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05/10/94 PEOPLE STATE ILLINOIS v. DERRICK WALKER

May 10, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
DERRICK WALKER, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. Honorable Themis N. Karnezis, Judge Presiding.

Hartman, Scariano, McCORMICK

The opinion of the court was delivered by: Hartman

JUSTICE HARTMAN delivered the opinion of the court:

Defendant Derrick Walker, convicted by a jury for first degree murder (Ill. Rev. Stat. 1991, ch. 38, par. 9-1(a) (now 720 ILCS 5/9-1(a) (West 1992))), appeals. He raises as issues whether (1) the State proved beyond a reasonable doubt that he was accountable for the acts of the shooter; (2) the circuit court erred in admitting the victim's hearsay statements; (3) the circuit court erred in failing to determine that he was fit to stand trial; (4) he was denied a fair trial by the prosecutor's statements in closing argument; and (5) his sentence is excessive.

There was evidence from which the jury could believe the following facts. When defendant lived in Vice Lord territory, he became a member of the Vice Lord street gang. After he moved to a new neighborhood, he switched alliances and became a member of the Disciples street gang. On March 11, 1991, defendant learned that his brother had been severely beaten by Vice Lord gang members and decided to retaliate. Any Disciples who sought to leave the neighborhood and "involve themselves" was required to have "security" with them. Defendant asked Anthony Owens, "coordinator" of the Disciples, for permission to leave the neighborhood and involve himself in a "gangbang." Defendant and Owens went to Owens' car where the latter retrieved a .38 snubnose revolver in a plastic bag. Owens removed the gun and gave it to Shaundell Green, the "chief enforcer" of the Disciples, who was "on security" at that time. Defendant had seen Green shoot somebody at a prior time.

Defendant, Owens, Green, and a fourth person, known only as Maurice, got into Owens' car. Maurice was there to watch defendant's back. They first drove to defendant's mother's house so that he could speak with her before doing anything. She was not at home. Defendant next spoke to his sister and some friends. Defendant was told that the victim, Keith Byrd, beat his brother along with a man called Pluky and a man named Bobby Ramsey. The four men left to find the victim.

Owens drove to the victim's home at 1136 West 95th Place in Chicago, with defendant in the front passenger seat and Green and Maurice in the back seat. The victim and a man named Errion Hayden were sitting on the porch. After driving past the house, Owens parked nearby. Defendant and Green got out of the car and approached the victim and Hayden.

Hayden testified that the victim asked defendant if he had heard what Pluky did to his younger brother, to which defendant replied he had. Green then pulled out a gun, and the victim ran. As the victim ran, defendant pointed at him with his index finger, his arm-outstretched. Green ran after the victim at whom he shot three times. As Green was running and shooting, defendant ran right with him. Hayden ran into the middle of the street, where he saw Green fire a fourth shot which felled the victim. Defendant was still next to Green. While the victim was down, Green went "up on him and shot him again." Defendant then was four feet away from Green. Defendant and Green thereafter ran towards Hayden, who heard defendant instruct Green to "shoot him too." Hayden escaped.

Paulette Byrd, the victim's sister, was in the house when she heard gunshots. She went outside and saw the victim lying in the gangway. Paulette asked what happened and he said he had been shot. She left and called an ambulance, which took about one and one-half to two minutes, and then returned to her brother. Upon Paulette's inquiry, the victim told her he had been shot twice in the back. When she asked the victim who did it, he replied, "Derrick Walker did it." Defendant's motion in limine to exclude these hearsay statements from trial was denied by the circuit court because it found the statements admissible under both the dying declaration and spontaneous declaration exceptions to the hearsay rule. The victim died two days later in Christ Hospital's intensive care unit.

Defendant's written statement to police was read to the jury. He admitted going to the victim's house with Owens, Green, and Maurice, but claimed he stayed in the car while Green and Maurice approached the victim. He asserted that he was in the car when Green shot the victim. Defendant acknowledged that he was "going over there to fight." Afterwards, he left the scene with Green; went to a restaurant where he purchased food for Green; and the two then went to defendant's home.

The jury found defendant guilty of first degree murder. He was sentenced to 35 years' imprisonment. Green, tried simultaneously before the bench, was also found guilty of first degree murder and sentenced to 35 years' imprisonment. Defendant appeals.

I.

Defendant initially contends that the State failed to prove beyond a reasonable doubt that he was accountable for Green's act of shooting the victim.

The relevant inquiry is whether the evidence, viewed in the light most favorable to the State, supports any rational trier of fact in finding that the essential elements of the crime had been proven beyond a reasonable doubt. ( People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 87 Ill. Dec. 910.) The elements of accountability are: (1) defendant elicited, aided, abetted, agreed, or attempted to aid another person in the planning or commission of the offense; (2) defendant's participation took place before or during the commission of the offense; and (3) defendant had the concurrent, specific intent to promote or facilitate the commission of the offense. (Ill. Rev. Stat. 1991, ch. 38, par. 5-2 (now 720 ILCS 5/5-2 (West 1992)); People v. Valen (1989), 183 Ill. App. 3d 571, 577, 539 N.E.2d 261, 131 Ill. Dec. 908.) Mere presence at the scene of the crime, even with knowledge that the crime is being committed, is not sufficient to establish guilt on the accountability theory. ( People v. Darnell (1990), 214 Ill. App. 3d 345, 363, 573 N.E.2d 1252, 158 Ill. Dec. 67.) Further, mere presence combined with flight from the scene does not establish accountability. In re Woods (1974), 20 Ill. App. 3d 641, 650, 314 N.E.2d 606.

The State insists defendant is accountable under the common-design rule, which provides that "where two or more persons engage in a common criminal design or agreement, any acts in furtherance thereof committed by one party are considered to be the acts of all parties to the common design and all are equally responsible for the consequences of such further acts." ( People v. Terry (1984), 99 Ill. 2d 508, 514, 460 N.E.2d 746, 77 Ill. Dec. 442 (quoting People v. Kessler (1974), 57 Ill. 2d 493, 496-97, 315 N.E.2d 29); Ill. Rev. Stat. 1991, ch. 38, par. 5-2(c) (now 720 ILCS 5/5-2(c) (West 1992)).) Common design can be inferred from the circumstances surrounding the perpetration of unlawful conduct, including: presence at the scene without disapproval or opposition, continued close association with the perpetrators after the crime, and failure to report the incident to the police. ( People v. Watts (1988), 170 Ill. App. 3d 815, 825, 525 N.E.2d 233, 121 Ill. Dec. 427.) The existence of a common design is a question of fact for the jury. Watts, 170 Ill. App. 3d at 825.

Here, the record supports the jury's Conclusion, holding defendant accountable for the victim's murder. The evidence shows that defendant himself instigated the events which led to the victim's death, as he sought to retaliate for his brother's beating. He obtained permission from his gang coordinator to leave the neighborhood and "gangbang." Green, "on security" for the Disciples street gang, was asked to accompany defendant under the direction of the gang coordinator. Defendant knew Green had a gun and was the gang's "chief enforcer." He also had seen Green shoot someone before. Once defendant learned the victim had beat his brother, they drove to the victim's home. Together, defendant and Green approached the victim. After defendant and the victim exchanged words concerning the brother's beating, Green pulled out the gun and the victim ran. Defendant pointed to the victim and ran beside Green as he fired shots at the latter. Moreover, he stayed with Green as Green walked up on the fallen victim and shot him from close range. Defendant and Green then chased Hayden, with defendant instructing Green to "shoot him too." Afterwards, defendant remained in close association with Green as they left the scene together, went to a restaurant where defendant purchased food for Green, and then went to defendant's home. Defendant never reported the murder to police.

Defendant challenges Hayden's credibility, claiming it is unlikely that Hayden could have heard him tell Green to "shoot him too," because Hayden was not wearing his hearing aid. Questions of credibility and determinations of factual disputes are within the province of the trier of fact. ( People v. Bradford (1985), 106 Ill. 2d 492, 502, 478 N.E.2d 1341, 88 Ill. Dec. 615.) The jury heard Hayden's testimony and found it credible.

Defendant also suggests that his act of pointing to the fleeing victim was not for Green's benefit. Drawing reasonable inferences from the evidence are within the province of the trier of fact. ( People v. Stanciel (1992), 153 Ill. 2d 218, 235, 606 N.E.2d 1201, 180 Ill. Dec. 124.) Under the facts presented here, the jury had the right to infer that defendant was pointing at the victim to indicate to Green who he was to shoot.

The jury was entitled to believe the State proved beyond a reasonable doubt that defendant is accountable for the victim's murder.

II.

Defendant asserts that the victim's statements to his sister should not have been admitted under the dying declaration exception or the spontaneous declaration exception to the hearsay rule. The State insists that the ...


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