No. 2--94--1201
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
_________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit
OF ILLINOIS, ) Court of Winnebago County.
)
Plaintiff-Appellee, )
) No. 94--CF--285
v. )
)
TORY R. TAYLOR, ) Honorable
) Ronald L. Pirrello,
Defendant-Appellant. ) Judge, Presiding.
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JUSTICE HUTCHINSON delivered the opinion of the court:
Defendant, Tory Taylor, appeals his conviction of aggravated
discharge of a firearm (720 ILCS 5/24--1.2(a) (West 1994)).
Defendant asserts that (1) he was not proved guilty of the crime
beyond a reasonable doubt; (2) the trial court erred in refusing to
answer a jury inquiry; and (3) the prosecutor sought to
indoctrinate the potential jurors during voir dire. We affirm.
This case arose from a traffic altercation on August 28, 1993,
in Rockford, Illinois. Defendant, who was 15 years old at the
time, was driving his stepfather's car, a blue Chevrolet Celebrity,
accompanied by his friend, Lynn Hollingshed. Witnesses testified
that defendant was the driver of the car, and Hollingshed was a
passenger sitting in the front seat. Defendant testified that he
was wearing shorts and Hollingshed was wearing black overalls, worn
backwards, a black, long-sleeved shirt, and a hat. Both had been
riding around town for approximately seven hours. During that
time, Hollingshed showed defendant a .25-caliber handgun that he
had pulled out of his pocket. At approximately 7:30 p.m.,
defendant turned from a larger street onto a side street.
Edward Dawson, his wife Alta, and a friend were traveling on
a two-lane, two-way street on their way to a wedding reception.
Vehicles were parked on both sides of the street, reducing the lane
size. Defendant turned onto this street as Edward was approaching
the intersection. Beyond these facts, the accounts of the incident
vary. Edward and Alta testified that defendant's car came quickly
around the corner, occupied a part of both lanes, and forced their
vehicle close to a parked car. Defendant testified that the street
was too narrow for both cars to pass, so he stopped his car and
backed it up to allow the other vehicle to pass.
Edward and Alta both exited their car, allegedly to look for
damage done to the parked car. They testified that the passenger
in the Celebrity also got out of the Celebrity. Edward asked
whether the young man had a "problem." Defendant testified that
Edward had said, "You got a problem you fuckin' niggers?" as Edward
drove past. Both Edward and Alta testified that the passenger was
wearing black overalls, turned backwards, a black shirt, and a hat.
They also testified that the passenger had a small, black machine
gun in his left hand. Edward identified the passenger as the
defendant during a photographic lineup and at trial. When asked if
he had a problem, the youth responded, "Yes, I got a fuckin'
problem, white boy." To emphasize his point, the passenger removed
a small handgun and fired it in Edward's direction. Defendant
testified that the shot was fired upward, and Edward testified that
the bullet "whizzed" past his ear. Edward testified that he jumped
back into his car as another bullet was fired. Alta, who had also
exited the car, reentered the car and wrote down the license plate
number of defendant's vehicle. The shooter then reentered the
Celebrity and the car left the scene. The Dawsons went to the
closest service station and called the police.
Defendant testified that Hollingshed was the shooter.
Hollingshed was angered by Edward's alleged racial slur and had
told defendant to stop the car. Hollingshed did not indicate why
he wanted defendant to stop the car, nor did he give any reason for
exiting the car. Defendant testified that he was startled when the
first shot rang out. After firing two shots in the air,
Hollingshed came back to defendant's car. Defendant asked
Hollingshed why he fired the shots, but received no response from
him. Defendant then drove quickly from the scene.
Defendant drove to his brother's house, but he was not home.
He then drove to where his stepfather works, but the stepfather was
still working and unable to meet with defendant. Finally,
defendant went to the house of his uncle, Desmond Taylor. Taylor
drove defendant and Hollingshed towards a friend's house, but
defendant and Hollingshed left the car when they saw a police car
making a U-turn to follow their car. The officer had apparently
identified the vehicle as the car involved in the shooting from the
Dawsons' description of the car and its license plate number. The
officer stopped Taylor and obtained defendant's and Hollingshed's
name.
Defendant and Hollingshed ran for a couple of blocks until
they found a friend of defendant's mother, who drove them to the
house of defendant's friend. Hollingshed left the friend's house
after a short period to go to the hospital for treatment of a cut
he had received during their flight from Taylor's vehicle.
Defendant remained at the friend's house until late in the evening.
Defendant was arrested, and a grand jury later indicted him
for aggravated discharge of a firearm. Defendant submitted a
motion to suppress his identification as the shooter, because he
was the only person wearing a black, long-sleeved shirt in the
photo array presented to Edward and Alta. The motion was denied.
However, because the State changed the direction of the
prosecution, arguing that defendant was the driver and not the
shooter, the denial of this motion was not raised on appeal.
During voir dire, defendant and the State used hypotheticals
to determine potential jurors' ability to understand the nature of
the case. Defense counsel made repeated objections to the State's
hypotheticals, arguing that the State was attempting to
indoctrinate the jury. After both sides had presented their case
at trial, during jury deliberations the jury sent a question to the
trial court. The jury asked for a definition of the term "offense"
as it related to "aiding and abetting." The trial court answered,
"You have your instructions as they apply to the facts, and you
must apply your recollection of the facts to those instructions."
After another four-hour period of deliberation, the jury found
defendant guilty.
Defendant first argues that he was not proved guilty beyond a
reasonable doubt of aggravated discharge of a firearm under the
theory of accountability. In assessing whether the evidence
against a defendant was sufficient to prove guilt beyond a
reasonable doubt, a reviewing court must determine " ' "whether,
after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt." ' "
(Emphasis omitted.) People v. Furby, 138 Ill. 2d 434, 455 (1990),
quoting People v. Collins, 106 Ill. 2d 237, 261 (1985), quoting
Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99
S. Ct. 2781, 2789 (1979). A defendant's conviction should not be
set aside on grounds of insufficient evidence unless the proof is
so improbable or unsatisfactory that a reasonable doubt exists
about the defendant's guilt. Furby, 138 Ill. 2d at 455. Our
statute on accountability states that a defendant is legally
accountable for the actions of another when:
"(c) Either before or during the commission of an
offense, and with the intent to promote or facilitate such
commission, [she or] he solicits, aids, abets, agrees or
attempts to aid, such other person in the planning or
commission of the offense." 720 ILCS 5/5--2(c) (West 1994).
Defendant argues that the offense was completed when Hollingshed
fired the handgun at Dawson, and he was, therefore, not involved in
the offense either before or during its commission.
A person may not be held accountable for a crime merely for
being present (People v. Melgoza, 231 Ill. App. 3d 510, 537
(1992)), nor will a person generally be rendered accountable for
acquiescing to the criminal activities of another (People v.
Miscichowski, 143 Ill. App. 3d 646, 655 (1986)).
"In order to establish' guilt based upon a theory of legal
accountability, the State must prove beyond a reasonable doubt
that either before or during the commission of the offense,
the defendant solicited, aided, abetted, agreed[,] or
attempted to aid another person in the commission of the
offense and that such participation was with the concurrent,
specific intent to promote or facilitate the commission of the
offense." People v. Novy, 232 Ill. App. 3d 631, 664 (1992).
The question then is whether defendant helped to facilitate the
commission of the offense by providing Hollingshed with an escape
from the scene of the offense.
Defendant directs this court's attention to our recent
opinion, In re D.C., 259 Ill. App. 3d 637 (1994). In D.C., a minor
was convicted of burglary under the theory of accountability. The
defendant was present with some friends when they burglarized a
vehicle, and the defendant was convicted of a burglary that
occurred before he joined them. This court overturned his
conviction, finding that, "[i]f the crime itself does not include
escape as an element, it follows that the escape should not be
considered part of the crime for determining whether the accused
committed the crime." In re D.C., 259 Ill. App. 3d at 643.
We do not find this rationale persuasive. We believe the
reasoning in the dissenting opinion in D.C. to be sound. As
Presiding Justice Inglis correctly noted in that dissent, the
majority opinion is contrary to an established line of cases
holding that escape is to be considered an element of the offense
for accountability purposes. See, e.g., People v. House, 232 Ill.
App. 3d 309 (1992); People v. Johnson, 220 Ill. App. 3d 550 (1991);
People v. Gil, 125 Ill. App. 3d 892 (1984); People v. Mumford, 70
Ill. App. 3d 395 (1979). In D.C., the minor was aware that his
friends had committed a crime, and he made a conscious decision to
remain with them during the commission of another crime and to
provide them with a way to escape the scene. As a result, we
believe that the minor was correctly found to be accountable for
the crime by the trial court. Therefore, we adopt the standard
from House and overrule any portion of In re D.C. that is contrary
to this standard.
Defendant also cites People v. Dennis, 271 Ill. App. 3d 1041
(1995), for the proposition that escape is not necessarily a
component of an offense for accountability purposes. In Dennis,
the defendant drove a friend away from the scene of a crime, but he
only became aware that the crime had been committed after the
escape. The court reasoned that "[f]light from the scene does not
elongate the offense of robbery." Dennis, 271 Ill. App. 3d at
1046. The Dennis case is, however, factually distinguishable from
the present case. In the present case, defendant was acutely aware
of the crime during its commission and made the conscious decision
to aid Hollingshed's flight from the scene.
We find the well-established precedents of this court to be
persuasive. "[A] criminal act is not completed until the offender
has escaped from the scene." Mumford, 70 Ill. App. 3d at 400.
This holding was echoed by the court in Gil, which similarly held
that "a crime is not completed until the offender has escaped from
the scene." Gil, 125 Ill. App. 3d at 896. In the present case,
the actual act of aggravated discharge of a firearm may have been
completed when the firearm was discharged, but the crime was not
completed for the purposes of accountability. Defendant may not
have fired the handgun, but he did knowingly provide Hollingshed
with a very effective way to escape. After viewing the evidence in
the light most favorable to the prosecution, we find that any
rational trier of fact could have found the essential elements of
the crime of aggravated discharge of a firearm beyond a reasonable
doubt.
Defendant's second issue on appeal is that the trial court
erred in refusing to clarify the law of accountability to the jury.
Jurors are entitled to have their questions answered, and "the
trial court has a duty to provide instruction to the jury where it
has posed an explicit question or requested clarification on a
point of law arising from facts about which there is doubt or
confusion." People v. Childs, 159 Ill. 2d 217, 228-29 (1994),
citing People v. Reid, 136 Ill. 2d 27, 39 (1990); see also People
v. Landwer, 279 Ill. App. 3d 306, 314 (1996). Under certain
circumstances, a trial court's refusal to answer the jury's
question may be held to be prejudicial error. See, e.g., People v.
Shannon, 206 Ill. App. 3d 310 (1990). The rule, as explained by
the Childs court, is:
"A trial court may exercise its discretion and properly
decline to answer a jury's inquiries where the instructions
are readily understandable and sufficiently explain the
relevant law, where further instructions would serve no useful
purpose or would potentially mislead the jury, when the jury's
inquiry involves a question of fact, or if the giving of an
answer would cause the court to express an opinion which would
likely direct a verdict one way or another." Childs, 159 Ill.
2d at 228.
For this inquiry, whether the jury was properly instructed before
the beginning of deliberations is irrelevant. People v. Kittinger,
261 Ill. App. 3d 1033, 1038-39 (1994).
In the present case, the trial court refused to provide the
jury with a definition of the term "offense" as it related to
aiding and abetting. The trial court responded to the jury's
inquiry by sending the jury a note stating, "You have your
instructions as they apply to the facts and you must apply your
recollection of the facts to those cases." Defendant argues that
the trial court erred because its answer merely created more
confusion over the definition of a term contained in the jury
instructions. The State asserts that the jury's inquiry was
"demonstrably ambiguous" and could not have been answered without
a colloquy between the court and the jury. We agree with the
State.
The trial court could have provided the jury with a definition
of the term "offense" as it is contained in our statute by
responding that an " '[o]ffense' means a violation of any penal
statute of this State" (720 ILCS 5/2--12 (West 1994)). However,
this would not necessarily have provided the jury with any
guidance. In fact, the jury appeared to be looking for a
definition that might require the trial court to comment on a
question of fact, to express an opinion which would likely direct
a verdict one way or another or, at the very least, to ask the
jury additional questions to clarify the request. Therefore, we
determine that the trial court properly refused to answer the
jury's inquiry.
Defendant's final argument is that the State improperly sought
to indoctrinate the jurors during voir dire through the use of
hypotheticals. The trial court has primary responsibility for
conducting voir dire examination in criminal cases, and the scope,
extent, and manner of questioning rest within the discretion of the
trial court. 134 Ill. 2d Rs. 234, 431; see also People v. Hope,
168 Ill. 2d 1, 30 (1995); People v. Szudy, 262 Ill. App. 3d 695,
708 (1994). The purpose of voir dire is to ascertain sufficient
information about prospective jurors' beliefs and opinions to
permit the removal of those members of the venire who are unable or
unwilling to be impartial. People v. Oliver, 265 Ill. App. 3d 543,
548 (1994). The purpose is not to elicit jurors' opinions
concerning particular evidence to be offered at trial. State v.
Bibb, 626 So. 2d 913, 942 (La. App. 1993). Only when the trial
court's actions have frustrated the purpose of voir dire will an
abuse of discretion be found. Hope, 168 Ill. 2d at 30. Voir dire
cannot be used as an opportunity to even slightly indoctrinate a
juror. People v. Cloutier, 156 Ill. 2d 483, 496 (1993); see also
People v. Morgan, 112 Ill. 2d 111, 129 (1986).
In the present case, the State, as well as the defendant,
presented the venire with many hypotheticals. Defendant argues
that the State's hypotheticals exceeded the scope of voir dire and
represented an effort to indoctrinate the jurors. The State argues
that it was merely "attempting to ascertain whether the jurors
could intellectually comprehend" the respective theories of the
case. Such an inquiry is acceptable, as long as it does not rise
to the level of indoctrination or preeducation. See Gowler v.
Ferrell-Ross Co., 206 Ill. App. 3d 194, 208 (1990).
A careful review of the record establishes that the State's
hypotheticals did amount to an attempt to indoctrinate the jury.
Therefore, we determine that the State's actions during voir dire,
particularly on the subject of identification of the shooter,
exceeded the scope of voir dire. However, the State argues that
any preeducation of the jurors was harmless error because the
State's theory shifted away from the theories mentioned during voir
dire. The State posed hypotheticals to the jury about its primary
theory of the case, that defendant was the shooter and could be
proved to be so by circumstantial evidence. Once trial began,
however, the State pursued and argued the theory that defendant was
the driver and was guilty of the crime under the doctrine of
accountability. As a result, we conclude that, even though we
have determined that the State's questions to the jurors exceeded
the scope of voir dire, this error must be deemed harmless, "as the
record demonstrates that the verdict would not have been otherwise
had the comments not have been made." People v. Williams, 147 Ill.
2d 173, 232 (1991).
The judgment of the circuit court of Winnebago County is
affirmed.
Affirmed.
INGLIS and DOYLE, JJ., concur.