, while in their squad car, pursued two persons running down Independence Street. At one point McDonald left the squad car, pursued the suspects on foot and apprehended defendant and Millie between some houses. Defendant and Millie were brought back to the squad car and Malone indicated that they were the ones who had robbed him. Officer McDonald then returned to the site of the apprehension and found a large amount of money. McDonald also identified People's exhibit No. 8 as the coat worn by defendant when she was apprehended. Officer Steven Pugh, McDonald's partner, testified that a search of defendant's coat revealed a $5 bill. Officer Pugh also inventoried the money recovered by McDonald, which was found to be in the amount of $265. There was also testimony that blood stains were found on the side of the driver's door and the front seat of Malone's car as well as on the sidewalk next to the car wash. A razor blade was found next to the driver's door of Malone's car. The parties stipulated to a chain of custody for all the exhibits, including defendant's coat.
Defendant testified that she, her sister Millie and Flossie Shelby accompanied Malone to the Tool Shed at his invitation. When they were ready to leave, defendant noticed that Malone was having difficulty walking and asked if she could drive; Malone agreed. She drove directly to the house on Independence Street. When Malone asked for his keys, defendant asked him to "wait a minute." They all went inside and Malone continued to ask for his keys and threatened to call the police. Defendant refused to return the keys but indicated that she was also ready to leave. When Malone and defendant reached the car, Malone grabbed her arm and began twisting it and they began fighting and ended up in a gas station. Malone then began to bite her, at which point Millie appeared. When Malone refused to stop biting defendant, she and Millie began cutting Malone. A man, whom defendant indicated was Greg Mannery, also joined the fight at this point. Somebody told defendant that the police were coming. Defendant then saw Millie and Greg with some money. Defendant got up and left with Millie. Shortly thereafter they were apprehended by the police. Defendant denied taking any money from Malone.
Millie Hanson, defendant's 14-year-old sister, testified that she began cutting Malone with razor blades because she believed he was hurting her sister. Greg Mannery tried to break up the fight. As the fight moved over to the gas station, Millie saw some money hanging out of Malone's pocket; she took it and began running. She had not planned to take the money before she saw it. On cross-examination, Millie admitted lying to the police when questioned concerning the incident. The prosecutor's objection to defense counsel's attempt to rehabilitate Millie's testimony was sustained. Also on cross-examination, the prosecutor attempted to question Millie concerning a hearing under the Juvenile Court Act. Outside the presence of the jury the prosecutor explained that he was attempting to establish that Millie was testifying with immunity from prosecution. The trial court ruled that such questioning was improper.
As aforementioned, the jury found defendant guilty and she now brings this appeal.
Defendant contends first that the State failed to prove her guilty beyond a reasonable doubt on an accountability theory. The State refuses to concede that its theory of defendant's guilt was based solely on an accountability theory. However, the State does admit that the evidence does not clearly disclose whether it was the defendant or Millie who actually took the money from Malone. Section 5-2(c) of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 5-2(c)) provides that a person is legally accountable for the conduct of another when:
"(c) Either before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense. * * *"
The testimony outlined above was conflicting and varying inferences could be drawn therefrom. However, it is well settled that conflicts in testimony and the inferences to be drawn, as well as the credibility of the witnesses are matters for the jury as the triers of fact to resolve. We also note that the jury was instructed as to accountability. We conclude, therefore, that there was sufficient evidence for the jury to find the defendant guilty beyond a reasonable doubt on an accountability theory.
Defendant contends next that the erroneous submission to the jury of items never admitted into evidence, coupled with the trial court's communication with the jury outside the presence of the parties constituted prejudicial and reversible error. Over defendant's objection, People's exhibit No. 8, defendant's coat worn at the time of the incident, was permitted to go to the jury room. During deliberations, the jury notified the trial court that a $1 bill and a $5 bill had been found in the pocket of defendant's coat; the bills bore evidence of cutting. The trial court instructed the bailiff to tell the jury to return the currency to the coat pocket. Neither party nor their counsels were present during this exchange.
1 It is well settled that where exhibits have not been introduced into evidence, it is error to permit the jury to take them to the jury room. (People v. Holcomb (1938), 370 Ill. 299, 18 N.E.2d 878.) Defendant has a constitutional right to have only competent evidence introduced against him in open court, in his presence, and by the witnesses who confronted him. (People v. Rivers (1951), 410 Ill. 410, 102 N.E.2d 303.) While the presence of these bills in defendant's coat pocket would not be considered unusual since it is not unusual to carry currency in a coat pocket, these bills bore evidence of cutting, and the jury could have inferred that they were cut during the struggle with Malone, thus linking defendant to the armed robbery charge. Further, we note that the entire thrust of defendant's defense was to deny any participation in her sister's taking of the victim's money. The existence of cut currency in the defendant's coat pocket may have destroyed this defense, as it indicates defendant shared in the proceeds of the crime. Therefore, we conclude that the submission to the jury of the currency which had not been admitted into evidence was error.
Defendant also contends that the trial court erred when it gave the accomplice instruction, (Illinois Pattern Jury Instructions, Criminal, No. 3.17 (1968)), at the request of ...