People v. Taylor ( 1997 )


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  •                              No. 2--94--1201

      

    _________________________________________________________________

      

                                     IN THE

      

                           APPELLATE COURT OF ILLINOIS

      

                                 SECOND DISTRICT                              

                                                          

    _________________________________________________________________

      

    THE PEOPLE OF THE STATE         )  Appeal from the Circuit

    OF ILLINOIS,                    )  Court of Winnebago County.

                                   )  

        Plaintiff-Appellee,        )

                                   )  No.  94--CF--285

    v.                              )

                                   )

    TORY R. TAYLOR,                 )  Honorable

                                   )  Ronald L. Pirrello,

        Defendant-Appellant.       )  Judge, Presiding.        

    _________________________________________________________________

      

        JUSTICE HUTCHINSON delivered the opinion of the court:

        Defendant, Tory Taylor, appeals his conviction of aggravated

    discharge of a firearm (720 ILCS 5/24--1.2(a) (West 1994)).

    Defendant asserts that (1) he was not proved guilty of the crime

    beyond a reasonable doubt; (2) the trial court erred in refusing to

    answer a jury inquiry; and (3) the prosecutor sought to

    indoctrinate the potential jurors during voir dire.  We affirm.

        This case arose from a traffic altercation on August 28, 1993,

    in Rockford, Illinois.  Defendant, who was 15 years old at the

    time, was driving his stepfather's car, a blue Chevrolet Celebrity,

    accompanied by his friend, Lynn Hollingshed.  Witnesses testified

    that defendant was the driver of the car, and Hollingshed was a

    passenger sitting in the front seat.  Defendant testified that he

    was wearing shorts and Hollingshed was wearing black overalls, worn

    backwards, a black, long-sleeved shirt, and a hat.  Both had been

    riding around town for approximately seven hours.  During that

    time, Hollingshed showed defendant a .25-caliber handgun that he

    had pulled out of his pocket.  At approximately 7:30 p.m.,

    defendant turned from a larger street onto a side street.

        Edward Dawson, his wife Alta, and a friend were traveling on

    a two-lane, two-way street on their way to a wedding reception.

    Vehicles were parked on both sides of the street, reducing the lane

    size.  Defendant turned onto this street as Edward was approaching

    the intersection.  Beyond these facts, the accounts of the incident

    vary.  Edward and Alta testified that defendant's car came quickly

    around the corner, occupied a part of both lanes, and forced their

    vehicle close to a parked car.  Defendant testified that the street

    was too narrow for both cars to pass, so he stopped his car and

    backed it up to allow the other vehicle to pass.  

        Edward and Alta both exited their car, allegedly to look for

    damage done to the parked car.  They testified that the passenger

    in the Celebrity also got out of the Celebrity.  Edward asked

    whether the young man had a "problem."  Defendant testified that

    Edward had said, "You got a problem you fuckin' niggers?" as Edward

    drove past.  Both Edward and Alta testified that the passenger was

    wearing black overalls, turned backwards, a black shirt, and a hat.

    They also testified that the passenger had a small, black machine

    gun in his left hand.  Edward identified the passenger as the

    defendant during a photographic lineup and at trial.  When asked if

    he had a problem, the youth responded, "Yes, I got a fuckin'

    problem, white boy."  To emphasize his point, the passenger removed

    a small handgun and fired it in Edward's direction.  Defendant

    testified that the shot was fired upward, and Edward testified that

    the bullet "whizzed" past his ear.  Edward testified that he jumped

    back into his car as another bullet was fired.  Alta, who had also

    exited the car, reentered the car and wrote down the license plate

    number of defendant's vehicle.  The shooter then reentered the

    Celebrity and the car left the scene.  The Dawsons went to the

    closest service station and called the police.

        Defendant testified that Hollingshed was the shooter.

    Hollingshed was angered by Edward's alleged racial slur and had

    told defendant to stop the car.  Hollingshed did not indicate why

    he wanted defendant to stop the car, nor did he give any reason for

    exiting the car.  Defendant testified that he was startled when the

    first shot rang out.  After firing two shots in the air,

    Hollingshed came back to defendant's car.  Defendant asked

    Hollingshed why he fired the shots, but received no response from

    him.  Defendant then drove quickly from the scene.  

        Defendant drove to his brother's house, but he was not home.

    He then drove to where his stepfather works, but the stepfather was

    still working and unable to meet with defendant.  Finally,

    defendant went to the house of his uncle, Desmond Taylor.  Taylor

    drove defendant and Hollingshed towards a friend's house, but

    defendant and Hollingshed left the car when they saw a police car

    making a U-turn to follow their car.  The officer had apparently

    identified the vehicle as the car involved in the shooting from the

    Dawsons' description of the car and its license plate number.  The

    officer stopped Taylor and obtained defendant's and Hollingshed's

    name.  

        Defendant and Hollingshed ran for a couple of blocks until

    they found a friend of defendant's mother, who drove them to the

    house of defendant's friend.  Hollingshed left the friend's house

    after a short period to go to the hospital for treatment of a cut

    he had received during their flight from Taylor's vehicle.

    Defendant remained at the friend's house until late in the evening.

        Defendant was arrested, and a grand jury later indicted him

    for aggravated discharge of a firearm.  Defendant submitted a

    motion to suppress his identification as the shooter, because he

    was the only person wearing a black, long-sleeved shirt in the

    photo array presented to Edward and Alta.  The motion was denied.

    However, because the State changed the direction of the

    prosecution, arguing that defendant was the driver and not the

    shooter, the denial of this motion was not raised on appeal.

        During voir dire, defendant and the State used hypotheticals

    to determine potential jurors' ability to understand the nature of

    the case.  Defense counsel made repeated objections to the State's

    hypotheticals, arguing that the State was attempting to

    indoctrinate the jury.  After both sides had presented their case

    at trial, during jury deliberations the jury sent a question to the

    trial court.  The jury asked for a definition of the term "offense"

    as it related to "aiding and abetting."  The trial court answered,

    "You have your instructions as they apply to the facts, and you

    must apply your recollection of the facts to those instructions."

    After another four-hour period of deliberation, the jury found

    defendant guilty.   

        Defendant first argues that he was not proved guilty beyond a

    reasonable doubt of aggravated discharge of a firearm under the

    theory of accountability.  In assessing whether the evidence

    against a defendant was sufficient to prove guilt beyond a

    reasonable doubt, a reviewing court must determine " ' "whether,

    after viewing the evidence in the light most favorable to the

    prosecution, any rational trier of fact could have found the

    essential elements of the crime beyond a reasonable doubt." ' "

    (Emphasis omitted.)  People v. Furby, 138 Ill. 2d 434, 455 (1990),

    quoting People v. Collins, 106 Ill. 2d 237, 261 (1985), quoting

    Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99

    S. Ct. 2781, 2789 (1979).  A defendant's conviction should not be

    set aside on grounds of insufficient evidence unless the proof is

    so improbable or unsatisfactory that a reasonable doubt exists

    about the defendant's guilt.  Furby, 138 Ill. 2d at 455.  Our

    statute on accountability states that a defendant is legally

    accountable for the actions of another when:

             "(c) Either before or during the commission of an

        offense, and with the intent to promote or facilitate such

        commission, [she or] he solicits, aids, abets, agrees or

        attempts to aid, such other person in the planning or

        commission of the offense."  720 ILCS 5/5--2(c) (West 1994).

    Defendant argues that the offense was completed when Hollingshed

    fired the handgun at Dawson, and he was, therefore, not involved in

    the offense either before or during its commission.  

        A person may not be held accountable for a crime merely for

    being present (People v. Melgoza, 231 Ill. App. 3d 510, 537

    (1992)), nor will a person generally be rendered accountable for

    acquiescing to the criminal activities of another (People v.

    Miscichowski, 143 Ill. App. 3d 646, 655 (1986)).

        "In order to establish' guilt based upon a theory of legal

        accountability, the State must prove beyond a reasonable doubt

        that either before or during the commission of the offense,

        the defendant solicited, aided, abetted, agreed[,] or

        attempted to aid another person in the commission of the

        offense and that such participation was with the concurrent,

        specific intent to promote or facilitate the commission of the

        offense."  People v. Novy, 232 Ill. App. 3d 631, 664 (1992).

    The question then is whether defendant helped to facilitate the

    commission of the offense by providing Hollingshed with an escape

    from the scene of the offense.

        Defendant directs this court's attention to our recent

    opinion, In re D.C., 259 Ill. App. 3d 637 (1994).  In D.C., a minor

    was convicted of burglary under the theory of accountability.  The

    defendant was present with some friends when they burglarized a

    vehicle, and the defendant was convicted of a burglary that

    occurred before he joined them.  This court overturned his

    conviction, finding that, "[i]f the crime itself does not include

    escape as an element, it follows that the escape should not be

    considered part of the crime for determining whether the accused

    committed the crime."  In re D.C., 259 Ill. App. 3d at 643.  

        We do not find this rationale persuasive.  We believe the

    reasoning in the dissenting opinion in D.C. to be sound.  As

    Presiding Justice Inglis correctly noted in that dissent, the

    majority opinion is contrary to an established line of cases

    holding that escape is to be considered an element of the offense

    for accountability purposes.  See, e.g., People v. House, 232 Ill.

    App. 3d 309 (1992); People v. Johnson, 220 Ill. App. 3d 550 (1991);

    People v. Gil, 125 Ill. App. 3d 892 (1984); People v. Mumford, 70

    Ill. App. 3d 395 (1979).  In D.C., the minor was aware that his

    friends had committed a crime, and he made a conscious decision to

    remain with them during the commission of another crime and to

    provide them with a way to escape the scene.  As a result, we

    believe that the minor was correctly found to be accountable for

    the crime by the trial court.  Therefore, we adopt the standard

    from House and overrule any portion of In re D.C. that is contrary

    to this standard.

        Defendant also cites People v. Dennis, 271 Ill. App. 3d 1041

    (1995), for the proposition that escape is not necessarily a

    component of an offense for accountability purposes.  In Dennis,

    the defendant drove a friend away from the scene of a crime, but he

    only became aware that the crime had been committed after the

    escape.  The court reasoned that "[f]light from the scene does not

    elongate the offense of robbery."  Dennis, 271 Ill. App. 3d at

    1046.  The Dennis case is, however, factually distinguishable from

    the present case.  In the present case, defendant was acutely aware

    of the crime during its commission and made the conscious decision

    to aid Hollingshed's flight from the scene.

        We find the well-established precedents of this court to be

    persuasive.  "[A] criminal act is not completed until the offender

    has escaped from the scene."  Mumford, 70 Ill. App. 3d at 400.

    This holding was echoed by the court in Gil, which similarly held

    that "a crime is not completed until the offender has escaped from

    the scene."  Gil, 125 Ill. App. 3d at 896.  In the present case,

    the actual act of aggravated discharge of a firearm may have been

    completed when the firearm was discharged, but the crime was not

    completed for the purposes of accountability.  Defendant may not

    have fired the handgun, but he did knowingly provide Hollingshed

    with a very effective way to escape.  After viewing the evidence in

    the light most favorable to the prosecution, we find that any

    rational trier of fact could have found the essential elements of

    the crime of aggravated discharge of a firearm beyond a reasonable

    doubt.

        Defendant's second issue on appeal is that the trial court

    erred in refusing to clarify the law of accountability to the jury.

    Jurors are entitled to have their questions answered, and "the

    trial court has a duty to provide instruction to the jury where it

    has posed an explicit question or requested clarification on a

    point of law arising from facts about which there is doubt or

    confusion."  People v. Childs, 159 Ill. 2d 217, 228-29 (1994),

    citing People v. Reid, 136 Ill. 2d 27, 39 (1990); see also People

    v. Landwer, 279 Ill. App. 3d 306, 314 (1996).  Under certain

    circumstances, a trial court's refusal to answer the jury's

    question may be held to be prejudicial error.  See, e.g., People v.

    Shannon, 206 Ill. App. 3d 310 (1990).  The rule, as explained by

    the Childs court, is:

             "A trial court may exercise its discretion and properly

        decline to answer a jury's inquiries where the instructions

        are readily understandable and sufficiently explain the

        relevant law, where further instructions would serve no useful

        purpose or would potentially mislead the jury, when the jury's

        inquiry involves a question of fact, or if the giving of an

        answer would cause the court to express an opinion which would

        likely direct a verdict one way or another."  Childs, 159 Ill.

        2d at 228.

    For this inquiry, whether the jury was properly instructed before

    the beginning of deliberations is irrelevant.  People v. Kittinger,

    261 Ill. App. 3d 1033, 1038-39 (1994).

        In the present case, the trial court refused to provide the

    jury with a definition of the term "offense" as it related to

    aiding and abetting.  The trial court responded to the jury's

    inquiry by sending the jury a note stating, "You have your

    instructions as they apply to the facts and you must apply your

    recollection of the facts to those cases."  Defendant argues that

    the trial court erred because its answer merely created more

    confusion over the definition of a term contained in the jury

    instructions.  The State asserts that the jury's inquiry was

    "demonstrably ambiguous" and could not have been answered without

    a colloquy between the court and the jury.  We agree with the

    State.

        The trial court could have provided the jury with a definition

    of the term "offense" as it is contained in our statute by

    responding that an " '[o]ffense' means a violation of any penal

    statute of this State" (720 ILCS 5/2--12 (West 1994)).  However,

    this would not necessarily have provided the jury with any

    guidance.  In fact, the jury appeared to be looking for a

    definition that might require the trial court to comment on a

    question of fact, to express an opinion which would likely direct

    a verdict one way or another or, at the very least,  to ask the

    jury additional questions to clarify the request.   Therefore, we

    determine that the trial court properly refused to answer the

    jury's inquiry.

        Defendant's final argument is that the State improperly sought

    to indoctrinate the jurors during voir dire through the use of

    hypotheticals.  The trial court has primary responsibility for

    conducting voir dire examination in criminal cases, and the scope,

    extent, and manner of questioning rest within the discretion of the

    trial court.  134 Ill. 2d Rs. 234, 431; see also People v. Hope,

    168 Ill. 2d 1, 30 (1995); People v. Szudy, 262 Ill. App. 3d 695,

    708 (1994).  The purpose of voir dire is to ascertain sufficient

    information about prospective jurors' beliefs and opinions to

    permit the removal of those members of the venire who are unable or

    unwilling to be impartial.  People v. Oliver, 265 Ill. App. 3d 543,

    548 (1994).  The purpose is not to elicit jurors' opinions

    concerning particular evidence to be offered at trial.  State v.

    Bibb, 626 So. 2d 913, 942 (La. App. 1993).  Only when the trial

    court's actions have frustrated the purpose of voir dire will an

    abuse of discretion be found.  Hope, 168 Ill. 2d at 30.  Voir dire

    cannot be used as an opportunity to even slightly indoctrinate a

    juror.  People v. Cloutier, 156 Ill. 2d 483, 496 (1993); see also

    People v. Morgan, 112 Ill. 2d 111, 129 (1986).

        In the present case, the State, as well as the defendant,

    presented the venire with many hypotheticals.  Defendant argues

    that the State's hypotheticals exceeded the scope of voir dire and

    represented an effort to indoctrinate the jurors.  The State argues

    that it was merely "attempting to ascertain whether the jurors

    could intellectually comprehend" the respective theories of the

    case.  Such an inquiry is acceptable, as long as it does not rise

    to the level of indoctrination or preeducation.  See Gowler v.

    Ferrell-Ross Co., 206 Ill. App. 3d 194, 208 (1990).

         A careful review of the record establishes that the State's

    hypotheticals did amount to an attempt to indoctrinate the jury.

    Therefore, we determine that the State's actions during voir dire,

    particularly on the subject of identification of the shooter,

    exceeded the scope of voir dire.  However, the State argues that

    any preeducation of the jurors was harmless error because the

    State's theory shifted away from the theories mentioned during voir

    dire.  The State posed hypotheticals to the jury about its primary

    theory of the case, that defendant was the shooter and could be

    proved to be so by circumstantial evidence.  Once trial began,

    however, the State pursued and argued the theory that defendant was

    the driver and was guilty of the crime under the doctrine of

    accountability.   As a result, we conclude that, even though we

    have determined that the State's questions to the jurors exceeded

    the scope of voir dire, this error must be deemed harmless, "as the

    record demonstrates that the verdict would not have been otherwise

    had the comments not have been made."  People v. Williams, 147 Ill.

    2d 173, 232 (1991).

        The judgment of the circuit court of Winnebago County is

    affirmed.

        Affirmed.

        INGLIS and DOYLE, JJ., concur.