Appeal from the Circuit Court of the 14th Judicial Circuit, Rock Island County, Illinois Circuit No. 08-CF-273 Honorable Walter D. Braud, Judge, Presiding.
The opinion of the court was delivered by: Presiding Justice Carter
PRESIDING JUSTICE CARTER delivered the judgment of the court, with opinion. Justices Holdridge and O'Brien concurred in the judgment and opinion.
¶ 1 After a jury trial, defendant, Mitchell L. Laabs, was convicted of felony murder (720 ILCS 5/9-1(a)(3) (West 2006)) and was sentenced to 50 years' imprisonment. Defendant appeals, arguing that: (1) he was denied a fair trial when the trial court instructed the jury on a new theory of guilt, accountability, in response to a jury question, after jury deliberations had begun; and (2) his sentence is excessive. We reverse defendant's conviction and sentence and remand the case for a new trial.
¶ 3 In March of 2008, defendant was charged as a principal with felony murder for the May 31, 2007, shooting death of Darrell Little. Little was shot during a robbery attempt that involved defendant and four other subjects (the four accomplices). The State's theory of the case was that defendant acted as a principal in the murder of Little and that defendant was the person who actually shot Little. The charging instrument alleged that defendant, without lawful justification and while attempting a forcible felony, robbery, shot Darrell Little in the abdomen with a semiautomatic handgun and thereby caused the death of Little.
¶ 4 Defendant's case proceeded to a jury trial in July of 2009. The charging instrument remained the same, and defendant was still charged as a principal--the person who had actually shot Little during the course of an attempted robbery. Prior to trial, as part of its trial strategy, the State flipped the four accomplices against defendant. In exchange for their cooperation and agreement to testify against defendant, the accomplices were given favorable plea deals and were charged with, and pled guilty to, attempted armed robbery, instead of felony murder.
¶ 5 Although defendant was not charged under a theory of accountability, the issue came up several times during defendant's trial. The first such instance was during opening statements. As part of his opening statement, the prosecutor told the jury:
"At the end of the day, you are going to be tasked with the duty of taking all of the evidence that you hear, combine it together to help you decide whether or not you're believing people. I'll conclude this for you. There will be no doubt in anybody's mind at the close of all the evidence that some bad decisions were made. There should be no doubt at the close of all the evidence that Darrell Little was a victim of a felony murder. The only question I think that you will be left with at the end of the day is going to be who is responsible, who is criminally culpable for killing Darrell Little. Now, maybe you are going to find that the four boys [the four accomplices] that testify are criminally culpable. Maybe you will find that, but you are not asked to decide whether or not they are guilty of First-Degree Murder. The only person that you are going to have to decide that issue on is the Defendant in the case. You will find at the close of all of the evidence and after arguments and the instructions of the law that the Defendant is guilty of First-Degree Murder."
Defense counsel responded in his opening statement:
"At the conclusion of all the evidence the problem is the State can't prove beyond a reasonable doubt who did this shooting. They have made a choice. They have chosen [the defendant], and they are calling in witnesses that they gave deals to attempt armed robbery I believe is what the group pled to and they let each one of them not be charged with felony murder as long as they cooperate and they name [the defendant].
It's absolutely impossible that not one of those individuals was in the room with what happened. It's not at all hard to believe that the whole group was in there threatening this man. You will hear evidence from some State witnesses that there were [sic] more than one person seen or heard in the room where the shooting happened, but nobody knows who did the shooting, nobody carried a gun, nobody saw a gun. Yet these four are the road to conviction for [the defendant]. That's wrong."
After defense counsel completed his opening statement, the prosecutor asked if he and defense counsel could approach the court. A bench conference was held at that time, off the record. Although there is no record of that conference, it appears from the prosecutor's statement at a later point in the trial that the bench conference had to do with the issue of accountability.
¶ 6 During the evidence phase of defendant's jury trial, numerous witnesses were called to testify. The evidence established that on May 30, 2007, in the afternoon or evening, the defendant and the four accomplices (sometimes referred to as the group) were together. The four accomplices knew each other well and were close. Defendant, however, was more of an acquaintance. Some of the members of the group had been smoking marijuana that day. The group, either collectively or certain individual members, came up with the idea to rob a person (the target subject), who sold cannabis, and to take the cannabis from that person. At about 1:45 a.m. on May 31, defendant and the four accomplices took a black-colored vehicle to an apartment complex in Moline where the target subject lived. One of the accomplices drove the vehicle. They circled the block a few times looking for the right area of the apartment complex. Defendant and three of the accomplices got out of the vehicle and went over to the apartment complex. The other accomplice, who was driving the vehicle, remained in the vehicle.
¶ 7 The target subject, however, was not at home. At that point, defendant and the three accomplices came across Mr. Little. Although the record is not quite clear on this issue, it appears that Little may have been leaving his apartment at the time. Little was on his cell phone talking to his girlfriend. A scuffle allegedly ensued between defendant and Little, which was heard by Little's neighbor and by Little's girlfriend over the phone. Little's girlfriend heard Little saying that he did not have anything and that they could check his pockets. Believing that he was being robbed, Little's girlfriend told her friend to call 9-1-1, while she remained on the phone listening to what was happening, until someone hung up Little's phone.
¶ 8 The struggle continued into Little's apartment, which had a narrow entranceway. Allegedly, defendant entered farther into the apartment, and the three accomplices stood somewhat in a row, closer to the door. All four accomplices testified that they did not have a gun that night, that they did not see defendant with a gun that night, and that they did not know that defendant had a gun. One of the accomplices saw Little on the floor of the apartment and knew that Little was not the target subject that they were looking for. A resident of one of the apartments across from Little's apartment heard the commotion, looked out the window, and saw the silhouette of what appeared to be Little being robbed by approximately three subjects, with one of the subjects holding a gun on Little. That resident went to get the apartment manager and as he did so, a single shot rang out. Little's neighbor also heard the shot. According to the three accomplices, they heard the shot as well but did not see defendant shoot Little. Defendant and the three accomplices ran from the area. Defendant and two of the three accomplices were in phone contact with the fourth accomplice, who was still in the vehicle. Those phone calls and the time and duration were documented by phone records, some of which showed a location near the apartment complex. Within a short time, defendant and the three accomplices were picked up by the fourth accomplice, and they left the area. According to all four accomplices, in the car ride home, they never discussed what happened. Nor did they discuss it amongst themselves later.
¶ 9 Little ran to a cab that was waiting, told the driver that he had been shot, and asked the driver to take him to the hospital. The driver went a block and then pulled over and called an ambulance. Little passed out in the cab. When the ambulance arrived, Little was taken to the hospital where he died a short while later. The fatal wound was a single gunshot which grazed Little's leg, entered his abdomen, traveled upwards, and went through his aorta, causing massive internal bleeding.
¶ 10 The following afternoon, defendant left town and took a bus to Minneapolis. Defendant gave a male friend money to purchase the ticket for him, and the ticket was in the male friend's name. Bus records were admitted, which showed that a ticket to Minneapolis had been purchased on the date in question in the name of defendant's male friend. Defendant allegedly told a female friend, who gave him a ride to the bus station, that he tried to rob a guy in Moline the night before and that he shot the guy in the gut because he thought the guy was reaching for a gun.
¶ 11 Defendant did not testify at the trial. However, defense counsel thoroughly cross-examined the key State witnesses, including the four accomplices. In addition, defense counsel called to the witness stand an inmate at the jail, who was in a cell block with defendant. The inmate testified that while in jail, he had overheard one of the accomplices telling someone else that defendant was not supposed to be in jail and that they had lied about defendant so that that they could get out of jail themselves.
¶ 12 During the jury instruction conference, the issue of accountability again surfaced. After a brief discussion, the attorneys agreed that accountability was not a part of the case and that the jury would not be instructed on the issue of accountability. The trial court did not take a position on the matter and merely adhered to the parties' agreement. However, during closing argument, defense counsel attacked the credibility of the four accomplices, who were all friends of each other but only an acquaintance of defendant, and suggested "that the evidence [showed] that three of these four could have been involved and done the shooting."*fn1 The State objected to that comment, and a conference was held outside the hearing of the jury. The following conversation ensued:
"[PROSECUTOR]: This is why the accountability instruction -- THE COURT: Not going to accountability.
[PROSECUTOR]: This is why accountability was withdrawn because there was no evidence to back up what he is arguing right now. The evidence would show that one of these guys could have done the shooting even with that evidence the accountability instruction establishes that he is still guilty of murder but they're not getting instructed because as we all agreed there was no evidence to that effect and he wasn't going to argue that.
*** [DEFENSE COUNSEL]: The evidence that the State put on was that there were [sic] a group there was at least three people in the room, all of the other young men, all of the other men testified that they were there, they didn't see anything. We -- it's just -- it's just as believable that one of them carried the gun in as [the defendant], because nobody saw somebody [sic] had a gun. I am saying based on the lack of pinpointing where the gun is, any of those people in there could have shot him. That's all I said.
THE COURT: Yeah, I think it's okay. [PROSECUTOR]: That makes the accountability instruction.
THE COURT: It may or it may not. *** [PROSECUTOR]: I think he is entitled to argue it's incredible -- it might be that [the defendant] did nothing about it. But if his argument was one of the other boys during the course of this robbery did it then the accountability instruction is absolutely relevant.
THE COURT: Not if [the defendant] didn't know he was going to commit a robbery.
[PROSECUTOR]: There is evidence of that.
THE COURT: I'm going to have the jury step aside. (The following proceedings were had out of the presence of the jury.)
THE COURT: Okay. As the Philadelphia Story says, like I'm in sixth grade. [PROSECUTOR]: Here goes then. There is no evidence to back up [defense counsel's] argument on this point. First, he is arguing facts that are not in evidence. Second, if he is creating an inference, if he is arguing based on reasonable inferences, those reasonable inferences if adduced from the facts in evidence, give rise to the need for the accountability instruction. There would be evidence of accountability from at least two of the witnesses who say that there was in fact a plan to go rob somebody, albeit Demarco Thorton that intent could transfer to Darrell Little. There is -- if this is the inference that [defense counsel] is trying to create, ...