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JOHNSON v. HARTWIG

September 3, 1997

ANDRE JOHNSON, Petitioner,
v.
JACK T. HARTWIG, WARDEN, Respondent.



The opinion of the court was delivered by: NORGLE

 CHARLES R. NORGLE, SR., District Judge:

 Before the court is Petitioner Andre Johnson's ("Johnson") Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. ยง 2254. For the following reasons, the petition is denied.

 I. BACKGROUND

 Johnson was convicted of conspiracy to commit murder following a jury trial in the Circuit Court of Cook County, Illinois. The jury found that Johnson and two armed accomplices, Lindsay Cannon ("Cannon") and Preston Adams ("Adams"), went to an apartment building to retaliate against rival gang members for shooting at Adams earlier that day. When the rival gang arrived at the building, Cannon and Adams began shooting. During the shootout, Cannon fatally shot Edward Barrow, an innocent bystander.

 The State jointly indicted and tried Johnson and his accomplices for murder and conspiracy to commit murder. At trial, the court gave the jury the following instructions for conspiracy to commit murder:

 
A person commits the offense of conspiracy when he, with intent that the offense of murder be committed, agrees with others to the commission of the offense of murder, and act in furtherance of the agreement is performed by any party to the agreement.
 
An agreement may be implied from the conduct of the parties although they acted separately or by different means and did not come together or enter into an express agreement.
 
To constitute the offense of conspiracy it is not necessary that the conspirators succeed in committing the offense of murder. (People's Instruction # 15).
 
To sustain the charge of conspiracy, the State must prove the following proposition:
 
. First : That the defendants agreed with each other to the commission of the offense of murder; and
 
. Second : That the defendant did so with intent that the offense of murder be committed; and
 
. Third : That an act in furtherance of the agreement was performed by any party to the agreement.
 
. If you find from your consideration of all the evidence that each one of these propositions has been proved beyond a reasonable doubt, ...

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