People v. Kelly

2020 IL App (1st) 170740-U

• Court: Appellate Court of Illinois
• Decided: February 6, 2020
• Docket: 1-17-0740
• Status: Unpublished

Opinion

2020 IL App (1st) 170740-U No. 1-17-0740 Order filed February 6, 2020 Fourth Division

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party 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. 14 CR 15204 ) ROBERT KELLY, ) Honorable ) Matthew E. Coghlan, Defendant-Appellant. ) Judge, presiding.

JUSTICE BURKE delivered the judgment of the court. Presiding Justice Gordon and Justice Lampkin concurred in the judgment.

ORDER

¶1 Held: Defendant’s conviction for aggravated discharge of a firearm in the direction of an occupied vehicle is affirmed where the State presented sufficient evidence of defendant’s guilt under a theory of accountability.

¶2 After a bench trial, the trial court found defendant Robert Kelly guilty of aggravated

discharge of a firearm in the direction of an occupied vehicle under a theory of accountability

and sentenced him to four years’ imprisonment. On appeal, defendant argues that the evidence No. 1-17-0740

failed to prove his accountability for the offense beyond a reasonable doubt. For the following

reasons, we affirm.

¶3 An indictment charged defendant and Shaquan Griffin with six counts of attempt first

degree murder (720 ILCS 5/8-4(a) (West 2014); 720 ILCS 5/9-1(a)(1) (West 2014)), one count

of aggravated battery with a firearm (720 ILCS 5/12-3.05(e)(1) (West 2014)), and one count of

aggravated discharge of a firearm in the direction of an occupied vehicle (720 ILCS 5/24-

1.2(a)(2) (West 2014)). Both defendants were tried simultaneously. 1

¶4 At trial, Rashad Jackson 2 testified that early on July 20, 2014, he was at the lakefront

with his sister, Kinesha Jackson, 3 his cousin Christian Johnson, 4 and defendant. Rashad denied

drinking alcohol or feeling intoxicated while there. At some point, Rashad drove to his friend’s

home on the 8600 block of Burnham Avenue. Rashad parked and went inside the home, where

he had a “[h]ostile” interaction with defendant. Rashad then went outside and talked to Johnson

and Kinesha on the street. Thereafter, defendant came outside “cracking his knuckles” and

saying he “wanted to fight.” Defendant and Johnson started fighting, and when they separated,

defendant picked up a flowerpot and tried to throw it at Johnson. Rashad stopped defendant from

throwing the flowerpot and fought with defendant. After they punched each other, defendant

said, “I’ll be back,” and drove away in a gray Montecarlo, which Rashad had seen him drive

before.

1 Griffin was found not guilty of attempt first degree murder and guilty of aggravated battery with a firearm and aggravated discharge of a firearm in the direction of an occupied vehicle. He is not a party to this appeal. 2 Rashad testified that he was in custody on a probation violation after pleading guilty to failure to report an accident involving death. He denied that the prosecutor made any promises about that case based on his testimony in this matter. 3 Because Rashad and Kinesha have last names in common, we refer to them by their first names. 4 Johnson is also referred to as Christian Jackson in the record.

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¶5 Rashad wanted to leave before defendant returned, and started to drive away. As he did

so, defendant’s vehicle exited an alley onto Burnham. Rashad drove the wrong way down

Burnham towards Johnson and Kinesha to pick them up. Rashad then saw defendant exit from

the passenger seat of his vehicle and he saw Griffin exit the driver’s seat. Rashad started to exit

his vehicle, and he heard defendant say to Griffin, “there he go, right there.” Griffin then raised a

firearm and pointed it in Rashad’s direction. Rashad jumped in his vehicle, reversed down the

street, and heard three gunshots.

¶6 On cross-examination, Rashad testified that on the day of the shooting he gave a

statement to the State’s Attorney and a detective. In his statement, Rashad said he had one beer

while at the lake, but at trial, Rashad testified that he had the beer prior to going to the lake.

Rashad’s statement did not include that he prevented defendant from throwing a flowerpot, that

defendant exited the Montecarlo after driving from the alley onto Burnham, or that defendant

pointed Rashad out to Griffin. Rashad also explained at trial that he and defendant argued that

day because Rashad told defendant that he did not want to hang out with defendant anymore.

After this argument, defendant went onto the roof of the house before joining Rashad on the

street. On redirect examination, Rashad testified that “[n]ot even a minute” passed from the time

defendant pointed him out to Griffin and the time that he heard gunshots.

¶7 Kinesha testified that when she arrived at the home on Burnham, defendant was on the

roof, Rashad was in the street, and she heard yelling. Kinesha remained in her vehicle on her

phone and watched defendant and Rashad fight after defendant came down onto the street. From

inside her vehicle, Kinesha heard defendant say, “I’ll be back” before leaving in a gray

Montecarlo.

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¶8 Rashad started to drive away in his own vehicle, but turned around when defendant’s

vehicle approached Kinesha’s vehicle. Kinesha watched in her driver’s side mirror as Griffin

exited the Montecarlo’s driver’s seat, yelled at Rashad, and pointed a firearm at Kinesha’s

vehicle. Kinesha heard three gunshots, her rear window shattered, and she felt pain in her upper

right shoulder. She hit the accelerator while Rashad drove his own vehicle backwards down the

street in front of her. Later, she found bullet holes in her headrest. She was treated at the scene

for a gunshot wound to her shoulder.

¶9 On cross-examination, Kinesha testified that Rashad had already driven away when

defendant said that he would be back. Her written statement to police did not mention that

defendant was in the Montecarlo when it returned or that defendant pointed at Rashad and said,

“That’s him.”

¶ 10 On redirect examination, Kinesha testified that defendant exited his vehicle after it turned

from the alley onto Burnham. On recross-examination, she acknowledged that she did not

include that information in her written statement.

¶ 11 Detective Ryan Miller testified that on July 20, 2014, he investigated a shooting near the

8600 block of Burnham, during which he spoke with Rashad and Kinesha. He observed

Kinesha’s aqua-colored vehicle on the 2700 block of 85th Street and a gray Chevrolet

Montecarlo on the 8500 block of Muskegon Avenue. Rashad entered Miller’s vehicle and stated

he knew where the shooter lived. Miller drove to that location, which was later determined to be

Griffin’s home. At the police station, Rashad and Kinesha identified Griffin and defendant in

photo arrays. On cross-examination, Miller testified that when he arrived at the crime scene, all

the witnesses were sitting together in Rashad’s vehicle.

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¶ 12 The State entered several stipulations into evidence. If called, Chicago police officer

Michael Gaines would testify that between 5:30 and 6 a.m. on July 20, 2014, Rashad flagged him

down and identified a gray Chevrolet located on the 8500 block of Muskegon. Gaines placed his

hand on the engine of the vehicle and found it to be warm. Evidence technician Michael Emmet

would testify that he photographed an aqua-colored Hyundai, from which he recovered a fired

bullet fragment, and a gray Chevrolet. Evidence technician Elizabeth Vera would testify that she

performed a gunshot residue kit on the steering wheel of the gray Chevrolet. Forensic scientist

Ellen Chapman would testify that the gunshot residue kit showed that the steering wheel

contacted a gunshot residue related item or was in the environment of a discharged firearm.

Chicago police officers Maraffino and Dent 5 would testify that they arrested defendant on

August 13, 2014.

¶ 13 The defense called Kanye Smith-Wilkerson, who testified that she was at her residence

on Burnham on July 19, 2014. Smith-Wilkerson saw defendant, whom she knew, “getting beat

up” by two men and one woman on the street. Smith-Wilkerson broke up the fight and defendant

went into her home with her. Ten to fifteen minutes later, while she and defendant were inside,

Smith-Wilkerson heard gunshots. On cross-examination, Smith-Wilkerson testified that

defendant and Griffin are friends, defendant drives a Montecarlo, and she went to court that day

with defendant’s mother.

¶ 14 The trial court found defendant not guilty of attempt first degree murder and guilty under

a theory of accountability of aggravated battery with a firearm and aggravated discharge of a

firearm in the direction of an occupied vehicle. In so doing, the court noted that defendant was

5 Maraffino’s and Dent’s first names do not appear in the record.

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“centrally involved” in bringing Griffin to the scene because the evidence established that

defendant fought with Rashad, said that he would be back, and then returned with Griffin, who

was armed. It concluded that defendant and Griffin had “the common design to return and exact

some type of revenge and retribution” on those who had maltreated defendant.

¶ 15 At the hearing on defendant’s motion for a new trial and arrest of judgment, he argued

the State failed to prove his accountability beyond a reasonable doubt because no evidence

showed a common scheme or design. Defendant asserted that Griffin’s actions were not

foreseeable because Griffin fired at Kinesha, with whom defendant had not argued, and no

evidence showed that defendant knew Griffin had a firearm. With reference to the “sentencing

schemes” of the offenses, the trial court granted defendant’s motion in part and found him not

guilty of aggravated battery with a firearm. Following a hearing, the court sentenced defendant to

four years’ imprisonment for aggravated discharge of a firearm in the direction of an occupied

vehicle.

¶ 16 On appeal, defendant argues that the State failed to prove him guilty of aggravated

discharge of a firearm under a theory of accountability where no evidence established a common

scheme, design, or a shared criminal intent with Griffin, and Rashad’s testimony was impeached

concerning key aspects of defendant’s involvement and conflicted with Kinesha’s testimony.

¶ 17 In a challenge to the sufficiency of the evidence, the question on review is whether, after

viewing the evidence in the light most favorable to the State, any rational trier of fact could have

found the elements of the crime proven beyond a reasonable doubt. People v. Harris, 2018 IL

121932, ¶ 26. We do not retry the defendant or substitute our own judgment for the trier of fact’s

on matters of the weight of testimony, the resolution of conflicts in the evidence, and which

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inferences to draw from the evidence. Id. Instead, we draw all reasonable inferences in the

State’s favor, and will reverse a conviction only if the evidence is “so improbable or

unsatisfactory” that there remains a reasonable doubt as to the defendant’s guilt. Id.

¶ 18 A person is guilty of aggravated discharge of a firearm in the direction of an occupied

vehicle where he knowingly or intentionally “[d]ischarges a firearm in the direction of *** a

vehicle he *** knows or reasonably should know to be occupied by a person.” 720 ILCS 5/24-

1.2(a)(2) (West 2014). Defendant does not challenge the sufficiency of the evidence regarding

the underlying offense, but only argues that the State failed to prove beyond a reasonable doubt

that he was guilty under a theory of accountability. A person is legally accountable for another’s

criminal conduct, where, with the intent to “promote or facilitate” the commission of an offense,

the defendant “solicits, aids, abets, agrees or attempts to aid that other person in the planning or

commission of the offense.” 720 ILCS 5/5-2(c) (West 2014).

¶ 19 Although mere presence is insufficient to establish accountability, a defendant need not

actively participate in the commission of the offense to be held accountable for it. People v.

Taylor, 164 Ill. 2d 131, 140 (1995). A defendant’s intent to promote or facilitate an offense may

be shown through evidence that the defendant either shared the intent of the principals or entered

a common criminal design with them. People v. Fernandez, 2014 IL 115527, ¶ 13. The supreme

court has explained that:

“Under the common-design rule, if two 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 design or agreement and all are

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equally responsible for the consequences of the further acts.” (Internal quotation marks

omitted.) Id.

A factfinder “may infer accountability from ‘the circumstances surrounding the perpetration of

the unlawful conduct,’ including ‘the defendant’s presence during the commission of the offense,

the defendant’s continued close affiliation with other offenders after the commission of the

crime, the defendant’s failure to report the incident, and the defendant’s flight from the scene.’ ”

People v. Doolan, 2016 IL App (1st) 141780, ¶ 43 (quoting People v. Batchelor, 171 Ill. 2d 367,

376 (1996)).

¶ 20 Here, the evidence viewed in a light most favorable to the State sufficed to establish that

defendant had a common design with Griffin to commit the offense. Defendant had a “[h]ostile”

interaction with Rashad inside the residence on Burnham, fought with Johnson and Rashad

outside, and said that he would return. Defendant left in a gray Montecarlo, which Rashad,

Kinesha, and Smith-Wilkerson all testified was his vehicle. Soon after, Rashad and Kinesha saw

defendant’s vehicle drive down Burnham. Defendant stopped near Kinesha’s vehicle, and he and

Griffin exited. Defendant identified Rashad to Griffin. Griffin then raised a firearm and pointed it

in Rashad’s direction. Kinesha and Rashad sped away as Griffin fired three gunshots, which

struck Kinesha’s vehicle. Thus, there was sufficient evidence to find defendant legally

accountable for the shots fired by Griffin. See id. ¶ 46.

¶ 21 Nevertheless, defendant cites People v. Taylor, 186 Ill. 2d 439 (1999), for his contention

that being in a vehicle with Griffin was insufficient to make him accountable for Griffin’s

conduct. In Taylor, the defendant was driving with his codefendant when he allegedly partially

occupied both lanes of a road, forcing another vehicle to get close to a parked vehicle. Taylor,

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186 Ill. 2d at 443. When the other vehicle’s passengers exited to check for damage, the

codefendant exited the defendant’s vehicle and argued with them. Id. During the argument, the

codefendant drew a firearm and shot at the other vehicle’s passengers before driving away with

the defendant. Id. The supreme court reversed the defendant’s conviction, finding that he could

not be held accountable for “an unforeseeable, spontaneous traffic altercation.” Id. at 448.

¶ 22 In contrast to Taylor, here the evidence viewed in a light most favorable to the State

shows that the shooting was not an “unforeseeable, spontaneous” incident. Defendant fought

with Rashad on Burnham. He said that he would be back, and soon after, returned to the same

location with Griffin, who carried a loaded firearm, which Griffin shot in Rashad’s direction.

Therefore, this situation was not akin to the defendant’s in Taylor.

¶ 23 Defendant further argues that Rashad’s testimony at trial was impeached and conflicted

with Kinesha’s testimony. Specifically, defendant asserts that (1) Rashad’s testimony that

defendant exited his vehicle and pointed Rashad out to Griffin was impeached by his written

statement to police that did not include that information, (2) Rashad’s testimony that Johnson

fought with defendant and that defendant said he would be back conflicted with Kinesha’s

testimony that only Rashad fought with defendant and that Rashad had already left when

defendant said he would return, (3) Rashad’s testimony that he did not drink at the lake was

impeached by his written statement to police in which he said he had one beer, and (4) due to

Rashad’s pending charge at the trial, he had a motive to curry favor with the State. 6 He further

argues that Kinesha’s testimony alone was insufficient to convict him because her written

6 Defendant also argues Rashad’s testimony that, at the time of the incident, it was “just getting light out” conflicted with Kinesha’s testimony that it was “bright daylight,” and Rashad’s testimony that defendant returned less than 10 minutes later conflicted with Kinesha’s testimony that he returned 1 to 2 minutes later. However, this testimony was adduced on cross-examination as part of Griffin’s case-in- chief and was not adopted by defendant’s attorney.

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statement did not include that defendant exited his vehicle when he returned, she did not ever

state that defendant pointed at Rashad or said, “That’s him,” nor did she state that defendant

knew Griffin had a firearm. Moreover, her testimony that defendant exited his vehicle when he

returned conflicted with her written statement to police, which did not include that information.

¶ 24 We reiterate that it is the trier of fact’s responsibility to assign weight to witness

testimony, to resolve conflicts in the evidence, and to draw inferences from the evidence. See

Harris, 2018 IL 121932, ¶ 26. Indeed, “[a] trier of fact is free to accept or reject ‘as much or as

little’ of a witness’s testimony as it likes.” People v. Rouse, 2014 IL App (1st) 121462, ¶ 46

(quoting People v. Logan, 352 Ill. App. 3d 73, 81 (2004)). Here, the trial court heard all the

evidence, including any perceived inconsistencies in Rashad’s and Kinesha’s testimonies, and

found that defendant was legally accountable for the shooting because he had just gotten into a

fight with Rashad while at the residence on Burnham, left in his vehicle, and then returned with

an armed companion, who shot in Rashad’s direction. Viewed in a light most favorable to the

State, it was rational for the trial court to infer defendant’s accountability for the shooting from

these circumstances. Accordingly, we will not reverse his conviction. See Harris, 2018 IL

121932, ¶ 26.

¶ 25 For the foregoing reasons, we affirm the judgment of the circuit court.

¶ 26 Affirmed.

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