Appeal from the Circuit Court of Cook County 09 CR 12552 Honorable James B. Linn, Judge Presiding.
The opinion of the court was delivered by: Justice Connors
JUSTICE CONNORS delivered the judgment of the court, with opinion. Justice Cunningham concurred in the judgment and opinion.
Presiding Justice Quinn dissented, with opinion.
¶ 1 This appeal is a companion case to our recent decision in People v. Sanders, 2012 IL App (1st) 102040. Defendant Johnmel Phillips and his codefendant, Dontrell Sanders, were tried together at a bench trial, at which they were both found guilty of aggravated battery with a firearm and aggravated discharge of a firearm. Whereas Sanders was found directly guilty of the crimes, defendant's conviction was based on accountability for Sanders' actions under section 5-2 of the Criminal Code of 1961 (720 ILCS 5/5-2 (West 2010)). Defendant now argues (1) that there was insufficient evidence to establish his guilt under an accountability theory, and (2) that the trial court erroneously admitted prejudicial gang evidence and hearsay evidence during the trial. We reverse.
¶ 3 As we previously recounted in Sanders, the basic facts of this case are straightforward.
Late at night in May 2009, Reginald Lewis and Denzell Gresham were driving southbound on Homan Avenue in Chicago, looking for a place to park. They were unable to find an open space on the west side of Homan near their destination, so Lewis, the driver, decided to make a U-turn at the intersection of Homan and 21st Street in order to return northbound on Homan and find a space on the east side of the street. As they made the U-turn, however, they suddenly found themselves on a collision course with another vehicle that had also been driving southbound on Homan behind them. The other vehicle, a black Charger, started to turn left onto 21st Street as Lewis executed his U-turn in the intersection. The two vehicles nearly collided but stopped within inches of each other.
¶ 4 Because of the glare from the streetlights on the other vehicle's windshield, Lewis and Gresham were unable to see the occupants of the other vehicle. The two vehicles sat facing each other for about 15 seconds, but no words were exchanged and no one got out of either vehicle. The other vehicle backed up about 10 to 15 feet into the northbound lane of Homan and, as it backed up, the glare came off of its windshield. Lewis recognized the driver as defendant, whom he had grown up with and been acquainted with for several years.
¶ 5 Lewis was now unable to proceed northbound on Homan because the other vehicle was in the way. Gresham alerted Lewis that someone was getting out of the back driver's side door of the other vehicle, which was on the side of the Charger facing away from Lewis' vehicle. The person moved around the other vehicle and approached Lewis and Gresham's vehicle. Lewis began to turn the wheel of his vehicle in order to proceed eastbound down 21st Street. As the approaching individual passed under a streetlight, Lewis recognized him as Sanders, whom he also knew. When Sanders got to within 15 or 25 feet from Lewis' vehicle, he raised a handgun and began firing at the vehicle. Lewis and Gresham ducked down in order to protect themselves but Lewis was hit in the back by a round, breaking two ribs and grazing his lungs. Lewis immediately drove the car away from the scene eastbound down 21st Street and then to Mt. Sinai Hospital. Though he collapsed in the entryway upon arrival, he ultimately recovered from his wound.
¶ 6 Lewis and Gresham did not see what happened immediately after the shooting, but another witness did. Kirk Utley testified that he was about six houses away from the intersection when he heard gunshots. He looked toward the intersection and saw a man running down the street shooting a firearm. A car then pulled up, the shooter got in, and the car drove off eastbound down 21st Street. During the defense case in chief, however, the parties entered the stipulated testimony of a police officer who interviewed Utley about the shooting. According to the stipulated testimony, Utley told the officer that he "did not see the shooter's face or the type of vehicles involved because his view was blocked by trees." Moreover, the officer "was never told by Mr. Utley that the person shooting the gun got into the automobile after the shooting."
¶ 7 One final piece of evidence was introduced at trial. As it happened, Lewis had been involved in a hit-and-run accident in which someone died about a year before the shooting. A criminal case against Lewis was pending at the time of trial in this case. The State's theory was that the motive behind the shooting in this case was retaliation against Lewis for the accident. To support this theory, the State introduced evidence that defendant and Sanders had been present at a court hearing for the accident case along with several other associates of the accident victim. Part of this evidence included statements by Lewis about defendant's and Sanders' alleged gang membership, as well as hearsay statements by Lewis' mother regarding alleged threats against Lewis made by defendant. The trial court allowed the testimony, but stated on the record that it was admitting the evidence only to explain the basis of Lewis' identification of defendant, not for the truth of the matter asserted. (For a detailed recitation and discussion of this evidence, see Sanders, 2012 IL App (1st) 102040, ¶¶ 17-32.)
¶ 8 The trial court ultimately found both defendants guilty of aggravated battery with a firearm and aggravated discharge of a firearm, with Sanders being directly guilty for the crimes and defendant being guilty under an accountability theory. The trial court sentenced defendant to six years' incarceration, the minimum sentence allowed by law. (Sanders received 10 years for his role in the crimes.)
¶ 10 Defendant raises two arguments on appeal. First, defendant argues that the evidence was insufficient to prove him guilty of the offense under an accountability theory. Unlike Sanders, defendant does not challenge the sufficiency of the eyewitness testimony and identification. Cf. id. ¶¶ 6-15. Instead, defendant contends that there is insufficient evidence that he and Sanders shared a common criminal design to commit the crime, which is a requirement to prove guilt by accountability. Second, as in Sanders,defendant argues that the trial court erroneously admitted the gang evidence and hearsay evidence regarding the threats. Cf. id. ¶¶ 17-32 (raising the same issue).
¶ 11 The standard of review for sufficiency-of-the-evidence challenges is well settled:
"When considering a challenge to a criminal conviction based upon the sufficiency of the evidence, this court will not retry the defendant. [Citation.] Rather, in such cases the relevant question is 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. [Citation.] Thus, it is our duty in the case at bar to carefully examine the evidence while giving due consideration to the fact that the court and jury saw and heard the witnesses. [Citations.] If, however, after such consideration we are of the opinion that the evidence is insufficient to establish the defendant's guilt beyond a reasonable doubt, we must reverse the conviction. [Citations.] The testimony of a single witness, if it is positive and the witness credible, is sufficient to convict. [Citations.] While credibility of a witness is within the province of the trier of fact, and the finding of the jury on such matters is entitled to great weight, the jury's determination is not conclusive. Rather, we will reverse a conviction where the evidence is so unreasonable, improbable, or unsatisfactory as to justify a reasonable doubt of defendant's guilt." People v. Smith, 185 Ill. 2d 532, 541-42 (1999).
¶ 12 There is no dispute in this case that Sanders, not defendant, shot Lewis and fired a weapon at Gresham. Whereas the trial court found Sanders directly guilty of the crime, defendant's conviction for the crime is based on principles of legal accountability for Sanders' actions. Criminal accountability for the actions of another person under Illinois law is governed by section 5-2 of the Criminal Code of 1961 (735 ILCS 5/5-2 (West 2010)). As relevant to this case, it reads:
"When accountability exists. A person is legally accountable for the conduct of another when:
(c) either before or during the commission of an offense, and with the intent to promote or facilitate that commission, he or she solicits, aids, abets, agrees, or attempts to aid that other person in the planning or commission of the offense.
When 2 or more persons engage in a common criminal design or agreement, any acts in the furtherance of that common design committed by one party are considered to be the acts of all parties to the common design or agreement and all are equally responsible for the consequences of those further acts. Mere presence at the scene of a crime does not render a person accountable for an offense; a person's presence at the scene of a crime, however, may be considered with other circumstances by the trier of fact when determining accountability." 735 ILCS 5/5-2 (West 2010).
Subsection (c), which was the basis for the charges against defendant, is known as the "common design" rule.
¶ 13 The analysis in common-design cases is a fact-driven one, as the supreme court summarized in People v. Taylor, 164 Ill. 2d 131, 140-41 (1995)*fn1
"Mere presence of a defendant at the scene of a crime does not render one accountable for the offense. [Citations.] Moreover, presence at the scene plus knowledge that a crime was being committed, without more, is also insufficient to establish accountability. [Citation.] Nevertheless, active participation has never been a requirement for the imposition of criminal guilt under an accountability theory. [Citation.] One may aid and abet without actively participating in the overt act. [Citation.]
A defendant may be deemed accountable for acts performed by another if defendant shared the criminal intent of the principal, or if there was a common criminal plan or purpose. [Citations.] Words of agreement are not necessary to establish a common purpose to commit a crime. The common design can be inferred from the circumstances surrounding the perpetration of the unlawful conduct. [Citations.] Proof that defendant was present during the perpetration of the offense, that he maintained a close affiliation with his companions after the commission of the crime, and that he failed to report the crime are all factors that the trier of fact may consider in determining the defendant's legal accountability. [Citation.] Defendant's flight from the scene may also be considered in determining whether defendant is accountable. [Citation.] Evidence that defendant voluntarily attached himself to a group bent on illegal acts with knowledge of its design also supports an inference that he shared the common purpose and will sustain his conviction for an offence committed by another. [Citation.]"
Accord People v. Williams, 193 Ill. 2d 306, 338-39 (2000).
¶ 14 The State acknowledges that its case for defendant's accountability is circumstantial.
The State relies on four facts from which defendant's participation in a common design can be inferred, arguing as follows:
"Defendant  transported the shooter [i.e., Sanders] to the scene of the offense, and then  used his vehicle to force the victim to stop driving. When the victim was successfully stopped,  defendant repositioned his car so as to cut off all traffic in the victim's lane, trapping him. After co-defendant Sanders had opened fire,  defendant proceeded to drive up and allow Sanders to re-enter the vehicle." (State's Br. at 13-14.)
¶ 15 It is helpful to first discuss in detail what the State must prove in order to establish guilt by accountability. As defined in section 5-2(c), individuals can only be guilty by accountability under the common-design rule if they (1) intend to help the principal plan or commit the offense, (2) do some act that helps the principal plan or commit the offense, and (3) both form the requisite intent and perform the requisite act before or during the commission of the offense itself. See 735 ILCS 5/5-2(c) (West 2010). The crucial question in many cases, then, is at what point in time the defendant formed the intent to assist the principal and did a particular act that aided the principal. This makes the duration of the offense itself a key component of any analysis because any act performed or intent formed by the defendant after the offense is complete is irrelevant for the purpose of establishing accountability.
¶ 16 In People v. Dennis, 181 Ill. 2d 87, 101 (1998), the supreme court held that, "for purposes of accountability, the duration of the commission of an offense is defined by the elements of the offense." The focus of our analysis, therefore, is on whether the State has proven that defendant, either before or during the commission of the offense, intentionally aided or abetted Sanders in conduct that is an element of the offense. Cf. id. at 101-06 (examining the offense of armed robbery in order to determine its duration). In this case, defendant was found accountable for two of Sanders' crimes: aggravated battery with a firearm and aggravated discharge of a firearm. Individuals are guilty of aggravated battery with a firearm when they "[d]ischarge a firearm, other than a machine gun or a firearm equipped with a silencer, and causes any injury to another person," (720 ILCS 5/12-3.05(e)(1) (Supp. 2011) (formerly 720 ILCS 5/12-4.2(a)(1) (West 2010))*fn2 and they are guilty of aggravated discharge of a firearm when they "[d]ischarge a firearm in the direction of another person or in the direction of a vehicle he or she knows or reasonably should know to be occupied by a person" (720 ILCS 5/24-1.2(a)(2) (West 2010)). As is readily apparent from the language of the statutes, the first crime is ...