APPEAL from the Circuit Court of Cook County; the Hon. GEORGE
M. MAROVICH, Judge, presiding.
MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:
Following a jury trial, defendant was found guilty of robbery (Ill. Rev. Stat. 1979, ch. 38, par. 18-1) and sentenced to a term of seven years. On appeal, defendant contends: (1) that he was denied a fair trial in that the court prevented him from testifying as to his state of mind; (2) that it was error to refuse to instruct the jury on the defense of withdrawal; (3) that the prosecutor's improper closing arguments denied him a fair trial; and (4) that he was improperly sentenced. We affirm.
In view of the fact that defendant has not raised any question concerning the sufficiency of the evidence, only a brief recitation of the facts is necessary.
Approximately 10 p.m. on July 19, 1979, the victim, a 70-year-old woman, drove into a supermarket parking lot. She parked her car about four feet from the store's entrance and proceeded to remove some empty bottles from her trunk. As she was exiting the car, she noticed a young man and woman, who were holding hands and kissing, walking across the parking lot. They stopped about two feet from the victim.
The victim, with her purse in her left hand and the bottles in her right, then heard the sound of footsteps rushing toward her. The young man whom she identified as defendant grabbed at her purse. As she dropped the bottles and fell to her knees, defendant fled. Immediately thereafter, Wanda Cannon, who had been standing directly behind defendant, snatched the victim's purse and fled in the same direction.
The victim, still holding on to the purse strap, got up, chased after her assailants and began yelling for help. Horace Bailey, the supermarket detective, was standing at a nearby bus stop and heard the victim's call for help. He stopped and handcuffed Ms. Cannon, recovered the purse and returned to the supermarket to call the police.
Shortly after the victim gave the police a description of her assailant, defendant was brought back to the supermarket and identified by the victim. Thereafter, the victim was taken to the hospital and treated for cuts on her knees and fingers and minor injuries to her lip and nose.
Wanda Cannon, defendant's girlfriend, testified for the defense. She and defendant were walking in the supermarket parking lot and defendant had his hand around her waist. When they were within about five feet of the victim, she, without warning, pushed defendant to the side and grabbed the victim's purse. While she struggled with the victim for the purse, defendant, looking shocked, said, "I don't want anything to do with this." He then fled. Cannon further testified that she plead guilty for her participation in the robbery and was given probation.
Defendant's testimony was substantially similar to Cannon's. He also testified that he never touched nor spoke to the victim. As he fled, he heard someone yell, "halt," but did not stop. He ran across the street and down the block and sat on a bench. He watched as the police arrived at the supermarket until another squad car pulled along side the bench. He did not resist or attempt to run, and was taken back to the supermarket. Finally, defendant admitted that he had been convicted and served time for attempted armed robbery and aggravated battery.
Thereafter, the jury found defendant guilty of armed robbery. Following a hearing on aggravation and mitigation, he was sentenced to a term of seven years. Defendant appeals.
Defendant first contends that he was denied a fair trial when he was prevented from testifying as to his state of mind during and immediately after the robbery. He argues that his intent was material because it was an element of the offense. The State maintains that defendant's testimony regarding his state of mind after the incident was properly excluded because it was immaterial and that defendant was permitted to testify as to his state of mind before and during the offense.
• 1 Where intention, motive or belief of an accused is material to the issues to be proved, a defendant is entitled to testify directly as to his state of mind. (People v. Biella (1940), 374 Ill. 87, 28 N.E.2d 111; People v. Christen (1980), 82 Ill. App.3d 192, 402 N.E.2d 373.) The exclusion of such testimony has been held to constitute reversible error unless sufficient evidence of his intent is subsequently admitted. (People v. Christen; People v. Lemcke (1980), 80 Ill. App.3d 298, 399 N.E.2d 677.) However, if the information is irrelevant to the crime charged, it may properly be excluded. People v. Perry (1974), 19 Ill. App.3d 254, 311 N.E.2d 341.
Defendant objects to three specific instances in which he was precluded from testifying as to his state of mind. In order to ascertain whether the excluded evidence was material to the issue of defendant's guilt, it is necessary to consider the stricken question in the context of elements that the State must prove in order to sustain defendant's conviction for robbery. A person commits robbery when he takes property from the person or presence of another by the use of force or by threatening the imminent use of force. (Ill. Rev. Stat. 1979, ch. 38, par. 18-1.) In order to establish defendant's legal accountability for the conduct of another, the State must prove that the accused (1) either before or during the offense, and (2) with the intent to promote or facilitate the commission of the offense, (3) solicited, aided, abetted, agreed, or attempted to aid such other person in the planning or commission of the offense. (Ill. Rev. Stat. 1979, ch. 38, par. 5-2(c); People v. Grice (1980), 87 Ill. App.3d 718, 410 N.E.2d 209.) Whether an individual has the specific intent to aid or abet a crime for the purpose of imposing liability pursuant to the accountability statute is a question of fact for the jury. People v. Kelly (1976), 39 Ill. App.3d 988, 351 N.E.2d 419.
• 2 The first question defendant was precluded from testifying to concerned his state of mind as he was sitting on the bench after he had fled from the scene of the crime. While defendant correctly argues that his thoughts or intentions at the time of the robbery were highly material, this question was attempting to establish defendant's state of mind after the robbery had been committed and, therefore, was immaterial to the issue of accountability. (See Ill. Rev. Stat. 1979, ch. 38, par. 5-2(c).) Consequently, this testimony was properly excluded.
Next, defendant was precluded from testifying as to why he ran from the scene if he was not doing anything. After the court sustained the State's objection, defense counsel argued that since the State was accusing defendant on the theory of accountability, his running from the scene of the crime "seems to indicate that he might have had a guilty conscience as to the act committed." Defense counsel then made the following offer of proof:
"Well, your Honor, as an offer of proof we would state that he ran not because he was guilty, but he ran because he was afraid he would be accused of it because of his prior conviction, and he did not go back from that park bench to the scene because he thought he was going to be accused of it."
The court stated that this was a possible inference that can be drawn from the evidence and that it could be argued, but defendant could not testify to it.
• 3 Unlike defendant suggests, flight from the scene of a crime does not raise a presumption of guilt; it is a circumstance which may be considered by the jury in connection with all the other evidence as tending to prove guilt. (People v. Perkins (1973), 12 Ill. App.3d 5, 297 N.E.2d 15; People v. Brown (1966), 69 Ill. App.2d 212, 215 N.E.2d 812.) Likewise, defendant's mere presence at the scene of the crime would be insufficient to establish his accountability for Cannon's actions. (See People v. Porter (1975), 28 Ill. App.3d 411, 328 N.E.2d 618.) In establishing accountability, the time frame for which defendant's state of mind is crucial is the period before and during the commission of the robbery. As such, defendant's "state of mind" which prompted him to flee is separate and distinct from the intent associated with assisting Cannon either before or during the commission of the instant offense. (Compare United States v. Lampson (7th Cir. 1980), 627 F.2d 62.) As such, defendant's testimony as to his reasons for fleeing would neither establish innocence nor his guilt.
Furthermore, contrary to defendant's contention, a review of the evidence demonstrates that he testified extensively to his state of mind before and during the commission of the robbery. He testified that prior to his being pushed by Cannon and the grabbing of the victim's purse, Cannon never indicated her plan to rob the victim. Nor did she ask for his help. When he noticed what Cannon was doing, he stood there shocked and "asked her what the * * * was she doing." He then broke and ran. He further testified that he never grabbed, touched, spoke or demanded anything of the victim. Finally, he stated that he never aided Cannon in the commission of the offense. This testimony, if believed, would have amply established that defendant did not intend either before or during the robbery to aid Cannon in the commission of the crime and would have been sufficient to sustain an acquittal of the charges. In such a case, defendant's reasons for fleeing would have been both irrelevant and immaterial and direct testimony that he feared being accused of the present crime due to his previous conviction would have been unnecessary.
On the other hand, if the jury believed the victim's account of the incident (that defendant was the first to grab at her purse; that after she fell, defendant ran; and that Cannon, who was standing behind defendant, snatched her purse and then fled in the same direction), defendant's motivation for fleeing, while obvious, is equally immaterial to the charge of robbery since his prior actions plainly aided Cannon in the commission of the robbery. As ...