No. 3--05--0747
Filed September 12, 2007.
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2007
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the Ninth Judicial Circuit,
) Knox County, Illinois
Plaintiff-Appellee, )
)
v. ) No. 05--CF--249
)
JANET L. TURNER, )
) Honorable James B. Stewart,
Defendant-Appellant. ) Judge, Presiding.
JUSTICE SCHMIDT delivered the opinion of the court:
The State charged defendant, Janet L. Turner, with theft.
Following a bench trial, the circuit court of Knox County
convicted defendant and sentenced her to 2 days' imprisonment
with credit for time spent in presentence incarceration and 24
months' probation and assessed a $200 fine, costs, and penalties.
Defendant appeals. For the reasons below, we affirm.
BACKGROUND
The State filed an information charging defendant with theft
by knowingly exerting unauthorized control over the property of
Charles Vandell, consisting of two bundles of roofing shingles
valued at $300, with the intent to permanently deprive Vandell of
the use of the property. At defendant's arraignment, defense
counsel entered a plea of not guilty on the defendant's behalf
and waived defendant's right to a trial by jury. Defendant was
present during the arraignment, expressed oral assent to the
bench trial date, and executed a written jury trial waiver.
On the day of trial, defense counsel moved for a continuance
because he had a potential conflict of interest in calling the
codefendant, Kevin Smith, to testify. Defense counsel had
represented Smith at Smith's plea hearing 30 to 60 days prior to
trial. Smith pled guilty to charges stemming from the theft of
the shingles. The trial court denied defendant's motion to
continue, finding that a conflict of interest did not exist and
stating that, if necessary, it would admonish Smith of his right
to silence regarding other unindicted offenses allegedly
committed with a different person. The cause proceeded to trial;
defendant did not call Smith to testify.
Dorothy Jones testified on behalf of the State. Dorothy
lives next door to Vandell, and on the afternoon in question, she
observed a vehicle parked on Vandell's lot near several bundles
of roofing shingles. Dorothy saw defendant standing by the car
and saw a man, Kevin Smith, picking up bundles of shingles and
putting them into the backseat of the car. Dorothy testified
that defendant conversed with Smith and pointed to shingles.
Dorothy further testified that when defendant saw Dorothy, she
2
got back into the front passenger seat of the car. Dorothy told
her husband that someone was taking the neighbor's shingles.
Wilbur Jones, Dorothy's husband, got up and yelled "Hey" at Smith
three or four times before Smith got into the car, backed up, and
sped off, running a stop sign. Wilbur did not see the defendant,
but heard the passenger car door slam. Dorothy recorded the
vehicle's license plate number and contacted the police.
During the course of their investigation, the police
received a report from Lowe's regarding a "suspicious" return of
two bundles of shingles to the store. Police recovered the
shingles from Lowe's and contacted Vandell. Smith and defendant
were together at Lowe's when police arrived in response to the
report. Vandell went to his lot and noticed that two bundles of
shingles were missing and, at the police station, identified the
shingles recovered from Lowe's. Vandell testified that each
bundle weighs approximately 80 pounds. The police photographed
the shingles and then returned them to Vandell. The police
transported Smith and defendant to the police station. Smith
spoke to police, but defendant did not.
Following trial, the trial court found defendant guilty of
theft. This appeal followed.
ANALYSIS
Four issues are raised on appeal: the sufficiency of the
evidence to convict defendant beyond a reasonable doubt, the
3
defense counsel's conflict of interest in representing the
defendant and codefendant, the knowing waiver of the right to a
trial by jury, and defendant's entitlement to a $10 credit for
two days spent in presentence incarceration.
A. Sufficiency of the Evidence
In a challenge to the sufficiency of the evidence, the court
will view the evidence "'in the light most favorable to the
prosecution'" and determine whether "'any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt.'" (Emphasis in original.) People v. Collins,
106 Ill. 2d 237, 261, 478 N.E.2d 267, 277 (1985), quoting Jackson
v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct.
2781, 2789 (1979). The evidence must be "so improbable or
unsatisfactory that it creates a reasonable doubt of the
defendant's guilt" to merit reversal. Collins, 106 Ill. 2d at
261, 478 N.E.2d at 277.
Circumstantial evidence that proves the elements of the
crime beyond a reasonable doubt "is sufficient to sustain a
conviction." People v. Pollock, 202 Ill. 2d 189, 217, 780 N.E.2d
669, 685 (2002). The trier of fact can make reasonable
inferences and is not required to prove "each link in the chain
of circumstances" beyond a reasonable doubt or "search out all
possible explanations consistent with innocence." People v.
Campbell, 146 Ill. 2d 363, 380, 586 N.E.2d 1261, 1268 (1992).
4
The court "will not substitute its judgment" for determinations
made by the trier of fact regarding the weight of evidence and
credibility of witnesses (People v. Young, 128 Ill. 2d 1, 51, 538
N.E.2d 461, 473 (1989)), but will not accept eyewitness testimony
where "no reasonable person could accept it beyond a reasonable
doubt." People v. Cunningham, 212 Ill. 2d 274, 280, 818 N.E.2d
304, 308 (2004).
A defendant is accountable for the conduct of a codefendant
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." 720 ILCS
5/5--2(c) (West 2004). Mere presence at the scene of the crime
with knowledge of its commission alone does not establish
accountability, but active participation is not required to
render a defendant accountable for the acts of another. People
v. Reid, 136 Ill. 2d 27, 61, 554 N.E.2d 174, 190 (1990).
A defendant need not act affirmatively if there is a "common
criminal plan or purpose." People v. Taylor, 164 Ill. 2d 131,
140-41, 646 N.E.2d 567, 571 (1995). A common criminal plan or
design can be inferred from the circumstances, and a defendant
need not express "[w]ords of agreement" to be held accountable
for a codefendant's criminal acts. Taylor, 164 Ill. 2d at 141,
646 N.E.2d at 571. In Taylor, our supreme court identified some
5
circumstances that may be considered by the trier of fact in
determining defendant's legal accountability. These factors
include: (1) presence at the scene without disapproval, (2)
"flight from the scene," (3) "fail[ure] to report the crime," (4)
close affiliation with the codefendant afterward, (5) sharing the
proceeds of the criminal act, and (6) destroying or disposing of
evidence. Taylor, 164 Ill. 2d at 141, 646 N.E.2d at 571. There
is no indication in Taylor that the list of factors or
circumstances was meant to be exhaustive.
Accompanying the codefendant to the scene with knowledge of
the commission of a crime with any affirmative contact between
the defendant and the codefendant indicates a shared criminal
purpose. Compare People v. Houston, 258 Ill. App. 3d 364, 368,
629 N.E.2d 774, 778 (1994) (finding a common criminal design that
defendant accompanied the codefendant to the scene of the crime,
did not attempt to prevent the crime, and alerted the codefendant
of a fleeing victim), with People v. Perez, 189 Ill. 2d 254, 268,
725 N.E.2d 1258, 1266 (2000) (finding no shared criminal purpose
because defendant did not appear at the scene with the
codefendants, joined the codefendants to pay an unrelated
monetary debt, and lacked knowledge regarding the circumstances
of the ongoing confrontation).
Defendant relies on People v. Ceasar, 231 Ill. App. 3d 54,
596 N.E.2d 89 (1992), and People v. Trapps, 22 Ill. App. 3d 1029,
6
318 N.E.2d 108 (1974), to support her argument that the evidence
was insufficient to convict. Unlike in Ceasar or Trapps, there
is no dispute that defendant accompanied the codefendant to the
scene, and it was reasonable to infer that she not only had
knowledge of the criminal purpose, but affirmatively acted to
support that purpose by conversing with Smith during the crime
and pointing to bundles of shingles. People v. Ceasar, 231 Ill.
App. 3d at 56, 596 N.E.2d at 90 (finding that defendant’s
appearance and flight with the codefendant after the commission
of the crime was insufficient to hold him accountable); People v.
Trapps, 22 Ill. App. 3d at 1032-33, 318 N.E.2d at 110-11,
(holding that defendant's presence at the scene of the crime
without any evidence that she knew of the codefendant's actions,
fled with the codefendant, or continued to associate with the
codefendant did not support a finding of a common criminal
design).
Because it is already established beyond a reasonable doubt
that defendant was at the scene without disapproving of the
commission of the crime, fled with the codefendant, and was with
him at Lowe's afterward, it is not necessary to establish that
she displayed a guilty conscious after she saw the witness,
Dorothy Jones. The trier of fact can infer from the facts that
when defendant fled with her codefendant, she displayed a guilty
conscious, thus further supporting an inference of a common
7
criminal design. People v. Taylor, 164 Ill. 2d 131, 142, 646
N.E.2d 567, 572 (1995) (stating defendant's flight without a
determination of defendant's state of mind was sufficient to
support a finding of a common criminal purpose). However, we
find nothing unreasonable about the trial court's finding that
defendant displayed guilty knowledge by getting back into the car
when she saw the witness so that she could not be seen as well as
when she was standing outside the car.
The evidence taken in the light most favorable to the
prosecution establishes beyond a reasonable doubt that
defendant's presence at the scene of the crime without
disapproval, flight with the codefendant, failure to report the
crime, and continued association with the codefendant are
sufficient to support an inference of a shared criminal design,
and, therefore, sufficient to convict defendant of theft.
B. Conflict of Interest of Defense Counsel
In defendant's second contention on appeal, she argues for
reversal of her conviction and remand for a new trial because her
counsel labored under an impermissible conflict of interest.
Per se conflicts of interest arise when defense counsel has
a "contemporaneous association with either the prosecution or the
victim" and requires no showing of prejudice to reverse a
conviction. People v. Spreitzer, 123 Ill. 2d 1, 14, 525 N.E.2d
30, 34-35 (1988). A per se conflict of interest presents a
8
question of law and we review de novo. People v. Miller, 199
Ill. 2d 541, 544, 771 N.E.2d 386, 387 (2002).
Joint representation of defendants does not create a per se
conflict on interest. Cuyler v. Sullivan, 446 U.S. 335, 348, 64
L. Ed. 2d 333, 347, 100 S. Ct. 1708, 1718 (1980). If defense
counsel raises a conflict of interest, the trial court must
either appoint new counsel or perform a factual inquiry to
determine if an actual conflict of interest exists. Holloway v.
Arkansas, 435 U.S. 475, 483-84, 55 L. Ed. 2d 426, 433-34, 98 S.
Ct. 1173, 1178-79 (1978). If the trial court fails to appoint
new counsel or investigate the potential conflict, reversal is
automatic without a showing of prejudice by the defendant.
Spreitzer, 123 Ill. 2d at 18, 525 N.E.2d at 36; Holloway v.
Arkansas, 435 U.S. at 488, 55 L. Ed. 2d at 436-37, 98 S. Ct. at
1180-81.
The First District noted that the courts have not defined
under what standard a court reviews the investigation into a
potential conflict of interest. People v. Moore, 338 Ill. App.
3d 11, 16, 788 N.E.2d 68, 72-73 (2003). The court found that the
"decision involves the court's need to oversee the courtroom and
maintain the progress of proceedings," therefore holding that the
court would not disturb the trial court's decision "absent an
abuse of that discretion." Moore, 338 Ill. App. 3d at 16, 78
N.E.2d at 72. Because defense counsel raised the conflict of
9
interest prior to trial and the trial court inquired into the
nature of the conflict, we will not reverse the conviction unless
the trial court abused its discretion.
When the interests between codefendants are hostile or
antagonistic, an impermissible conflict of interest arises out of
joint representation that denies a defendant effective counsel.
People v. Echols, 74 Ill. 2d 319, 327, 385 N.E.2d 644, 648
(1978). When a codefendant testifies against another defendant,
the defenses are antagonistic, causing an impermissible conflict
of interest. People v. Taylor, 165 Ill. App. 3d 1016, 1021, 520
N.E.2d 907, 912 (1988); People v. Ware, 39 Ill. 2d 66, 67-68, 233
N.E.2d 421, 421-22 (1968).
When one defendant admits guilt while the other maintains
innocence or when one defendant is allegedly more culpable than
the other, the defenses are not antagonistic. People v. Drummer,
81 Ill. App. 3d 626, 630, 402 N.E.2d 307, 310 (1980); People v.
Sanders, 209 Ill. App. 3d 366, 375, 568 N.E.2d 200, 205-06
(1991). A conflict of interest that is "hypothetical or
speculative" does not create a duty that requires the trial court
to appoint new counsel. People v. Robinson, 79 Ill. 2d 147, 169,
402 N.E.2d 157, 168 (1979); People v. Berland, 74 Ill. 2d 286,
300-01, 385 N.E.2d 649, 656 (1978).
The attorney-client relationship is not terminated when a
co-defendant has not been sentenced, despite being found or
10
pleading guilty prior to the defendant's trial; where such
co-defendant testifies to inculpate the defendant on trial, the
defenses are antagonistic and defense counsel cannot properly
represent one defendant without inculpating or harming the other.
Taylor, 165 Ill. App. 3d at 1021, 520 N.E.2d at 912 (holding
defense counsel labored under a conflict of interest when a
codefendant claimed innocence while claiming the other defendant
was solely responsible for the criminal offenses); Ware, 39 Ill.
2d 66, 67-68, 233 N.E.2d at 422 (holding that defense counsel is
not free to cross-examine and impeach a codefendant testifying
for the State because defense counsel still had to advocate for
the co-defendant during sentencing).
The codefendant was not testifying for the State and was
sentenced to conditional discharge 30 to 60 days prior to
defendant's trial. The attorney-client relationship between
defense counsel and codefendant was severed; defense counsel was
free to represent the defendant in a singular capacity.
Defendant further argues that a conflict of interest remained
because defense counsel knew about evidence of similar offenses
allegedly committed by the codefendant and a different person.
Defense strategies and tactics are influenced by joint
representation, but courts will not find a conflict of interest
that requires speculation as to whether independent counsel would
have pursued a strategy that would help one defendant while
11
subjecting the other to self-incrimination. Echols, 74 Ill. 2d
at 327-28, 385 N.E.2d at 648 (holding that the possibility that
independent counsel would have pursued a strategy that might
exculpate one defendant at the possible expense of the others is
too speculative to constitute impermissible antagonism); People
v. Sanchez, 161 Ill. App. 3d 586, 594-95, 515 N.E.2d 213, 218-19
(1987) (finding no conflict of interest when defense counsel
advised his client and potential but uncharged codefendant not to
testify with potential exculpatory testimony because it would
likely inculpate the witness in the offenses that were the
subject matter of his other client’s trial).
The fact that defense counsel did not pursue one strategy to
exonerate his client because a risk existed that his former
client would inculpate himself in other uncharged offenses does
not create antagonistic defenses or a conflict of interest.
Sanchez, 161 Ill. App. 3d at 594-95, 515 N.E.2d at 218. The
attorney-client relationship regarding the offense on trial was
terminated, the codefendant was not yet charged with the new
offenses, the defense counsel had not been appointed or retained
to represent the codefendant, and the trial court stated it would
admonish the codefendant regarding his right against
self-incrimination. It is just as likely that defense counsel
did not call Smith as a witness because Smith's testimony would
incriminate defendant. Any conflict of interest was too
12
speculative, and the trial court did not abuse its discretion
when it denied defense counsel's motion to withdraw as counsel
for defendant.
C. Defendant's Waiver of Jury Trial
Because a criminal defendant's right to a trial by jury is
fundamental, the issue of whether the defendant knowingly waived
that right is not forfeited by failure to raise it in the trial
court and is "considered under the plain error rule." People v.
Bracey, 213 Ill. 2d 265, 270, 821 N.E.2d 253, 256 (2004); 134
Ill. 2d R. 615(a). Because the issue presents a question of law
and the facts are not in dispute, it is reviewed de novo.
Bracey, 213 Ill. 2d at 270, 821 N.E.2d at 256.
A defendant validly waives her right to a trial by jury only
if she does so "(1) understandingly; and (2) in open court."
People v. Scott, 186 Ill. 2d 283, 285, 710 N.E.2d 833, 834
(1999); 725 ILCS 5/103--6 (West 2004). The trial court has a
duty to ascertain whether a defendant understandingly waives her
right to a trial by jury, but such a determination depends on the
"facts and circumstances of each particular case." People v.
Tooles, 177 Ill. 2d 462, 469, 687 N.E.2d 48, 51 (1997).
Although jury waivers made by defense counsel when the
defendant was not present are invalid (Scott, 186 Ill. 2d at 285,
710 N.E.2d at 834), jury waivers are valid when made in open
court by defense counsel "in defendant's presence where defendant
13
gave no indication of any objection." People v. Frey, 103 Ill.
2d 327, 332, 469 N.E.2d 195, 197 (1984). Failure to obtain a
written waiver does not necessitate reversal (People v. Brials,
315 Ill. App. 3d 162, 176, 732 N.E.2d 1109, 1120 (2000)), but the
existence of a written waiver supports a finding of a knowing
waiver when accompanied by defense counsel's request for a bench
trial made in open court and in the defendant's presence. People
v. Steiger, 208 Ill. App. 3d 979, 982, 567 N.E.2d 660, 662
(1991).
A defendant is bound by defense counsel's waiver of a trial
by jury when defendant is present in open court and does not
object when the jury waiver is made or is explicitly discussed.
Compare People v. Johnson, 347 Ill. App. 3d 442, 444-45, 807
N.E.2d 693, 696 (2004) (finding a valid waiver made by defense
counsel in a pretrial hearing because defendant did not object
then in subsequent hearings where the waiver was referenced), and
People v. Asselborn, 278 Ill. App. 3d 960, 962-63, 664 N.E.2d
110, 112 (1996) (holding a waiver was valid when the defendant
was present during a discussion regarding the jury waiver between
the trial court and defense counsel immediately prior to trial),
with People v. Watson, 246 Ill. App. 3d 548, 549, 616 N.E.2d 649,
650 (1993) (finding invalid waiver when made outside defendant
presence even though defendant was present during subsequent
rescheduling conferences when the bench trial was discussed).
14
Defendant was present during her arraignment when defense
counsel requested a bench trial and waived her right to a trial
by jury. Although the trial court did not explicitly discuss the
waiver with the defendant, she did not express any objection and
stated that she understood her presence was required for the
bench trial. On the same day as her arraignment, defendant
signed a written jury waiver, which further supports that she
knowingly waived her right to a trial by jury. People v.
Steiger, 208 Ill. App. 3d at 982, 567 N.E.2d at 662.
Based on the above analysis, we find that defendant
knowingly waived her right to trial by jury. The defendant's two
prior criminal convictions, along with six prior traffic
convictions, while not necessary to our decision, add additional
support for a finding of a knowing waiver because the convictions
demonstrate a familiarity with the criminal justice system and,
thus, a familiarity with her right to a trial by jury and with
the ramifications of waiving that right. Tooles, 177 Ill. 2d at
471, 687 N.E.2d at 52-53 (finding defendant's four prior
convictions supported a presumption of familiarity with jury
waivers, thus supporting a finding of a valid waiver); People v.
Johnson, 347 Ill. App. 3d at 445 (finding defendant's prior
traffic and battery convictions demonstrated familiarity with the
criminal justice system and supported a finding of a knowing
waiver).
15
D. Credit for Presentence Incarceration
A defendant is entitled to a $5-per-day credit for each day
of presentence incarceration. 725 ILCS 5/110--14 (West 2004);
People v. Raya, 250 Ill. App. 3d 795, 802-03, 621 N.E.2d 222,
227-28 (1993); People v. Woodard, 175 Ill. 2d 435, 457-58, 677
N.E.2d 935 (1997). The State concedes this issue, and defendant
is entitled to a $10 credit on her $200 fine for her two days of
presentence incarceration.
CONCLUSION
For the reasons stated, we affirm the judgment of the
circuit court of Knox County, with instructions to the clerk to
credit the defendant $10 for two days of presentence
incarceration.
PRESIDING JUSTICE LYTTON specially concurring:
Section C of the majority's analysis correctly finds that
the defendant waived a trial by jury because she did not object
to her counsel's waiver of jury and request for a bench trial and
because she signed a written jury waiver.
After resolving the issue however, the majority continues,
saying that, "while not necessary to our decision," defendant's
prior criminal convictions gave her a familiarity with the
criminal justice system and, thus, she knew the import of a jury
waiver. I do not believe this discussion belongs in the order
for two reasons: 1) it is, as conceded by the majority, dictum;
16
and 2) it is wrong.
The majority cites two prior criminal convictions and six
prior traffic convictions as evidence of defendant's familiarity
with jury waivers in the criminal justice system. However, the
two criminal convictions, one of which was a misdemeanor,
occurred in 1995, between ten and eleven years prior to
defendant's guilty plea in this case. The interval of more than
a decade between those offenses and this case makes whatever
information defendant did retain stale to the point of morbidity.
It is speculative at best to expect a layperson to retain
substantial knowledge of how the criminal justice system works
under these circumstances. Furthermore, the six minor, fine-
only, traffic tickets were not exactly fresh: illegal possession
of alcohol in 1980; no insurance and failure to wear a seatbelt
disposed of on the same day in 1998; no insurance in 1998;
speeding in 2000; and an uninsured motor vehicle in 2003. The
traffic cases, like the criminal convictions, had aged
substantially before defendant encountered the instant case.
So there we have it. Defendant's "familiarity" with the
criminal justice system was a ten-year-old felony, a ten-year-old
misdemeanor, and a smattering of traffic tickets handed out over
a period of 23 years. Taken together, they give the defendant
little basis for knowing the nature and import of a jury waiver.
Thus, I would omit any reference to defendant's supposed
17
knowledge of the criminal justice system.
JUSTICE McDADE, dissenting:
The majority has found that a) the evidence was sufficient
to convict defendant of theft beyond a reasonable doubt, b) the
trial court did not abuse its discretion in denying defense
counsel’s motion to withdraw, c) defendant knowingly waived her
right to a jury trial, and d) defendant is entitled to a $10
credit on her $200 fine and for two days’ presentence
incarceration. Because I disagree with the majority’s first
finding and would thus reverse defendant’s conviction outright, I
dissent.
The majority concludes that the trier of fact could
reasonably infer that defendant had knowledge of the criminal
purpose and acted affirmatively to support that purpose by
conversing with Smith during the crime and pointing to bundles of
shingles. Slip op. at 6. "A reasonable inference within the
purview of the law must have a chain of factual evidentiary
antecedents." People v. Davis, 278 Ill. App. 3d 532, 540, 663
N.E.2d 39, 44 (1996). See also United States v. Jones, 371 F.3d
363, 366 (7th Cir. 2004) ("although a jury may infer facts from
other facts derived by inference, ‘each link in the chain of
inferences must be sufficiently strong to avoid a lapse into
speculation.’” United States v. Peters, 277 F.3d 963, 967 (7th
Cir. 2002) (quoting Piakowski v. Bett, 256 F.3d 687, 693 (7th
18
Cir. 2001))). Accord United States v. Cruz, 285 F.3d 692, 699
(8th Cir. 2002); United States v. Rahseparian, 231 F.3d 1257,
1262 (10th Cir. 2000); United States v. D'Amato, 39 F.3d 1249,
1256 (2d Cir. 1994).
“Although a jury may infer facts from other facts that are
established by inference, each link in the chain of inferences
must be sufficiently strong to avoid a lapse into speculation.
Bett, 256 F.3d 687, 693 (2001), citing United States v. An
Article of Device, 731 F.2d 1253, 1262 (7th Cir. 1984), Yelk v.
Seefeldt, 35 Wis. 2d 271, 151 N.W.2d 4, 9 (Wis. 1967). In this
case, the inferences the majority believes are reasonable are not
supported by a chain of factual evidentiary antecedents. The
majority, in fact, cites no facts in support of the inferences
upon which defendant’s conviction is based. By example, while
the evidence may establish that defendant conversed with Smith
during the commission of the offense, nothing of record supports
an inference that in doing so defendant was supporting Smith’s
criminal purpose. It is just as reasonable to infer that
defendant was attempting to dissuade Smith. I recognize that the
trier of fact is not required to “search out all possible
explanations consistent with innocence” (slip op. at 4, citing
People v. Campbell, 146 Ill. App. 3d 363, 380, 586 N.E.2d 1261,
1268 (1992)), and that there is also no evidence to support an
inference that defendant was attempting to stop Smith. However,
19
while I acknowledge that my inference lacks specific evidentiary
support, the majority does not, and to sustain a criminal
conviction, the inference must be supported by fact. This is
true because “[i]f an alleged inference does not have a chain of
factual evidentiary antecedents, then within the purview of the
law it is not a reasonable inference but is instead mere
speculation." Davis, 278 Ill. App. 3d at 540, 663 N.E.2d at 44.
Nor do I believe that defendant’s merely accompanying Smith
to the scene establishes, factually, that she assented to a
common criminal design; and, therefore, it is not a fact in
support of the proffered inference that she “affirmatively acted
to support that purpose by conversing with Smith *** and pointing
to bundles of shingles.” Slip op. at 6. It is nothing more than
an unsupported conclusion.
In People v. Marx, 291 Ill. 40, 125 N.E. 719 (1919), the
State charged the defendant with rape. The co-defendants offered
the victim a ride home from a cabaret where she worked to her
residence in a hotel. The victim testified that "after they had
gone a short distance in the automobile she was attacked, and
[the passengers] all had sexual intercourse with her forcibly and
against her will, on the back seat of the car." Marx, 291 Ill.
at 42, 125 N.E. at 720. The victim also testified that they rode
around the streets of the city for an hour and a half or two
hours. The supreme court held that “[t]he presence of a
20
defendant at the commission of the crime, without disapproving or
opposing it, is evidence which, together with all other
circumstances, may present a jury issue as to his
responsibility.” (Emphasis added.) Marx, 291 Ill. at 48, 125
N.E. at 722.
The Marx court began by noting that "[i]t cannot be
contended *** that mere presence at the commission of a criminal
act renders a person liable as a participator therein. If he is
only a spectator, innocent of any unlawful intent and does no act
to countenance or approve the acts of those who are actors, he is
not criminally responsible because he happens to be a looker-on
and does not use active endeavors to prevent the commission of
the unlawful acts." (Emphasis added.) Marx, 291 Ill. at 48, 125
N.E. at 722. The court found that the evidence established
clearly that Marx, who was driving the automobile, did not in any
way take part actively in the holding of the victim at the time
when she charges the acts were being forcibly committed.
The evidence in Marx established more than the defendant’s
mere presence when the crime was committed. The facts also
established that he drove the car several miles out of the way in
Chicago while going from the cabaret to the hotel. The court
used that fact to infer that "he was actually encouraging and
approving what was being done in the car." Marx, 291 Ill. at 48-
49, 125 N.E. at 722.
21
In this case, the majority does not cite any "other
circumstances" to support its conclusion that defendant assented
to the commission of the crime by accompanying Smith to the scene
because none exist of record in this case. Here, the only
evidentiary facts cited are that defendant was at the scene,
"fled" with Smith, and was with him at Lowe’s afterward. There
is no evidence of record of whether Smith even told defendant
that he was stealing the shingles. The majority may claim that
"it is *** established beyond a reasonable doubt that defendant
was at the scene without disapproving of the commission of the
crime" (slip op. at 7), but whether defendant approved of Smith’s
actions is not a fact, but an inference.
In Bett, the court found that the accounts of the crime
placed the defendant at the scene when the confrontation began,
but said “nothing about what [he] *** agreed with the others to
do.” Bett, 256 F.3d at 692. The court regarded the statement
that another defendant hit the victim “like everybody else,” and
the state’s consequent inference that the “everybody else”
included the defendant, to be “ambiguous to say the least.”
Bett, 256 F.3d at 692. The court found that the statement did
“not constitute proof beyond a reasonable doubt that [the
defendant] played a role in the incident, either as a direct
participant or as a conspirator.” Bett, 256 F.3d at 693.
As in Bett, the fact that defendant accompanied Smith and
22
was still with him when the stolen shingles were returned to
Lowe’s does not by itself prove that she agreed to participate or
was participating in a criminal enterprise (or indeed that she
even knew there was a criminal enterprise), or support beyond a
reasonable doubt the inference that she did so agree. That
evidence merely proves that she was with Smith. Any actions
defendant took while with Smith must have been done with an
unlawful intent if those actions are to form the basis of a
criminal conviction. Marx, 291 Ill. at 48, 125 N.E. at 722;
People v. Taylor, 186 Ill. 2d 439, 448, 712 N.E.2d 326, 330
(1999) (guilt by accountability requires “specific intent to
promote or facilitate an offense”).
Dorothy’s testimony that defendant pointed at shingles on
the ground “could not have shed any light on the intended meaning
of [defendant’s actions].” Cf. Bett, 256 F.3d 693. The trial
court’s, and the majority’s inference is no more than speculation
consistent with guilt. However, as the court stated in Davis,
“[a] person’s liberty is an endowment that is too valuable to be
lost on speculation of wrongdoing. Our system of government
demands more: proof!” Davis, 278 Ill. App. 3d at 541, 663
N.E.2d at 45.
The majority also finds that the trier of fact could infer
"from the facts" that defendant displayed a guilty conscience by
getting back into the car when she saw the witness. Slip op. at
23
7. It fails, however, to cite what facts that inference might be
based upon. I believe that a trier of fact could only infer
that defendant displayed a consciousness of guilt by getting back
into the car when she saw Dorothy if it first presumed that
defendant’s presence was in support of a common criminal design.
I further believe that any time a trier of fact infers that a
defendant’s conduct evinces a consciousness of guilt, it must do
so on the premise that the defendant is guilty of something.
Drawing such an inference in the context of a criminal trial
represents an error of circular reasoning, whereby the proponent
“defends the claim by using the conclusion as one of the premises
to support the conclusion.”
http://leo.stcloudstate.edu/acadwrite/logic.html#IRRELEVANT%20CON
NECTIONS (visited February 3, 2007). Here, the claim is that
defendant was guilty of an offense. The court used that
conclusion, that defendant was guilty of something and hence
“jumped in the car“ when she saw Dorothy, as one of the premises
to support that which it was ultimately trying to conclude: that
defendant was guilty.
Because such reasoning is logically flawed, I would hold
that it is erroneous for the State to argue a defendant’s guilt
based on the “consciousness of guilt” fallacy. Although
decisions of our supreme court have examined certain evidence and
held that such evidence was relevant and admissible to show a
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consciousness of guilt, we find no binding precedent that forbids
our holding that an amorphous, so-called "consciousness of guilt"
is itself irrelevant and inadmissible to prove guilt.
To hold otherwise leaves open the door to the use of
evidence which presumes guilt to prove guilt; evidence that also
impermissibly shifts the burden to the defendant to prove her
innocence. In this case, for example, defendant would have to
convince the jury that she was not aiding Smith’s theft of the
shingles, i.e., that she was not guilty of an offense, to prove
that she re-entered the vehicle for a reason other than a
“consciousness of guilt.“ Such presumptions stand in
contravention of the presumption of innocence that remains with a
criminal defendant until she is proved guilty with competent
evidence beyond a reasonable doubt. See People v. Pasch, 152
Ill. 2d 133, 174, 604 N.E.2d 294, 310 (1992) (“the defendant is
presumed innocent, *** this presumption remains until the jury is
convinced beyond a reasonable doubt that defendant is guilty, ***
the State has the burden of proving the defendant's guilt beyond
a reasonable doubt, and *** this burden remains on the State
throughout the case“).
When assessing whether, taking the evidence in a light most
favorable to the prosecution, any rational trier of fact could
have found the essential elements of the offense proved beyond a
reasonable doubt, the reviewing court should, first, determine
25
the ultimate conclusions of fact upon which a finding of guilt
must be based. These conclusions, of course, must comport with
the elements of the offense. Next, if the conviction is not
based on direct evidence, the court must identify the inferential
steps the trier of fact must have found to reach its ultimate
conclusion. Finally, and most importantly, the reviewing court
must identify facts of record, and not suppositions, upon which
each inference may reasonably be based.
While I recognize that triers of fact are not, and should
not be, required to undertake such mechanical analyses, instead
being free to draw reasonable inferences from common experience
(see, e.g., People v. Lambrecht, 231 Ill. App. 3d 426, 439, 595
N.E.2d 1358, 1367 (1992) ("the jury, utilizing its common
experience and knowledge, could draw its own inferences and
conclusions")); I feel that courts of review must do so to give
real meaning to “proof beyond a reasonable doubt.” It is often
stated that, in reviewing a conviction, the evidence must be
viewed in a light most favorable to the prosecution. This
standard is not meant to favor the State, but to “give[] full
play to the responsibility of the trier of fact fairly to resolve
conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts.”
Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573-74,
99 S. Ct. 2781, 2789 (1979). Thus, it merely serves to preserve
26
“the factfinder's role as weigher of the
evidence *** through a legal conclusion that
upon judicial review all of the evidence is
to be considered in the light most favorable
to the prosecution. The criterion thus
impinges upon ‘jury’ discretion only to the
extent necessary to guarantee the fundamental
protection of due process of law.” Jackson,
443 U.S. at 319, 61 L. Ed. 2d at 573-74, 99
S. Ct. at 2789.
However, not only must we protect the integrity of the role of
the fact finder, our primary duty is to assure the integrity of
the verdict itself. The only way to do so meaningfully is to
fully comprehend the jury’s verdict.
In the case at bar, to prove defendant guilty of theft by
accountability, the trier of fact had to conclude that defendant
intended to aid Smith in taking the shingles with the intent to
permanently deprive the owner of their use. The trial court
inferred that defendant accomplished this by pointing out the
shingles to Smith, and accompanying him in an apparent effort to
exchange them for cash. The majority fails to cite any "other
circumstances" to support an inference that she agreed to the
criminal enterprise as required by Marx. My review of the case
reveals no facts that lead to a reasonable inference that
27
defendant knew that Smith was stealing the shingles, that she
agreed to help him, or that, by pointing to what was plainly on
the ground before him, that she did in fact “aid“ in the
commission of the offense. See People v. Taylor, 186 Ill. 2d
439, 448, 712 N.E.2d 326, 330 (1999) (“guilt under accountability
is not supported where one *** neither intends to facilitate nor
aids or attempts to aid the offender in the commission of any
element of the offense”).
It may well be that Janet Turner was an active knowing
participant in the crime charged and that she is guilty on a
theory of accountability. Certainly the trial court and the
majority feel that she was. Our system does not, however,
deprive people of their liberty on the basis of feeling,
speculation, or conjecture--at least it purports not to do so.
Rather, we convict people only when there is factual evidence--
which either demonstrates defendant’s involvement or supports
reasonable inferences of culpable involvement--sufficient to
prove defendant guilty beyond any reasonable doubt.
Because I find the evidence of defendant’s guilt of theft so
unsatisfactory as to create a reasonable doubt of her guilt I
would reverse defendant’s conviction. Accordingly, I dissent.
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