Appeal from the Circuit Court of Pike County; the Hon. Cecil
J. Burrows, Judge, presiding.
JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:
Rehearing denied December 5, 1983.
Hargis was indicted for the murder and armed robbery of Richard Dark. He was tried to a jury with a co-defendant, Randy Daugherty, and both were found guilty on both counts. Hargis was sentenced to natural life on the murder charge and 20 years for armed robbery, the sentences to run concurrently.
The evidence at trial showed that Hargis, Dark, and Daugherty were together on September 5, 1981. Several persons saw the three at various places during the day. The last place the three were seen together was the Spot Tavern in Barry, Illinois. Daugherty and Hargis began playing pool around 8:30 p.m., while Dark was sitting at a nearby table. After Daugherty and the defendant finished their game, they sat down at a table apart from Dark. They carried on a quiet conversation but stopped talking when the bartender came over to their table. They talked for over an hour and then left with Dark around 10:30 p.m.
The next day, on September 6, 1981, Daugherty and the defendant were seen driving Dark's car at various times by different witnesses, the defendant riding in the passenger seat. Dark was not seen in the car. Several days later, Dark's car was found abandoned on an empty parking lot in New Salem, Illinois. Dark's body was discovered two weeks later in a well outside Pittsfield, Illinois.
There was extensive testimony concerning the days following September 5. Several witnesses testified that they saw blood stains on Randy Daugherty's clothes during this time. One witness testified that he had helped Daugherty and the defendant try to retrieve Dark's car from New Salem on September 6. He testified that he saw Daugherty and the defendant take a sack containing a bloody sweater and two pairs of bloody pants from the car after they had failed to get the car started.
Approximately two weeks later, the defendant led police to a well where Dark's body was found. The defendant then took the police to a bridge over a creek bed where they found a lock blade knife with blood on the handle. A pathologist testified that Dark's body had five stab wounds but that only one of the wounds was the cause of death. The wounds which he found on Dark's body were consistent with the blade of the knife the police had found. There was no evidence concerning the actual stabbing of Dark since neither defendant took the stand.
The jury was instructed on two theories of guilt — as either a principal or as an accomplice — and returned general verdicts of guilty of murder and armed robbery against both defendants. Hargis raises several grounds which he urges require reversal of the verdict.
SUFFICIENCY OF THE EVIDENCE
• 1 Hargis asserts — and the State agrees — that since there was no direct evidence that the defendant actually struck the fatal blow, the only appropriate basis for a verdict of guilty was a theory of accountability as defined in section 5-2 of the Criminal Code of 1961. (Ill. Rev. Stat. 1981, ch. 38, par. 5-2.) The pertinent portion of this statute requires:
"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 point of contention is that the evidence as adduced was insufficient to prove beyond a reasonable doubt a prior or contemporaneous agreement or action in furtherance of the offense as required by the statute.
• 2 In this appeal, the State rests primarily on People v. Thicksten (1958), 14 Ill.2d 132, 150 N.E.2d 813. The defendant does not respond to the State's argument revolving around this case. In Thicksten, three men, all previously acquainted with one another, were drinking and conversing in a bar. They left together in a car owned by one of the men and began driving along a highway in a rural county. After driving some distance, they pulled off onto a gravel road and stopped so that they could relieve themselves. Without warning, one of the men, the owner of the car, was struck down. The other two left the scene in possession of the victim's car and the contents of his billfold. They were later arrested, charged with robbery, and tried generally to a jury, neither defendant testifying. The jury returned verdicts of guilty following by separate appeals. One defendant claimed on appeal that he was not proved guilty beyond a reasonable doubt because the evidence showed neither that he had delivered the actual blow nor that he had engaged in a common scheme with his co-defendant. The Illinois Supreme Court found the argument to be without merit, saying:
"There is more shown by this evidence than mere presence at the scene of the robbery and a negative acquiescence therein. Plaintiff in error was closely associated with Bevard [his co-defendant] immediately before and after the crime, as well as at the time it was committed. No other person except the victim was in the vicinity at that time, and plaintiff in error left Applewhite lying unconscious in the ditch and accompanied Bevard to a tavern, where they bought drinks for the house, and then went on together to a restaurant. There is no evidence showing an attempt upon his part to notify authorities or anyone else of the event, nor is there anything to show he was prevented from doing so. In the absence of explanation, such conduct is not consistent with that of an innocent person similarly situated, and is sufficient to support an inference that a common understanding or design existed between Bevard and plaintiff in error." (14 Ill.2d 132, 134, 150 N.E.2d 813, 815.)
The similarities between Thicksten and this case are striking. Here, as in Thicksten, defendant and Daugherty were closely associated before, during, and after the crime. Similarly, defendant here did not immediately notify the police or show why he failed to do so. Defendant took the police to the places where the body and the murder weapon had been secreted, but not until two weeks had elapsed. There was testimony that the body could not have been placed in the well by one person, indicating that both parties participated in trying to cover up the crime, behavior hardly associated with an innocent party. Faced with such similarities, we find Thicksten controlling precedent and dispositive of the issue of reasonable doubt in this case. Defendant's conviction must stand against this claim.
• 3, 4 Defendant also offered several cases in support of his position that his behavior was inconsistent with his guilt. In People v. Tillman (1971), 130 Ill. App.2d 743, 265 N.E.2d 904, the court held that evidence must prove beyond a reasonable doubt that the defendant's participation was with the concurrent, specific intent to promote or facilitate the commission of the offense. Tillman is readily distinguishable on its facts as one where the defendant did not assent to the commission of a crime and actively voiced his opposition and sought to withdraw. At one point, the defendant in Tillman dissuaded other parties from committing an unrelated crime. No such evidence was adduced in the case before the court. The dissent in Tillman would have upheld the conviction based on the principle of voluntary attachment to a venture with the knowledge of proposed illegal acts.
• 5, 6 As a second line of defense, the defendant also asserts that where all of the evidence in a homicide case is circumstantial, the defendant's guilt must be so thoroughly established as to exclude every reasonable hypothesis of innocence. This principle, taken from the second paragraph of Illinois Pattern Jury Instruction, Criminal, No. 3.02 (2d ed. 1981), has appeared in several appellate court decisions and at least two decisions of the Supreme Court of Illinois. In each case, the principal at work seems to be that the evidence adduced at trial openly controverted the State's theory of the case. In this manner, it did not exclude a reasonable hypothesis of innocence as suggested at trial. In other words, the evidence as adduced suggested that one hypothesis of innocence was reasonable. In no case has any court said that the facts must be such as to exclude all imaginable situations wherein the defendant might possibly be innocent.
In People v. Lewellen (1969), 43 Ill.2d 74, 250 N.E.2d 651, there was testimony, albeit contradictory, concerning physical abuse of the defendant by the victim prior to his death. This created the possibility of self-defense. Further, the defendant had given numerous other versions of the events leading up to her husband's death, all so contradictory as to make her testimony virtually nonprobative. This left as the only proof of guilt the bare fact that she drove around in her car with her husband after he was dead. This alone was insufficient to prove any criminal conduct on her part.
In a similar vein is People v. Garrett (1975), 62 Ill.2d 151, 339 N.E.2d 753, wherein the court upon a review of all the evidence found that the evidence supported a theory of suicide. At trial, the evidence showed that the victim had a bloody splashback on his hand and that the victim's cranial condition was indicative of a contact wound through the roof of the mouth rather than a homicide as postulated by the State. Under these facts, the court held that homicide had not been proved beyond a reasonable doubt since the actual evidence at trial supported a theory of suicide equally as well as a theory of murder.
The appellate court cases cited by defendant are also readily distinguished. In People v. Manley (1971), 1 Ill. App.3d 693, 274 N.E.2d 373, a co-defendant testified that the defendant was not privy to a prior conversation involving the possible commission of a crime, nor was he present at or aware of its commission at the time of perpetration. Here, there was no evidence that the defendant was unaware of plans or perpetration at any time. In People v. Brumbeloe (1968), 97 Ill. App.2d 370, 240 N.E.2d 150, the evidence showed that the defendant had armed himself out of fear for his safety and had asked two individuals to accompany him home when he was attacked by the victim on a public way. After fending off the original attack, he became involved with a bystander. During the time that he was fighting with the bystander, one of the individuals who had accompanied the defendant stabbed and killed the victim. Since the defendant was justified in his conduct during the affray, the intervening offense of his companion could not be attributed to him since there was no evidence from which to infer a prior plan to commit a crime. Here again, there was no proof of circumstances which would excuse or justify the defendant's behavior.
In People v. Ramirez (1968), 93 Ill. App.2d 404, 236 N.E.2d 284, the court found that there was nothing in the record which affirmatively established that the victim was even alive at any time that the defendant was present. Therefore, the State failed to prove that anything the defendant did could have possibly led to the victim's death. In the instant case, Dark was unquestionably alive the last time he was seen with the defendants and was never seen alive again.
In People v. Ware (1980), 82 Ill. App.3d 297, 402 N.E.2d 762, the State failed to show the close association of the alleged accomplice and the admitted principal either prior to or immediately after the commission of the ...