People v. Baney

595 N.E.2d 188, 229 Ill. App. 3d 770, 172 Ill. Dec. 125, 1992 Ill. App. LEXIS 901
CourtAppellate Court of Illinois
DecidedJune 10, 1992
Docket2-90-1121
StatusPublished
Cited by3 cases

This text of 595 N.E.2d 188 (People v. Baney) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Baney, 595 N.E.2d 188, 229 Ill. App. 3d 770, 172 Ill. Dec. 125, 1992 Ill. App. LEXIS 901 (Ill. Ct. App. 1992).

Opinion

JUSTICE McLAREN

delivered the opinion of the court:

Edward Baney, defendant, was found guilty of the offense of first degree murder (Ill. Rev. Stat. 1989, ch. 38, par. 9 — 1) by a general verdict entered by a jury. He was sentenced to a term of 25 years’ imprisonment. The sole issue on appeal is whether the jury should have been given an instruction on the offense of reckless conduct. For the following reasons, we affirm.

In the early afternoon of January 27, 1990, defendant, age 16, drove his friends Christopher Ster, age 17, and Richard Ster, age 15, to the North Suburban Library in Loves Park, Illinois. On the ride to the library Christopher stated, without any apparent prodding, that he wanted to kill somebody. Approximately 15 minutes after Christopher made this statement, defendant gave him a butterfly knife with a six-inch blade.

After arriving at the library, the boys looked at some books on martial arts and returned outside. At this time, Christopher stated that he wanted to steal a woman’s purse. Defendant went to move his car to a nearby alley, upon suggestion by Christopher, while the Sters returned to the library. While the Ster brothers were in the restroom, the victim, George Reger, age 73, entered. As the victim was about to leave, Christopher embedded the knife into his neck. While the victim attempted to remove the knife, Christopher instructed Richard to take his wallet. Richard walked over to the victim, but was frightened by the amounts of blood. Both boys ran from the library through the back door and into defendant’s automobile, which was now parked across the street. While in the automobile, Christopher stated that he killed someone. Both boys knelt on the floorboards while defendant drove home. After Christopher cleaned the knife, defendant returned home and put it in a box. The knife was later recovered by Loves Park police officer Steve Dickson pursuant to a search. A test of the knife disclosed a bloodstain consistent with the blood of the victim.

The victim was still alive after the stabbing. He was taken to the hospital, where he died later that day. An autopsy revealed that the victim incurred three stab wounds to the back of the neck. One substantial wound was one inch wide and three inches deep. The cause of death was determined to be hemorrhagic shock due to the stab wound which injured the vertebral artery.

On January 30, 1990, defendant was charged by indictment with the offense of first degree murder in that he intended to kill or do great bodily harm to the victim. (Ill. Rev. Stat. 1989, ch. 38, par. 9— 1(a)(1).) An amended bill of indictment, filed April 24, 1990, added a second count of felony first degree murder, in that defendant killed the -victim while attempting to commit the forcible felony offense of robbery. (Ill. Rev. Stat. 1989, ch. 38, par. 9 — 1(a)(3).) Christopher Ster, whose cause proceeded separately, was also named as a defendant in each count.

Defendant’s case proceeded to a jury trial, where the State proceeded on an accountability theory. At the instruction conference, the defense tendered an instruction on reckless conduct as a lesser included offense. (See Illinois Pattern Jury Instructions, Criminal, No. 11.13 (2d ed. 1981).) The instruction was denied, and the court instructed the jury on the two alternate first degree murder charges of the amended indictment. The jury returned a general verdict of guilty of first degree murder.

On appeal, defendant contends that the court should have instructed the jury on the offense of reckless conduct as a lesser included offense of first degree murder based solely on defendant’s own conduct in relation to the offense. However, defendant was not charged with the offense of reckless conduct. A defendant cannot be convicted of an offense for which he was not charged unless the offense for which he was found guilty is a lesser included offense of the one charged. (People v. Schmidt (1988), 126 Ill. 2d 179, 183.) Under Schmidt, the court may not give an instruction on a lesser uncharged offense unless it is a lesser included offense of the offense charged. (People v. Booker (1991), 214 Ill. App. 3d 286, 288-89; see also People v. Austin (1991), 216 Ill. App. 3d 913, 916.) An included offense “[i]s established by proof of the same or less than all of the facts or a less culpable mental state (or both), than that which is required to establish the commission of the offense charged.” (Ill. Rev. Stat. 1989, ch. 38, par. 2 — 9(a).) Stated differently, a lesser included offense is one where its elements are subsumed in the greater offense so that it is impossible to commit the greater offense without committing the lesser included offense. (People v. Maldonado (1992), 224 Ill. App. 3d 913, 917; Austin, 216 Ill. App. 3d at 916.) An instruction on a lesser included offense will be given upon a defendant’s request if there is slight evidence in support of the offense. (People v. Ivory (1991), 217 Ill. App. 3d 619, 623.) However, “an included-offense instruction is required only in cases where the jury could rationally find the defendant guilty of the lesser offense and not guilty of the greater offense.” People v. Perez (1985), 108 Ill. 2d 70, 81, citing Hopper v. Evans (1982), 456 U.S. 605, 612-13, 72 L. Ed. 2d 367, 373-74, 102 S. Ct. 2049, 2053-54; see also Ivory, 217 Ill. App. 3d at 623.

In this case, defendant was convicted of first degree murder on an accountability theory. The law of accountability provides that where two or more individuals engage in a common criminal design, any acts committed by one party are considered acts of the entire group, which can be imputed to every member of the group. (People v. Carlson (1992), 224 Ill. App. 3d 1034, 1045.) To establish a defendant’s legal accountability for a crime, in this case first degree murder, the State must prove, beyond a reasonable doubt, that the accused solicited, aided, abetted, agreed, or attempted to aid another person in the planning or commission of the offense, that such participation occurred either before or during perpetration of the crime, and that this participation was with concurrent specific intent to promote or facilitate commission of the offense. (Ill. Rev. Stat. 1989, ch. 38, par. 5— 2(c); see also People v. Holloway (1991), 225 Ill. App. 3d 47, 53.) The key element of accountability is affirmative conduct by the accomplice which aids, encourages, or entices the principal to commit the illegal act. (Holloway, 225 Ill. App. 3d at 53.) The specific intent to promote or facilitate the crime necessary to find a defendant guilty of any offense on this theory can be shown by evidence that defendant and the principal shared a community of unlawful purpose. (People v. Willis (1991), 217 Ill. App. 3d 909, 922.) Important factors are a defendant’s presence during the perpetration of the offense, whether he maintained a close affiliation with his companions after the offense was committed, and whether he fled from the scene or reported the crime. People v. Coleman (1991), 223 Ill. App. 3d 975, 992.

In contrast to the mental state of intent required to find a defendant guilty on an accountability theory, a person commits the offense of reckless conduct “if he performs recklessly the acts which cause the harm or endanger safety, whether they otherwise are lawful or unlawful.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 38, par.

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Bluebook (online)
595 N.E.2d 188, 229 Ill. App. 3d 770, 172 Ill. Dec. 125, 1992 Ill. App. LEXIS 901, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-baney-illappct-1992.