People v. Henderson

2024 IL App (1st) 220041-U

• Court: Appellate Court of Illinois
• Decided: February 13, 2024
• Docket: 1-22-0041
• Status: Unpublished

Opinion

2024 IL App (1st) 220041-U No. 1-22-0041 Order filed February 13, 2024 Second Division

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 18 CR 6747 02 ) ANTONIO HENDERSON, ) Honorable ) Michael R. Clancy, Defendant-Appellant. ) Judge, presiding.

JUSTICE ELLIS delivered the judgment of the court. Justices McBride and Cobbs concurred in the judgment.

ORDER

¶1 Held: Affirmed. Statement made by co-defendant was properly admitted. Evidence was sufficient to find defendant guilty of first-degree murder and attempted murder on accountability theory.

¶2 The trial court found defendant Antonio Henderson accountable for the murder of Warren

Strenger, and the attempted murders of Travis Willis and Dexter Pope (and lesser, now merged,

offenses of aggravated battery and aggravated discharge). The shooter, codefendant Anthony

Bell, was tried separately and is not a party to this appeal. The evidence at the bench trial was No. 1-22-0041

largely undisputed; the key question was whether defendant, who drove Bell to and from the

scene of the shooting, was thus accountable for Bell’s conduct. Defendant argues on appeal that

the evidence was insufficient to establish his accountability, and that the trial court based its

accountability finding on an inadmissible hearsay statement by Bell.

¶3 The shooting took place in a Home Depot parking lot on April 17, 2018. The principal

occurrence witnesses for the State were Pope (the uninjured attempted-murder victim) and two

women, Jocelyn Johnson and Troyci Shelton, who were with defendant and Bell. Willis (the

injured attempted-murder victim) was killed in an unrelated incident before the trial.

¶4 The three victims, Pope, Strenger, and Willis, all worked at a Walmart not far from the

scene of the shooting. Pope testified that they took a break together and walked to a nearby

liquor store. Along the way, they passed through a Home Depot parking lot. A dark van was

parked beside the store. Pope noticed a man standing near it.

¶5 The parties stipulated that the man was Bell, whom Pope later identified as the shooter in

a line-up. Bell approached the victims, with his hands in his pockets or under his belt. It was not

evident to Pope at first, but as it turned out, Bell was concealing a gun. Bell asked Strenger his

name or where he was from. Strenger turned toward Bell as he spoke. In short order, Bell took

out a gun from somewhere on “his side” and fired several shots. Strenger and the others ran.

When the shooting stopped, Strenger said to Pope, “I’m hit, bro,” just before collapsing. Willis

had also been shot. Pope lost sight of Bell, but he saw the van driving away, with the police

already in hot pursuit.

¶6 Pope called 911. The paramedics took Strenger and Willis to the hospital. Strenger died

of two gunshot wounds to the back. Willis was shot once in the right forearm.

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¶7 Johnson and Shelton helped fill in some of the details and background context. Johnson,

who used to date defendant, and Shelton, her cousin, were both staying with defendant. Bell was

defendant’s friend and often spent time with them. On the evening of the shooting, they all went

to an Auto Zone, next to the Home Depot, to fix the radio in a van that defendant and Johnson

owned together. Defendant drove; Johnson sat in the front passenger’s seat, and Shelton and Bell

sat behind defendant and Johnson, respectively.

¶8 Defendant parked in the lot outside the Auto Zone. While they were waiting for someone

to come to fix the radio, Shelton saw three men walk behind the van, heading toward the Home

Depot. She also noticed defendant and Bell “looking at them” and then making eye contact with

each other. Defendant told Johnson to go to the back of the van, meaning the third row of seats,

which she did. (Johnson, for her part, said she went there to get some chips.)

¶9 According to Johnson, Bell said “something like” this to defendant: “there they go” or

“that ain’t never them.” Over a hearsay objection by the defense, the trial court admitted Bell’s

statement as that of a co-conspirator, made during and in furtherance of the conspiracy, and thus

as a hearsay exclusion pursuant to Rule 801. See Ill. R. Evid. 801(d)(2)(E) (eff. Jan. 1, 2011).

More on this ruling later.

¶ 10 Upon hearing Bell’s statement, defendant put the van in reverse and drove toward the

Home Depot. Shelton heard defendant and Bell having “a small conversation,” but she was on

the phone and did not hear what they said. Defendant parked at the Home Depot, near the three

men, with the passenger’s side of the van—where Bell was sitting—closest to them. Bell got out

of the van and left the door open. After a “very short” conversation with the men, Bell opened

fire. Johnson saw gunfire coming from Bell but could not see the gun; Shelton saw the gun and

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said it was black. The men ran across the street. Bell got back into the van and said that the

police were around (which ended up being true).

¶ 11 Defendant quickly drove off, dodging traffic, and headed toward the expressway. Shelton

and Johnson asked to get out of the van, but defendant wouldn’t stop. Johnson also asked why

defendant and Bell were putting her and Shelton in this “predicament.” She received no answer.

¶ 12 Defendant led the police on a high-speed chase. Johnson, Shelton, various Chicago police

officers, and surveillance footage all provided some of the details of the pursuit. In short, Officer

Pankey saw the shooting and immediately gave chase as the van left the Home Depot parking lot

and headed onto the Dan Ryan Expressway. Defendant drove erratically, in and out of lanes, hit

a semitruck, and eventually crashed into the median.

¶ 13 Defendant, whom Officer Pankey identified as the driver, fled on foot, hopped the

security gate at the CTA Red Line station at 95th Street, and emerged on the north side of the

expressway. Officers Diaz and DeWitt saw defendant trying to hide under a pedestrian bridge

over the expressway. Defendant was non-compliant as the officers detained him. The arrest was

captured on Officer Diaz’s body cam.

¶ 14 The police caught up to Bell, who had also fled on foot, on an expressway exit ramp.

Johnson and Shelton were arrested in the van and taken to the station for questioning. They both

acknowledged, on cross-examination, that they were less than candid with the police at first,

since they were both “scared.” Eventually, however, they cooperated and told the truth. Johnson

identified defendant and Bell. Shelton identified a photo of defendant.

¶ 15 A search of the van revealed a loaded, black, Glock semiautomatic handgun under the

driver’s seat. Three fired cartridge cases were recovered from the scene of the shooting, all of

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which were fired from the gun found in the van. The gun had no prints suitable for comparison,

and a mixture of DNA from at least four different people was not suitable for comparison to

known DNA standards. Testing revealed no evidence of gunshot residue on defendant’s hands.

¶ 16 The trial court found that defendant was accountable for Bell’s offenses against the three

victims. After denying a post-trial motion, in which defendant preserved his hearsay objection to

Bell’s statement, the court imposed an aggregate prison sentence of 56 years.

¶ 17 Defendant argues that the trial court erred in admitting Bell’s statement, “that ain’t never

them,” or “there they go,” as Johnson testified. The defense, the State, and the trial court have all

taken for granted, as an assumed premise and starting point of the analysis, that Bell’s statement

was an assertion of fact offered to prove the truth of the matter that Bell asserted. Or in other

words, that Bell’s statement, on its face, was hearsay. Ill. R. Evid. 801(a),(c) (eff. Jan. 1, 2011).

¶ 18 As a result, the parties and the trial court have all assumed that the admissibility of Bell’s

statement rises or falls on whether it fell under the co-conspirator statement rule in Illinois Rule

of Evidence 801(d)(2)(E) (eff. Jan. 1, 2011). This rule provides that a “statement,” defined as an

“assertion” of fact, “is not hearsay” if it “is offered against a party” and was made “by a

coconspirator of a party during the course and in furtherance of the conspiracy.” Id.

¶ 19 The co-conspirator statement rule is not uncommonly referred to as a hearsay exception,

but properly speaking, it is a hearsay exclusion: it excludes certain types of statements from Rule

801’s definition of hearsay, even though the statements, on their face, would appear to be nothing

but hearsay. The statements of a party-opponent, for example, are excluded in this way from the

definition of hearsay. Id. § 801(d)(2). Consider a party’s own admission of a relevant fact: it can

be used to prove the fact admitted, even though that use obviously fits Rule 801’s general

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definition of hearsay, and thus it would be hearsay, if the rule did not expressly exclude it from

the definition. Id. § 801(d)(2)(A).

¶ 20 Rule 801’s category of “statement by party-opponent” includes various types of vicarious

statements, so to speak, made by the party’s agent, someone in privity, or, as relevant here, a co-

conspirator in a criminal endeavor. Id. § 801(d)(2)(C)-(F). But before a co-conspirator’s

assertion of fact can be used against a defendant, as if it were the defendant’s own statement, the

State must show that there was a conspiracy. Under Illinois’s version of this requirement, the

State must make a prima facie showing of a conspiracy through “independent” evidence—that is,

without relying on the statement in question. People v. Caraga, 2018 IL App (1st) 170123, ¶ 38.

¶ 21 It bears emphasis that the co-conspirator statement rule applies to statements that would

otherwise be hearsay, if not for this exclusion. See id. ¶ 50 (trial court did not err in “admitting

the challenged hearsay statements under the co-conspirator exception”). Indeed, it would make

no sense to specifically define certain types of statements out of the hearsay rule if they did not

fall within the general definition in the first instance.

¶ 22 Thus, if a statement is offered for a purpose other than its truth—or if it is not a statement

at all, but rather a verbal act or some utterance that does not qualify as a factual assertion—it is

unnecessary to determine the admissibility of the statement by applying the co-conspirator

statement rule.

¶ 23 The trial court, though in fairness following the parties’ lead, made that error here. The

court found that the State made a prima facie showing of a conspiracy through independent

evidence and thus admitted Bell’s statement as that of a co-conspirator during the course and in

furtherance of that conspiracy (to shoot the victims). The correct ruling is that the statement was

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admissible because it was not offered for its truth; it was not hearsay in the first place.

¶ 24 We may affirm an evidentiary ruling on any basis that is supported by the record. People

v. Rudd, 2020 IL App (1st) 182037, ¶ 61. Whether a statement is hearsay is a legal question that

we review de novo. People v. Padilla, 2021 IL App (1st) 171632, ¶ 120.

¶ 25 The State was not out to prove the truth of any fact that Bell may have announced. Bell

reportedly said either, “that ain’t never them,” or “there they go.” The point of offering this

statement was not to prove who “they” were, or where “they” were going, or anything else along

those lines. There was no issue at trial as to the victims’ identities or where they were going.

Rather, the point was simply to narrate the events leading up to the shooting and to explain why

defendant acted as he did. In particular, defendant went to the Auto Zone to get his van radio

fixed, yet he decided to up and leave after a few minutes, without achieving that goal. Why?

Because Bell spotted the victims walking by. In response, defendant drove directly to them,

waited for Bell to shoot them, and then sped away from the scene with Bell and the others in

tow. Statements that narrate events and give context to a defendant’s actions are not hearsay.

¶ 26 Bell’s statement undoubtedly bears on defendant’s intent to facilitate the shootings and

thus on his accountability for Bell’s crimes. But that does not make it hearsay, or a statement of a

co-conspirator within the meaning of Rule 801(d)(2)(E). Bell’s statement was admissible, but not

for the reasons given or argued; it was admissible because it was not offered for its truth.

¶ 27 Defendant also argues that the evidence was insufficient to establish his accountability

for Bell’s crimes. To this end, defendant concedes that he aided Bell’s flight from the police after

the shooting. But, he says, there was insufficient evidence that he intended to facilitate the

offenses “either before or during [their] commission.” 720 ILCS 5/5-2(c) (West 2016).

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¶ 28 A person is legally accountable for another’s conduct if “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.” Id. The State may prove a defendant’s intent by showing that he shared the criminal

intent of the principal or that there was a common criminal design. People v. Fernandez, 2014 IL

115527, ¶ 21. If there was a common criminal design, all parties bear equal responsibility for the

consequences of any acts in furtherance of it. Id. ¶ 13.

¶ 29 The State need not prove a verbal agreement; a common criminal design can be inferred

from the circumstances. People v. Carr-McKnight, 2020 IL App (1st) 163245, ¶ 67; People v.

Cowart, 2017 IL App (1st) 113085-B, ¶ 34. But a defendant’s “mere presence” at the scene is

insufficient to establish accountability, even if coupled with his flight from the scene or

knowledge that a crime has been committed. People v. Johnson, 2021 IL App (1st) 171885, ¶ 88.

¶ 30 In reviewing a conviction based on a theory of accountability, we apply the deferential

Jackson standard, which, we trust, needs no further introduction. People v. James, 2017 IL App

(1st) 143391, ¶ 41; see Jackson v. Virginia, 443 U.S. 307, 319 (1979). Viewing the evidence in

the light most favorable to the State, a rational trier of fact could find defendant accountable for

Bell’s crimes. And the question is not a particularly close one, so we can be brief.

¶ 31 Defendant drove to the Auto Zone to get his van radio fixed. He waited for about five

minutes, when the victims walked by, toward the Home Depot. Defendant and Bell looked at

each other, and Bell said something that ultimately had the meaning, “that’s them,” though his

exact words were somewhat different. It is more than reasonable to infer that defendant and Bell

not only knew the victims but were looking for them. Defendant told Johnson to get in the back

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of the van. As the trial court noted in its findings, it was also reasonable to infer that defendant

was showing some concern for Johnson’s safety because he knew what was about to happen and

understood the danger it presented.

¶ 32 Defendant then left the Auto Zone, without getting his radio fixed, and pulled up to the

victims near the Home Depot. He parked with the passenger’s side of the van closest to them, so

that Bell, the shooter, had the easiest access—and the quickest getaway—possible. The fact that

defendant moved the van and parked in this fashion, with no instruction from Bell, reasonably

suggests that there was a prior plan, and that defendant understood what Bell would do and how

he would help Bell do it.

¶ 33 Defendant stayed put, with the van door open on Bell’s side, while Bell approached the

three victims and opened fire before promptly returning to the van. The events unfolded “quickly

and seamlessly,” in the trial court’s description, which again supported a finding that defendant

and Bell “knew what they planned to do.”

¶ 34 Defendant collected Bell, took off, and refused to lose a step to the police by stopping to

let the women out of the van, as they requested. He led the police on a high-speed chase down

the expressway and then, after he crashed, on a foot chase, through a CTA station and back out

onto the expressway, until the police caught up with him under a pedestrian bridge and forcibly

arrested him in the face of his non-compliance. Though the getaway probably didn’t go quite as

planned, defendant was nonetheless the “getaway driver” in what the trial court described as a

“classic case of accountability.”

¶ 35 Indeed, “[t]he law holds the getaway driver accountable for the crime,” provided that his

intent to facilitate the offense did not arise purely after the fact. People v. Jones, 2015 IL App

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(1st) 142597, ¶ 22; see 720 ILCS 5/5-2 (West 2016). Here, there was ample evidence that

defendant knew what Bell was up to and intended to help him. And while not dispositive, his

continued flight from the police, throughout the dramatic chase, was also circumstantial evidence

that the factfinder could consider. People v. Aljohani, 2021 IL App (1st) 190692, ¶¶ 96-100.

¶ 36 Defendant relies on two cases (both involving defendants named Anthony Johnson) that

stand for the general proposition that an unwitting getaway driver is not accountable for the

crime. In Johnson, 2021 IL App (1st) 171885, ¶ 103, the defendant was a freelance taxi driver,

who drove his passenger to and from a shooting without knowing that he was armed or what he

planned to do. In People v. Johnson, 2014 IL App (1st) 122459-B, ¶¶ 141, 151, the defendant

testified that he didn’t know the shooter’s plans or that he was armed. He followed the victim

because his passenger, the shooter, said that he wanted to “holler at that guy,” and he drove the

shooter away from the scene, after the shooting, simply because he was afraid of him.

¶ 37 Our facts are nothing like either Anthony Johnson case. Though largely circumstantial,

the evidence here supports a reasonable inference that defendant was in on the plan to shoot the

victims, and that he did his part—both before and after the fact—to facilitate the shootings. Thus,

a reasonable trier of fact could find that defendant was accountable for the murder of Strenger

and the attempted murders of Willis and Pope.

¶ 38 For these reasons, we affirm the judgment of the circuit court of Cook County.

¶ 39 Affirmed.

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