People v. Shaw, 80378.

CourtSupreme Court of Illinois
Citation186 Ill.2d 301,713 N.E.2d 1161,239 Ill.Dec. 311
Docket NumberNo. 80378.,80378.
PartiesThe PEOPLE of the State of Illinois, Appellee, v. Gregory SHAW, Appellant.
Decision Date22 October 1998

713 N.E.2d 1161
186 Ill.2d 301
239 Ill.Dec.

The PEOPLE of the State of Illinois, Appellee,
Gregory SHAW, Appellant

No. 80378.

Supreme Court of Illinois.

October 22, 1998.

Modified on Denial of Rehearing June 1, 1999.

713 N.E.2d 1165
Justice McMORROW delivered the opinion of the court

On October 5, 1994, defendant was charged in a six count indictment with armed robbery (720 ILCS 5/18-2(a) (West 1996)), felony murder (720 ILCS 5/9-1(a)(3) (West 1996)), first degree (knowing) murder (720 ILCS 5/9-1(a)(1) (West 1996)) and first degree (intentional) murder. 720 ILCS 5/9-1(a)(1) (West 1996). A jury found defendant guilty on all counts, pursuant to a theory of accountability. Defendant requested a jury for his capital sentencing hearing, and at the close of the first phase of the hearing, the jury unanimously found him eligible for capital

713 N.E.2d 1166
punishment. 720 ILCS 5/9-1(b), (g) (West 1996). In the second phase of defendant's sentencing hearing, the jury determined that no mitigating factors existed that were sufficient to preclude imposition of capital punishment (720 ILCS 5/9-1(g) (West 1996)), and defendant was sentenced to death. Defendant's sentence has been stayed pending direct review by this court. Ill. Const.1970, art. VI, § 4(b); 134 Ill.2d Rs. 603, 609(a). For the reasons which follow, we reverse defendant's convictions for armed robbery and felony murder, affirm his convictions for first degree (knowing) murder and first degree (intentional) murder; vacate defendant's death sentence; and remand this matter for resentencing


A. The State's Theories

Defendant's convictions arise from the conduct of defendant and Elton Williams on September 28, 1994, culminating in the shooting death of Officer Timothy Simenson of the Crest Hill police department. At trial, the State developed the theory that defendant aided and abetted Williams in the armed robbery of William Chaney, even though defendant did not himself commit the robbery. The State introduced evidence to show that immediately following the robbery of Chaney, defendant acted as Williams' accomplice when Williams shot and murdered Simenson.

In a separate trial, a jury found Williams guilty of first degree (knowing) murder, first degree (intentional) murder and felony murder. He was sentenced to death for these crimes. On direct appeal to this court, we affirmed Williams' convictions and sentence. People v. Williams, 181 Ill.2d 297, 306, 229 Ill.Dec. 898, 692 N.E.2d 1109 (1998). The present appeal addresses only defendant's convictions and sentence.

B. The Evidence

Charles Pickens testified at trial that on the evening of September 27, 1994, Pickens and defendant drove together to defendant's mother's house in Pickens' automobile. En route to their destination, Pickens and defendant stopped at a liquor store. Pickens stated that defendant met Williams in the store. Defendant decided to leave the store with Williams and, as he left the liquor store at 6:30 or 7 p.m., Pickens saw defendant get into a small white car driven by Williams.

William Chaney testified that he arrived at his home, the Arbor Club apartment complex in Crest Hill, Illinois, shortly after midnight on September 28, 1994. As he parked his car in the parking lot, Chaney noticed a white car parked two spaces away from his own automobile. The engine of the white car was running. Chaney could not see inside the car.

When Chaney walked toward the entrance to his apartment building, he noticed Williams running toward him. Armed with an altered .22-caliber rifle, Williams ordered Chaney to surrender his wallet. Chaney tossed his wallet, which contained two $100 bills and Chaney's pay stub folded between the bills, to Williams.

Chaney then went directly into his apartment and called 911. It was 12:23 a.m. Chaney informed the Crest Hill police dispatcher of the robbery, provided a physical description of Williams, and the fact that a white car might be involved.

At the 911 operator's direction, Chaney returned to the parking lot and found a Crest Hill police officer, Tom Evanoff, in a squad car waiting for him. Evanoff and Chaney drove half a block to the intersection of Theodore and Burry Circle, located at the border of Crest Hill and Joliet, Illinois. Chaney recognized the white car he had earlier seen in the Arbor Club parking lot, now stopped at the intersection. Two Crest Hill police cars were parked directly behind the white car. Chaney estimated that 10 to 12 feet separated the white car and the first police car behind the white car. The headlights of both police cars were illuminated.

Evanoff parked his squad car parallel to the first police car. From his unobstructed vantage point, Chaney observed two police officers standing at the white car with a third man, whom Chaney identified as the defendant. Chaney told Evanoff that he was not sure that defendant was the man who had robbed him. As Evanoff began to leave the squad car, Chaney saw one of the officers

713 N.E.2d 1167
remove keys from the white car and walk to the car's trunk. Chaney noticed too that, when the officer started to open the trunk, defendant bent over the hood of the police car parked immediately behind the white car. As the trunk deck rose, Chaney saw a gun barrel emerge from the trunk and fire two shots. The officer that opened the trunk fell backward, and a man standing in the trunk of the white car aimed a rifle at the second officer. Chaney heard "rapid and loud" gunfire, and he lay down in the back of Evanoff's squad car. After the shooting stopped, Chaney sat up and saw the second officer place handcuffs on defendant

Chaney further testified that he did not see defendant during the robbery at the apartment complex, and that he never saw defendant in the white vehicle. Chaney never saw a weapon in defendant's hands.

Crest Hill police officers Ralph Smith and Evanoff also described the events of September 28, 1994. Smith testified that he was about 1½ miles from the intersection of Theodore and Burry when he heard the first dispatch about the robbery on his radio. The radio message, directed to Evanoff, stated that a robbery had occurred a few minutes earlier at Arbor Club complex. The robbery suspect was described as a black male in his mid-twenties, wearing a black jacket. The dispatcher also mentioned there was a white car in the area. Smith then heard a second radio communication, indicating that Evanoff would proceed to the apartment complex to interview the robbery victim, and that a third officer, Timothy Simenson, had seen and intended to stop a white Chevrolet Cavalier automobile at the intersection of Theodore and Burry.

Smith drove to Theodore and Burry, arriving there in approximately 1½ minutes. At the scene, Smith testified that he parked his car behind Simenson's car. Smith shone a spotlight located on his car toward a white Chevrolet Cavalier automobile parked in front of Simenson's car. Smith joined Simenson and the driver of the white car, later identified as defendant, as they stood at the driver's side of the white car. Simenson directed defendant to go to the back of the white car. Defendant walked to the back of the car and without being ordered by either officer to do so, sat on the trunk deck. In the meantime, Simenson examined the interior of the white car, turned off the car engine, and returned to the back of the white car with the car keys in his hand. Simenson said he intended to open the trunk and told defendant to get off the trunk of the automobile. Defendant slid off the trunk but stayed near the back of the white car. Simenson again told defendant to move away and go with Smith to Simenson's car.

Smith walked behind defendant to Simenson's car, where defendant placed his hands on the front of the car and bent forward at the waist. Neither Smith nor Simenson had told defendant to do this, and Smith said he found defendant's actions "unusual." Because Evanoff had recently arrived at the scene and parked near Simenson's car, Smith told defendant to stand up and face Evanoff's car. Smith knew, from radio communications, that Evanoff was bringing Chaney with him to the scene to determine if Chaney could identify defendant.

As Smith and defendant stood with their backs to the white car, Smith heard the trunk of the white car open, followed by a gunshot. Smith testified that as he turned around, he heard a second shot, and saw Simenson falling backward "like a tree." Smith tried to aim his own weapon, but had to step to the right to avoid putting Simenson in his line of fire. As he moved, Smith saw a "male black, 20's," get out of the trunk and level a gun at him. Smith fired his weapon several times until the assailant fell to the ground. Smith and Evanoff placed handcuffs on defendant and Williams and summoned ambulances.

Smith testified that after the shooting ceased, he turned to find defendant "spread-eagled" on the hood of Simenson's car. He did not know at what point defendant moved from a standing position to lying on the hood of the police car.

Defendant never told or indicated to Simenson or Smith that anyone was in the trunk of the white car.

713 N.E.2d 1168
Evanoff testified that at approximately midnight on September 28, Simenson and Evanoff were parked in their respective cars in a parking lot in Crest Hill. At 12:24 a.m., Evanoff received a dispatch regarding an armed robbery at the Arbor Club apartment complex. The radio dispatcher described a "male black, 25 years of age, wearing a black jacket." The communication also mentioned that a white vehicle "might be involved."

Simenson and Evanoff immediately drove in the direction of Arbor Club. The officers saw a white Chevrolet Cavalier automobile driving toward them, with an African-American male behind the wheel. Simenson made a U-turn and followed the white car. Evanoff continued on to Arbor Club.

After Evanoff arrived at the apartment complex, Simenson...

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