People v. Jefferson, 1-89-0308

• Decision Date: 18 March 1992
• Docket Number: No. 1-89-0308,1-89-0308
• Parties: , 169 Ill.Dec. 647 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Freddie JEFFERSON, Defendant-Appellant. First District, Second Division
• Court: United States Appellate Court of Illinois

Page 134

592 N.E.2d 134 227 Ill.App.3d 491, 169 Ill.Dec. 647 The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Freddie JEFFERSON, Defendant-Appellant. No. 1-89-0308. Appellate Court of Illinois, First District, Second Division. March 18, 1992.

Page 136

[169 Ill.Dec. 649] [227 Ill.App.3d 493] Randolph N. Stone, Public Defender of Cook County (Tina Liebling, Asst. Public Defender, of counsel), Chicago, for defendant-appellant.

Jack O'Malley, State's Atty. of Cook County (Renee Goldfarb, Randall E. Roberts, Gigi Gilbert, Asst. State's Attys., of counsel), Chicago, for plaintiff-appellee.

Justice SCARIANO delivered the opinion of the court:

Defendant Freddie Jefferson appeals from his conviction by a jury of the murder of Tammy Washington on the grounds that (1) the trial judge gave improper instructions on accomplice liability; (2) the prosecutor made inappropriate remarks during his closing argument; and (3) the trial judge improperly questioned the defendant and impermissibly commented on the evidence. Defendant seeks a reversal of his conviction with a remand for a new trial.

On the evening of June 14, 1987, defendant and his half-brother Fleener Jefferson drove to the 6800 block of South Winchester in Chicago where Eric Green lived. Green had been involved in a fight [227 Ill.App.3d 494] with Fleener's half-brother Joe Jefferson ¹ that afternoon. When Fleener and defendant arrived, Fleener pointed to Green, who was walking into view, and identified him as Joe's assailant. Defendant had Fleener's loaded .32 caliber revolver, which Fleener had given to him before they left. After they had gotten out of their car, Green started running. According to defendant's testimony, Fleener said "shoot, shoot," and defendant fired "about three or four times." Green testified that he heard about four shots and felt some bullets passing by. Tammy Washington, 13 years old, who was jumping rope on the sidewalk in front of her grandmother's house at 6840 South Winchester, was shot and killed.

Defendant testified on direct examination that he shot "at the ground * * * just to scare" Green; that he did not deliberately try to shoot or kill Eric Green; and that he was under a sudden and intense passion at the time of the shooting. However, on cross-examination, defendant admitted that he was not firing "up into the air" or "straight down into the ground". He also admitted that he saw some people "behind Eric Green as he was running down the sidewalk."

Three eyewitnesses, Brian Banks, Lena Robinson and Leon Coleman, testified as to the shooting. Banks testified that defendant "was standing in the middle of the street shooting, shooting, following Eric Green running." Banks continued, "He was shooting across the street, Eric--because Eric was running he was following him shooting." In demonstrating the manner in which defendant was shooting, the record reflects "that the [defendant] had his arm extended and his fingers in the shape of a gun moving back and forth." Robinson testified that defendant "got out of the car and he aimed. He just started shooting bang, bang, bang." She also stated that defendant's arm was extended and that "his legs were bent" as he was firing. Robinson further testified that she "heard him shooting and saw him when he got out of the car and aiming the gun and shot," that "he was not shooting at the ground,"

Page 137

[169 Ill.Dec. 650] and that there were bullet holes in the side of her house. Coleman's testimony was that he "saw Freddie Jefferson shooting at Eric Green," and in demonstrating the manner in which defendant was shooting, the record reflects that "the [defendant] had his arm extended and [227 Ill.App.3d 495] his hands and fingers positioned as a gun and going across in a shooting motion."

Each of the three witnesses picked defendant out of a lineup and identified him in court. Green also picked defendant out of a lineup. In addition, the Cook County assistant medical examiner testified that Washington's round wounds were not characteristic of ricochet wounds. However, she admitted on cross-examination that it would be possible for an imperfect or ricochet bullet to leave a round hole.

Defendant was charged with the attempted murder of Eric Green and the transfered intent murder of Tammy Washington. The jury convicted him on both charges. The trial judge vacated the conviction for attempted murder and sentenced defendant to 40 years imprisonment on the murder conviction. We affirm.

I.

Defendant claims that the trial judge erred in instructing the jury on accomplice liability because he was the principal wrongdoer and not an accomplice. The instruction at issue was given as follows:

"A person is legally responsible for the conduct of another person when, either before or during the commission of an offense, and with intent to promote or facilitate the commission of that offense, he knowingly solicits, aids, abets, agrees to aid, or attempts to aid the other person in the planning or commission of the offense."

Pursuant to the I.P.I. Committee Note to this instruction, the phrase "or one for whose conduct he is legally responsible" was inserted after the word "defendant" in each proposition of the issues instructions for the offenses of attempt murder, murder and involuntary manslaughter with which the defendant was charged. According to defendant, the jury understood the accountability instruction to mean that Fleener's mental state could be held against him. In support of this claim defendant cites the following remarks, which were made by the trial judge outside the presence of the jury:

"THE COURT: [T]wo people [are] acting in concert with a conspiracy to commit a crime and they succeed.

* * * * * *

So that what you are really doing is taking the conduct of both gentlemen and tag the intent of both gentlemen to decide whether Freddie is guilty of murder or not.

[227 Ill.App.3d 496] [DEFENSE]: The point that I am making, judge, is how can you hold Freddie accountable for Fleener's state of mind? You can't be held accountable for another man's state of mind.

THE COURT: The idea is that they didn't have a separate state of mind, that they both have the same state of mind and it's by using both their actions you determine that state of mind."

Defendant argues that the improper instruction allowed the jury to convict him "without making any finding as to his mental state" in violation of his right to due process of law. Carella v. California (1989), 491 U.S. 263, 265, 109 S.Ct. 2419, 2420, 105 L.Ed.2d 218, 221 ("The Due Process Clause of the Fourteenth Amendment denies States the power to deprive the accused of liberty unless the prosecution proves beyond a reasonable doubt every element of the charged offense."); In re Winship (1970), 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368.

The State conceded during oral argument before this court that because defendant's participation as principal was clearly established by his own testimony at trial, the judge's giving of the accountability instruction to the jury was improper. (See People v. Lusietto (1976), 41 Ill.App.3d 205, 207, 353 N.E.2d 385, "guilt predicated on an accountability theory is proper only if the other evidence is inconclusive as to the defendant's direct participation in the crime.") Defendant contends that the erroneous

Page 138

[169 Ill.Dec. 651] instruction constitutes reversible error. (See People v. Payne (1990), 194 Ill.App.3d 238, 141 Ill.Dec. 168, 550 N.E.2d 1214; People v. McCauley (1972), 2 Ill.App.3d 734, 277 N.E.2d 541, "It is reversible error to inject into the case, by way of instruction, issues which are not properly before the jury. [Citation.]") However, "[e]ven an inappropriately given accountability instruction does not constitute reversible error where, as here, sufficient evidence was adduced from which the jury could find defendant guilty as principal. (People v. Andrews (1981), 95 Ill.App.3d 595, 598, 51 Ill.Dec. 95, 420 N.E.2d 509, People v. Lusietto (1976), 41 Ill.App.3d 205, 208, 353 N.E.2d 385.)" People v. Faysom (1985), 131 Ill.App.3d 517, 528, 86 Ill.Dec. 566, 475 N.E.2d 945; see also People v. Finch (1946), 394 Ill. 183, 191, 68 N.E.2d 283, cert. denied Finch v. Illinois (1946), 329 U.S. 786, 67 S.Ct. 298, 91 L.Ed. 673; People v. Lehner (1929), 335 Ill. 424, 429-30, 167 N.E. 20; People v. Batchelor (1990), 202 Ill.App.3d 316, 332, 147 Ill.Dec. 608, 559 N.E.2d 948, appeal denied (1990), 135 Ill.2d 559, 151 Ill.Dec. 385, 564 N.E.2d 840.

Because defendant claims that the improper...