People v. Williams

• Decision Date: 24 April 1975
• Docket Number: No. 74--284,74--284
• Citation: People v. Williams, 328 N.E.2d 682, 28 Ill.App.3d 402 (Ill. App. 1975)
• Parties: PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Michael WILLIAMS, Defendant-Appellant.
• Court: Appellate Court of Illinois

Page 682

328 N.E.2d 682

28 Ill.App.3d 402

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Michael WILLIAMS, Defendant-Appellant.

No. 74--284.

Appellate Court of Illinois, Fifth District.

April 24, 1975.

Paul Bradley, First Deputy, Office of the State Appellate Defender, First Judicial Dist., Jan H. Stonecipher, Asst. Appellate Defender, Chicago, for defendant-appellant.

Donald E. Irvin, State's Atty., Mount Vernon, Bruce D. Irish, Principal Atty., Raymond F. Buckley, Jr., Staff Atty., Statewide Appellate Assistance Service, Ill. State's Atty. Assn., Mount Vernon, for plaintiff-appellee.

KARNS, Justice.

Defendant-appellant, Michael Williams, was convicted of burglary after a jury trial in Jefferson County and sentenced to serve from two to six years. On appeal he contends that he was not proved guilty beyond a reasonable doubt; that the prosecutor made improper and prejudicial remarks in closing argument; that he was denied effective assistance of counsel and that the sentence imposed was excessive.

The testimony most damaging to defendant came from Isaiah White, Jr., defendant's fourteen year old co-participant in the crime, testifying under a grant of total immunity from prosecution. White testified that he and defendant went to Johnson's Market in Mt. Vernon early in the morning of January 18, 1974. Defendant threw a brick through a front window; then, White entered the building and removed several pounds of assorted meats. Both men returned to White's house and ate part of the meat. They returned to Johnson's Market intending to take more merchandise but were interrupted by the police. White escaped but was later arrested at his home. Defendant ran but was apprehended by the police a few minutes later. Two police officers corroborated White's testimony about the capture. The owner of the store itemized the merchandise taken and stated that meat recovered by the police from White was similar to that taken. There was no evidence presented that defendant was inside the store at any time. Defendant was indicted in the language of the statute (Ill.Rev.Stat.1973, ch. 38, par. 19--1) and no instruction on accountability as defined in section 5--2 of the Criminal Code was tendered or given.

Defendant first contends that since defendant was tried as a principal and the jury was not instructed as to the law of accountability there was not sufficient evidence to find that the defendant 'entered' the building. The State's theory at trial was that defendant entered the building when he threw the brick through the window. The prosecutor six times told this to the jury in final argument. Defendant's objection to the first of these statements was overruled. Defendant specifically argued that accountability was not an issue in the case and that the throwing of the brick was not an 'entry.' The prosecutor's statemens to the jury were in error. Defendant's use of the brick only to break the window was not an 'entry.' People v. Davis, 3 Ill.App.3d 738, 279 N.E.2d 179 (1972). There was no evidence that defendant was inside the building or that he placed any object or part of his body in the building. Counsel should refrain from 'instructing' the jury, especially on a point not contained in the court's charge to the jury.

We do not believe, however, that the prosecutor's misstatement of the law warrants reversal. Defendant was charged, tried, and convicted as a principal. The verdict form did not specify whether defendant entered the building or was guilty of burglary on the theory of accountability. There is no requirement that a defendant be charged with a crime in the language of accountability. It is always proper to charge one as a principal even though the proof is that he is an accessory who aided or abetted the commission of the crime. People v. Fowler, 18 Ill.App.3d 489, 309 N.E.2d 788 (1974); People v. Heuton, 2 Ill.App.3d 427, 276 N.E.2d 8 (1971). Accountability (Ill.Rev.Stat.1973, ch. 38, par. 5--1 et seq.) is not an offense in itself but merely an alternative to the nature of the proof required to convict for a substantive offense. People v. Heuton, Supra. There can be no doubt that defendant was accountable for the acts of White, that he aided White in the commission of the offense, and that he reaped the benefits of the crime. This undisputed evidence estabishes overwhelmingly defendant's guilt of the offense charged.

Defendant next contends that he was prejudiced by the State's repeated assertions that defendant instigated and led the fourteen year old White in the commission of the offense. Defendant correctly notes that no evidence was presented to sustain the charges. The State concedes that the statements were 'irrelevant.' We agree. The remarks were injudicious and uncalled for. We do not believe, however, that defendant suffered any prejudice or that the statements made contributed to the verdict in light of the overwhelming evidence of guilt presented.

Defendant next contends that he was denied the effective assistance of counsel. As noted above, the State's case rested almost entirely upon the evidence of Isaiah White, defendant's co-participant. Counsel made repeated references to the immunity given White for his testimony, characterizing it as a 'deal' and intimating that the prosecutor may have added to the contents of White's testimony. Yet he did not tender an instruction cautioning the jury about accomplice testimony. Defenda...