Appeal from the Circuit Court of Cook County No. 07 CR 18935 Honorable Neera Lall Walsh, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Lampkin
PRESIDING JUSTICE LAMPKIN delivered the judgment of the court, with opinion. Justice Reyes concurred in the judgment and opinion.
Justice Robert E. Gordon concurred in part and dissented in part, with opinion.
¶ 1 After a jury trial, defendant Destephano Flynn was convicted of first degree murder and attempted first degree murder and for personally discharging a firearm during each crime. He was sentenced to 66 years in prison.
¶ 2 On appeal, he contends that: (1) the State failed to prove that he was accountable for attempted murder because he did not assist the co-defendant in shooting the attempted murder victim and the State did not prove that the shooting of the attempted murder victim was an act in furtherance of the planned killing of the murder victim; and (2) the trial court erred by adding the 20-year firearm enhancement to defendant's sentences because the State did not prove that defendant was a principal in the murder and attempted murder offenses.
¶ 3 For the reasons that follow, we affirm defendant's convictions and sentences. We conclude that (1) the State proved beyond a reasonable doubt that defendant was guilty of attempted first degree murder on a theory of accountability; and (2) the trial court properly added the 20-year firearm enhancements to defendant's sentences for murder and attempted murder based on his personal discharge of a firearm
¶ 5 On August 4, 2001, there was a shooting during a dice game in Tilton Park at Lake Street and Kostner Avenue in Chicago. The park was in an area that the Dog Pound street gang claimed as its territory. Jermaine Collins, a drug dealer and member of the Unknown Vice Lords street gang, was shot several times and died. Billy Taylor was also shot as he fled the scene, but he survived the attack.
¶ 6 The State arrested and charged defendant in 2007 with the first degree murder of Collins, the attempted first degree murder of Taylor, aggravated battery with a firearm, and aggravated discharge of a firearm. The State alleged that Collins was shot eight times by Dog Pound members defendant, Deon Coleman, Robert Holly and a fourth, unknown male. The State also alleged that Taylor was shot a few times by co-defendant Darius Epting and Gregory Matthew, who were also Dog Pound members.
¶ 7 Simultaneous jury trials were held for defendant and co-defendant Epting in October 2010. At defendant's trial, the evidence established that, at 4:29 a.m. on August 4, 2001, the police responded to a call of a person shot in Tilton Park. Collins's dead body was facedown in a grassy area of the park. The police were notified that a second shooting victim had driven himself to the hospital. Cartridge cases, fired bullets and bullet fragments recovered at the scene indicated that multiple weapons were used with multiple calibers of ammunition made by different manufacturers. Collins had three $5 bills clutched in his right hand and one $50 bill and eleven $20 bills in his left hand. A .380-caliber cartridge case, stamped with the manufacturer's mark "RP," was recovered next to his body.
¶ 8 A blood trail on the sidewalk went north across Lake Street and down the sidewalk for about 60 feet. Along the blood trail, the police found several .25-caliber cartridge cases with the manufacturer's mark "CCI." Several copper-colored bullet fragments were located on the sidewalk and across the street from the park. Retired Chicago police officer and forensic investigator Arthur Oswald testified that the blood trail showed someone was bleeding and moving in close proximity to the crime scene. Investigator Oswald found a brass-colored cartridge near the curb. On the sidewalk in the blood trail, he found a larger aluminum cartridge case. Four fired .25-caliber cartridge cases, which were brass and had the manufacturer's mark "WW," were found on the street near Kostner Avenue across from the park. Two aluminum .25-caliber cartridge cases with the manufacturer's mark "CCI" were found on the north side of Lake Street across from the park. Another "CCI" automatic .25-caliber cartridge case was collected from the curb gutter at 4356 West Lake Street. A fired bullet was recovered on the north side of Lake Street across from where Collins's body was found. Copper-colored bullet fragments were recovered at 4356 and 4350 West Lake Street. The police also found a clear plastic bag that contained smaller plastic bags of suspected cannabis 46 feet southeast of Collins's body.
¶ 9 The autopsy revealed that Collins had eight gunshot wounds: five in his head, one in his neck, one in his back, and one in his leg. The stippling around the gunshot wound behind his left ear indicated that the weapon was within 18 to 24 inches of his body when it was fired. Bullets and bullet fragments were recovered from Collins's brain, neck, cheek and chest. A firearms examiner examined the bullets and fragments recovered from Collins's body. One bullet was a .390/.38 caliber. Three bullets were .22 caliber, but the examiner could not testify about whether those three bullets were fired from the same firearm or whether they were fired from a revolver or semiautomatic. He also could not determine the caliber of the fifth bullet or the two metal fragments.
¶ 10 Billy Taylor testified that, at the time of the shooting, he was
playing a dice game at the park. When he initially spoke to the police
after the shooting, he did not admit that he knew the shooters because
he was afraid for the safety of his family, who lived in the
neighborhood. Taylor did, however, tell the police that defendant and
Henry Clark were at the dice game. In 2003, two years after the
shooting and during an unrelated investigation, a confidential
informant, during a taped consensual overhear, spoke with Taylor, who
admitted that he knew more about the shooting than he had told the
police. That information, however, was not given to Detective John
Madden of the cold case unit of the Chicago police department until
October 2006. After the Collins's murder investigation was reopened,
an investigative alert was issued for Taylor, who was finally located
on April 6, 2007, when he was stopped for a traffic violation. By this
time, Taylor and his family had moved to the suburbs, so Taylor
cooperated with the police. Taylor identified co-defendant Epting as
the person who shot him in the back. Taylor also
identified defendant and Deon Coleman as
the people who shot at Collins.
¶ 11 Taylor testified that he was not a street gang member, but he played dice with Collins because Taylor loved to gamble and play high stakes games for thousands of dollars. When Taylor had played dice with Collins a few days before the August 4 shooting, they were playing for $1,500 or $2,000, and co-defendant Epting tried to grab Taylor's money off the ground. Collins, however, told Epting "no," that was not his money, and to "watch out." Epting walked away but he said something about the money being his. Taylor also saw defendant at that earlier dice game.
¶ 12 Taylor testified that he learned about the August 4 dice game from Henry Clark and arrived at the game around 9 or 10 p.m. Defendant, co-defendant Epting, Clark, Collins, and some of Collins's friends were also present. After five or six hours, the game started to wind down. Only Taylor and Collins were still playing; the others had drifted off to the side as they lost money. Then Deon Coleman, a person Taylor had never seen before, came from behind a parked car, pointed a gun at Collins's head, and started shooting at Collins and chasing him. Initially, Taylor just froze and saw defendant come from behind the car and chase Collins. Taylor then ran in the opposite direction, north on Kostner Avenue toward Lake Street. As co-defendant Epting chased Taylor, Taylor heard gunshots and was shot in his back. Epting was only three or four feet behind Taylor at that time. Initially, Taylor thought the attack was a robbery, so he dropped his money and his Rolex watch as he ran. Epting, however, kept chasing Taylor and the shooting continued, so Taylor realized this was more than a robbery. Taylor ran east on Lake Street, and Epting continued to chase him. Taylor turned around and tried to fight Epting. Epting pointed his gun at Taylor's head, so Taylor put both his hands up in front of his face. Epting fired the gun, and the bullet went through the palm of Taylor's right hand. When Taylor did not hear anymore gunshots, it seemed that Epting's gun either jammed or was out of bullets because Epting ran away. Taylor ran to his car on Kostner Avenue and drove to the hospital. The bullet in his back was too close to his spine to be removed, so there was no evidence presented at trial about the caliber of that bullet.
¶ 13 When Henry Clark was interviewed in prison by Detective Madden and Assistant State's Attorney Donald Lyman, he was serving a seven-year sentence for aggravated battery with a firearm. He also had several more felony convictions for domestic battery and criminal damage to property. He agreed to testify and was not promised anything in return for his cooperation. He stated that he was a member of the Dog Pound street gang along with defendant, co-defendant Epting, Robert Holly, Deon Coleman, and Gregory Matthews. Although Clark got along with Collins, the other members of the Dog Pound had problems with Collins because he was making money selling drugs in Tilton Park. Furthermore, defendant had conflicts with Collins that stemmed back to when they were both incarcerated together.
¶ 14 Clark testified that at the time of the shooting, he had been playing dice with defendant, co-defendant Epting, Collins, and Taylor. Some people in the game were getting mad because they were losing money and people started leaving. When defendant lost all his money, he and Epting left the game. Clark said defendant was a sore loser. Epting was also mad, but he did not lose as much money as defendant. About five minutes after defendant and Epting left, Clark heard his nephew whistle from a block away as a warning. Then Robert Holly and defendant ran up shooting at Collins. Epting fired a gunshot toward Taylor and chased him toward Lake Street. There was another shooter out there, but he wore a hooded sweatshirt and Clark could not see his face. Clark ran to his car and started to drive off, but he was flagged down by Epting. Clark gave Epting a ride and saw that he had blood on his shirt and was acting nervous. Clark dropped Epting off at North and Lockwood Avenues.
¶ 15 Clark testified that he spoke with defense investigator Mary Clements in 2010. He did not want to talk to her about Dog Pound business so he initialed changes she made to his grand jury testimony just to get rid of her. He did not pay attention to what she wrote on the transcript or crossed out. Clark stated that his grand jury testimony was truthful and denied telling Clements that defendant was not one of the shooters.
¶ 16 Mary Clements testified about her meeting with Clark. She corrected his grand jury statement to reflect what he told her, i.e., that after defendant and co-defendant Epting lost their money at the dice game, they left. According to Clements, Clark stated that when the shooting started, he saw only Robert Holly's gun and started running so that he would not get shot; Clark did not see defendant or co-defendant Epting.
¶ 17 Detective Madden questioned defendant after his arrest on August
10, 2007. Defendant's videotaped statement was published to the jury.
According to that statement, defendant left the park and eventually
went home and slept. Co-defendant Epting and Robert Holly came to
defendant's house after leaving the dice game and woke defendant up.
They told defendant that they wanted guns because Collins "got to go,"
which defendant understood to mean that Collins had to die. Defendant
kept guns hidden in a hollowed out teddy bear. He put a
revolver in his pocket and gave
co-defendant Epting a .38- or .357-caliber gun. Holly had a .357-, .44-
or .45-caliber revolver. Epting and Holly left defendant's house, and
defendant took his time putting on his shoes before following them
back to the park because he hoped the shooting would be over by the
time he got there. When he arrived at the park, he saw Holly shoot
Collins. Defendant admitted firing his gun once or twice in Collins's
direction but claimed that he was not trying to hit Collins and did
not know whether he actually hit Collins. Defendant also admitted that
he saw co-defendant Epting and Gregory Matthews shoot at Taylor.
Furthermore, defendant saw Holly go to Collins and shoot him at close
range in the head.
¶ 18 The jury found defendant guilty of first degree murder and attempted first degree murder and for personally discharging a firearm during each crime. Co-defendant Epting was acquitted by his jury. Defendant was sentenced to a total of 66 years in prison, which consisted of the consecutive sentences of 20 years for the murder plus 20 years for personally discharging a firearm during that murder, and 6 years for the Class X offense of attempted murder plus 20 years for personally discharging a firearm during that attempted murder.
¶ 20 A. Attempted First Degree Murder
¶ 21 Defendant contends the State failed to prove beyond a reasonable doubt that he was guilty of the attempted murder of Taylor under general accountability principles or the common-design rule because the shooting of Taylor was not an act in furtherance of the planned killing of Collins and defendant did not assist co-defendant Epting in shooting Taylor.
¶ 22 When the sufficiency of the evidence is challenged, a criminal conviction will not be set aside unless the evidence, when viewed in the light most favorable to the prosecution, is so improbable or unsatisfactory that a rational trier of fact could not have found the essential elements of the crime beyond a reasonable doubt. People v. Gilliam, 172 Ill. 2d 484, 515 (1996). The reviewing court may not retry the defendant. People v. Rivera, 166 Ill. 2d 279, 287 (1995). The trier of fact determines the credibility of the witnesses, the weight given to their testimony, and the reasonable inferences drawn from the evidence. People v. Enis, 163 Ill. 2d 367, 393 (1994).
¶ 23 The law is clear that a person may be held accountable for the conduct of another in certain limited circumstances. A person is legally accountable for the conduct of another if "[e]ither 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." 720 ILCS 5/5-2(c) (West 2010). "Where one attaches himself to a group bent on illegal acts which are dangerous or homicidal in character, or which will probably or necessarily require the use of force and violence that could result in the taking of life unlawfully, he becomes accountable for any wrongdoings committed by other members of the group in furtherance of the common purpose, or as a natural or probable consequence thereof even though he did not actively participate in the overt act itself." People v. Morgan, 39 Ill. App. 3d 588, 597 (1976). See People v. Kessler, 57 Ill. 2d 493, 496-97 (1974) (where the defendant had jointly planned a burglary, he was accountable for the conduct of others in the attempt murder of the store owner and a policeman).
"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 ...