The opinion of the court was delivered by: Justice Rathje
Following a jury trial, defendant, Derrick Millsap, was convicted of home invasion (720 ILCS 5/12-11(a)(2) (West 1996)) and robbery (720 ILCS 5/18-1(a) (West 1996)). The court sentenced him to 20 years' imprisonment. Defendant appealed, arguing that his due process rights were violated when the trial court gave the jury an accountability instruction after the jury had begun deliberating. The appellate court affirmed. No. 1-98-0388 (unpublished order under Supreme Court Rule 23). We granted defendant's pro se petition for leave to appeal.
The victim, Helen Drwiega, testified that she was 85 years old and lived alone. On November 21, 1996, at about 4 a.m., she was asleep on her couch when she was awakened by a rough, wet glove pushing down on her face. The person who had his hand over her face told her not to scream and that he would not hurt her. Drwiega had a hard time breathing and could not see anything. Drwiega could not be sure if there was more than one intruder in her house. The person who had his hand over her face said, "look over there," and Drwiega had a feeling that he was talking to another person. The person who had his hand over her face told her that he wanted her money. Drwiega responded that she did not have any money.
While keeping his gloved hand over Drwiega's face, the intruder rummaged through several purses Drwiega kept underneath a coffee table. The gloved hand was very tight over Drwiega's face, and the rough surface left a scratch on her face. Drwiega testified that the person who had his hand over her face told her that "they" were leaving and instructed her to stay on the couch for a few minutes and not to make any noise. A pouch-type wallet that contained several bills and over $2,000 in cash belonging to Drwiega's brother had been taken from one of the purses underneath the coffee table.
Drwiega rose from the couch several minutes later and saw someone climbing out of her kitchen window. Her telephone was inoperable so she went to a neighbor's house and asked the neighbor to call 911. Upon returning from the neighbor's house, Drwiega discovered that the intruder had returned. He demanded Driwega's wallet, and she recognized the voice as that of the man who had put his gloved hand over her face. Drwiega told the intruder that she did not have a wallet. When police sirens sounded outside, the intruder crawled out of Drwiega's window. A police officer came to the front door, and Drwiega told him that the intruder was crawling out of her window. The police later returned accompanied by a man and carrying the pouch-type wallet. Drwiega could not identify the man, but she identified the wallet and the money it contained.
Chicago police officer George Porter testified that, while on patrol on the date in question, he received a radio transmission of a burglary in progress on South Emerald Avenue. He arrived at the address 10 to 20 seconds later and other officers arrived after another 10 seconds. Drwiega told the officers that the offenders were going out the back of her home. Officer Porter looked down the gangway and saw a man in dark clothing running from the rear area of the house. Officer Porter pursued the man down an alley and into a yard six to eight houses away. Porter found defendant lying against the side of a house with his jacket pulled up over his head. Defendant had a black wallet in his right pocket, which Drwiega later identified as belonging to her. The wallet contained the $2,000 that belonged to Drwiega's brother. Defendant also had some bills in his pocket; the bills had Drwiega's address on them. Officer Porter further testified that defendant was wearing the same clothes as the person he saw both in Drwiega's backyard and running through the alley. Porter searched the victim's backyard and discovered that a ladder had been placed beneath her kitchen window and that the window had been removed.
Chicago police detective Mark Hofer also responded to the burglary-in-progress call and spotted defendant in an alley behind Drwiega's garage. There was a street light in the alley, and Hofer could see defendant's face. Hofer subsequently saw Officer Porter pursuing defendant down the alley and next saw defendant lying on the ground at 12124 South Emerald. After defendant was arrested, Hofer went inside Drwiega's residence. He observed a scratch on Drwiega's face, saw that her kitchen window had been removed, and noticed that a table under the window on the inside had muddy footprints on it. Hofer also observed two fresh sets of shoe prints going in different directions in the wet snow outside the window. Hofer believed that the sets of shoe prints might have been different and testified that there were two offenders. Hofer also stated that one set of prints ended in the yard where defendant was arrested and the other set led into a vacant lot and towards Halsted Street.
Walter Kryszak, an expert in the field of shoe impression comparisons, testified that he had examined a photograph of impressions left inside the victim's residence and compared them with a photograph of the soles of defendant's shoes. Kryszak concluded that one of the overlapping impressions from inside Drwiega's house was not from defendant's shoes and that the second impression contained many similarities to defendant's shoes. Nevertheless, because of the poor quality of the photograph of the shoe impressions, he could not say with certainty that the impressions came from defendant's shoes.
The State at no time pursued an accountability theory. Defendant's robbery and home invasion indictments charged him with taking the money and wallet from Drwiega and causing the injury to her face, and the State did not request that the jury be instructed on accountability. Further, neither side argued to the jury with respect to accountability. The State argued that defendant caused the injury to Drwiega's face and that defendant took her money.
Forty minutes into its deliberations, the jury sent the judge a note that read, "Is the accomplice just as guilty at [sic] the offender who causes an injury in a home invasion?" The trial judge proposed answering the question by instructing the jury on accountability. Defendant's attorney objected, arguing that there had been no evidence presented on the elements of accountability and that he had not had a chance to argue about accountability. Because the accountability issue was "coming out of left field," defendant's attorney proposed telling the jurors they already had everything. The trial judge gave the following instruction, reasoning that there was evidence that a second person had been present at the crime scene:
"A person is legally responsible for the conduct of another person when, either before or during the commission of an offense, and with the intent to promote or facilitate the commission of the offense, he knowingly solicits, aids, abets, agrees to aid, or attempts to aid the other person in the planning or commission of the offense.
The word `conduct' includes any criminal act done in furtherance of the ...