People v. Williams

530 N.E.2d 1049, 176 Ill. App. 3d 73, 125 Ill. Dec. 640, 1988 Ill. App. LEXIS 1504
Appellate Court of Illinois·Decided October 25, 1988·No. 86—1081, 86—1579, 86—2070 cons.·Published·Cited by 10 cases

Opinion

JUSTICE EGAN

delivered the opinion of the court:

This case involves three consolidated appeals: Appeal No. 86— 1081 is from a conviction after a bench trial of one count of attempted armed robbery and three counts of aggravated battery; appeal No. 86 — 1579 is from a judgment of guilty on a plea of guilty to armed robbery, armed violence and aggravated battery; appeal No. 86 — 2070 is from a judgment based on a revocation of probation. The revocation was based on the defendant’s convictions after the bench trial and his plea of guilty.

He was sentenced by Judge Francis J. Mahon on the bench trial conviction to a term of eight years for armed robbery and five years for aggravated battery and on the plea of guilty to a term of eight years for attempted armed robbery, eight years for armed violence and five years for aggravated battery. All sentences were to run concurrently.

Judge Steven A. Schiller, after revoking the defendant’s probation, sentenced him to four years for robbery to run consecutively to the terms imposed by Judge Mahon. He now contends that his conviction after a bench trial should be reversed, that his plea of guilty should be vacated and, therefore, that his revocation of probation should be reversed.

We will first consider his claim that the evidence heard at the bench trial did not establish his guilt beyond a reasonable doubt.

On February 10, 1985, at approximately 6:35 p.m., McKinley Murray went to a grocery store to buy beer. After leaving the store he was walking in the vicinity of 1316 West 14th Street in Chicago when two men “appeared from nowhere and told [him] it was a stick-up.” One of them had a revolver. The armed man was closest to Murray, about four feet away. The second man, who appeared to be unarmed, stood about four feet in back. Murray stood facing the two men for what he estimated was 2 1/2 to 3 minutes. He told them he would give them the money he had. As he began to lower his right hand to get the money, the man with the gun shot him in the right arm between the wrist and the elbow.

Murray pulled a revolver from his jacket pocket and fired all six shots at both men. The first two hit the first man, who died. He was Rodney Kirkwood. The other man ran away. Murray later identified the defendant as the second man.

The defendant was admitted to the University of Illinois Hospital shortly after 7 p.m. with four gunshot wounds, one in the left forearm, the right hip, the lower left back and left buttocks.

He was questioned by detectives and an assistant State’s Attorney, who took a written statement from him. The defendant later refused to sign it. That statement was introduced in evidence but has not been made part of the record.

The defendant testified that he was on his way to his grandmother’s house at 74th and Wentworth. He was taking a shortcut through various gangways on his way to Racine Avenue, where he could take the bus. While he was walking down the street in the 1300 block on West 14th Street at around 7 p.m., a man in his twenties approached, called him by his nickname and asked if the defendant was the man that stuck him up. The defendant shook his head and kept walking. Somebody called his name out and said, “T.J.,” his nickname, and when he turned to look, two individuals were shooting at him. He had known the deceased, Rodney Kirkwood, who knew the defendant’s nickname, for two or three years, but he did not see Rodney Kirk-wood that night. After he was shot, he ran to a friend’s house and asked him to call the police. He said that he had refused to sign the statement because there was a discrepancy in it. The discrepancy was that he allegedly said that he saw two individuals in their twenties that came back and started shooting at him. We infer that his statement to the police is substantially the same as his trial testimony in all other respects.

The defendant was convicted on the basis of the accountability statute of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 5 — 2(c)), which requires that the defendant solicited, aided, abetted, agreed, or attempted to aid another person in the planning or commission of an offense; such participation must have taken place either before or during the commission of the offense; and such participation must have been with the intent to promote or facilitate the commission of the offense.

Accountability may be established through a person’s knowledge and participation in the criminal scheme even though there is no evidence of direct participation in the criminal act. (People v. Dotson (1986), 143 Ill. App. 3d 135, 492 N.E.2d 903.) Proof need not be in words but can be drawn from circumstances surrounding the commission of the act. (People v. Kirkwood (1980), 82 Ill. App. 3d 252, 402 N.E.2d 677.) While mere presence at the scene of the crime is not sufficient (People v. Tucker (1974), 20 Ill. App. 3d 377, 314 N.E.2d 276), the trier of fact may consider factors such as the defendant’s presence during the crime, acts performed after the commission of the crime and flight from the scene as evidence of accountability. (Dotson, 143 Ill. App. 3d at 142.) The trier of fact may also consider the defendant’s presence without disapproving or opposing the principal perpetrator’s actions in connection with other circumstances and conclude that the defendant aided and abetted the crime. People v. Cleveland (1986), 140 Ill. App. 3d 462, 488 N.E.2d 1276.

The complaining witness said that “two gentlemen appeared from nowhere and said it was a stick-up.” He said the first stepped in his path from behind the building and the second man “was right with him.” Later he said, “They stepped out together.” We believe the evidence establishes that the two men were acting in concert. Moreover, the fact that the defendant made an inherently incredible prearrest statement may be considered evidence of consciousness of guilt. (People v. Wilson (1972), 8 Ill. App. 3d 1075, 291 N.E.2d 270.) We reject the defendant’s argument that he was not proved guilty beyond a reasonable doubt.

The next issue involves the plea of guilty. The defendant was found guilty of attempted armed robbery and aggravated battery in the case involving McKinley Murray on October 18, 1985. On April 23, 1986, he pleaded guilty to other charges, armed robbery, armed violence and aggravated battery. Immediately after sentencing the defendant, the trial court vacated the plea and sentence after remarks by the defendant’s attorney indicating that he wanted to appeal the conviction.

Five days later, on April 28, the defendant again withdrew his plea of not guilty and asked leave to plead guilty. After warning the defendant, the court accepted the plea and sentenced him. On May 1, the defendant filed a motion to withdraw his plea of guilty.

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People v. Williams, 530 N.E.2d 1049, 176 Ill. App. 3d 73, 125 Ill. Dec. 640, 1988 Ill. App. LEXIS 1504 (Ill. Ct. App. 1988).

530 N.E.2d 1049 (People v. Williams) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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