The opinion of the court was delivered by: Chief Justice Harrison
Docket No. 86871-Agenda 5-September 2000.
Following a joint bench trial held in the circuit court of Cook County, Marcus Cooper and Chester Starnes (defendants) were convicted of the first degree murder of Derrick Henderson (720 ILCS 5/9-1(a)(2) (West 1994)) and the aggravated battery with a firearm of Charles Robinson (720 ILCS 5/12-4.2(a)(1) (West 1994)). Both convictions were based on an accountability theory. The appellate court affirmed defendants' convictions for aggravated battery with a firearm, but reversed the first degree murder convictions and remanded the cause to the trial court for a determination of whether defendants were prejudiced in their defense by the State's failure to include a charge of felony murder in defendants' indictments. Nos. 1-95-3211, 1-95-3212 cons. (unpublished order under Supreme Court Rule 23). The appellate court further ordered that should the trial court find that defendants were not prejudiced, it could then consider whether the State sufficiently proved defendants guilty of felony murder. We allowed defendants' alternative petition for appeal as a matter of right or leave to appeal. 134 Ill. 2d R. 317; 177 Ill. 2d R. 315.
Defendants argue before this court that the appellate court erred in remanding the cause for consideration of whether the State sufficiently proved defendants guilty of felony murder after the appellate court reversed defendants' convictions for first degree murder on the basis that defendants were not accountable for the murder. Defendants also contend that their convictions for aggravated battery with a firearm should be reversed. The State on cross-appeal argues that defendants were properly convicted of first degree murder based on an accountability theory.
In summary, the record reveals that on June 25, 1994, a shooting occurred in the City of Chicago between members of the Gangster Disciples and Black Disciples, rival street gangs. Both defendants admitted being Gangster Disciples, as did Tracy Stofer, who was tried with defendants and acquitted. Henderson, the murder victim, was also a member of the Gangster Disciples. Robinson, the aggravated battery with a firearm victim, was a member of the Black Disciples. Robinson testified at trial that he saw defendants shooting at the Black Disciples. Some of the Black Disciples returned fire. Henderson was killed and Robinson was shot twice. The trial court made factual findings that both defendants had fired weapons in the direction of the Black Disciples, that it was "foreseeable" that the Black Disciples would return fire, and that Henderson was killed as a result of the return fire by the Black Disciples. The trial court therefore found defendants guilty of first degree murder and aggravated battery with a firearm.
Thereafter, at the hearing on defendants' post-trial motions, the trial court clarified that defendants were found guilty of first degree murder under accountability principles rather than felony-murder principles, because the State never charged felony murder in the indictment. The trial court further explained that it had found that defendants were the initial aggressors, that the Black Disciples had returned fire in self-defense, and that defendants were properly found guilty of the "knowing murder of Derrick Henderson because they knew and it was foreseeable that when they fired *** death or great bodily harm could result and it was foreseeable that in firing at rival gang members that rival gang members may have weapons to return fire." The trial court also stated that it specifically found Robinson to be credible with regard to the identity of the shooters. Finally, because Robinson was wounded by either Cooper or Starnes, "under either situation [defendants] are accountable for that aggravated battery with a firearm." The trial court then denied defendants' post-trial motions and, following a sentencing hearing, imposed on Cooper concurrent terms of 25 years' imprisonment for the first degree murder conviction and 18 years' imprisonment for the aggravated battery with a firearm conviction. Starnes was sentenced to 50 years' imprisonment for the first degree murder conviction and a concurrent term of 30 years' imprisonment for the aggravated battery with a firearm conviction.
On direct appeal, the appellate court held that defendants could not be convicted of first degree murder based on an accountability theory because the State had not proven the first requirement for accountability, the commission of an overt act. Under section 5-2(c) of Illinois' accountability statute (720 ILCS 5/5-2(c) (West 1994)), a person is legally accountable for the conduct of another when: "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." Here, the appellate court found there was no evidence that either defendant "solicited a Black Disciple to kill Henderson, aided or abetted the Black Disciple shooter who killed Henderson, or agreed or attempted to aid any rival gang member in murdering Henderson, a Gangster Disciple." Nos. 1-95-3211, 1-95-3212 cons. (unpublished order under Supreme Court Rule 23).
We agree with the appellate court that defendants' first degree murder convictions could not be based upon a theory of accountability as set forth in section 5-2(c), and the State does not contest this point. Instead, the State, in its cross-appeal, argues that section 5-2(a) of the accountability statute (720 ILCS 5/5-2(a) (West 1994)) is applicable here and that it should be employed to uphold defendants' first degree murder convictions. Thus, we first address whether defendants' murder convictions can be upheld under section 5-2(a).
As a preliminary matter, we note that while the State did not raise this issue on direct appeal, pursuant to Supreme Court Rule 318(a) the State, as appellee in this court, "may seek and obtain any relief warranted by the record on appeal without having filed a separate petition for leave to appeal." 155 Ill. 2d R. 318(a); see also People v. Schott, 145 Ill. 2d 188, 201 (1991) (where the trial court is reversed by the appellate court and the appellee in that court brings the case here for further review, he may raise any question properly presented by the record to sustain the trial court's judgment, even though that question was not raised or argued in the appellate court). Further, and contrary to defendants' contention, this court is authorized by section 4(c) of article VI of the Illinois Constitution and Supreme Court Rules 315(a) and 604(a) to review judgments of the appellate court, including cases where the appellate court has reversed a criminal conviction. See People v. Schwartz, 58 Ill. 2d 274, 275-77 (1974); Ill. Const. 1970, art. VI, §4(c); 177 Ill. 2d R. 315(a); 145 Ill. 2d R. 604(a).
Upon review of a question as to a defendant's accountability for an offense, we must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See People v. Batchelor, 171 Ill. 2d 367, 376 (1996). Section 5-2(a) provides that a person is legally accountable for the conduct of another when: "Having a mental state described by the statute defining the offense, he causes another to perform the conduct, and the other person in fact or by reason of legal incapacity lacks such a mental state." 720 ILCS 5/5-2(a) (West 1994).
Here, the State contends that the trial court, sitting as trier of fact, found that: (1) defendants had the requisite mental state to commit murder, specifically knowledge that their actions created a strong probability of death or great bodily harm; (2) defendants' conduct caused another to perform the conduct, namely, the shooting of Henderson; and (3) the person who performed the conduct in fact lacked the mental state, in that the Black Disciples returned fire in self-defense. Therefore, the State concludes, although the trial court never expressly referred to section 5-2(a) when making its ruling, because the court's findings "are wholly consistent with the language of section 5-2(a), *** the trial court was relying upon the `innocent agent' rule when it found defendants guilty of Henderson's murder under an accountability theory." While we acknowledge that what the trial court termed its "transferred accountability" theory appears to comport with the requisites of section 5-2(a), the question remains whether that section applies under the facts of this case.
The alternative basis for accountability set forth in section 5-2(a) is known as the "innocent agent" rule because it is most frequently encountered as liability based on inducing an "innocent agent," such as a child below the age of criminal capacity or an insane person, to commit an act. See 720 ILCS Ann. 5/5-1, Committee Comments-1961, at 175 (Smith-Hurd 1993); see also People v. Whitmer, 369 Ill. 317, 320 (1938) (conviction for forgery based on use of "innocent agent" to utter and pass instrument affirmed); People v. Mutchler, 309 Ill. 207, 212-13 (1923) (conviction under indictment charging confidence game affirmed where defendant used "innocent third party" to gain confidence of bank and thereby cash fraudulent check); People v. Nunnley, 34 Ill. App. 3d 4, 6 (1975) (although defendant's conviction for criminal trespass to vehicles reversed based on insufficiency of evidence, court held that defendant would be deemed a principal if, without owner's consent, defendant sold vehicle to "innocent agent" who subsequently entered vehicle without owner's permission). However, the principle set forth in section 5-2(a), and exemplified by the cases cited above, contemplates that the person to be held accountable procured, induced or intended the innocent agent's action. We are unwilling to find that Illinois' accountability statute should apply to situations like the present one where the person to be held accountable neither intended the actor to perform as his agent nor sought the "caused" result. See People v. Dennis, 181 Ill. 2d 87, 105 (1998) (holding accountable a defendant who neither intends to participate in the commission of an offense nor has knowledge that an offense has been committed does not serve the deterrent effect of our accountability statute).
The State contends that those forced by another to act in self-defense should be included among the "innocent agents" contemplated by section 5-2(a). However, the State presents no case law to support this expansion of accountability law, and we do not believe it warranted. Indeed, we find the appellate court's reasoning as to section 5-2(c)'s inapplicablity here equally appropriate in a section 5-2(a) context:
"The trial judge's comments indicate he believed Henderson's death was a reasonably foreseeable result of defendants' actions. Nevertheless, the concept of reasonable foreseeability (i.e. proximate cause), while essential to a felony murder inquiry, has no place in accountability analysis ***. Cf. People v. Dennis, 181 Ill. 2d 87, 105, 692 N.E.2d 325 (1998) (noting `[o]ur continued adherence to a proximate cause approach is further exemplary of how broadly we seek to extend the reaches of criminal liability in the case of felony murder,' distinguishing accountability on the basis that `[u]nlike felony murder, accountability focuses on the degree of culpability of the offender and seeks to deter persons from intentionally aiding or encouraging the commission of offenses.'); People v. Dekens, 182 Ill. 2d 247, 252 *** (finding a charge of felony murder appropriate where the defendant's intended victim shot and killed the defendant's cofelon, since such a killing would be foreseeable); People v. Lowery, 178 Ill. 2d 462, 469-70, 687 N.E.2d 973 (1997) (affirming defendant's felony-murder conviction, based upon reasonable forseeability, where the intended victim of an armed robbery shot and killed an innocent bystander)." Nos. 1-95-3211, 1-95-3212 cons. (unpublished order under Supreme Court Rule 23).
Thus, because holding defendants criminally culpable for a death resulting from an act of self-defense which they provoked is irreconcilable with our accountability statute, we decline to apply it in this context. See Dennis, 181 Ill. 2d at 105-06. The facts of this case, being squarely in line with those of Dekens and Lowery, suggest that defendants' criminal liability for Henderson's death falls within the parameters of felony murder, and not accountability, under either section ...