People v. Johnson

• Decision Date: 30 September 1991
• Docket Number: No. 1-89-1665,1-89-1665
• Citation: 163 Ill.Dec. 167,581 N.E.2d 118,220 Ill.App.3d 550
• Parties: , 163 Ill.Dec. 167 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Andrew JOHNSON, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 118

581 N.E.2d 118

220 Ill.App.3d 550, 163 Ill.Dec. 167

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Andrew JOHNSON, Defendant-Appellant.

No. 1-89-1665.

Appellate Court of Illinois,

First District, Fourth Division.

Sept. 30, 1991.

Michael J. Pelletier, Deputy Defender, Ann C. McCallister, Asst. Appellate Defender, Office of State Appellate Defender, Chicago, for defendant-appellant.

Jack O'Malley, State's Atty. of Cook County, Renee Goldfarb, Asst. State's Atty., Kathleen F. Howlett, Special Asst. State's Atty., and Ashley A. Romito, Asst. State's Atty., Chicago, for plaintiff-appellee.

Justice McMORROW delivered the opinion of the court:

Defendant and Robert McFadden were jointly charged with robbery. McFadden pleaded guilty to the charge. Defendant entered a plea of not guilty. Following a jury trial, defendant was convicted of robbery and sentenced as a Class X habitual offender to six years' imprisonment. On appeal, defendant contends that (1) he was denied his constitutional right to conflict-free counsel; (2) the trial court abused its discretion in denying his motion for a continuance; (3) he was not proven guilty beyond a reasonable doubt; and (4) he was prejudiced by several improper prosecutorial remarks in closing argument.

Defendant argues that the evidence did not prove either that he committed or was accountable for McFadden's commission of the robbery. The record discloses the following:

At trial, Hans Spears (Spears), aged 70, testified that at 5 p.m. on August 21, 1988, he and his wife, Beatrice, and their daughter, Judy, were on their way home from a walk in North Lincoln Park. Spears was 20 to 25 feet ahead of Beatrice and Judy when he noticed two men walking shoulder to shoulder toward him. Spears identified the taller of the men as defendant. As the men came directly toward him, he stepped off the path onto the grass to allow them to pass, but the men stopped. Defendant was standing next to the shorter man and in front of Spears when the shorter man grabbed Spears' shoulder, stated a profanity, and then pulled Spears' gold chain from his neck. Both men then ran toward a viaduct leading out of the park underneath the outer drive.

Spears screamed and ran after the men. He fell, got up, and resumed his chase of the men. Judy was approximately 20 feet behind her father. As he was running, he saw a police car and called for assistance. The police apprehended both men and, a few minutes later, returned the chain to Spears. On cross-examination, Spears stated that defendant did not touch or say anything to him, nor did the men speak while in Spears' presence.

Judy Spears testified that she and her parents were approaching an underground tunnel leading from the park to Marine Drive. By the time she reached the passage to the tunnel, she saw her father on the ground. He said "they got my chain, Judy, go after them." She saw two men running and began to chase them, calling for assistance as she ran. The taller man, whom she identified as defendant, had something in his hand. Assuming that the object he held was the chain, she followed him rather than the shorter man who continued running up a different street. Defendant tried to run between some buildings, but returned to the street when he encountered a dead end. She was approximately 25 feet behind him when he threw the chain into a bushy area. By the time defendant reached the end of the block, the police had arrived and arrested him. After a brief search, she and a policewoman found her father's chain and returned it to him. She did not witness the robbery or see the transfer of the chain from the shorter man to defendant.

Beatrice Spears testified that she saw her husband "being accosted by two men," one of whom she identified as defendant. She saw her husband running and then fall, and she heard him screaming "they got my chain." He arose and resumed his chase of the men. As Judy joined the chase, Beatrice also began running and calling for help. She waved down a police car, explained what had occurred and entered the car. When they caught up with Spears a half-block further, Beatrice exited the car and Spears entered the back seat. She followed the car on foot and saw that two other squad cars had arrived. The police apprehended defendant and the other man. On cross-examination, Beatrice stated that she did not witness the men taking the chain from her husband; and that she was first alerted to the incident when she saw her husband fall and heard him screaming that the two running men had taken his chain.

Chicago Police Officer Steve Murphy testified that he was on routine patrol on Marine Drive when he was flagged down by a motorist. Following a brief conversation, he drove to a street where he was waved down by Beatrice Spear who informed him that her husband had just been robbed by two men. She entered the car and pointed out Spears running westward. When they stopped, Spears entered the car and they proceeded to where Officer Murphy observed two men walking very rapidly northbound. Spears identified them as the men who had robbed him. Officer Murphy "cut these two men off" with the squad car and was able to stop and arrest the taller man, whom he identified as defendant. The other man went in another direction but was apprehended moments later by other officers. The chain was recovered from the area where Judy informed police she had seen defendant throw it.

Defendant asserts that even when viewed in the light most favorable to the State, the evidence established nothing more than his presence at the scene of the robbery, and that mere presence is insufficient to support a conviction under the law of accountability. He argues that there was no evidence that he "was acquainted" or had a "prior connection" with McFadden, that aside from walking together, he and McFadden were "interacting" prior to the robbery, that he said anything to McFadden or Spears before or during the robbery, or that he in any other way participated in it. Defendant maintains that his only actions in this incident were running from the scene and throwing away the chain that McFadden had handed him as they were running, both of which he did out of fear of being accused of participation in the robbery. He argues that this conduct, which occurred after the commission of the crime, does not render him legally accountable for the robbery itself.

A person is legally accountable for another's criminal conduct when "[e]ither before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense." (Ill.Rev.Stat.1989, ch. 38, par. 5--2(c).) Mere presence at the scene of a crime does not render an accused accountable for the offense. (People v. Gilbert (1990), 194 Ill.App.3d 184, 141 Ill.Dec. 137, 550 N.E.2d 1183.) Nevertheless, "[a]ctive participation has never been a requirement for the imposition of criminal liability upon the theory of accountability" (People v. Reid (1990), 136 Ill.2d 27, 61, 143 Ill.Dec. 239, 255, 554 N.E.2d 174, 190); nor are words of agreement essential to show a common purpose to commit the unlawful conduct (People v. Reid, 136 Ill.2d at 62, 143 Ill.Dec. 239, 554 N.E.2d 174). If the evidence shows that the person was present at the crime without disapproving or opposing it, the trier of fact may infer that he assented to the commission of the crime and thereby aided and abetted it (People v. Reid, 136 Ill.2d at 62, 143 Ill.Dec. 239, 554 N.E.2d 174; People v. Tinoco (1989), 185 Ill.App.3d 816, 133 Ill.Dec. 760, 541 N.E.2d 1198).

In addition to a defendant's presence at the scene of the crime without any negative reaction to it, other factors raise inferences that an accused aided in its commission. (People v. Reid, 136 Ill.2d at 61, 143 Ill.Dec. 239, 554 N.E.2d 174.) Some of those factors are: flight from the scene (People v. Dotson (1986), 143 Ill.App.3d 135, 97 Ill.Dec. 244, 492 N.E.2d 903); continued association with the perpetrator after the criminal act; failure to report the incident (People v. Reid, 136 Ill.2d at 62, 143 Ill.Dec. 239, 554 N.E.2d 174); acceptance of illegal proceeds from the actual perpetrator which the accused knew did not belong to that person (People v. Clayborn (1990), 194 Ill.App.3d 1079, 141 Ill.Dec. 707, 551 N.E.2d 1050); and the subsequent concealment or destruction of evidence (People v. Ruiz (1982), 94 Ill.2d 245, 68 Ill.Dec. 890, 447 N.E.2d 148; People v. Watts (1988), 170 Ill.App.3d 815, 121 Ill.Dec. 427, 525 N.E.2d 233).

According to the testimony presented at trial in this case, defendant and McFadden approached Spears walking side by side. They simultaneously stopped directly in front of him as Spears was stepping off the path to allow them to pass. McFadden then grabbed Spears' shoulder, demanded the chain and pulled it from Spears' neck. Defendant did not say or do anything to intervene or otherwise express his disapproval or opposition to McFadden's actions. The joint manner in which defendant and McFadden approached Spears and stopped in front of him, together with defendant's failure to intervene or voice any opposition to McFadden's actions are sufficient to establish that he assented to and aided McFadden in the commission of the robbery.

Additionally, defendant does not deny that he and McFadden immediately fled from the scene, running together into the viaduct and onto the street beyond it with all three members of the Spears' family in pursuit and calling for bystander assistance. It is also undisputed that at some point during their flight from the scene, McFadden gave defendant the gold chain taken in the robbery of Spears, and that just before being apprehended by the police defendant threw it into some bushes. It has been stated that for purposes of determining legal accountability, the crime is not...