2015 IL App (1st) 133406
FIRST DIVISION
AUGUST 10, 2015
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THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 12 CR 14956
)
ANTHONY MALCOLM, ) Honorable
) Joseph Claps,
Defendant-Appellant. ) Judge Presiding.
JUSTICE CUNNINGHAM delivered the judgment of the court, with opinion.
Justices Connors and Harris concurred in the judgment and opinion.
OPINION
¶1 Following a bench trial, the circuit court of Cook County found defendant, Anthony
Malcolm, guilty of first-degree murder and robbery. Subsequently, the defendant was sentenced
to 22 years for first-degree murder and 8 years for robbery to be served consecutively. On
appeal, the defendant argues: (1) the trial court erred in finding the defendant guilty of first-
degree murder and robbery based on the accountability theory; (2) the trial court erred in
considering a nontestifying co-defendant's statement as substantive evidence as a basis for the
finding of guilt; (3) the trial court erred in sentencing the defendant to more than the minimum
sentencing standards. For the following reasons, we affirm the judgment of the circuit court of
Cook County.
¶2 BACKGROUND
¶3 On July 14, 2012, at approximately 9:20 a.m., the defendant was placed under arrest by
Detective Morales and his partner, Detective Taraszkiewicz of the Chicago Police Department, at
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his residence at 5549 North Broadway, Chicago, Illinois. This was done after co-defendant,
Malik Jones (Jones), identified the defendant as the person holding a cellular telephone and
recording the assault of the victim, Delfino Mora. The defendant was charged with three counts
of first-degree murder and one count of robbery. 720 ILCS 5/9-1(a)(1), (a)(2), (a)(3), 18-1(a)
(West 2012).
¶4 On March 25, 2013, a motion was filed to sever the defendant’s trial from Jones and
another co-defendant, Nicolas Ayala (Ayala), which the trial court granted. On May 23, 2013,
the trial court conducted defendant's bench trial.
¶5 Chicago police officer Collazo (Officer Collazo) testified that on July 10, 2012, he was
initially assigned to investigate a man down in the alley of 6308 North Artesian. Upon arriving
at the scene, he noticed a red truck and a man lying face up on the ground next to a dumpster.
Officer Collazo testified that the man was breathing, but had blood and vomit coming from his
mouth and he was unresponsive. Sulton Shaikh was also at the scene and had initially found the
man lying on the ground. Officer Collazo called for an ambulance and then attempted to identify
the victim. No identification was found on the victim.
¶6 After the ambulance took the man to the hospital, Officer Collazo went to the red truck
that was parked on the right side of the alley and found the victim’s name and address from his
vehicle registration. From there, Officer Collazo went to the victim’s home and notified his
family of the incident. He then returned to the police station to write his reports.
¶7 Chicago police detective Mancuso testified that on July 10, 2012, he was assigned to
investigate a man found in the alley at 6308 North Artesian. Upon arriving at the scene, he was
informed that the victim was taken to St. Francis Hospital and he then canvassed the area around
the alley. Specifically, he also spoke with Aron Rios (Rios). Detective Mancuso testified that he
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believes that Rios said that he heard people laughing and having fun in the alley. The crime
scene report was introduced into evidence by the defense as Defendant's Exhibit Number 1. In
the crime scene report, nothing is mentioned about Rios saying he heard people laughing.
Detective Mancuso also testified as to what the scene of the incident looked like and identified
photograph exhibits of the alley and the dumpster area where the victim was found. After he
canvassed the area, he went to St. Francis Hospital and found out that the victim was in critical
condition and had been taken into surgery.
¶8 Rios testified that on July 10, 2012, between 5 a.m. and 5:30 a.m., he left his Chicago
apartment at 2442 West Rosemont through the alley between Artesian and Campbell to go to
work. On his way down the alley, he saw a couple of individuals at the end of the alley in front
of Rosemont Street. In his testimony at trial, Rios noted that the individuals laughed and
commented about someone snoring. 1 Rios also noted that there were two people with another
one behind them and he did not notice anyone with a backpack.
¶9 Maria Mora (Maria) testified that she had been married to the victim for 41 years and had
12 children. The victim did not have a job at the time of his death, but had collected metal scrap
and cans to raise money for his family. On July 10, 2012, at approximately 5 a.m., the victim
left his home at 6014 North Washtenaw in Chicago to collect scrap metal. He was 62 years old
and left his home with his wallet, cellular telephone, and cap in a red Ford truck.
¶ 10 At approximately 8:30 a.m., an officer arrived at Maria's door and told her that the victim
had passed out and had been taken to St. Francis Hospital. Maria then went to the hospital and
found him in critical condition. The victim never opened his eyes or spoke again. On July 11,
1
According to his testimony, the first time Rios mentioned to anyone that the people were
laughing and having fun was the morning of trial.
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2012, at approximately 3:30 p.m., the victim died. When Maria was able to see the victim's
belongings, there was no wallet or cellular telephone with them.
¶ 11 Dr. Lauren Woertz (Dr. Woertz), the medical examiner for Cook County, testified that
she preformed the autopsy on the victim on July 13, 2012. The autopsy report was admitted into
evidence along with photos of the victim's face postmortem, his head showing the suture incision
from the craniotomy, and a picture of his brain. Dr. Woertz noted there were bruises on the right
eye, on the right and left side of Mora's chest, and on the left forearm. There was also a scrape
on the left side of the victim’s back. Dr. Woertz reviewed medical records that accompanied the
body, which noted evidence of right subdural hematoma, intraventricular hemorrhage,
subarachnoid hemorrhage, with contusions to the brain, multiple facial fractures and a diffused
hemorrhage under the scalp. After her internal investigation, she confirmed the presence of a
right subdural hematoma, an intraventricular hemorrhage of the brain, a subarachnoid
hemorrhage of the brain, bruises on the brain's temporal lobes, and bruises on the tongue. Dr.
Woertz determined that the cause of death of the victim was craniocerebral injuries resulting
from blunt head trauma sustained from an assault. Dr. Woertz testified that her opinion was
within a reasonable degree of forensic, scientific certainty as to the manner of the victim's death.
¶ 12 Emmanuel Mora (Emmanuel), the victim’s 21-year-old son, testified that he received a
call on July 10, 2012, around 2 p.m. to 3 p.m., from a co-worker, Mirena, to let him know that
she was sorry for what happened to his father. Two to three hours later, he received a second
call from Mirena. Mirena told him on this call that her boyfriend viewed the Facebook page of
Jones and saw a video of a man being punched. Mirena and her boyfriend recorded the
Facebook video and met Emmanuel at the police station to speak with detectives. At this time,
Emmanuel saw the video for the first time and identified the man in the video to be his father.
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The video was approximately one minute long, was admitted into evidence and played for the
trial court during Emmanuel’s testimony.
¶ 13 On July 14, 2012, a woman came to the victim’s home and gave the family a wallet that
she had found. Denise Shaeffer (Shaeffer) testified that she found the wallet in the alley behind
the fence of her yard. She was taking the garbage to the cans in the alley of the 6200 block of
North Campbell, when she found a brown wallet that was wet and dirty lying on the ground. She
picked up the wallet and opened it to find the identification and address of the victim. There was
no cash in the wallet. She then returned the wallet to the victim’s family who notified her that
the victim had passed away. The next day, Shaeffer called the police and let them know she
found the victim’s wallet.
¶ 14 Detective Juan Carlos Morales (Detective Morales) testified that on July 14, 2012, shortly
after 2 a.m., he and his partner, Detective Taraszkiewicz were assigned to investigate the
victim’s death. At this time, they were looking for Jones as a subject related to the crime. At
approximately 2:45 a.m., both detectives went to 8849 West 167th Street in Orland Hills,
Illinois, where they located Jones and arrested him. They recovered a cellular telephone in
Jones’ possession. The address of 8849 West 167th Street was the home of Sanchez Guzman.
Vaneece Lew (Lew) was also present at this address and agreed to accompany the detectives to
the police station.
¶ 15 Detective Morales testified that upon arrival at the police station, Jones was placed in an
interview room and Detective Morales had a conversation with him. After this, the detectives
looked for two other suspects: Ayala and the defendant. Lew assisted with the identification and
the detectives located pictures of the two suspects on the internet.
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¶ 16 At approximately 9:10 a.m. on July 14, 2012, the detectives arrested Ayala at 6306 North
Tallman Avenue, in Chicago. At approximately 9:20 a.m., the detectives arrested the defendant
at 5549 North Broadway, in Chicago. A video recording known as an electric recording
interrogation system (ERI) was made of the defendant's interview. Three clips (2 minutes, 10
minutes, and 20 minutes) from the videotaped interrogation were introduced as evidence and
played for the trial court during Detective Morales' testimony. Detective Morales made an in-
court identification of the defendant at trial. Detective Morales testified that at approximately
11:15 a.m. on July 14, 2012, both he and Detective Taraszkiewicz were present in the interview
room with the defendant, who was advised of his Miranda rights and agreed to have a
conversation with the detectives. During the interrogation, the defendant informed the detectives
that on July 10, 2012, between 5 a.m. and 6 a.m., the defendant and Ayala were walking towards
Ayala’s home at 6306 North Tallman Avenue, in Chicago. At some point, Jones joined them.
As they approached the alley between Artesian Avenue and Campbell Avenue, Jones turned on
the video recording function of his cellular telephone.
¶ 17 The video recording made from Jones' cellular telephone was played at trial during
Emmanuel’s testimony. The video recording showed Jones handing the cellular telephone to
Ayala, while saying "somebody hold my phone" and stating he was going to "knock this
motherfucker out." Ayala then said he was going to "hit him next." The defendant then asked if
Ayala was recording the incident and then said "just give it to me," referring to Jones' cellular
telephone. Jones then approached the victim who was standing near the dumpster in the alley,
and asked the victim if he had any money in his pocket. Ayala and the defendant followed Jones
while the defendant recorded the incident on Jones' cellular telephone. Jones stood just to the
left of the victim while Ayala was right in front of the victim with the defendant just to the right
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of Ayala. After Jones asked the victim if he had any money, the victim answered in Spanish.
Jones asked Ayala if he knew what the victim was saying and Ayala answered that he did not
know. Jones then yelled, "Nation!," and punched the victim in the head and then yelled, "Bitch!"
The victim fell to the ground and hit his head on the pavement. The video recording then ended
with Jones laughing and running to the end of the alley followed by the defendant and Ayala.
¶ 18 According to the videotaped interrogation, the defendant told Detective Morales that
Jones then returned to the victim and took his wallet. Jones gave $20 to Ayala. The defendant
did not return to the alley with Jones and did not take any of the proceeds from the wallet.
Detective Morales also testified that the cellular telephone found on Jones when he was arrested
was the cellular telephone of the victim.
¶ 19 During Detective Morales' testimony, defense counsel objected to admitting into
evidence portions of the defendant's videotaped interrogation as substantive evidence because
during the interrogation of the defendant, Detective Morales mentioned statements that Jones had
told the police earlier. The trial court then noted that this is a bench trial and that it can identify
what is or is not hearsay and will only apply what is not hearsay to his ruling.
"THE COURT: All right. Well, in the scope of this type of
evidence one this is a bench trial. I know what’s admissible and
what’s not.
And in the course of an interrogation which part of this is,
there is going to be and has been statements by both police officers
that are based on hearsay.
MR. COYNE [defense attorney]: Correct.
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THE COURT: That are presented to the defendant for a
response. Their questions don’t prevent – their questions in most
cases are inadmissible hearsay. But they give reference to the
answers he gives. And only those answers that apply to what he
heard and saw the defendant is admissible. I know the difference."
¶ 20 The defense counsel’s objection during Detective Morales' testimony was specifically
about when the detective had asked the defendant during the interrogation if this was part of
some sort of game and that the defendant had initially informed Detective Morales that it was
just a random occasion. Detective Morales proceeded to ask the defendant what that game was
called and the defendant responded that he did not understand. Detective Morales admitted at
trial that this line of questioning during the defendant’s interrogation occurred after he spoke to
Jones and Jones had informed Detective Morales about some kind of game. Detective Morales
testified he knew the name of the game, but that he wanted the defendant to say it during the
interrogation. The defendant did eventually inform the detective during the interrogation that the
game was called "Point Him Out, Knock Him Out." Detective Morales testified that when he
asked the defendant specifically if that is what was going on during the victim's assault, the
defendant’s response was "no, no, no" and that this was just a random occasion. Eventually, the
defendant told Detective Morales that Jones was "probably, I don’t know, he probably [was],"
playing the game at the time of the victim's assault. When Detective Morales asked what was
going through his mind, the defendant responded, "It was shocking. I have never seen anything
like that in my life."
¶ 21 The State rested their case and the bench trial continued on June 18, 2013. The defendant
elected not to testify. The defense filed written stipulations regarding the testimony of Detective
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Morales and the State's exhibits 2 (photograph of the victim at time of death), 3 (photograph of
the alley where the victim was found), and 11 (videotaped interrogation of the defendant). The
court and the State accepted these stipulations. The defendant verified that he was 19 years old,
a senior in high school with a C average. The defense rested their case.
¶ 22 On July 1, 2013, the trial court found the defendant guilty of first-degree murder and
robbery under a theory of accountability.
¶ 23 On July 26, 2013, the defendant filed a motion for a new trial or acquittal, which was
denied by the trial court.
¶ 24 On September 12, 2013, a sentencing hearing was held. A presentencing investigation
report (PSI) that was completed prior to the sentencing hearing was admitted into evidence. The
report noted that the defendant had no criminal history. The PSI also indicated that the
defendant never had any problems related to alcohol and that he drank once or twice a month.
The PSI noted that the defendant had been using marijuana three to four times per week since the
age of seventeen, and that he normally spent fifty dollars per week on marijuana. The defendant
noted that he had smoked marijuana the night before the offense and had consumed one shot of
tequila.
¶ 25 During the sentencing hearing, the defense presented mitigating evidence through the
testimony of multiple witnesses: Winston Malcolm, Stephanie Malcolm, Fabian Maxey Jr.,
Barbara Janusek, Rosemary Rodriguez, Howard Williams, and Scott Johnson.
¶ 26 Following the parties' arguments, the trial court sentenced the defendant to 22 years in
prison for first-degree murder and 8 years in prison for robbery, to be served consecutively. 2
The trial court also noted that the defendant will be subjected to three years of mandatory
2
Court transcript mentions that the first-degree murder charges were merged but it does
not say which ones were merged and which one remained.
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supervised release. The court stated that good people do bad things that still have consequences.
The court continued that there was not any remorse when the defendant spoke and that "there
must be some deterrence to people who choose violence as some pastime event."
¶ 27 On October 1, 2013, defense counsel filed a motion to reduce sentence, which the court
denied. On October 11, 2013, the defense filed a timely notice of appeal.
¶ 28 ANALYSIS
¶ 29 We first note that this court has jurisdiction over this case pursuant to Illinois Supreme
Court Rule 603 (eff. Feb. 6, 2013) and Rule 606 (eff. Dec. 11, 2014).
¶ 30 We determine the following issues on appeal: (1) whether the trial court erred in
convicting the defendant of first-degree murder and robbery based on the theory of
accountability; (2) whether the trial court erred in considering evidence of the nontestifying co-
defendant’s statements within the context of the defendant's videotaped interrogation; and (3)
whether the trial court properly considered the defendant's background during sentencing.
¶ 31 We first determine whether the trial court erred in convicting the defendant of first-
degree murder and robbery based on the theory of accountability.
¶ 32 The Illinois law regarding first-degree murder requires, "[a] person who kills an
individual without lawful justification commits first[-]degree murder if, in performing the acts
which cause the death: (1) he either intends to kill or do great bodily harm to that individual or
another, or knows that such acts will cause death to that individual or another; or (2) he knows
that such acts create a strong probability of death or great bodily harm to that individual or
another." 720 ILCS 5/9-1 (West 2012). The Illinois statute which describes robbery states that a
person commits robbery when he "knowingly takes property *** from the person or presences of
another by the use of force or by threatening the imminent use of force." 720 ILCS 5/18-1(a)
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(West 2012). The trial court convicted the defendant of first-degree murder and robbery under
the theory of accountability.
¶ 33 Under Illinois law which outlines accountability, "[a] person is responsible for conduct
which is an element of an offense if the conduct is either that of the person himself, or that of
another and he is legally accountable for such conduct as provided in section 5-2 [of the Illinois
Criminal Code of 2012], or both." 720 ILCS 5/5-1 (West 2012). The Illinois statute on
accountability states that a defendant is legally accountable for the actions of another when:
"[E]ither before or during the commission of an offense,
and with the intent to promote or facilitate that commission, he or
she solicits, aids, abets, agrees, or attempts to aid that other person
in the planning or commission of the offense.
When 2 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 common design or agreement and all are equally
responsible for the consequences of those further acts. Mere
presence at the scene of crime does not render a person
accountable for an offense; a person's presence at the scene of a
crime, however, may be considered with other circumstances by
the trier of fact when determining accountability." 720 ILCS 5/5-
2(c) (West 2012).
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In the case at hand, the defendant challenges whether the facts of the case meet all elements of
the crime to convict the defendant of first-degree murder and robbery beyond a reasonable doubt
based on the theory of accountability.
¶ 34 The defendant argues that this court should review this issue de novo because this issue
questions whether the trial court’s application of the law was accurately applied, although the
facts of the case are not at issue. People v. Chirchirillo, 393 Ill. App. 3d 916, 921 (2009). The
defendant also argues that because there is a video recording of the crime and video recording of
the police interrogation available that this court should review this issue de novo. People v.
Flores, 2014 IL App (1st) 121786, ¶ 35. The State responds that the proper standard of review is
whether after viewing the evidence in a light most favorable to the State, any rational trier of fact
could have found the elements of the crime beyond a reasonable doubt. People v. Fernandez,
2014 IL 115527, ¶ 13. We find the State to be correct regarding the standard of review. The
scope of the defendant’s right to appeal does not mean an unlimited review or a de novo trial in
the reviewing court. People v. Harrawood, 66 Ill. App. 3d 163 (1978). The appellate court can
review a case de novo only if the issue being questioned is a question of law. People v.
Chirchirillo, 393 Ill. App. 3d. 916, 921 (2009). However, a reviewing court "will not substitute
[its] judgment for that of the trier of fact." People v. Sutherland, 223 Ill. 2d 187, 242 (2006).
Even with the videotape of the crime and the defendant’s videotaped interrogation, the trial court
saw firsthand the testimony and is in a more superior position than the reviewing court regarding
the testimony and credibility of witnesses.
¶ 35 As to the first element of accountability, the defendant argues that he did not intend to
kill or rob the victim in any way as he was only recording what Jones did. The defendant argues
that he did not know with certainty that Jones was going to hit or rob the victim prior to the
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incident actually happening. The defendant further argues that Jones announced that he was
going to hit the victim and then did so. The defendant argues that the incident should be
considered a spontaneous event because the defendant did not know, before that announcement,
what Jones was going to do. The defense also argues that the defendant had no prior knowledge
of the robbery before it happened.
¶ 36 The State responds that intent may be inferred not only through acts but through
circumstances and surroundings as well. See People v. Perez, 189 Ill. 2d 254, 266 (2000). The
State argues that the defendant agreed to record the incident on Jones' cellular telephone and then
completed that task. Based on this action by the defendant, the State argues, he showed both his
intent and the common design to commit the crimes. The State continues that it was not a
spontaneous event because Jones announced what he was planning to do and the defendant
continued to follow Jones and record the incident.
¶ 37 The defense references Dennis in which our supreme court found the defendant to not be
liable under the accountability theory because the defendant had no knowledge of the principal’s
intent to commit armed robbery when he drove away from the scene of the crime. People v.
Dennis, 181 Ill. 2d 87, 105-06 (1998). However, Dennis is inapposite to the case at hand
because the defendant knew that Jones was going to hit the victim. The defendant knew this
because Jones and Ayala announced that was what they were going to do prior to doing it and the
defendant still took the cellular telephone and stayed with Jones and Ayala while recording the
incident. This is not a spontaneous event. The defendant had every opportunity to leave or not
take the cellular telephone, but he chose to do neither. In fact, the evidence suggests that the
defendant voluntarily took the cellular telephone from Ayala to record the incident since Ayala
suggested that he would be busy hitting the victim "next." As for the robbery, when Jones
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walked up to the victim he asked him for the contents of his pockets. Shortly after hitting the
victim and running a short distance away, Jones came back and took the victim's wallet. It can
be inferred that the defendant knew that Jones wanted to rob the victim when Jones asked the
victim for the contents of his pockets. The defendant had the choice and the ability to leave the
scene but did not. Rather, the defendant stayed and videotaped the attack and watched as Jones
and Ayala took the victim's wallet after knocking the victim to the ground. Therefore, we find
that the defendant had a shared intent to hit and rob the victim consistent with the theory of
accountability.
¶ 38 As to the second element of accountability, the defendant argues that he was not part of
the common plan to kill or rob the victim. The defendant again argues that Jones announcing
that he was going to hit the victim 30 seconds before he did was not enough advance notice to be
considered a plan to commit first-degree murder or robbery and that rather this was a
spontaneous event. The defendant argues, in relation to the robbery charge, that he did not return
with Jones to where the victim lay on the ground when Jones went back to take the victim's
wallet. Therefore, he argues that he could not have been a party to the plan to rob the victim.
¶ 39 The State argues that Jones announcing that he was going to "knock out" the victim is
evidence of a criminal design. The State argues that the defendant did not have to verbally agree
to the plan to be convicted under the theory of accountability. See Perez, 189 Ill. 2d at 267. The
State further argues that it does not matter how long before the incident the plan was developed
because once a plan was formulated the defendant went along with it and therefore shared the
intent of Jones. The State also argues that the defendant's agreeing to record the punching of the
victim, also makes him guilty of robbery which occurred after the victim was punched.
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¶ 40 The defense references Fernandez in which our supreme court found that under the
theory of common design, the defendant was accountable for " 'any criminal act done in
furtherance of the planned and intended act.' " (Emphasis omitted.) People v. Fernandez, 2014
IL 115527, ¶ 16 (quoting People v. Kessler, 57 Ill. 2d 493, 497 (1974)). However, the
Fernandez case works directly against the defendant’s theory in this case. In Fernandez, the
defendant entered into a plan with his companion, when he did not know was armed, to commit
burglary. Id. ¶ 17. While the companion was committing the burglary he was interrupted
unexpectedly and shot the person who interrupted him. Id. The shooting was not planned with
the defendant prior to the burglary but the court found that the defendant was still responsible
because the shooting was done in furtherance of the burglary. Id. In the case at hand, Jones
announced he was going to hit the victim before actually doing so. Rather than immediately
leaving the scene, the defendant went along with the plan and voluntarily recorded the event with
Jones' cellular telephone. Jones also asked the victim for the contents of his pockets and later,
after the victim had been attacked and was lying on the ground, Jones took the victim’s wallet.
The defendant made no attempt to leave the scene during the entire episode. Based on the
finding in Fernandez, the defendant is responsible for the robbery under a theory of
accountability, because it was done during the intended criminal act. The defendant also argues
that the recording of the incident proved that there was no common plan. The recording shows
that the video function on the cellular telephone was turned on, Jones then announced that he
was going to hit the victim, handed the phone to Ayala, who then also announced that he wanted
to hit the guy next, and then the defendant took the phone. However, the defendant said "just
give it to me" which suggests that he voluntarily took the phone, thereby agreeing to record
Jones and Ayala hitting the victim. Based on the facts of this case, we believe not only was there
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a shared intent but that intent also flowed into a common criminal design or plan to both hit and
rob the victim.
¶ 41 As to the third element of accountability, the defendant argues that he did not aid Jones in
committing first-degree murder or robbery. The defendant argues that he did not take part in or
agree to the crimes. The defendant argues he was only present during the punching of the victim
and he was not near the victim when Jones robbed him. The defendant argues that the recording
of the incident did nothing to aid or abet the conduct that is an element of first-degree murder or
robbery. The defendant states that there is no way to know why Jones wanted a recording of the
event and because of this, there is no way to interpret the recording as aiding and abetting Jones
in the commission of first-degree murder and robbery. The defendant argues that he stood at the
entrance of the alley when Jones went back to the victim and took his wallet. The defendant
argues that he did not help or intend to help in the robbery of the victim and was not part of a
plan to do so.
¶ 42 The State argues that the defendant aided in committing both first-degree murder and
robbery because the defendant agreed to record the punching of the victim. The State further
argues that by agreeing to record the incident, the defendant was aiding in the criminal act. The
State argues that even if the defendant only intended to aid in one criminal act, he is guilty of all
other criminal acts which flowed from or were committed during the completion of the one
planned criminal act, specifically the punching of the victim.
¶ 43 It is clear that the defendant had plenty of time to say "no" and remove himself from the
scene. Rather, he agreed to take Jones' cellular telephone and record the attack. The defendant
asked for the cellular telephone while being aware that Jones intended to record whatever he was
going to do to the victim. Based on Jones turning on the video function of his cellular telephone,
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handing the cellular telephone to his companion and then announcing that he was going to
"knock this mother fucker out," it is pretty clear that he wanted the event to be recorded. The
defendant by accepting the cellular telephone, accepted participation in Jones' plan, and in
helping Jones complete his desired goal of recording himself attacking the victim. The eventual
posting of the video on Facebook further supported Jones' goal. It is also clear that the defendant
was doing more than watching the incident. The defendant was recording the incident on Jones'
cellular telephone. While the defendant himself did not do the act of attacking the victim, he was
clearly part of the plan to do so and actively took part in this plan by recording the incident.
Therefore, we believe that the trial court properly found that the evidence supported the finding
that the defendant aided, abetted, and agreed to being involved in the crimes.
¶ 44 In Taylor, our supreme court set forth several factors to be considered when looking to
convict a defendant under the theory of accountability: if the defendant was present; if the
defendant maintained a close affiliation with the group after the overt act; if the defendant
attaches himself to a group bent on illegal acts; if the defendant failed to report the crime; and if
the defendant fled the scene of the crime. People v. Taylor, 164 Ill. 2d 131, 141 (1995). We find
that Taylor is instructive in analyzing a conviction based on the theory of accountability. Overt
participation by the defendant in the criminal act is not necessary for a finding of accountability.
People v. Ruiz, 94 Ill. 2d 245, 254 (1982); Taylor, 164 Ill. 2d at 140-41; People v. Flynn, 2012 IL
App (1st) 103687, ¶ 23.
¶ 45 In this case, the defendant argues that his mere presence at the scene of the crime is not
enough to make him accountable for the acts of Jones and that Jones did not need the defendant
at the scene to complete the crimes. The State responds that the defendant was more than merely
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present at the scene of the crime because he was recording the incident with Jones' cellular
telephone and the crime may not have happened without the defendant recording the act.
¶ 46 We find that based on the factors in Taylor, the defendant’s presence at the scene of the
crime is just one factor to be considered when determining if the defendant can be convicted
under the accountability theory. Taylor, 164 Ill. 2d at 141. Therefore, the trial court properly
considered the defendant's presence when coming to the conclusion that the defendant is
accountable for the first-degree murder and robbery of the victim.
¶ 47 Second, the defendant argues that he did not have a close affiliation with Jones and did
not continue to be around him after he reached Ayala’s house on the day of the incident. The
defendant also argues that there was no evidence presented that he had any contact with Jones
before the day of the incident and no evidence of any contact with Jones after the day of the
incident. The State responds that the defendant stayed with Jones and Ayala after the crime
occurred at least to the extent that he knew where the wallet was discarded after the robbery.
This means that he kept a close affiliation with Jones and Ayala immediately after the incident.
The State argues that it does not matter if the defendant was friends with Jones prior to the
events in question but that he was with him during the incident and stayed with him afterwards
was enough to create a close affiliation with Jones. The State argues that based on the facts of
the case, the defendant was friends with Ayala and was heading to his house the morning of the
incident and therefore clearly had a close affiliation with Ayala.
¶ 48 We find that the defendant stayed in the presence of both Jones and Ayala after the
punching of the victim and the robbery of the victim. According to the defendant's videotaped
interrogation, he saw Jones discard the victim's wallet sometime after the robbery. According to
Shaeffer's testimony, she found the victim's wallet in the alley of the 6200 block of North
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Campbell, which was a different location than where the attack and robbery occurred. This is
enough to conclude that the defendant stayed with Jones and Ayala after the attack and,
therefore, satisfies the close affiliation factor. Thus, the trial court properly considered the
defendant’s close affiliation with Jones and Ayala in determining he was accountable for first-
degree murder and robbery of the victim.
¶ 49 Third, the defendant argues that there was no evidence presented that the defendant
attached himself to Jones knowing that Jones intended to commit illegal acts. The defendant
argues that he learned of Jones’ intent only seconds before Jones hit the victim and that the State
provided an unreasonable interpretation of the facts which was inconsistent with meeting its
burden of proof. The defendant argues that Parker should be used as a comparison to the case at
hand. The defendant argues that in the Parker case, the court found that the defendant did not do
anything in furtherance of the crime as he stood and watched the lengthy attack on the victim.
People v. Parker, 311 Ill. App. 3d 80, 87 (1999). The defendant argues that the only thing in
common between Jones and himself is that they shared a route walking to their respective
destinations on the date of the incident. Finally, the defendant argues that he never voluntarily
attached himself to a group bent on criminal activities and instead found himself in the presence
of Jones, who acted spontaneously in the commission of criminal acts.
¶ 50 The State responds that past criminal behavior of the people the defendant was with and
their prior criminal records are a factor to be considered under the theory of accountability. The
State argues that the defendant knew of his companions' reputations and that the defendant still
was a friend of Ayala and stayed in the presence of Jones on the date of the incident. The State
argues that Jones announcing that he wanted to "knock the mother fucker out" is enough to show
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that the defendant knew that illegal criminal activity was going to take place and therefore it
showed the defendant knew that the group was intending to commit illegal acts.
¶ 51 We agree that it is important to consider the defendant’s knowledge of his companions at
the time of the incident. The defendant was a friend of Ayala's as evidenced by the fact that he
was on his way to Ayala's house when the attack on the victim occurred. There was also
evidence within the videotaped interrogation that the defendant knew that Jones had recently got
out of juvenile detention. There is no doubt that the defendant knew the reputations of his
companions. Even if the defendant did not know Jones and Ayala very well, when Jones
announced that he was going to "knock out" a person whom he did not know, the defendant must
have known that illegal acts that could cause great bodily harm were going to take place. This
court agrees that where one attaches himself to a group bent on illegal and dangerous acts, he
becomes accountable for these acts. Flynn, 2012 IL App (1st) 103687, ¶ 23. Therefore, the trial
court properly considered this factor in convicting the defendant of first-degree murder and
robbery based on the theory of accountability.
¶ 52 Finally, the State argues that the trial court correctly considered the unrebutted fact that
the defendant did not call the police and instead fled the scene of the crime. This court finds that
the trial court properly considered this factor in convicting the defendant of first-degree murder
and robbery.
¶ 53 This is a case of first impression, which involves the recording of a crime and the
accountability of the person doing the recording. After reviewing all the facts of the case at
hand, the applicable Illinois statutes and supporting case law, this court affirms the trial court's
decision to convict the defendant of first-degree murder and robbery based on the theory of
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accountability and we hold that a rational trier of fact could have found the essential elements of
the crimes beyond a reasonable doubt.
¶ 54 Next, we determine whether the trial court erred in considering evidence of the
nontestifying co-defendant's statements within the context defendant’s videotaped interrogation.
¶ 55 The sixth amendment to the United States Constitution states that the accused has a right
to, "be confronted with the witnesses against him." U.S. Const., amend. VI. The Illinois
Constitution echoes this same right. Ill. Const. 1870, art. I (amended 1994), § 8. The defendant
claims that this right was violated.
¶ 56 The defendant argues that the trial court violated his sixth amendment right to
confrontation by considering the nontestifying co-defendant Jones' statement as substantive
evidence and using this evidence as a basis for the guilty finding against the defendant. The
defendant claims that the trial court improperly considered the line of questioning within the
videotaped interrogation regarding whether co-defendant, Jones, was playing a game. The
defendant posits that this issue should be subject to de novo review by this court because it is a
question of law. The defendant specifically argues that the only reason the detective knew about
the existence of a game was because of co-defendant, Jones, discussing that information within
his own police interrogation. The defendant argues that defense counsel objected to the
admission of this line of questioning into evidence and the court in overruling the objection,
opined that the court was versed in the rules of evidence and the permissible use of the evidence
in question. The defense points to the following statements within the court's ruling in arguing
that the court improperly considered whether Jones was playing a game when he attacked the
victim:
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"THE COURT: It is a sad travesty that Mr. Delfino Mora
died because of actions of people who apparently think that what
they were doing was a game. Well, it wasn’t a game for Mr. Mora
or his family.
***
THE COURT: It’s a sad game, and I don’t even know that
you can call it a game, that young men would think this is a way of
entertainment.
***
THE COURT: And I’ve also considered that there must be
some deterrence to people who choose violence as some pastime
event."
The defendant argues that the purpose of admission of the evidence is irrelevant. Specifically,
the defendant argues that by considering the questions about the game the court is violating the
right of the accused to confront the witnesses against him and if there is a reasonable possibility
that the evidence obtained through co-defendant Jones might have contributed to the conviction,
this constitutes a sixth amendment violation. The defendant argues that this was not harmless
error because the court's consideration of Jones' statement shows that it contributed to the
defendant’s conviction. The defendant points out that he never admitted that he was playing a
game and it is clear within his videotaped interrogation that he thought the incident was just a
random occasion and did not believe he was playing a game.
¶ 57 The State responds that Detective Morales' questioning of the defendant in the videotaped
interrogation provided inconsistent responses from the defendant in relation to a possible game.
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The defendant first says it was a random occasion and then says that it was probable that Jones
and Ayala were playing a game. The State argues that when defense counsel objected to the
admission of any evidence related to the statements by Jones, the State responded that the State
was not seeking to admit any such statements as substantive evidence and the court clearly
responded that it knew the difference between evidence that is hearsay and evidence that is used
to give reference to the answers which the defendant gave during questioning. The State argues
that the statements made regarding the game did not directly implicate the defendant. Further,
any references made by the trial court are reasonable inferences based on the evidence. The
State finally argues that even if this court does conclude an error occurred, it is harmless error
because the defendant cannot establish that he was prejudiced by it.
¶ 58 Although the defendant claims that this issue relates to an alleged violation of the
confrontation clause and that we should review this issue under a de novo standard, we find that,
in actuality, this issue pertains to the admissibility of evidence by the court, which we review
under an abuse of discretion standard. "Admissibility of evidence is within the sound discretion
of the trial court, and its ruling will not be reversed unless there has been an abuse of that
discretion." People v. Trice, 217 Ill. App. 3d 967, 977 (1991). A trial judge is presumed to
know the law and only consider evidence that is both admissible and competent. People v.
Williams, 246 Ill. App. 3d 1025, 1033 (1993). Nothing in the record before us suggests or shows
that the trial court considered inadmissible evidence. During the testimony in question, the State
responded to the objection of defense counsel by arguing that the evidence was not being offered
for the truth of the matter asserted and was not used as substantive evidence. The court
responded that it knew the rules of evidence regarding admissibility, and it would only consider
admissible evidence in its ruling. However, even if the evidence highlighted by the defendant
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was improperly admitted, we find that it was a harmless error. "When a trial error affects a
Federal constitutional right, it is reversible error unless it is harmless beyond a reasonable
doubt." People v. Moore, 229 Ill. App. 3d 66, 77 (1992). To determine whether the error was
harmless, this court must look at, "[i]f the evidence of the defendant's guilt is uncontroverted
and/or so overwhelming that the constitutional violation resulting from its admission at trial did
not have an effect on the verdict, then the error is harmless beyond a reasonable doubt." Id.;
People v. Dixon, 169 Ill. App. 3d 959, 978 (1988). In the case at hand, all elements of the crimes
are met regardless of the mention of whether co-defendant Jones was playing a game. Therefore,
we affirm the decision of the trial court in finding the defendant guilty of first-degree murder and
robbery based on a theory of accountability.
¶ 59 The defendant's final issue is whether the trial court properly considered the defendant’s
background in imposing his sentences.
¶ 60 Both parties agree that the standard of review for sentencing is an abuse of discretion.
The trial court has great discretion to assign an appropriate sentence within the statutory limits
and is entitled to great deference because the trial court has observed the defendant and the
proceedings and has had a better opportunity than the reviewing court to consider all of the
factors. People v. Fern, 189 Ill. 2d 48, 53 (1999). "[O]ur decisions have firmly established that
the imposition of a sentence is a matter of judicial discretion and that, absent an abuse of this
discretion, the sentence of the trial court may not be altered upon review." People v. Perruquet,
68 Ill. 2d 149, 153 (1977).
¶ 61 The Illinois Constitution states that "[a]ll penalties shall be determined both according to
the seriousness of the offense and with the objective of restoring the offender to useful
citizenship." Ill. Const. 1970, art. I, § 11. Specifically, the Illinois Supreme Court Rules state
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that, "[a]any error, defect, irregularity, or variance which does not affect substantial rights shall
be disregarded." Ill. S. Ct. R. 615(a) (eff. Jan. 1, 1967).
¶ 62 The Illinois sentencing statute for first-degree murder states that a person shall be
imprisoned for not less than 20 years and not more than 60 years. 730 ILCS 5/5-4.5-20 (West
2012). The Illinois statute for a Class 1 felony states that a person shall be imprisoned for not
less than 4 years and not more than 15 years. 730 ILCS 5/5-4.5-30 (West 2012).
¶ 63 Based on the Illinois statutes for first-degree murder and robbery, the defendant was
properly sentenced within the statutory range, to 22 years for first-degree murder and 8 years for
robbery. 730 ILCS 5/5-4.5-20, 5-4.5-30 (West 2012). The defendant argues that based on his
mitigation evidence that he should have received the statutory minimums. However, the trial
court is allowed broad discretion to assign a sentence within the statutory limits. Fern, 189 Ill.
2d at 53.
¶ 64 The defendant argues that the trial court did not properly take into account the
defendant's lack of a criminal record and his minimal involvement in the crimes. The defendant
argues because of these factors, the minimal sentences should have been applied. The defendant
argues that the court must consider not only the circumstances of the case but also the
defendant's credibility, demeanor, general moral character, mentality, social environment, habits
and age and that the court should consider rehabilitation as an objective of the sentence. People
v. Clark, 374 Ill. App. 3d 50, 68-69 (2007). The defendant argues that the court abused its
discretion by imposing a sentence of 22 years for first-degree murder and 8 years for robbery, to
be served consecutively, and that he should have received the minimum sentence allowable
because of his lack of criminal history, his involvement in the crimes was minimal, and the
potential for rehabilitation is great. The defendant argues that the mitigating testimony from
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family, friends, and his JROTC instructor, his desire to go into the military and be a police
officer or FBI agent, and the evidence that he has continued to work towards his high school
diploma while in custody shows the strong possibility of rehabilitation.
¶ 65 The State responds that the trial court properly considered all relevant factors in
sentencing the defendant within the appropriate statutory range. The State argues that the
defendant was found guilty of first-degree murder, which has a sentencing range of 20 to 60
years and the defendant was sentenced to 22 years. The State argues that the defendant was also
found guilty of robbery, which has a sentencing range of 4 to 15 years and the defendant was
sentenced to 8 years. The State argues that the defendant cannot show that the trial court abused
its discretion in assigning the sentence or improperly considered the aggravating and mitigating
evidence presented. The State argues specifically that the trial court has broad discretion in
imposing a sentence as it has seen all the evidence and testimony first hand and heard the
defendant during the sentencing hearing. People v. Jones, 168 Ill. 2d 367, 373 (1995); Fern, 189
Ill. 2d at 53; People v. La Pointe, 88 Ill. 2d 482, 492-93 (1981). The State argues that the
reviewing court cannot substitute its judgment for that of the trial court just because they would
weigh the factors differently. People v. Alexander, 239 Ill. 2d 205, 213 (2010). In this case, the
trial court specifically noted during sentencing that there appears to be two different sides to the
defendant based on the testimony and that the court cannot completely separate the two for the
purposes of sentencing. The trial court noted that there has to be consequences for the
defendant’s actions and that he has considered all of the aggravating and mitigating factors, but
there must be deterrence to people in the future not to do what the defendant did. The State
argues that the trial court noted the lack of remorse of the defendant during his conversations
with the police. The State argues that the defendant participated in a cruel, senseless crime on a
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randomly selected victim over the age of 60 and that the sentence that the court imposed is
appropriate for the crime and within the statutory range.
¶ 66 We agree with the State. The trial court sentenced the defendant to 22 years for first-
degree murder, which is at the low end of the statutory range, and we do not find that it was an
abuse of discretion by the trial court. The trial court sentenced the defendant to eight years for
robbery, which is within the statutory range and we do not find that it was an abuse of discretion
by the trial court. The trial court specifically mentioned that it considered all the aggravation and
mitigation evidence. Based on totality of the factors and circumstances, considered by the trial
court, we hold that the court did not abuse its discretion in sentencing the defendant within the
statutory ranges and we therefore affirm the defendant's sentences.
¶ 67 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.
¶ 68 Affirmed.
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People v. Malcolm
Court: Appellate Court of Illinois
Date filed: 2015-08-10
Citations: 2015 IL App (1st) 133406, 39 N.E.3d 98
Copy CitationsCombined Opinion