2016 IL App (1st) 133459
SECOND DIVISION September 30, 2016
No. 1-13-3459
______________________________________________________________________________
IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 00 CR 3807 ) HALIK WILLIAMS, ) Honorable ) Matthew E. Coghlan, Defendant-Appellant. ) Judge Presiding. ______________________________________________________________________________
JUSTICE NEVILLE delivered the judgment of the court, with opinion. Justice Mason concurred in the judgment and opinion. Presiding Justice Hyman specially concurred, with opinion.
OPINION
¶1 Halik Williams, the defendant, appeals from the circuit court’s dismissal, upon the State’s
motion, of his petition and supplemental petition for relief pursuant to the Post-Conviction
Hearing Act (the Act) (725 ILCS 5/122-1 et seq. (West 2004)). On appeal, defendant
contends that the court erred in dismissing the petitions because he made a substantial
showing that he was denied effective assistance of trial and appellate counsel. He also
contends that the court erred because the petitions made a substantial showing of actual 1-13-3459
innocence based upon new evidence that establishes no one that defendant was accountable
for caused the victim’s death, and, therefore, the victim’s death was not first degree murder.
We affirm.
¶2 Following simultaneous, but severed, bench trials with codefendants Warren Hardy and
David Sapp, defendant was found guilty of first degree murder based upon a theory of
accountability. Defendant was sentenced to 30 years in prison.
¶3 The evidence at defendant’s trial established that the victim, Anthony King, died from
electrocution on the third rail of Chicago Transit Authority train tracks on September 5,
1999. The victim’s death arose out of confrontation at the Morse Station platform between a
group of Gangster Disciples consisting of defendant, codefendants and Jason Moody, and a
group of current and former Vice Lords consisting of the victim, Jonathan Lejman, Dennis
Myles, and Dwayne Johnson.
¶4 At trial, Jason Moody testified that he was walking when he heard a “woo, woo” so he
looked up and saw codefendant Sapp on the “el” platform waving him up. As Moody
continued walking, he saw Lawrence Brooks sitting in a parked car and codefendant Hardy
on the street. Codefendant Hardy said that some “hooks” were on the platform. Moody
explained that “hooks” was a disrespectful term for members of the Vice Lords gang. Moody
was a member of the Gangster Disciples and the Morse “el” stop was part of the gang’s
territory.
¶5 Once on the platform, Moody saw the victim and codefendant Hardy fighting on the train
tracks. Codefendant Hardy was punching the victim, and the victim was trying to push
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codefendant Hardy away. At one point, Moody “heard sparks.” The victim was on the third
rail and codefendant Hardy was on the platform. Moody then saw defendant hit the victim on
the head with a cane five times. After the fifth blow, the cane broke.
¶6 Jonathan Lejman testified that he was a former member of the Vice Lords and grew up
with the victim. On the night of the victim’s death, Lehman, the victim, Myles, and Johnson
were celebrating both the victim’s release from prison and the victim’s birthday. Although
the group exited the train at the Morse stop, they “had no business over there” because it was
Gangster Disciple territory, so they went back up to the platform. Lejman, Myles and the
victim sat on a bench. Johnson went to the other entrance of the platform.
¶7 Defendant, who was holding a cane, and codefendant Sapp then approached. Defendant
asked if Lejman was “White C.” Lejman stood up and replied that “White C” was dead. He
stated that his group was not “on any gang banging or none of that”—that is, they were not
looking for trouble. Codefendant Sapp replied, “We’re hook killers.” Lejman understood this
to mean that codefendant Sapp’s group belonged to the Vice Lords. As Lejman continued to
say that his group was just trying to get home, he moved closer to defendant, who was “being
fidgety,” so that defendant would not be able to swing the cane at him. As Lejman moved
closer, defendant said “Man, didn’t I tell your bitch ass to back up off me?” Lejman backed
up. Shortly thereafter, defendant swung the cane at Lejman. Lejman, the victim, and Myles
all ran to the end of the platform. Lejman jumped on the tracks and kept running. He stopped
when he did not hear anyone behind him. When Lejman turned around, he saw defendant
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swinging a cane at someone on the tracks. He ran back and discovered the victim on the
tracks.
¶8 Dennis Myles testified that although he was in a gang, he was not “gang banging” that
night. When defendant took a swing at Lejman with the cane, Lejman ran away. Myles and
the victim followed. When Myles saw Lejman jump onto the tracks and defendant “fixing to
go after him,” Myles turned around. Although the victim initially turned around, the victim
then jumped onto the tracks. Myles followed the victim onto the tracks and ran past him.
Myles then heard “Oh, we got one!” and turned around to see the victim “on the floor.”
Defendant was on the tracks, and he hit the victim three times in the head with the cane.
During cross-examination, Myles acknowledged that he had made a statement to police
which indicated that the victim jumped off the platform. However, he testified that that the
person who transcribed his statement “didn’t hear [him] all the way right,” and that the
statement was incorrect.
¶9 Detective Steve Schorsch testified that he and another detective spoke with defendant on
September 7, 1999, in an interview room at Area 3. He was also present when defendant later
spoke to an assistant State’s Attorney. Defendant declined to make a written or videotaped
statement; rather, defendant agreed to say what had happened. Schorsch took notes as
defendant spoke. Defendant later reviewed these notes and agreed that they were accurate.
¶ 10 Defendant stated that he was driving with codefendant Sapp and Sapp’s cousin,
Lawrence Brooks, when he looked up and saw “White C.” He told Brooks to pull over.
Defendant and codefendant Sapp got out of the car. Defendant was holding a cane. Once up
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on the platform, codefendant Sapp stated, “They were Vice Lord killers, hook killers.”
Codefendant Hardy and Moody were also on the platform. Defendant asked one of the men if
he was “White C.” At one point “White C.” and the two men with him began to run.
Defendant chased “White C.” The other two men ran toward codefendant Hardy. As
defendant turned, he saw codefendant Hardy grab one of the men. He watched as
codefendant Hardy and the man fell onto the train tracks. Codefendant Hardy pushed the
other man onto the tracks and that man was “electrified.”
¶ 11 Assistant Chief Medical Examiner Mitra Kalelkar testified that she performed an autopsy
on the victim. She noted electrical burns on the victim’s abdomen, hands, and left wrist.
There were also lacerations and cuts on the victim’s head and face. After an internal and
external examination, she concluded that the victim died as the result of electrocution.
¶ 12 In finding defendant and codefendants guilty of first degree murder, the trial court relied
on the common design rule as stated in People v. Terry, 99 Ill. 2d 508, 514-15 (1984). In
denying defendant’s motion for a new trial which argued, in pertinent part, that the victim’s
fall to the tracks was an accident after the completion of the underlying felony of assault or
battery, the trial court stated that when two or more persons join together to commit an
offense, even “a minor offense which involves violence,” the parties are responsible for
“everything” that occurs as a result of the agreement. The court stated that the circumstances
of the case “all lead to the conclusion that these parties entered into an agreement to at least
commit an assault or misdemeanor battery on the victim in this case, which resulted in his
death.” The court “agreed” that “perhaps” defendant and codefendants did not set out to
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commit a murder, “but they are responsible for all of the consequences of that which they did
set out to do.” The court then sentenced defendant to 30 years in prison.
¶ 13 On appeal, defendant contended that the evidence was insufficient to prove beyond a
reasonable doubt that he was guilty of first degree murder pursuant to an accountability
theory. Defendant argued, inter alia, that he did not have the intent or knowledge required to
support a murder conviction.
¶ 14 In rejecting defendant’s argument this court found that the evidence “clearly established”
that defendant was not only present during the crime, but that he “actively devised and
initiated the encounter” with the victim. See People v. Williams, No 1-03-0292, slip order at
9-10 (2005) (unpublished order under Supreme Court Rule 23). This court noted that
defendant was the first to notice the Vice Lords on the platform, he directed Brooks to park,
he confronted the Vice Lords on the platform, and he struck the victim five times on the head
with a cane after the victim was electrocuted. Id. We therefore concluded that the trial court
did not err in finding that there was a common design to establish defendant’s intent, and
properly held defendant accountable for the victim’s death. Id. at 9.
¶ 15 In 2005, defendant filed a pro se petition for postconviction relief alleging, inter alia, that
he was denied the effective assistance of trial counsel by counsel’s failure to impeach Jason
Moody with an affidavit in which Moody averred that he struck the victim on the head with a
cane and to argue at trial that defendant was actually innocent because it was Moody, rather
than defendant, who struck the victim on the head with a cane. Attached to the petition in
support was defendant’s unnotarized affidavit.
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¶ 16 In his affidavit, defendant averred that Moody met with trial counsel’s investigator
sometime in 2000. Defendant further averred that trial counsel told him that during this
meeting Moody admitted that Moody was the person who struck the victim with a cane after
the victim was electrocuted. Defendant then averred that trial counsel “assured” him that
counsel would subpoena the investigator to testify at trial regarding this meeting, and counsel
would submit Moody’s affidavit as evidence at trial. However, trial counsel did not submit
the affidavit at trial. When defendant asked trial counsel why the affidavit was not submitted
at trial and why counsel did not cross-examine Moody about the affidavit, counsel replied
that he did not believe that the State had sufficient evidence to convict defendant, and he
therefore did not think that he needed to present the testimony of the investigator at trial.
¶ 17 Defendant also averred that Moody came to visit him twice before trial. During the first
meeting, Moody stated that if defendant wanted him to “tell the truth” defendant had to pay
him $5000 before trial and $5000 after trial. During the second meeting, defendant told
Moody that he needed more time to get the money. Moody responded that defendant’s “time
was up” and left. Defendant averred that although he told trial counsel and the jail’s Office of
Internal Affairs about the first meeting, so that the second meeting could be recorded, he did
not receive a response from either the jail or trial counsel.
¶ 18 Defendant finally averred that he had tried unsuccessfully to obtain a copy of Moody’s
affidavit and the name of the investigator from trial counsel. However, trial counsel refused
to disclose the name of the investigator or to give defendant a copy of Moody’s affidavit and
the discovery from the case because defendant had a balance due of $3400.
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¶ 19 The circuit court docketed the petition and appointed postconviction counsel. In August
2011, postconviction counsel field a certificate pursuant to Illinois Supreme Court Rule
651(c) (eff. Dec. 1, 1984), stating that counsel had reviewed defendant’s pro se petition for
postconviction relief, certain police reports, other discovery material, the trial transcript,
common-law record, and the order issued in defendant’s direct appeal. The certificate further
stated postconviction counsel had communicated with defendant in person and over the
phone and had interviewed or investigated “a number of witnesses” in an effort to further
substantiate defendant’s claims. The certificate finally stated that counsel was “unable to
supplement or amend” defendant’s pro se petition. The State then filed a motion to dismiss.
¶ 20 In December 2011, private counsel filed an appearance on behalf of defendant. In light of
private counsel’s statement to the court that a supplemental petition would be filed, the State
requested and was granted leave to withdraw its motion to dismiss.
¶ 21 In January 2013, counsel filed a supplemental postconviction petition. The supplemental
petition alleged that newly discovered evidence—the affidavit of codefendant Sapp—
established that defendant was not guilty of murder because the victim fell onto the tracks
accidently. The supplemental petition further alleged that defendant had made a substantial
showing that there was a reasonable probability that a new trier of fact would find defendant
not guilty of first degree murder and would instead, “at most,” find him guilty of involuntary
manslaughter. The supplemental petition finally alleged that trial counsel was ineffective
because he failed to argue that defendant was guilty of the lesser-included offense of
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involuntary manslaughter. Attached to the supplemental petition in support was the affidavit
of codefendant Sapp.
¶ 22 In his affidavit, codefendant Sapp averred that he told police that he, defendant, and
codefendant Hardy went to the train platform in order to fight with rival gang members.
Defendant walked up to Lejman (who was standing with the victim), Myles, and “Little
Wayne.” Defendant was holding a cane and swung it to prevent Lejman “from getting in his
face.” Lejman ran away and defendant chased him. The victim and Myles began to run after
defendant but then turned around and ran the other way. At one point, Myles crossed in front
of the victim, jumped down onto the train tracks, and ran away. This action seemed to
“catch” the victim off guard, and the victim lost his balance and fell onto the tracks.
Codefendant Hardy then either fell or jumped down. Codefendant Sapp averred that although
he told the police that “the whole thing” was an accident, the police said that defendant and
Moody had already made statements. The police told him what to say so that he could “go
home.” The State then filed a motion to dismiss. Attached to defendant’s response to the
State’s motion was a notarized copy of defendant’s original affidavit. The circuit court
subsequently granted the State’s motion.
¶ 23 On appeal, defendant contends that the circuit court erred when it granted the State’s
motion to dismiss because he made a substantial showing of a constitutional deprivation.
Defendant first contends that he was denied the effective assistance of trial counsel because
trial counsel failed to impeach Moody with evidence that it was Moody, not defendant, who
struck the victim with a cane. Defendant further contends that he was denied the effective
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assistance of appellate counsel because appellate counsel failed to challenge the sufficiency
of the evidence supporting defendant’s conviction when the trial court found that neither
defendant nor any codefendant had the “requisite mental state to commit first degree
murder.” Defendant finally contends that he has made a substantial showing of actual
innocence based upon new evidence which established that no one that he was “accountable
for” caused the death of the victim and, therefore, the victim’s death could not be first degree
murder.
¶ 24 The Act provides a procedural mechanism through which a defendant may assert a
substantial denial of his constitutional rights in the proceedings which resulted in his
conviction. 725 ILCS 5/122-1 (West 2004); People v. Davis, 2014 IL 115595, ¶ 13. If the
circuit court does not dismiss the postconviction petition as frivolous or patently without
merit, then the petition advances to the second stage where counsel is appointed to represent
the defendant, if requested (725 ILCS 5/122-4 (West 2004)), and the State is allowed to file
responsive pleadings (725 ILCS 5/122-5 (West 2004)).
¶ 25 At the second stage of proceedings under the Act, it is the defendant’s burden to make a
“substantial showing of a constitutional violation.” People v. Pendleton, 223 Ill. 2d 458, 473
(2006). A “substantial showing” of a constitutional violation is a measure of the legal
sufficiency of a defendant’s well-pled allegations of a constitutional violation which, if
proved at an evidentiary hearing, would entitle him to relief. People v. Domagala, 2013 IL
113688, ¶ 35. Therefore, all well-pled facts in the petition that are not positively rebutted by
the trial record are taken to be true. Pendleton, 223 Ill. 2d at 473. If a defendant makes a
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substantial showing that his constitutional rights were violated, the matter proceeds to a third
stage evidentiary hearing where the circuit court serves as a fact finder, resolves evidentiary
conflicts, weighs credibility, and determines the weight to be given testimony and evidence.
Domagala, 2013 IL 113688, ¶¶ 34, 46. We review the circuit court’s dismissal of a
postconviction petition at the second stage of proceedings under the Act de novo. Pendleton,
223 Ill. 2d at 473.
¶ 26 Defendant first contends that his petitions made a substantial showing that he was denied
the effective assistance of trial and appellate counsel.
¶ 27 To prevail on a claim of ineffective assistance of counsel, a defendant must satisfy the
two-pronged test set forth in Strickland v. Washington, 466 U.S. 668 (1984). Specifically, “a
defendant must prove that defense counsel’s performance fell below an objective standard of
reasonableness and that this substandard performance created a reasonable probability that,
but for counsel’s errors, the result of the proceeding would have been different.” People v.
Graham, 206 Ill. 2d 465, 476 (2003). When challenging appellate counsel’s performance, a
defendant must show both that appellate counsel’s performance was deficient and that, but
for counsel’s errors, there is a reasonable probability that the appeal would have been
successful. People v. English, 2013 IL 112890, ¶ 33.
¶ 28 Because the failure to satisfy either prong of the Strickland test precludes a finding of
ineffective assistance of counsel (People v. Enis, 194 Ill. 2d 361, 377 (2000)), a court “need
not determine whether counsel’s performance was deficient before examining the prejudice
suffered by the defendant as a result of the alleged deficiencies” (Strickland, 466 U.S. at
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697). Our supreme court has held that “Strickland requires actual prejudice be shown, not
mere speculation as to prejudice.” People v. Bew, 228 Ill. 2d 122, 135 (2008). Thus, at the
second stage of the proceedings under the Act, defendant has the burden to make a
substantial showing that a reasonable probability exists that the outcome of the proceedings
would have been different had his counsel’s performance been different. See People v.
Harris, 206 Ill. 2d 293, 307 (2002) (affirming the trial court’s dismissal of an ineffective
assistance of counsel claim without an evidentiary hearing where the defendant failed to
make a substantial showing of prejudice).
¶ 29 Here, defendant contends that he was denied the effective assistance of trial counsel
because counsel failed to impeach Moody with evidence that it was Moody, rather than
defendant, who struck the victim with a cane. Defendant acknowledges that the affidavit in
which Moody averred that it was he, rather than defendant, who struck the victim with a cane
was not attached to either the pro se postconviction petition or the supplemental petition.
Defendant also acknowledges that he did not attach affidavits from either Moody or trial
counsel regarding this affidavit, but argues that he cannot be expected to obtain affidavits in
which counsel admits ineffectiveness or Moody admits perjury. He also explains that because
he never knew the investigator’s name, he could not obtain the investigator’s affidavit. The
State responds that defendant’s petitions were properly dismissed because his unsupported
allegations failed to make the requisite substantial showing of a constitutional violation.
¶ 30 Section 122-2 of the Act requires that a petition “shall have attached thereto affidavits,
records, or other evidence supporting its allegations or shall state why the same are not
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attached.” 725 ILCS 5/122-2 (West 2004). The purpose for requiring “affidavits, records, or
other evidence” is to establish that the allegations in a postconviction petition are capable of
objective or independent corroboration. People v. Delton, 227 Ill. 2d 247, 254 (2008). The
“affidavits and exhibits which accompany a petition must identify with reasonable certainty
the sources, character, and availability of the alleged evidence supporting the petition’s
allegations.” Id.
¶ 31 In the case at bar, defendant’s contention that trial counsel failed to impeach Moody with
an affidavit revealing that it was Moody, rather than defendant, who struck the victim with a
cane lacks any evidentiary support. Even accepting defendant’s argument that he cannot be
expected to obtain an affidavit from trial counsel in which trial counsel admits
ineffectiveness (see People v. Hall, 217 Ill. 2d 324, 333-34 (2005)), defendant has failed to
attach an affidavit or exhibit containing evidence supporting his allegation. Defendant did not
attach an affidavit from Moody or provide an affidavit from the investigator who obtained
the affidavit at issue. In the absence of such affidavits, this court cannot determine whether
the proposed witnesses could have provided testimony favorable to defendant, and further
review of this claim is unnecessary. See Enis, 194 Ill. 2d at 380 (to sustain an ineffective
assistance of counsel claim for counsel’s failure to investigate or present a witness, the
defendant’s allegation must be supported by an affidavit from that witness that contains the
witness’s proposed testimony). Therefore, we conclude that because defendant failed to
attach any witness affidavits to his petitions, his own affidavit notwithstanding, which
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support this allegation, he has failed to make a substantial showing that he was denied the
effective assistance of trial counsel. See Domagala, 2013 IL 113688, ¶ 35.
¶ 32 Defendant next contends that he made a substantial showing that he was denied the
effective assistance of appellate counsel because appellate counsel failed to argue on direct
appeal that defendant could not be held accountable for the victim’s murder because no one
that he was accountable for had the requisite mental state to commit first degree murder.
Defendant argues that in the absence of a principal who acted with the requisite mental state,
it was inappropriate for the trial court to apply the common design rule to find him guilty of
first degree murder under a theory of accountability.
¶ 33 To establish ineffective assistance of appellate counsel, a defendant must show both that
appellate counsel’s performance was deficient and that, but for counsel’s errors, there is a
reasonable probability that the appeal would have been successful. English, 2013 IL 112890,
¶ 33. “Appellate counsel is not required to brief every conceivable issue on appeal, and
counsel is not incompetent for choosing not to raise meritless issues.” People v. Maclin, 2014
IL App (1st) 110342, ¶ 32. When the underlying issue has no merit, a defendant cannot show
how he was prejudiced by appellate counsel’s failure to raise that issue on appeal. People v.
Lacy, 407 Ill. App. 3d 442, 457 (2011).
¶ 34 Here, defendant argues that appellate counsel should have relied upon the trial court’s
comment that neither defendant nor his companions had the requisite mental state to commit
murder to argue that the evidence at trial did not prove defendant guilty of murder beyond a
reasonable doubt. Thus, the question before this court is whether, had appellate counsel
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argued that defendant was not proven guilty beyond a reasonable doubt of murder because no
one defendant was accountable for had the requisite mental state to commit first degree
murder, this court would have reversed defendant’s conviction.
¶ 35 Initially, we note that the State contends that this argument is barred by the doctrine of
res judicata when this court on direct appeal considered and rejected defendant’s contention
that he was not proven guilty of first degree murder beyond a reasonable doubt because he
did not have the requisite mental state to commit first degree murder. See People v. Tate,
2012 IL 112214, ¶ 8 (issues raised and decided on direct appeal are barred by res judicata,
and issues that could have been raised but were not are forfeited).
¶ 36 However, in the instant appeal, defendant raises a different contention, whether his
lawyer was ineffective for failing to argue that no one for whom he was accountable had the
requisite mental state to commit first degree murder. A claim is not forfeited or otherwise
procedurally barred when a postconviction petition alleges ineffective assistance of appellate
counsel based upon a failure to raise that claim on direct review. See People v. Youngblood,
389 Ill. App. 3d 209, 214-15 (2009) (“it is well established that a postconviction claim will
not be forfeited where the alleged forfeiture stems from the incompetence of appellate
counsel”); People v. Blair, 215 Ill. 2d 427, 450-51 (2005) (“It has long been held that res
judicata and forfeiture do not apply where fundamental fairness so requires; where the
alleged forfeiture stems from the incompetence of appellate counsel; or where facts relating
to the claim do not appear on the face of the original appellate record.”). In the case at bar,
because defendant contends that appellate counsel was ineffective for failing to challenge the
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sufficiency of the evidence based upon codefendants’ lack of the requisite mental state to
commit first degree murder, this issue is not procedurally barred, and we will therefore
address it.
¶ 37 When reviewing a challenge to the sufficiency of the evidence, the relevant question is
whether, after viewing the evidence in the light most favorable to the State, any rational trier
of fact could have found the essential elements of the crime beyond a reasonable doubt.
People v. Brown, 2013 IL 114196, ¶ 48. The trier of fact is responsible for evaluating the
credibility of the witnesses, weighing witness testimony, and determining what inferences to
draw from the evidence. People v. Ross, 229 Ill. 2d 255, 272 (2008). This court reverses a
defendant’s conviction only where the evidence is so unreasonable, improbable, or
unsatisfactory that a reasonable doubt of his guilt remains. Brown, 2013 IL 114196, ¶ 48.
¶ 38 A person commits first degree murder when, in performing the acts which cause a
victim’s death, he knows that such acts will create a strong probability of death or great
bodily harm to the victim. See 720 ILCS 5/9-1(a)(2) (West 1998). A person is legally
accountable for the conduct of another person when, either before or during the commission
of an offense, and with the intent to promote or facilitate such commission, he solicits, aids,
abets, or agrees or attempts to aid such other person in the planning or commission of the
offense. 720 ILCS 5/5-2(c) (West 1998). A defendant may be deemed accountable for acts
performed by another pursuant to a common criminal plan or purpose. People v. Taylor, 164
Ill. 2d 131, 140-41 (1995).
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¶ 39 The common design rule provides that when two or more people engage in a common
criminal design or agreement, any acts in the furtherance of that design or agreement
committed by one party are considered to be the acts of all parties to the design or agreement,
and all are equally responsible for the consequences of those further acts. In re W.C., 167 Ill.
2d 307, 337 (1995). Proof of the common design need not be supported by words of
agreement but may be drawn from the circumstances surrounding the commission of the act.
Taylor, 164 Ill. 2d at 141.
¶ 40 Here, viewing the evidence at trial in the light most favorable to the State, as we must
(Brown, 2013 IL 114196, ¶ 48), there was sufficient evidence to find defendant guilty beyond
a reasonable doubt of first degree murder under an accountability theory. The evidence at
trial established, through the testimony of Moody, Lejman, and Myles, as well as Schorsch’s
testimony regarding defendant’s statement, that when defendant noticed a group of rival gang
members on the platform, he told Brooks to stop the car and then went to the platform to
confront them. Once on the platform, and after Sapp announced they were “hook killers,”
defendant approached Lejman and swung a cane at Lejman. In the ensuing chaos,
codefendant Hardy grabbed the victim, and both men fell onto the train tracks. Specifically,
Moody testified that codefendant Hardy and the victim fought on the train tracks, and
defendant stated that codefendant Hardy pushed the victim onto the tracks causing the victim
to be “electrified.”
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¶ 41 Defendant relies on the trial court’s statements that it did not believe that defendant and
codefendants intended to kill anyone, and he concludes that the facts, as found by the trial
court, did not establish the necessary elements of first degree murder. We disagree.
¶ 42 People v. Phillips, 2014 IL App (4th) 120695, is instructive. In that case, the defendant
intended to hit a woman named Frazier in the eye in retaliation for injuries she inflicted on
the mother of his children. The defendant went to Frazier’s home accompanied by his friend,
Shaunessy Grimes. Grimes was to identify Frazier for the defendant because the defendant
did not know her. Grimes brought a rifle along in order to protect the defendant while the
defendant attacked Frazier. When the men arrived at Frazier’s house, however, they saw a
crowd of people. The defendant changed his mind about attacking Frazier and planned to
leave because he was afraid he would be attacked by the crowd. Grimes then fired the rifle
once. A member of the crowd was killed. The defendant later admitted his involvement in the
shooting and was convicted of first degree murder and unlawful possession of a weapon by a
felon pursuant to an accountability theory.
¶ 43 On appeal, the court affirmed the defendant’s murder conviction, finding that he could
not escape liability for the murder merely because his original intention was only to attack
Frazier. Id. ¶¶ 31, 34. The court concluded that “[b]y attaching himself to a group bent on
illegal acts, defendant became accountable for all the crimes of his companions, including the
shooting.” Id. ¶ 34. The court also noted that to be accountable for the shooting under the
common design rule, the defendant need not have shared Grimes’s intent to fire the rifle;
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rather, “[b]y setting out to commit a crime with Grimes, defendant rendered himself legally
accountable for [the] shooting.” Id. ¶¶ 44, 53.
¶ 44 The Phillips court also cited People v. Tarver, 381 Ill. 411 (1942), which involved two
groups of young men, the Tarver group and the Walker group. After a member of the Tarver
group got into a fight with a member of the Walker group, eight members of the Tarver
group agreed to confront the Walker group. Mack, a member of the Tarver group, agreed to
go only if he was assured there would be no shooting. However, Mack took a revolver along.
During the subsequent confrontation, Tarver took Mack’s gun and fatally shot Lacey Walker.
Mack was later convicted of murder under an accountability theory. In affirming Mack’s
conviction, our supreme court found that there was abundant evidence that the Tarver group
“banded together” for the purpose of avenging the prior beating. Id. at 415. The court also
noted that it was clear there was “ill feeling” between the two groups and that Mack was a
member “of a gang assembled for the purpose of disturbing the peace and doing unlawful
acts.” Id. at 415-16 Therefore, “[a] shot fired by one of the defendants, under the
circumstances shown, was a shot fired by all and all of them must answer for the result.” Id.
at 416.
¶ 45 Similarly here, it is clear that defendant and codefendants went to the train platform to
confront rival gang members. Although it may be true that they did not intend to kill anyone
at that time, ultimately, the result of the confrontation was codefendant Hardy and the victim
fighting on the train tracks, which culminated in the victim being electrocuted. See Terry, 99
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Ill. 2d at 515-16 (our supreme court acknowledged that the common design rule “does
impose liability for murder even though a misdemeanor was originally intended”).
¶ 46 Contrary to defendant’s assertion, the State was not required to prove that defendant and
codefendants shared the same intent with regard to the charged offense (i.e., first degree
murder). Rather, the State needed only to prove that defendant had the intent to promote or
facilitate a crime. See Phillips, 2014 IL App (4th) 120695, ¶ 43. Under the common design
rule because the defendant and his codefendants were engaged 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 responsible for the consequences of those further acts.
720 ILCS 5/5-2 (c) (2010). By attaching himself to a group bent on an illegal action,
defendant became accountable for all the crimes of his companions, including those of
codefendant Hardy; defendant cannot “escape liability merely because his criminal intentions
did not rise to the level of murder.” See Phillips, 2014 IL App (4th) 120695, ¶ 34.
¶ 47 As our supreme court has held, “there is no question that one can be held accountable for
a crime other than the one that was planned or intended, provided it was committed in
furtherance of the crime that was planned or intended.” (Emphasis in original.) See People v.
Fernandez, 2014 IL 115527, ¶ 19.
¶ 48 In this case, this court cannot say that no rational trier of fact could have found defendant
guilty of first degree murder pursuant to the common design rule when the evidence at trial
established that defendant and codefendants were on the train platform (at defendant’s behest
according to his statement to the police) to confront the victim; that, Hardy, one of the
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defendant’s companions, pushed the victim on the train tracks; and that Hardy’s act created a
strong probability of death or great bodily harm to the victim. Terry, 99 Ill. 2d at 515-16.
¶ 49 This court reverses a defendant’s conviction only where the evidence is so unreasonable
or unsatisfactory that a reasonable doubt of his guilt remains (Brown, 2013 IL 114196, ¶ 48);
this is not one of those cases.
¶ 50 Defendant cannot show that he was prejudiced by appellate counsel’s failure to raise this
meritless issue on direct appeal. See Lacy, 407 Ill. App. 3d at 457 (if the underlying issue has
no merit, defendant cannot show how he was prejudiced by appellate counsel’s failure to
raise it on direct appeal). Therefore defendant’s petition failed to make a “substantial
showing of a constitutional violation.” See Domagala, 2013 IL 113688, ¶ 35.
¶ 51 Defendant finally contends that he has made a substantial showing of actual innocence
because codefendant Sapp’s affidavit establishes that the victim fell onto the tracks after
being startled by Myles, and therefore, no one for whom defendant was accountable was
responsible for the victim’s death.
¶ 52 To “succeed on a claim of actual innocence, the defendant must present new, material,
noncumulative evidence that is so conclusive it would probably change the result on retrial.”
People v. Coleman, 2013 IL 113307, ¶ 96. “New means the evidence was discovered after
trial and could not have been discovered earlier through the exercise of due diligence.” Id.
Material means the evidence is “relevant and probative” of the defendant’s innocence, and
noncumulative means the evidence adds to what the factfinder heard at trial. Id. A reviewing
court “must be able to find that petitioner’s new evidence is so conclusive that it is more
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likely than not that no reasonable juror would find him guilty beyond a reasonable doubt.”
People v. Sanders, 2016 IL 118123, ¶ 47. Well-pleaded factual allegations in the
postconviction petition and its supporting evidence are taken as true unless they are
positively rebutted by the record. Id. ¶ 48.
¶ 53 Defendant argues that codefendant Sapp’s affidavit is newly discovered evidence because
codefendant Sapp was simultaneously prosecuted for the victim’s death so defendant had no
way to obtain his testimony at trial, and that it is noncumulative in that it presents “a
narrative of events that was not heard before.” He further argues that taken as true Sapp’s
affidavit exonerates him because the act which caused the victim’s death was committed by
Myles rather than defendant or codefendants.
¶ 54 Initially, we note that codefendant Sapp’s account of events is largely consistent with the
sequence of events that was outlined at trial. Specifically, defendant and codefendants went
to the platform to confront members of a rival gang; defendant engaged in a conversation
with Lejman; defendant swung a cane at Lejman; and Lejman, Myles, and the victim ran
away. It is only in the manner in which the victim ended up on the tracks that is “new,” as
codefendant Sapp avers that the victim was startled by Myles, lost his balance, and fell onto
the tracks. Even if we accept defendant’s conclusion that the facts contained in codefendant’s
Sapp’s affidavit are new and noncumulative because he did not testify at defendant’s trial, we
cannot agree that codefendant Sapp’s affidavit, taken as true, is of such a conclusive
character that it would probably change the result at retrial. See People v. Washington, 171
Ill. 2d 475, 489 (1996) (the most important element of a claim of actual innocence is whether
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the evidence is of such conclusive character that it would probably change the result on
retrial).
¶ 55 We find People v. Edwards, 2012 IL 111711, to be instructive. There, the defendant
claimed actual innocence, in part, based on newly discovered evidence in the form of an
affidavit from a codefendant, Eddie Coleman. The Edwards court found the codefendant’s
affidavit to be newly discovered evidence, due to the fact no amount of diligence could have
forced the codefendant to violate his fifth amendment right to avoid self-incrimination if he
chose not to do so. Id. ¶ 38. The Edwards court noted that the codefendant averred that the
defendant “ ‘had nothing to do with this shooting’ *** [and] was neither ‘a part [of nor] took
part in this crime.’ ” Id. ¶ 39. The Edwards court also noted that the codefendant “critically
does not assert that petitioner was not present when the shooting took place.” (Emphasis in
original.) Id. The court then determined that the codefendant’s affidavit did not raise the
probability that, in light of the new evidence, it was more likely than not that no reasonable
juror would have convicted the defendant. Id. ¶ 40. Finally, the Edwards court agreed with
the appellate court’s conclusion that the codefendant’s averment, that he was the principal
offender, did not exonerate the defendant, who had been convicted of murder under an
accountability theory. Id. ¶ 39.
¶ 56 Here, we find that codefendant Sapp’s affidavit does not remove defendant from the train
platform or the events leading up to the victim’s death; rather, it offers an alternative
explanation for how the victim ended up on the tracks. The evidence at trial established that
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the victim fell to the tracks as the result of a struggle with codefendant Hardy, whereas
codefendant Sapp avers that the victim lost his balance after being startled by Myles.
¶ 57 Although codefendant Sapp avers that the victim lost his balance and fell onto the tracks,
the fact remains that Moody testified at trial that he saw codefendant Hardy and the victim
fighting immediately prior to the victim being on the tracks, and defendant stated that
codefendant Hardy and the victim fell onto the tracks together. Accordingly, we cannot
conclude that the information contained in codefendant Sapp’s affidavit “is so conclusive that
it is more likely than not that no reasonable juror would find [defendant] guilty beyond a
reasonable doubt.” Sanders, 2016 IL 118123, ¶ 47. Rather, we find that at best the evidence
contained in the affidavit merely affects the issue of the sufficiency of the evidence and
therefore does not totally vindicate defendant. See People v. Adams, 2013 IL App (1st)
111081, ¶ 36 (evidence of a defendant’s actual innocence must support his total vindication
or exoneration, not merely present a reasonable doubt as to his guilt). Therefore, defendant
has failed to make a substantial showing of actual innocence. See Domagala, 2013 IL
113688, ¶ 35.
¶ 58 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.
¶ 59 Affirmed.
¶ 60 JUSTICE HYMAN, specially concurring.
¶ 61 I agree with my colleagues that the trial court properly dismissed Williams’s petition for
postconviction relief. I write separately to elaborate on the evidence needed to prove
accountability for first degree murder. The State must show not only that Williams possessed
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the necessary mental state to be accountable for the actions of his codefendants, but also that
at least one person in the group possessed the necessary mental state for first degree murder.
Williams argues that the State did not do so and so the evidence was insufficient. To the
contrary, the State presented the necessary evidence and accordingly, I agree that his claim
fails.
¶ 62 Accountability, in itself, is not a crime. People v. Shaw, 186 Ill. 2d 301, 325 (1998).
Rather, it is a method of proving culpability for an underlying crime. People v. Hicks, 181 Ill.
2d 541, 547 (1998). The defendant is held accountable for the actions of the “principal” who
commits the underlying crime.
¶ 63 Here, the underlying crime is first degree murder, and the State needed to present
sufficient evidence of all its elements—including evidence of intent (knowing that the actions
had a strong probability of causing death or great bodily harm to the victim). See People v.
McIntyre, 2011 IL App (2d) 100889, ¶ 12 (to find defendant guilty under accountability
theory, State must first establish prima facie case against principal). If the State does not
establish the elements of the underlying crime as committed by the principal, then a
defendant cannot be held accountable for aiding, abetting, or attempting to aid the principal
in planning or committing the offense. See People v. Chirchirillo, 393 Ill. App. 3d 916, 925
(2009) (defendant cannot be accountable for unlawful possession of weapon by felon where
State failed to establish that principal was felon); see also People v. Gibson, 403 Ill. App. 3d
942, 950 (2010), abrogated on other grounds by People v. Bailey, 2014 IL 115459.
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¶ 64 The State’s choice to charge Williams on an accountability theory does not excuse the
State from proving the elements of first degree murder. See People v. Jaimes, 2014 IL App
(2d) 121368, ¶ 38 (to obtain conviction based on accountability, State must prove that
principal actually committed offense). That element of intent for first degree murder is
wholly separate and apart from the mens rea encompassed in the accountability statute,
which requires that the accountable person have the intent to promote or facilitate the
commission of the underlying crime. 720 ILCS 5/5-2(c) (West 1998).
¶ 65 In practice, we rarely need to unwind these two levels of intent.
¶ 66 Accountability cases generally fall into two groups. The first group is the “leader-
follower” scenario, where the “leader” commits the murder but the “follower” is accountable.
See, e.g., People v. Phillips, 2014 IL App (4th) 120695, ¶ 34 (where Phillips and friend
Grimes had common design to punch victim, Phillips was accountable for Grimes’s actions
in shooting another person when assault plan went awry). For example, defendants A and B
agree to rob the victim. Defendant A shoots the victim but defendant B does not physically
harm the victim at all. Defendant A has the requisite mens rea for first degree murder
(knowing that shooting the victim has a strong probability of causing death or great bodily
harm). Defendant A is the “principal.”
¶ 67 Defendant B does not have that mens rea for first degree murder, but under the
accountability statute, Defendant B can still be liable because he or she had a common design
with A to commit the robbery. There is no question of who shot the victim, and no question
that both the mens rea for first degree murder and the mens rea for accountability were
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present within this group of defendants. See People v. Mischke, 278 Ill. App. 3d 252, 262
(1995) (where codefendants involved in common design to commit aggravated assault or
battery against victims, codefendants “did not have to actively participate in [victim’s]
murder in order to be guilty under the accountability theory”).
¶ 68 The second common group of accountability cases is the “mystery shooter” scenario,
when the chaos of the situation makes it impossible to tell who struck the fatal blow against
the victim. See, e.g., People v. Cooper, 194 Ill. 2d 419, 422-23 (2000) (codefendant gang
members were both guilty of first degree murder by accountability, though it was unclear
which codefendant actually shot at victims during confrontation with rival gang). Defendants
C and D agree to rob the victim, but during the crime a gunshot rings out, striking and killing
the victim. In the aftermath, no physical evidence indicates whether it was C or D who pulled
the trigger, and neither will turn against the other. But we can infer that at least one of those
defendants had the mens rea for first degree murder (because the victim was shot), and we
need not identify the “principal” to hold both accountable for the murder (because both had a
common design). See id. at 435-36 (2000) (defendants may be found guilty under
accountability theory even if identity of principal is unknown, if each had common design).
¶ 69 Williams’s case, as he presents it, is more unusual. He alleges that no one in the group of
defendants (himself, Sapp, and Hardy) had the intent to kill Anthony King, and so he cannot
be accountable for first degree murder because no murder occurred. See People v. Griffin,
247 Ill. App. 3d 1, 15 (1993) (if act committed by codefendants was not a crime, defendant
cannot be held accountable for it). But he omits the State’s evidence that Hardy grabbed
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King, fought with him, and pushed him onto the train tracks. We can infer from this that
Hardy, at least, had the mens rea for first degree murder. And we can infer from Williams’s
actions that he had a common design with Hardy. So his scenario is more like that of the
“leader-follower” situation.
¶ 70 Williams is correct that the State needed to prove that the mens rea for first degree
murder was present within the group of codefendants. A case could arise where the State
would not be able to meet that burden (see, e.g., Chirchirillo, 393 Ill. App. 3d at 925-26), but
this is not that case.
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