Appeal from the Appellate Court for the Fourth District; heard
in that court on appeal from the Circuit Court of Champaign
County, the Hon. Harold L. Jensen, Judge, presiding.
MR. JUSTICE MORAN DELIVERED THE OPINION OF THE COURT:
Defendants, John Dorris and Larry Evans, were jointly tried before a jury in the circuit court of Champaign County for the murder of Charles Wilson and the attempted murder of Willie Davenport. Following instructions on lesser included offenses, the jury returned verdicts of guilty of involuntary manslaughter and aggravated battery against Dorris and guilty of voluntary manslaughter and aggravated battery against Evans. The trial court sentenced Dorris to five years for involuntary manslaughter, to be served concurrently with three years for aggravated battery. Evans was sentenced to an extended term of 10 years' imprisonment for voluntary manslaughter and the maximum term of five years for aggravated battery, to be served concurrently. The appellate court reversed the judgments of conviction against Dorris. It affirmed the judgments of conviction against Evans, but vacated the extended sentence and remanded for resentencing. 90 Ill. App.3d 707.
The issues before us are (1) whether the circumstantial evidence against Dorris, on an accountability theory, excluded every reasonable hypothesis of innocence so as to establish his guilt beyond a reasonable doubt, (2) whether Evans was proved guilty beyond a reasonable doubt of voluntary manslaughter, (3) whether the trial court erred in imposing an extended sentence for Evans' voluntary manslaughter conviction, and (4) whether the convictions of Evans and Dorris should be reversed because of inconsistent verdicts reached by the jury. In view of the results reached, this last issue need not be addressed.
A summary of the facts reveals that during the day of September 12, 1979, Dorris went to the home of Evans to have Evans work on the transmission of his car. At this time, Evans stated that he did not have any bullets for his gun, whereupon Dorris informed him that his cousin had left some in Dorris' car. Evans obtained sufficient bullets to load his pistol. Later that evening, at approximately 7:30 p.m., Dorris stopped by a car wash where he met Davenport. At this meeting, Davenport made some insulting remarks about Dorris' dog, after which Dorris left and chanced to meet Evans, who was driving about Champaign. According to Evans, Dorris invited Evans to accompany him to the car wash to celebrate Wilson's birthday. This occurred at about 8:30 or 9 p.m. Evans then drove home, where Dorris picked him up. Evans took his gun from his car, but testified that he did not inform Dorris of that fact.
Evans and Dorris arrived at the car wash, where approximately 25 to 30 people had gathered. Dorris got out of the car and, according to Evans, was speaking to Wilson when Davenport approached Wilson and Dorris. At some point, Davenport and Dorris exchanged angry words and gestures. It appears that Dorris then walked away and Evans and Davenport exchanged words. Evans testified that Davenport said, "I'll do to you the same thing I will do to John" and then turned toward his car. At this point, the record indicates that Evans, who was still seated in Dorris' car, jumped out of the car and fired two shots, one hitting Davenport in the leg, the other striking the windshield of Davenport's car. Evans then chased Davenport around his car, firing several shots. Evans finally caught Davenport and struck him on the head with his gun. At this point, Dorris searched Davenport's car and remarked that he couldn't find a gun. At the conclusion of these events, Charles Wilson was discovered lying nearby with a chest wound from which he died. The bullet that caused the wound was not of the same type as those that were subsequently found in the glove compartment of Dorris' car.
The State proceeded against defendant Dorris on the theory that he was accountable for the acts committed by Evans. Section 5-2 of the Criminal Code of 1961 (Code) (Ill. Rev. Stat. 1979, ch. 38, par. 5-2) provides:
"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. * * *"
Mere presence does not render one accountable under the statute; there must be proof of the required intent and that defendant aided, abetted or attempted to aid another in the perpetration of the crime. People v. Tyler (1979), 78 Ill.2d 193, 196-97.
As the State concedes, proof of Dorris' role in the crime rests on circumstantial evidence. Circumstantial evidence is the proof of facts or circumstances which gives rise to a reasonable inference of other facts which tend to establish the guilt or innocence of a defendant. When the evidence finding defendant guilty is entirely circumstantial, the facts proved must be consistent with defendant's guilt and inconsistent with any reasonable hypothesis of innocence. (People v. Rhodes (1981), 85 Ill.2d 241, 249; People v. Garrett (1975), 62 Ill.2d 151, 163; People v. Branion (1970), 47 Ill.2d 70, 77; People v. Lewellen (1969), 43 Ill.2d 74, 78; People v. Benson (1960), 19 Ill.2d 50, 61.) In this case the trial court, over objection of Dorris, failed to include the second paragraph of Illinois Pattern Jury Instruction (IPI), Criminal, No. 3.02 (1968), which states:
"You should not find the defendant guilty unless the facts and circumstances proved exclude every reasonable theory of innocence." (Emphasis added.)
This paragraph should be given when the proof of guilt, as to each element of the offense, is circumstantial. Here the State concedes that conviction of Dorris was founded on circumstantial evidence; therefore, this portion of the instruction should have been given to the jury. The State asserts that the jury was aware of the law on this point. We find no substantiation for such assertion because it is the court that instructs the jury on the law to be applied to the facts presented.
Nevertheless, the State posits that the circumstantial evidence against Dorris excluded every reasonable hypothesis of innocence, thereby establishing his guilt beyond a reasonable doubt. The State concludes that "it is evident Dorris picked up Evans for support in his argument with Davenport and had returned to the car wash with the intention of doing physical harm to Davenport." The State contends it is "apparent that Evans and Dorris had previously discussed this course of action because Dorris moved away from the path of the bullets of Evans as if he was moving in response to a signal from Evans." The State also asserts that ...