dissenting:
I respectfully dissent. I disagree with the majority’s conclusion that the State failed to prove beyond a reasonable doubt that defendant was either the shooter or the driver in the July 4, 2004, shooting incident. Even if defendant was not the shooter, the evidence presented by the State was sufficient to prove defendant guilty under an accountability theory.
A person is legally accountable for another’s criminal conduct when “[ejither 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); People v. Perez, 189 Ill. 2d 254, 266 (2000). To show that the defendant possessed the intent to promote or facilitate the crime, the State must present evidence that establishes beyond a reasonable doubt that either: (1) the defendant shared the criminal intent of the principal, or (2) there was a common criminal design. Perez, 189 Ill. 2d at 266. “The ‘common design’ rule provides that where two or more persons engage in a common criminal design or agreement, any acts in the furtherance of that common design committed by one party are considered to be the acts of all parties to the design or agreement and all are equally responsible for the consequences of the further acts.” People v. Cooper, 194 Ill. 2d 419, 434-35 (2000). Proof of the common criminal purpose or design need not be supported by words or agreement, but may be drawn from the circumstances surrounding the commission of the unlawful conduct. Cooper, 194 Ill. 2d at 435. “Evidence that a defendant voluntarily attached himself to a group bent on illegal acts with knowledge of its design supports an inference that he shared the common purpose and will sustain his conviction for an offense committed by another.” Cooper, 194 Ill. 2d at 435. Moreover, “[a] conviction under accountability does not require proof of a preconceived plan if the evidence indicates involvement by the accused in the spontaneous acts of the group.” Cooper, 194 Ill. 2d at 435. “Upon review of a question as to a defendant’s accountability for an offense, we 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.” Cooper, 194 Ill. 2d at 424-25.
While the majority states that “we are left with no idea as to defendant’s role in” the July 4 shooting, this is simply not true. 375 Ill. App. 3d at 1032. In this case, defendant does not argue that his van was not involved or that the shot was not fired by someone in his van. Indeed, at oral argument, the appellate defender admitted that he was not arguing that defendant was not present at the scene of the crime. Rather, the appellate defender attempted to minimize defendant’s role in the shooting by arguing that one of the passengers carried out a revenge shooting based on a personal, rather than a unified, motive. However, all three accomplices identified defendant’s role as either the shooter or the driver or both. As the State argued during closing argument, it does not matter whether defendant pulled the trigger or drove the van; either way, there is sufficient evidence to sustain his conviction. Thus, even if the majority is correct that there was insufficient evidence to show that defendant was the shooter, there was sufficient evidence to support his conviction based on accountability. See Cooper, 194 Ill. 2d at 435 (a defendant may be found guilty under an accountability theory even though the identity of the principal/shooter is unknown). In other words, the evidence that defendant drove the van and blocked in the other car where the victim was shot was enough to show beyond a reasonable doubt that he aided the shooter in committing the offense.
In concluding that the evidence was insufficient to sustain defendant’s conviction on an accountability theory, the majority incorrectly sets aside the accomplice testimony. According to the majority, defendant’s three accomplices, Rayford, Ingram, and Phillips, testified inconsistently regarding who shot the gun and who was driving, and they were “either thoroughly incredible or impeached.” 375 Ill. App. 3d at 1030. While it is true that the testimony of an accomplice witness has inherent weaknesses and must be cautiously scrutinized on appeal, “these ‘inherent weaknesses’ affect questions of the weight of the evidence and the credibility of the witness, matters peculiarly within the province of the trier of fact.” (Emphasis added.) People v. Holmes, 141 Ill. 2d 204, 242 (1990). In my opinion, the majority invades the province of the jury, whose function it is to assess the credibility of the witnesses, the weight to be given their testimony, and the inferences to be drawn from the evidence. People v. Tenney, 205 Ill. 2d 411, 428 (2002). It is the trier of fact who resolves conflicts or inconsistencies in the evidence, and this court will not substitute its judgment for that of the jury on questions involving the weight of the evidence or the credibility of the witnesses. See Tenney, 205 Ill. 2d at 427-28 (the defendant’s argument that the evidence was insufficient because the testimony of his accomplice was confused, conflicted, unworthy of belief, and substantially impeached addressed functions of the jury and not of the reviewing court).
By substituting its judgment for the jury’s, the majority discounts the testimony of Phillips, whose testimony alone was enough to establish defendant’s guilt. The testimony of an accomplice witness, whether corroborated or not, is sufficient to sustain a criminal conviction if it convinces the jury of the defendant’s guilt beyond a reasonable doubt. Holmes, 141 Ill. 2d at 242. In this case, Phillips’ testimony, which I summarize below, was sufficient to sustain defendant’s conviction. Contrary to the majority’s assertion, Phillips provided evidence that defendant and his accomplices were acting in concert in order to avenge the earlier shooting against Phillips by a rival gang. Based on Phillips’ testimony, which identified defendant as both the driver and the shooter, there was sufficient evidence for a rational trier of fact to find defendant guilty, at the very least, of attempted first-degree murder based on accountability. See Cooper, 194 Ill. 2d at 435-36 (although the trial court did not make a finding as to which of the defendants shot the victim, the evidence, viewed in the light most favorable to the State, established that the defendants were acting in concert in order to retaliate against a rival gang; both of the defendants voluntarily attached themselves to a group bent on illegal activity when they, armed with weapons, joined fellow gang members in rival gang territory, actively participated in shooting at the rival gang, fled from the scene, and failed to report the crime to police); see also People v. Taylor, 164 Ill. 2d 131, 141 (1995) (proof that the defendant was present during the perpetration of the offense, that he maintained a close affiliation with his companions after the commission of the crime, that he fled the scene, and that he failed to report the crime are all factors that the trier of fact may consider in determining the defendant’s legal accountability).
At trial, Phillips offered the following testimony. Around 9 p.m. on July 3, he had been shot at by an occupant of a van with two Hispanics. Phillips thought that the Hispanics were “King” gang members who were “out to kill.” Phillips was a Gangster Disciple, a gang that did not get along with the Kings, and both gangs “shoot on sight.” The Hispanics fired shots at the car Phillips was in, breaking the glass, flattening the tires, and resulting in cuts on Phillips’ face. After the incident, Phillips got out of the car and started screaming in the middle of the street. Friends and relatives in the neighborhood heard what happened, and later that evening, defendant, Ingram, and Ray-ford picked Phillips up in defendant’s van.1 Defendant was driving, Ingram was in the passenger seat, and Rayford was in the back. Phillips sat next to Rayford, behind defendant. After he got in the van, Phillips told everyone that he had been shot at by Kings. Ingram told Phillips that he was going to show Phillips how to “hit 'em,” which meant kill some Kings. Ingram then gave Phillips a hooded sweatshirt that contained a .22-caliber revolver, a gun that Phillips had seen before. Defendant drove “[tjhrough King hood,” at a “slow pace.” No one needed to give defendant directions to get to “King hood.” They were drinking and smoking marijuana as they drove around. They were looking out the window for Kings, but did not find any. Eventually, they left “King hood” and drove toward the east side to find some Kings.
On the way, everyone in the van spotted on Grand Avenue a car with two Hispanics. The car pulled into a driveway and defendant stopped in front of the driveway, blocking the car in. Defendant yelled “KK,” meaning “King Killer” or “kill some Kings.” Phillips could hear a voice in reply but could not understand what was said. Defendant then grabbed a 9-millimeter gun from Ingram’s lap and said “this damn gun better not jam.” Defendant fired one shot out the driver’s window, shattering the back window of the other car and causing one of the Hispanics to jump. After firing one shot, defendant said, “this damn gun jammed,” and he drove away. Next, defendant drove to his house, and Ingram jumped out of the van and stashed the gun somewhere on the side of defendant’s house. When Ingram got back in the van, he sat in the driver’s seat and defendant jumped into the passenger seat. After Ingram drove down a few streets, the police pulled the van over. Phillips stashed the .22-caliber revolver under the seat and it was confiscated by police. On cross-examination, Phillips testified that the Hispanic victim shot by defendant was innocent and not a King. Nevertheless, Phillips would have shot a King if he had seen one that night.
The majority points out that Phillips initially told police on July 4 that Ingram had been driving the entire evening because defendant was drunk, whereas, at trial, he testified that defendant was driving. As stated, it is the trier of fact’s responsibility to resolve conflicts in the evidence, and this was Phillips’ only inconsistency. Moreover, Phillips explained why he lied to the police on July 4 and why, at first, he denied any knowledge of the shooting. Phillips initially told police that Ingram had been driving, because he “didn’t want anybody to go away for a long time.” When Phillips read the statements the others made to the police, he thought they were “crazy.” The shooting “was put off on” Phillips, and Ingram and Rayford were saying that he was the shooter. Before he read the reports, Phillips was prepared to go to trial and remain silent, because he “wasn’t raised to be no snitch.” He lived by the code of: “Not saying nothing. They ain’t got no evidence on nobody. So, everybody keep their mouth shut.” Phillips expected everyone to keep quiet, but when he saw the reports, the others were not keeping their mouths shut and it was “every man for their self.” Phillips also explained that when all four of them were arrested on July 4, Phillips was placed in a different cell from defendant, but they were not far apart. Defendant yelled that Phillips should take the heat for the gun found in the van, which is called “dry snitching” because defendant said this loud enough for the police officers to hear. Thus, although Phillips tried to “remain silent” in the beginning, he testified that his trial testimony was the truth.
The majority also points out that Phillips received a significant deal from the State in exchange for his testimony. However, the fact that an accomplice is a self-confessed criminal and expects leniency does not, of itself, raise a reasonable doubt. People v. Jackson, 145 Ill. App. 3d 626, 639 (1986). The existence of a promise of leniency goes to the credibility of the witness and his testimony, not to its admissibility; thus, an agreement is not a sufficient reason for an accomplice’s testimony to be unworthy of belief, especially where the jury has resolved the issue of credibility by its verdict. Jackson, 145 Ill. App. 3d at 639; see also Tenney, 205 Ill. 2d at 428 (having heard the accomplice’s testimony, the jury was fully aware of his criminal background and of his agreement with the State, and it was the jury’s function to decide whether there was a reasonable doubt as to the defendant’s guilt). I note that when cross-examined regarding his agreement with the State, Phillips repeatedly testified that he would get the “deal” only if he told the truth.
Although Phillips’ testimony alone was sufficient to sustain defendant’s conviction, there was additional accomplice testimony implicating defendant. As previously mentioned, I do not agree with the majority that, based on the accomplice testimony, “there was no remotely consistent account of the events that occurred on July 4, 2004, or defendant’s role in them.” 375 Ill. App. 3d at 1029. As inconsistent as Rayford’s and Ingram’s testimony was, it consistently identified defendant’s role in the July 4 shooting as either the driver or the shooter.
At trial, Rayford testified that defendant fired the shot and then drove away. On direct examination, Rayford provided conflicting testimony that Ingram was the driver, not defendant. In addition, Rayford did not remember much of a taped statement to police on August 21, 2004, in which he stated that defendant was the driver on July 4, 2004. According to his taped statement, they were driving around in defendant’s van and drinking and smoking marijuana. A silver car with Hispanics pulled into a driveway. Defendant then “reversed, blocked them off, lay [sic] out the window, ‘King Killer, woo woo, KK.’ ” Rayford heard one gunshot but did not identify the shooter. After that, defendant and Ingram switched seats and then the police pulled the van over shortly thereafter. In his April 11, 2005, statement to police, which he also did not recall giving, Rayford stated that defendant and Ingram switched seats in front of defendant’s house.
On cross-examination, Rayford testified that the four of them were driving around in the van with no particular purpose, and all of them were drunk. Ingram was driving the van the entire time, and he never switched seats with defendant. Rayford further stated that there was a shooting and that “[t]o make the story short, [defendant] did it.” Defendant used a different gun from the .22-caliber revolver. When the Hispanics pulled into the driveway, Ingram stopped the van and Ingram and defendant “got to yelling.” Then, defendant reached over Ingram, who leaned back, and defendant fired the gun one time. Rayford did not know where the gun used by defendant came from. The van took off, eventually stopped, and Ingram alone got out of the van. When Ingram returned, he “hit the block” and “passed the scene of the crime.” When the police pulled the van over, Phillips threw the .22-caliber revolver in Rayford’s lap.
Rayford also admitted on cross-examination that after his arrest he denied any involvement in the shooting on July 4. After the July 4 shooting, Rayford was in jail on a drug charge when the police came to question him on August 21, 2004. Although the police lied to him and said that tests revealed that the .22-caliber revolver was used in the shooting, Rayford knew that the .22-caliber revolver was not used in the shooting; he could not be tricked into saying that it was. Rayford admitted that his memory was not very good due to his drug use. Multiple charges were pending against Rayford in connection with the July 4 shooting, and he did not expect to gain anything from his testimony. When asked if the State would give him a better deal if he said that defendant shot the gun, Rayford replied, “No. ‘Cause we was all in the van together.” Rayford never saw any police reports in connection with the shooting and never reviewed his taped statements. In his two previous statements to police, Rayford never stated that defendant shot the gun. He testified at trial that defendant was the shooter, because he “didn’t want to go down for nobody what [sic] else they did.”
Rayford was subsequently recalled on cross-examination. When Rayford was in jail on April 24, 2005, he called his guardian, named Red. This conversation was taped and played for the jury. Rayford remembered telling Red that they upgraded the charges against him. He did not remember telling Red that Phillips was “already telling” and that the State was trying to make a deal with Rayford. He did not remember saying that the State wanted him to tell on defendant. He did remember saying that if he and Ingram did not tell, they would get charged with conspiracy. He did not recall saying that “they going to work the deal, I get to go home.” During the conversation, Red said, “but [defendant] did it,” and Rayford said “Yeah.” During cross-examination, Rayford explained that he was testifying that defendant was the shooter, because “they trying to put it off on [Phillips] because he a juvenile and he get lesser time, that ain’t right.” Defendant wanted Rayford “to come to court and say [defendant] ain’t have nothing to do it, and [defendant] was going to go on the stand and say [Phillips] did it. That what [defendant] want me and [Ingram] to come to court and say.”
Rayford’s statement that defendant wanted Phillips to take the blame for the shooting was consistent with Ingram’s testimony, which was that defendant was the driver and Phillips was the shooter. Ingram did not recall telling Mr. Castillo, an investigator who worked for defendant, that he would not testify against or “trick” on defendant. Nevertheless, Ingram admitted that defendant was his cousin and a close friend whom Ingram had known all his life. Also, Ingram admitted that, before he got in the van, he had already heard about the earlier incident involving Phillips. In fact, Ingram testified that he had looked for Phillips earlier that day to see if he was alright. Even though Ingram testified that they were not looking for Kings because they were “just riding and kickin’ and drinking and smoking,” he also testified that if they had encountered a King that night, Phillips “might try to shoot at 'em.”
According to Ingram, defendant was driving and Ingram was in the front passenger seat. Ingram asked Phillips about being shot at, and Phillips told him “parts of it.” Phillips did not say much but was very angry. Ingram spotted a car and told defendant to pull over because Ingram thought it was one of the “guys” he associates with; Ingram associates with “a lot of Latinos.” Defendant said, “[w]e ain’t trying to holler at anybody, we kickin’.” Phillips similarly wanted to keep on going. But Ingram wanted to see if it was one of his “guys,” so defendant pulled over. Defendant blocked the car in the driveway and asked the occupants if they were Kings. They said no. Phillips, who got between defendant and Ingram, said that they were Kings and reached over defendant and fired a shot. Defendant then made a left turn down another street and pulled over. Ingram did not get a good look at Phillips’ gun, because Phillips hid it so fast. Next, they told Phillips to get out of the van. At that time, defendant and Ingram switched seats, because defendant was tired of driving. Ingram was driving when they were pulled over by police.
Ingram’s testimony was, for the most part, consistent with his taped statement to police on August 12, 2004. In that statement, Ingram indicated that Phillips said he had a pistol and was looking for Kings. They did not believe Phillips, because they were all drinking “and who was gonna go do something under the influence.” Ingram stated that they saw two “guys” pulling into the driveway. Defendant was driving and pulled over and “was like y’all Kings.” They kept saying they were not Kings and then Phillips reached over defendant’s shoulder and shot one time. They drove off and then Ingram got into the driver’s seat. They decided to drop off the pistol somewhere. Then, the police stopped the van. Ingram’s statement was inconsistent in that he also stated that the gun found in the van was the gun shot by Phillips; no other gun was involved. At trial, Ingram testified that, when he gave the August 12 statement to police, “a lot of things [he] just gave answers to because [he] wasn’t really thinking about it at the time, [he] was just trying to get up out of there, trying to get up out of the police station.”
On cross-examination, Ingram testified that the same charges pending against defendant were pending against him in connection with the shooting. When asked if he drove all night, Ingram replied, “I may have. I was drinking too.” However, on redirect examination, Ingram again testified that defendant was driving the van when he got in, when the Hispanics were parked in the driveway, and also when the shot was fired.
In sum, viewed in the light most favorable to the State, the evidence was sufficient to show that defendant was guilty based on accountability. Based on Phillips’ testimony alone, the jury could have rationally concluded that defendant was part of a common design to avenge the altercation in which the Kings shot at Phillips, regardless of whether defendant was the driver or the shooter. Also, despite the inconsistencies in Ingram’s and Rayford’s testimony, the jury could have rationally concluded that defendant was, at the very least, the driver who blocked in the other car and made it possible for the shooter to fire at the victim. The jury accepted the State’s version of the events and a rational trier of fact could have found defendant guilty beyond a reasonable doubt under an accountability theory.
As a final matter, the majority’s reliance on People v. Newell, 103 Ill. 2d 465 (1984), to conclude that the accomplice testimony in this case failed to establish defendant’s guilt beyond a reasonable doubt is misguided. The facts in Newell are very different from the facts in this case because in Newell, the only evidence connecting the defendant with the burglary was the testimony of one accomplice; the other two accomplices denied any involvement by the defendant. Newell, 103 Ill. 2d at 469. Because the only evidence of the defendant’s involvement was one accomplice’s testimony, the supreme court correctly held that there was not proof of the defendant’s guilt beyond a reasonable doubt. Newell, 103 Ill. 2d at 471. Contrary to Newell, all three accomplices in this case placed defendant and his van at the scene of the crime and identified his role as either the shooter or the driver. Moreover, the supreme court has been careful to limit the interpretation of Newell, describing it as “a very fact-specific case in which the one accomplice who implicated [the] defendant testified under immunity.” People v. Rivera, 166 Ill. 2d 279, 289 (1995). For all of these reasons, I would affirm defendant’s conviction.
Regarding Phillips’ familiarity with defendant, the majority asserts that defendant was “the only person in the van with whom he was not previously acquainted.” 375 Ill. App. 3d at 1026. This finding is not borne out by the record, however, which indicates that Phillips was familiar with defendant and defendant’s van.