People v. Flynn , 2012 IL App (1st) 103687 ( 2012 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
People v. Flynn, 2012 IL App (1st) 103687Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption DESTEPHANO FLYNN, Defendant-Appellant.
District & No. First District, Sixth Division
Docket No. 1-10-3687
Filed December 21, 2012
Rehearing denied January 22, 2013
Held On appeal from defendant’s convictions for first degree murder and
(Note: This syllabus attempted first degree murder involving the discharge of a firearm during
constitutes no part of each crime, the appellate court rejected defendant’s contentions that he
the opinion of the court was not proved to be accountable for the attempted murder and that the
but has been prepared 20-year firearm enhancement to his sentences did not apply to him
by the Reporter of because he was not a principal in the offenses, since the attempted murder
Decisions for the fell within the scope of the intention of defendant’s companions to kill
convenience of the the murder victim and the sentencing enhancement applied to principal
reader.)
offenders as well as accountable codefendants.
Decision Under Appeal from the Circuit Court of Cook County, No. 07-CR-18935; the
Review Hon. Neera Lall Walsh, Judge, presiding.
Judgment Affirmed.
Counsel on Michael J. Pelletier, Alan D. Goldberg, and Adrienne N. River, all of
Appeal State Appellate Defender’s Office, of Chicago, for appellant.
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
Christine Cook, and Mary Beth Kinnerk, Assistant State’s Attorneys, of
counsel), for the People.
Panel PRESIDING JUSTICE LAMPKIN delivered the judgment of the court,
with opinion.
Justice Reyes concurred in the judgment and opinion.
Justice Gordon concurred in part and dissented in part, with opinion.
OPINION
¶1 After a jury trial, defendant Destephano Flynn was convicted of first degree murder and
attempted first degree murder and for personally discharging a firearm during each crime. He
was sentenced to 66 years in prison.
¶2 On appeal, he contends that: (1) the State failed to prove that he was accountable for
attempted murder because he did not assist the codefendant in shooting the attempted murder
victim and the State did not prove that the shooting of the attempted murder victim was an
act in furtherance of the planned killing of the murder victim; and (2) the trial court erred by
adding the 20-year firearm enhancement to defendant’s sentences because the State did not
prove that defendant was a principal in the murder and attempted murder offenses.
¶3 For the reasons that follow, we affirm defendant’s convictions and sentences. We
conclude that (1) the State proved beyond a reasonable doubt that defendant was guilty of
attempted first degree murder on a theory of accountability; and (2) the trial court properly
added the 20-year firearm enhancements to defendant’s sentences for murder and attempted
murder based on his personal discharge of a firearm.
¶4 I. BACKGROUND
¶5 On August 4, 2001, there was a shooting during a dice game in Tilton Park at Lake Street
and Kostner Avenue in Chicago. The park was in an area that the Dog Pound street gang
claimed as its territory. Jermaine Collins, a drug dealer and member of the Unknown Vice
Lords street gang, was shot several times and died. Billy Taylor was also shot as he fled the
scene, but he survived the attack.
¶6 The State arrested and charged defendant in 2007 with the first degree murder of Collins,
the attempted first degree murder of Taylor, aggravated battery with a firearm, and
aggravated discharge of a firearm. The State alleged that Collins was shot eight times by Dog
-2-
Pound members defendant, Deon Coleman, Robert Holly and a fourth, unknown male. The
State also alleged that Taylor was shot a few times by codefendant Darius Epting and
Gregory Matthew, who were also Dog Pound members.
¶7 Simultaneous jury trials were held for defendant and codefendant Epting in October
2010. At defendant’s trial, the evidence established that, at 4:29 a.m. on August 4, 2001, the
police responded to a call of a person shot in Tilton Park. Collins’s dead body was facedown
in a grassy area of the park. The police were notified that a second shooting victim had
driven himself to the hospital. Cartridge cases, fired bullets and bullet fragments recovered
at the scene indicated that multiple weapons were used with multiple calibers of ammunition
made by different manufacturers. Collins had three $5 bills clutched in his right hand and one
$50 bill and eleven $20 bills in his left hand. A .380-caliber cartridge case, stamped with the
manufacturer’s mark “RP,” was recovered next to his body.
¶8 A blood trail on the sidewalk went north across Lake Street and down the sidewalk for
about 60 feet. Along the blood trail, the police found several .25-caliber cartridge cases with
the manufacturer’s mark “CCI.” Several copper-colored bullet fragments were located on the
sidewalk and across the street from the park. Retired Chicago police officer and forensic
investigator Arthur Oswald testified that the blood trail showed someone was bleeding and
moving in close proximity to the crime scene. Investigator Oswald found a brass-colored
cartridge near the curb. On the sidewalk in the blood trail, he found a larger aluminum
cartridge case. Four fired .25-caliber cartridge cases, which were brass and had the
manufacturer’s mark “WW,” were found on the street near Kostner Avenue across from the
park. Two aluminum .25-caliber cartridge cases with the manufacturer’s mark “CCI” were
found on the north side of Lake Street across from the park. Another “CCI” automatic .25-
caliber cartridge case was collected from the curb gutter at 4356 West Lake Street. A fired
bullet was recovered on the north side of Lake Street across from where Collins’s body was
found. Copper-colored bullet fragments were recovered at 4356 and 4350 West Lake Street.
The police also found a clear plastic bag that contained smaller plastic bags of suspected
cannabis 46 feet southeast of Collins’s body.
¶9 The autopsy revealed that Collins had eight gunshot wounds: five in his head, one in his
neck, one in his back, and one in his leg. The stippling around the gunshot wound behind his
left ear indicated that the weapon was within 18 to 24 inches of his body when it was fired.
Bullets and bullet fragments were recovered from Collins’s brain, neck, cheek and chest. A
firearms examiner examined the bullets and fragments recovered from Collins’s body. One
bullet was a .390/.38 caliber. Three bullets were .22 caliber, but the examiner could not
testify about whether those three bullets were fired from the same firearm or whether they
were fired from a revolver or semiautomatic. He also could not determine the caliber of the
fifth bullet or the two metal fragments.
¶ 10 Billy Taylor testified that, at the time of the shooting, he was playing a dice game at the
park. When he initially spoke to the police after the shooting, he did not admit that he knew
the shooters because he was afraid for the safety of his family, who lived in the
neighborhood. Taylor did, however, tell the police that defendant and Henry Clark were at
the dice game. In 2003, two years after the shooting and during an unrelated investigation,
a confidential informant, during a taped consensual overhear, spoke with Taylor, who
-3-
admitted that he knew more about the shooting than he had told the police. That information,
however, was not given to Detective John Madden of the cold case unit of the Chicago police
department until October 2006. After the Collins’s murder investigation was reopened, an
investigative alert was issued for Taylor, who was finally located on April 6, 2007, when he
was stopped for a traffic violation. By this time, Taylor and his family had moved to the
suburbs, so Taylor cooperated with the police. Taylor identified codefendant Epting as the
person who shot him in the back. Taylor also identified defendant and Deon Coleman as the
people who shot at Collins.
¶ 11 Taylor testified that he was not a street gang member, but he played dice with Collins
because Taylor loved to gamble and play high stakes games for thousands of dollars. When
Taylor had played dice with Collins a few days before the August 4 shooting, they were
playing for $1,500 or $2,000, and codefendant Epting tried to grab Taylor’s money off the
ground. Collins, however, told Epting “no,” that was not his money, and to “watch out.”
Epting walked away but he said something about the money being his. Taylor also saw
defendant at that earlier dice game.
¶ 12 Taylor testified that he learned about the August 4 dice game from Henry Clark and
arrived at the game around 9 or 10 p.m. Defendant, codefendant Epting, Clark, Collins, and
some of Collins’s friends were also present. After five or six hours, the game started to wind
down. Only Taylor and Collins were still playing; the others had drifted off to the side as they
lost money. Then Deon Coleman, a person Taylor had never seen before, came from behind
a parked car, pointed a gun at Collins’s head, and started shooting at Collins and chasing
him. Initially, Taylor just froze and saw defendant come from behind the car and chase
Collins. Taylor then ran in the opposite direction, north on Kostner Avenue toward Lake
Street. As codefendant Epting chased Taylor, Taylor heard gunshots and was shot in his
back. Epting was only three or four feet behind Taylor at that time. Initially, Taylor thought
the attack was a robbery, so he dropped his money and his Rolex watch as he ran. Epting,
however, kept chasing Taylor and the shooting continued, so Taylor realized this was more
than a robbery. Taylor ran east on Lake Street, and Epting continued to chase him. Taylor
turned around and tried to fight Epting. Epting pointed his gun at Taylor’s head, so Taylor
put both his hands up in front of his face. Epting fired the gun, and the bullet went through
the palm of Taylor’s right hand. When Taylor did not hear anymore gunshots, it seemed that
Epting’s gun either jammed or was out of bullets because Epting ran away. Taylor ran to his
car on Kostner Avenue and drove to the hospital. The bullet in his back was too close to his
spine to be removed, so there was no evidence presented at trial about the caliber of that
bullet.
¶ 13 When Henry Clark was interviewed in prison by Detective Madden and Assistant State’s
Attorney Donald Lyman, he was serving a seven-year sentence for aggravated battery with
a firearm. He also had several more felony convictions for domestic battery and criminal
damage to property. He agreed to testify and was not promised anything in return for his
cooperation. He stated that he was a member of the Dog Pound street gang along with
defendant, codefendant Epting, Robert Holly, Deon Coleman, and Gregory Matthews.
Although Clark got along with Collins, the other members of the Dog Pound had problems
with Collins because he was making money selling drugs in Tilton Park. Furthermore,
-4-
defendant had conflicts with Collins that stemmed back to when they were both incarcerated
together.
¶ 14 Clark testified that at the time of the shooting, he had been playing dice with defendant,
codefendant Epting, Collins, and Taylor. Some people in the game were getting mad because
they were losing money and people started leaving. When defendant lost all his money, he
and Epting left the game. Clark said defendant was a sore loser. Epting was also mad, but he
did not lose as much money as defendant. About five minutes after defendant and Epting left,
Clark heard his nephew whistle from a block away as a warning. Then Robert Holly and
defendant ran up shooting at Collins. Epting fired a gunshot toward Taylor and chased him
toward Lake Street. There was another shooter out there, but he wore a hooded sweatshirt
and Clark could not see his face. Clark ran to his car and started to drive off, but he was
flagged down by Epting. Clark gave Epting a ride and saw that he had blood on his shirt and
was acting nervous. Clark dropped Epting off at North and Lockwood Avenues.
¶ 15 Clark testified that he spoke with defense investigator Mary Clements in 2010. He did
not want to talk to her about Dog Pound business so he initialed changes she made to his
grand jury testimony just to get rid of her. He did not pay attention to what she wrote on the
transcript or crossed out. Clark stated that his grand jury testimony was truthful and denied
telling Clements that defendant was not one of the shooters.
¶ 16 Mary Clements testified about her meeting with Clark. She corrected his grand jury
statement to reflect what he told her, i.e., that after defendant and codefendant Epting lost
their money at the dice game, they left. According to Clements, Clark stated that when the
shooting started, he saw only Robert Holly’s gun and started running so that he would not
get shot; Clark did not see defendant or codefendant Epting.
¶ 17 Detective Madden questioned defendant after his arrest on August 10, 2007. Defendant’s
videotaped statement was published to the jury. According to that statement, defendant left
the park and eventually went home and slept. Codefendant Epting and Robert Holly came
to defendant’s house after leaving the dice game and woke defendant up. They told defendant
that they wanted guns because Collins “got to go,” which defendant understood to mean that
Collins had to die. Defendant kept guns hidden in a hollowed out teddy bear. He put a .22-
caliber revolver in his pocket and gave codefendant Epting a .38- or .357-caliber gun. Holly
had a .357-, .44- or .45-caliber revolver. Epting and Holly left defendant’s house, and
defendant took his time putting on his shoes before following them back to the park because
he hoped the shooting would be over by the time he got there. When he arrived at the park,
he saw Holly shoot Collins. Defendant admitted firing his gun once or twice in Collins’s
direction but claimed that he was not trying to hit Collins and did not know whether he
actually hit Collins. Defendant also admitted that he saw codefendant Epting and Gregory
Matthews shoot at Taylor. Furthermore, defendant saw Holly go to Collins and shoot him
at close range in the head.
¶ 18 The jury found defendant guilty of first degree murder and attempted first degree murder
and for personally discharging a firearm during each crime. Codefendant Epting was
acquitted by his jury. Defendant was sentenced to a total of 66 years in prison, which
consisted of the consecutive sentences of 20 years for the murder plus 20 years for personally
-5-
discharging a firearm during that murder, and 6 years for the Class X offense of attempted
murder plus 20 years for personally discharging a firearm during that attempted murder.
¶ 19 II. ANALYSIS
¶ 20 A. Attempted First Degree Murder
¶ 21 Defendant contends the State failed to prove beyond a reasonable doubt that he was
guilty of the attempted murder of Taylor under general accountability principles or the
common-design rule because the shooting of Taylor was not an act in furtherance of the
planned killing of Collins and defendant did not assist codefendant Epting in shooting
Taylor.
¶ 22 When the sufficiency of the evidence is challenged, a criminal conviction will not be set
aside unless the evidence, when viewed in the light most favorable to the prosecution, is so
improbable or unsatisfactory that a rational trier of fact could not have found the essential
elements of the crime beyond a reasonable doubt. People v. Gilliam, 172 Ill. 2d 484, 515
(1996). The reviewing court may not retry the defendant. People v. Rivera, 166 Ill. 2d 279,
287 (1995). The trier of fact determines the credibility of the witnesses, the weight given to
their testimony, and the reasonable inferences drawn from the evidence. People v. Enis, 163
Ill. 2d 367, 393 (1994).
¶ 23 The law is clear that a person may be held accountable for the conduct of another in
certain limited circumstances. A person is legally accountable for the conduct of another if
“[e]ither before or during the commission of an offense, and with the intent to promote or
facilitate [such] commission, he solicits, aids, abets, agrees or attempts to aid, such other
person in the planning or commission of the offense.” 720 ILCS 5/5-2(c) (West 2010).
“Where one attaches himself to a group bent on illegal acts which are dangerous or homicidal
in character, or which will probably or necessarily require the use of force and violence that
could result in the taking of life unlawfully, he becomes accountable for any wrongdoings
committed by other members of the group in furtherance of the common purpose, or as a
natural or probable consequence thereof even though he did not actively participate in the
overt act itself.” People v. Morgan, 39 Ill. App. 3d 588, 597 (1976). See People v. Kessler,
57 Ill. 2d 493, 496-97 (1974) (where the defendant had jointly planned a burglary, he was
accountable for the conduct of others in the attempted murder of the store owner and a
policeman).
“Mere presence of a defendant at the scene of a crime does not render one
accountable for the offense. [Citations.] Moreover, presence at the scene plus knowledge
that a crime was being committed, without more, is also insufficient to establish
accountability. [Citation.] Nevertheless, active participation has never been a requirement
for the imposition of criminal guilt under an accountability theory. [Citation.] One may
aid and abet without actively participating in the overt act. [Citation.]
A defendant may be deemed accountable for acts performed by another if defendant
shared the criminal intent of the principal, or if there was a common criminal plan or
purpose. [Citations.] Words of agreement are not necessary to establish a common
purpose to commit a crime. The common design can be inferred from the circumstances
-6-
surrounding the perpetration of the unlawful conduct. [Citations.] Proof that defendant
was present during the perpetration of the offense, that he maintained a close affiliation
with his companions after the commission of the crime, 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. [Citation.] Defendant’s flight from the scene may also be considered
in determining whether defendant is accountable. [Citation.] Evidence that defendant
voluntarily attached himself to a group bent on illegal acts with knowledge of its design
also supports an inference that he shared the common purpose and will sustain his
conviction for an offense committed by another. [Citation.]” People v. Taylor, 164 Ill.
2d 131, 140-41 (1995).
¶ 24 After reviewing the evidence in the light most favorable to the State, we find that there
was sufficient evidence for a rational trier of fact to find defendant guilty of the attempted
first degree murder of Taylor under an accountability theory. The State’s evidence showed
that defendant knew Epting and Coleman wanted to return to the dice game where Collins
was playing with Taylor and kill Collins. Furthermore, in response to Epting and Coleman’s
stated plan, defendant armed himself with the gun he later fired at Collins and gave
codefendant Epting the gun Epting later used to shoot Taylor. In addition, defendant went
back to the park and joined the shooters, who surprised Collins and Taylor while they were
playing dice and opened fire on them. Defendant was an active participant in the orchestrated
shooting that resulted in the death of Collins and the severe wounding of Taylor. While
defendant, Coleman and Holly pursued Collins and fired their guns at him, Epting and
Matthews pursued and fired gunshots at Taylor, an outsider to the Dog Pound and potential
witness against them. Defendant did not withdraw from the group or demonstrate any
opposition to the group’s planned actions. At no time did he attempt to warn the police or
the victims or otherwise attempt to prevent the execution of the group’s plan.
¶ 25 Under all those circumstances, it was reasonable for the trier of fact to conclude that
defendant subscribed to an unlawful venture that used violence and firearms and, as a natural
consequence, resulted in the death of Collins and the severe wounding of Taylor. He was,
therefore, in addition to being guilty of the murder of Collins, also guilty of the attempted
murder of Taylor on a theory of accountability. Contrary to defendant’s assertion on appeal,
it is inconsequential whether he or any of the other shooters specifically discussed shooting
Taylor in addition to shooting Collins. Defendant and the other shooters clearly planned and
intended to surprise Collins and Taylor while the two victims were together playing dice and
open fire on them.
¶ 26 To support his argument that the State failed to prove him accountable for the attempted
murder of Taylor, defendant cites People v. Lincoln, 157 Ill. App. 3d 700 (1987), but we find
that case distinguishable. In Lincoln, the defendant and three codefendants, Watson, Elston
and Johnson, had discussed going to Donald Mitchell’s apartment to “ ‘take care of him.’ ”
Id. at 703. Once the group arrived at the apartment, the defendant and Watson confronted
Mitchell and a woman in a bedroom while Elston and Johnson remained in the living room
with the decedent, Tony Carter. Id. at 702. After the defendant told Watson to shoot Mitchell
in the head, defendant and Watson were pushed out of the bedroom and Watson fired two
shots at Mitchell and the woman through the bedroom door. Id. Then the defendant and
-7-
Watson pushed through the bedroom door, struggled with Mitchell over the gun, and fled the
scene down the backstairs. Id. Meanwhile, Elston killed Carter in the living room with a
shotgun. Id. at 702-03. The court remanded the cause for a new trial on other grounds, and
found that the defendant could not be retried for Carter’s murder because that killing was not
part of the defendant’s alleged plan “ ‘to get’ ” Mitchell and the defendant was not present
during the events that led to Carter’s killing. Id. at 706.
¶ 27 Assuming, arguendo, that Lincoln was correctly decided concerning the accountability
issue, it is distinguishable from the case before us because defendant was present during the
events that led to Taylor’s shooting. Although the Dog Pound’s stated plan may have been
to get rid of Collins, defendant knew that Taylor had been playing dice with Collins at the
park when he gave Epting the gun Epting used to shoot Taylor. Moreover, defendant and
Epting were angry about losing money in the dice games to Collins and Taylor, two outsiders
to the Dog Pound street gang. When the Dog Pound arrived at the park and took their
positions behind parked cars, they clearly saw that Taylor was still with Collins playing dice.
Defendant then actively participated in the Dog Pound’s surprise attack on Collins and
Taylor. While defendant, Coleman and Holly pursued Collins and fired gunshots at him,
Epting and Matthews pursued and shot at Taylor.
¶ 28 Defendant also cites People v. Estrada, 243 Ill. App. 3d 177 (1993), where the court held
the State failed to prove the defendant was guilty of first degree murder on a theory of
accountability. The evidence showed that the defendant and his companions were riding in
a car and exchanged opposing gang signs with some men on the street. Id. at 180. As
defendant exited the car with a tire iron, one of his companions fired a gun at the deceased.
Defendant chased the deceased into a building and broke a window with the tire iron. Id. The
court ruled that although the defendant’s acts indicated that he intended to intimidate the
victim, there was no evidence that the defendant was aware that his companion intended to
shoot at the victim. Id. at 185. The court also reasoned that it was unlikely that the defendant
would have left the car had he known that shots were about to be fired. Id. Estrada is
distinguishable from the instant case because, here, defendant had advance knowledge of the
plan to get rid of Collins and facilitated that plan by supplying guns, actively participating,
and firing his own gun when the Dog Pound surprised Collins and Taylor at the park and
opened fire on them.
¶ 29 “Proof of the common purpose or design need not be supported by words of agreement,
but may be drawn from the circumstances surrounding the commission of the unlawful
conduct.” People v. Jones, 376 Ill. App. 3d 372, 383-84 (2007). Given the nature of the Dog
Pound’s orchestrated attack on Collins and Taylor at the park, defendant cannot credibly
claim that the shooting of Taylor in addition to Collins was unexpected or unanticipated. The
record does not support defendant’s attempt on appeal to separate the planned attack that
occurred at the park into two separate and unrelated crimes. Viewing the evidence in the light
most favorable to the prosecution, we find that the testimony of Taylor and Clark and
defendant’s own videotaped statement were sufficient to support the conclusion of the trier
of fact that defendant voluntarily attached himself to a group bent on illegal activities so as
to support an inference of common design to sustain his conviction for the first degree
attempted murder of Taylor.
-8-
¶ 30 Finally, the dissent would construe the accountability statute to mean that when a
defendant and his companions have agreed to engage in a criminal act, and a
companion–during the commission of the agreed-upon criminal act–commits another
criminal act in furtherance of the agreed-upon criminal act, the defendant cannot be held
accountable for his companion’s additional criminal act unless the defendant had agreed to
that additional action. The dissent’s construction of the accountability statute, however,
overlooks our supreme court’s interpretation of that statute. Specifically, our supreme court
has held that the accountability statute has been interpreted as meaning that “ ‘where one aids
another in the planning or commission of an offense, he is legally accountable for the
conduct of the person he aids; and that the word “conduct” encompasses any criminal act
done in furtherance of the planned and intended act.’ ” (Emphases added.) People v.
Sangster, 91 Ill. 2d 260, 265 (1982) (quoting Kessler, 57 Ill. 2d at 497). The evidence
presented to the jury included testimony that about five minutes after defendant and Epting
left the dice game, they returned with other members of the Dog Pound, and–with guns in
their hands–ran at Collins and Taylor, who were still together playing dice. While defendant,
Coleman and Holly pursued Collins and fired gunshots at him, Epting and Matthews pursued
and shot at Taylor. Adhering to the standard of review, we find that the evidence supports
the jury’s determination that defendant was accountable for his companions’ conduct, which
included the shooting of Taylor.
¶ 31 B. Firearm Sentencing Enhancements
¶ 32 Defendant contends the trial court erred by adding the 20-year firearm sentencing
enhancement, based on his personal discharge of a firearm, to both his murder and attempted
murder convictions. Defendant argues that his enhanced sentences are void because the
statutes establishing the firearm sentencing enhancements are ambiguous concerning whether
the enhancement applies only to the principal offenders who actually inflicted a gunshot
wound on the victim or also applies to accountable codefendants.
¶ 33 Section 5-8-1(a)(1)(d) of the Unified Code of Corrections provides for three firearm
sentencing enhancements for first degree murder:
“(d)(i) if the person committed the offense while armed with a firearm, 15 years shall
be added to the term of imprisonment imposed by the court;
(ii) if, during the commission of the offense, the person personally discharged a
firearm, 20 years shall be added to the term of imprisonment imposed by the court;
(iii) if, during the commission of the offense, the person personally discharged
a firearm that proximately caused great bodily harm, permanent disability, permanent
disfigurement, or death to another person, 25 years or up to a term of natural life shall
be added to the term of imprisonment imposed by the court.” 730 ILCS 5/5-8-
1(a)(1)(d) (West 2010).
¶ 34 In construing a statute, a court must give effect to the legislative intent, and the inquiry
into the legislative intent begins with the statute’s language, which must be given its plain
and ordinary meaning. People v. Pullen, 192 Ill. 2d 36, 42 (2000). We conclude that the plain
language of the first degree murder sentencing statute establishes that the 20-year
-9-
enhancement applies to the accountable defendant who personally discharged a firearm
during a first degree murder.
¶ 35 Unlike subsections (d)(ii) and (iii), subsection (d)(i) does not contain any language that
limits its application to persons who personally discharge a firearm. Consequently, an
unarmed defendant who is convicted, under a theory of accountability, of committing the
offense of first degree murder while armed with a firearm is subject to subsection (d)(i)’s 15-
year sentence enhancement. See People v. Rodriguez, 229 Ill. 2d 285, 295 (2008) (the court
was required by statute to impose the 15-year firearm enhancement to the sentence of the
unarmed accountable defendant who stood by while his coconspirator shot the murder
victim). Although subsection (d)(ii) limits the applicability of accountability principles
somewhat by requiring the first degree murder accountable defendant to have personally
discharged a firearm, (d)(ii)–unlike subsection (d)(iii)–does not contain any language that
restricts its application to only those defendants who personally discharged a firearm that
actually caused the victim’s severe injury or death. In subsection (d)(ii), the limiting word
“personally” modifies only the clause “discharged a firearm,” and, thus, does not insulate
from its application the accountable defendant, like Destephano Flynn, who personally
discharged a firearm during the murder offense but may not have fired the actual gunshot that
hit the murder victim.
¶ 36 Defendant, however, cites to dictum in Rodriguez and argues that our supreme court has
held that the use of the term “personally” in subsection (d)(ii) makes the principles of
accountability and common design inapplicable. Specifically, the court wrote:
“In subsections [(d)](ii) and (iii), however, the limiting word ‘personally’ is used. We
hold that the term ‘personally,’ like ‘actually’ as used in section 9-1(b)(6)(a)(i) [of the
Criminal Code of 1961 (720 ILCS 5/9-1(b)(6)(a)(i) (West 2006)), which restricts the
death penalty to only those who ‘actually killed’ the victim], insulates subsections (ii)
and (iii) from the application of the principles of accountability and common design. In
contrast, subsection (i) contains no such limiting language and applies not only to those
who are actually armed, but also to those who are accountable for the criminal actions
of others who are actually armed.” Id.¶ 37 We find that defendant’s literal application of the above-quoted text to his case
misapplies the holding of Rodriguez. The quoted text was made in the context of the court’s
analysis of the application of the firearm enhancements to an unarmed accountable
defendant. In that context, the subsection (d)(ii) and subsection (iii) enhancements would not
apply because they both require the accountable defendant to have personally discharged a
firearm. In the case before us, however, there is no dispute that defendant personally
discharged his firearm. Accordingly, defendant’s reliance on the above-quoted text is
misplaced. Furthermore, the State has conceded that, because the offense involved multiple
shooters and multiple weapons, the evidence was not sufficient to establish that any of the
gunshots defendant fired actually hit Collins and proximately caused his death. Accordingly,
defendant is not subject to subsection (d)(iii)’s 25-year sentence enhancement.
¶ 38 In addition to the plain language of the statute, the rationale of Rodriguez also supports
our conclusion that an accountable defendant, like Destephano Flynn, who personally
-10-
discharged a firearm during the commission of the offense of first degree murder but may not
have proximately caused the victim’s severe injury or death, is subject to subsection (d)(ii)’s
20-year sentence enhancement. Specifically, Rodriguez relied on the holdings in Sangster,
91 Ill. 2d 260, and People v. Jordan, 103 Ill. 2d 192 (1984).
¶ 39 In Sangster, 91 Ill. 2d at 266, the court held that even though the accountable defendant
did not physically participate in the crimes of murder, armed robbery and aggravated
kidnapping, he was subject to the imposition of consecutive sentences based upon the
sentencing statutory requirement concerning the infliction of severe bodily injury. The court
concluded that the principles of accountability and common design applied to both the
determination of a defendant’s culpability for a criminal act and the calculation of his
sentence in compliance with sentencing statutes. Id. at 265-66. The court reasoned that when
the legislature enacted the consecutive sentencing statute, the legislature must be presumed
to have known that the accountability statute had been construed to mean that the
accountable defendant was legally accountable for the conduct of the person he aids, and the
word “conduct” encompasses any act done in furtherance of the planned and intended act.
Id. at 265. Further, the court concluded that if the legislature had intended for the consecutive
sentencing provisions to be inapplicable to accountable defendants, it would have been a
simple matter to provide for an exception in the text of the statute. Id. at 265-66.
¶ 40 In Jordan, 103 Ill. 2d at 202-03, the accountable defendant, who physically restrained a
bystander while the accomplice killed the victim, was subject to an extended-term sentence
based on the brutal and heinous nature of the crime. Applying the reasoning set forth in
Sangster, the Jordan court held that an extended-term sentence under the relevant statute
may be imposed upon a defendant found guilty on an accountability theory. Id. at 215.
¶ 41 Our conclusion that defendant is subject to the 20-year sentencing enhancement is
consistent with the rationale of Rodriguez, Sangster, and Jordan, i.e., that when a defendant
aids or abets another in committing a crime, he is accountable and may be punished in
compliance with sentencing statutes for any criminal act his codefendant did in furtherance
of the crime, whether that act was being armed with a firearm, inflicting severe bodily injury,
or committing a brutal and heinous felony.
¶ 42 We also reject defendant’s argument that the statute is ambiguous because subsection
(d)(ii)’s phrase “during the commission of the offense” precedes the language “the person”
and, thus, one possible interpretation of the statute could be that “the person” means only the
principal. We do not agree. The plain and unambiguous language of the statute establishes
that the phrase “during the commission of the offense” simply clarifies the temporal
requirement within which the defendant must have personally discharged his firearm.
¶ 43 Next, defendant, for the same reasons as argued above, contends that his 20-year
sentencing enhancement for personally discharging a weapon during the attempted murder
of Taylor was also void because the statute is ambiguous and the evidence showed that
defendant did not fire his gun at Taylor. According to defendant, he fired his gun in the
direction of Collins and, thus, his personal discharge of a firearm was an act done to assist
in the murder of Collins; it was not an act done to assist in the attempted murder of Taylor.
¶ 44 The relevant provisions of section 8-4 of the Criminal Code of 1961 (Criminal Code)
-11-
provide:
“(1) the sentence for attempt to commit first degree murder is the sentence for a Class
X felony, except that
***
(B) an attempt to commit first degree murder while armed with a firearm is a
Class X felony for which 15 years shall be added to the term of imprisonment
imposed by the court;
(C) an attempt to commit first degree murder during which the person personally
discharged a firearm is a Class X felony for which 20 years shall be added to the term
of imprisonment imposed by the court;
(D) an attempt to commit first degree murder during which the person personally
discharged a firearm that proximately caused great bodily harm, permanent disability,
permanent disfigurement, or death to another person, is a Class X felony for which
25 years or up to a term of natural life shall be added to the term of imprisonment
imposed by the court[.]” 720 ILCS 5/8-4(c) (West 2010).
¶ 45 Defendant’s 20-year sentencing enhancement for attempted murder was imposed
pursuant to section 8-4(c)(1)(C) of the Criminal Code, which uses language similar to section
5-8-1(d)(ii) of the Unified Code of Corrections. Accordingly, we rely on our analysis of
subsection (d)(ii) (see supra ¶¶ 35-43) for our conclusion that the unambiguous language of
section 8-4(c)(1)(C) establishes that an accountable defendant, like Destephano Flynn, who
personally discharged a firearm during the commission of the offense of attempted first
degree murder, is subject to section 8-4(c)(1)(C)’s 20-year sentence enhancement.
¶ 46 We conclude that, because the sentence enhancement was triggered, defendant was
subject to the mandatory sentence enhancement of 20 years’ imprisonment for both of his
murder and attempted murder convictions.
¶ 47 III. CONCLUSION
¶ 48 For the foregoing reasons, we affirm defendant’s conviction of attempted first degree
murder and the imposition of the firearm sentence enhancements for both his murder and
attempted murder convictions.
¶ 49 Affirmed.
¶ 50 JUSTICE GORDON, concurring in part and dissenting in part.
¶ 51 In the case at bar, defendant was convicted of the first-degree murder of Jermaine Collins
and the attempted first degree murder of Billy Taylor. Defendant’s attempt conviction was
based solely on a theory of accountability. At trial, the State presented evidence that it was
codefendant Darius Epting who shot at Billy Taylor, and not defendant. Although defendant
was convicted of being accountable for Epting’s actions, Epting was acquitted by a separate
jury.
-12-
¶ 52 On appeal, defendant asks us to reverse his attempt conviction. He claims that he had no
common design or agreement with Epting or others to kill Taylor; and the State’s evidence
supports his claim. Thus, I would affirm defendant’s conviction for first degree murder but
reverse the attempt conviction and remand for resentencing.
¶ 53 BACKGROUND
¶ 54 In the case at bar, the State’s evidence showed that a group of men were playing dice late
at night in a park and that the participants gradually drifted off as they lost money, until the
only two people left playing were the two victims, Collins and Taylor. Defendant had been
in the game earlier but had left and went home to go to sleep. At some point, defendant was
awakened by codefendant Epting, who said Collins “got to go,” which defendant understood
to mean that Epting wanted to kill Collins. Epting, defendant and one or two other men then
returned to the dice game. All the perpetrators chased Collins, except for Epting, who went
off on his own, chasing Taylor. At trial, Taylor testified that Epting was the only person
chasing him. Taylor testified that Epting had felt cheated by Taylor and had indicated that
he believed that some of Taylor’s money was actually his. Taylor testified that he dropped
money as he ran from Epting but, when Epting kept chasing him, Taylor realized that this
was more than about the money.
¶ 55 Despite this evidence, the majority speculates that Epting wanted to kill Taylor in order
to eliminate Taylor as “a potential witness” to Collins’s murder, and thus finds that Epting’s
chase of Taylor was in furtherance of the common agreement to shoot Collins.1 Supra ¶ 24.
However, there was no testimony at trial to support this speculation. In fact, the evidence at
trial indicated just the opposite. Taylor, who survived, remained silent for years and did not
come forward as long as he still lived in the same neighborhood. The only evidence at trial
showed that Epting was acting on his own personal vendetta toward Taylor.
¶ 56 ANALYSIS
¶ 57 I. Standard of Review
¶ 58 The law of accountability is governed by statute (720 ILCS 5/5-2 (West 2010)), and we
interpret this statute as we would any other statute.
¶ 59 The rules of statutory intepretation are familiar and often repeated. Interpreting a statute
is a question of law, which we review de novo. People v. Carter, 213 Ill. 2d 295, 301 (2004);
People v. Davis, 199 Ill. 2d 130, 135 (2002). If the statute’s language is plain and ambiguous,
it must be read exactly as written. Carter, 213 Ill. 2d at 301; Davis, 199 Ill. 2d at 135. “It is
a cardinal rule of statutory construction that we cannot rewrite a statute, and depart from its
plain language, by reading into it exceptions, limitations or conditions not expressed by the
legislature.” People ex rel. Birkett v. Dockery, 235 Ill. 2d 73, 81 (2009) (citing In re Michelle
J., 209 Ill. 2d 428, 437 (2004)). See also Carter, 213 Ill. 2d at 301 (“ ‘The most reliable
1
The majority states that I conclude that Epting’s chase of Taylor was “in furtherance of the
agreed-upon criminal act” to shoot Collins. Supra ¶ 30. Actually, I reach the opposite conclusion.
-13-
indicator of legislative intent is the language of the statute, which, if plain and unambiguous,
must be read without exception, limitation or other condition.’ ” (quoting Davis, 199 Ill. 2d
at 135)).
¶ 60 “Criminal or penal statutes must be strictly construed in the defendant’s favor, ‘and
nothing should be taken by intendment or implication beyond the obvious or literal meaning
of the statute.’ ” Carter, 213 Ill. 2d at 301 (quoting Davis, 199 Ill. 2d at 135). “Where a
criminal statute is capable of two or more constructions, courts must adopt the construction
that operates in favor of the accused.” Carter, 213 Ill. 2d at 302.
¶ 61 II. Accountability Statute
¶ 62 Adopting–as we must–the construction that operates in favor of the accused, I find that
the plain and unambiguous language of the accountability statute does not provide
accountability for the attempt count in the case at bar.
¶ 63 The accountability statute is divided into three sections, and it provides only three ways
in which a defendant may be held accountable. 720 ILCS 5/5-2 (West 2010). The
introductory lines of the statute state: “When accountability exists. A person is legally
accountable for the conduct of another when: ***.” (Emphasis added.) 720 ILCS 5/5-2 (West
2010). These introductory lines are then followed by three subsections, each labeled “(a),”
“(b),” and “(c),” which denote the three different ways that a person may be held
accountable. 720 ILCS 5/5-2 (West 2010). The first way, which is described in subsection
(a), occurs when a person causes someone without legal incapacity to act. 720 ILCS 5/5-2(a)
(West 2010). The second way, which is described in subsection (b), is when the particular
statute governing an offense makes the person accountable. 720 ILCS 5/5-2(b) (West 2010).
¶ 64 The third way, which is the only subsection at issue here, provides that “[a] person is
legally accountable for the conduct of another when *** (c) either 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.” (Emphases added.) 720 ILCS 5/5-2(c) (West 2010). See also
supra ¶ 23 (the majority quotes subsection (c) as the applicable law). As stated before, we
are governed by the plain language of the statute. Carter, 213 Ill. 2d at 301; Davis, 199 Ill.
2d at 135. The plain language of subsection (c) concerns only one offense that was intended,
planned and committed. As subsection (c) provides, accountability occurs when, before or
during the commission of “an” offense and with the intent to promote “that” offense, the
offender aids another in the planning or commission of “the” offense. (Emphases added.) 720
ILCS 5/5-2(c) (West 2010). People v. Stanciel, 153 Ill. 2d 218, 233 (1992) (“Accountability,
tied as it is to the crime charged, must comport with the requirements of that crime.”).
¶ 65 After providing the three ways that accountability may occur, the accountability statute
also states, in an unlettered paragraph, that:
“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.” 720 ILCS 5/5-2 (West 2010).
-14-
When interpreting a statute, courts must consider a statute “in its entirety.” Davis, 199 Ill. 2d
at 135. “Since all provisions of a statutory enactment are viewed as a whole, words and
phrases should not be construed in isolation, but should be interpreted in light of other
relevant provisions of the statute.” Crittenden v. Cook County Comm’n on Human Rights,
2012 IL App (1st) 112437, ¶ 81 (citing People v. Lieberman, 201 Ill. 2d 300, 308 (2002)).
The structure of the statute indicates that “common design” was not intended as a fourth or
additional way for accountability to occur. Thus, the common design paragraph must be read
in harmony with the paragraphs above it.
¶ 66 When read in harmony with subsection (c), which immediately precedes it, the common
design paragraph means that, when two or more people engage in a common criminal design
or agreement to commit “an” offense, any acts in the furtherance of the common design for
“that” offense are considered to be the acts of all parties to the common design or agreement
for “the” offense. (Emphases added.) 720 ILCS 5/5-2(c) (West 2010). In the case at bar,
“the” offense for which there was a common design or agreement was the murder of Collins,
not Epting’s attempted murder of Taylor.
¶ 67 III. Application of the Law to the Case at Bar
¶ 68 The majority affirms the jury verdict on the theory that there was a common design and
agreement to murder Taylor. However, there was no evidence to support this conclusion, and
thus no rational trier of fact could reach this conclusion beyond a reasonable doubt. People
v. Perez, 189 Ill. 2d 254, 268-69 (2000) (“Without knowledge of any common criminal
design to harm [the victim], defendant could not intentionally aid in the scheme’s
commission” and defendant could not be held accountable for the victim’s murder (citing
People v. Estrada, 243 Ill. App. 3d 177 (1993) (in the absence of any evidence that defendant
was aware that his companion intended to shoot the victim or direct evidence tying defendant
to a common design to shoot the victim, defendant’s murder conviction on a theory of
accountability was reversed))).
¶ 69 The State’s evidence established that the common agreement was to shoot Collins:
defendant, in his statement to the police, admitted that Collins was their target; and all the
perpetrators, including defendant, chased only Collins. Taylor testified that only Epting went
off on his own, chasing Taylor. At trial, Taylor testified that Epting had felt cheated by
Taylor and had indicated that he believed that some of Taylor’s money was actually his.
Thus, the State’s evidence established that Epting had his own private motive for chasing
Taylor. Taylor testified that he dropped money as he ran from Epting but, when Epting kept
chasing him, Taylor realized that this was more than about the money. There was simply no
evidence at trial to support a finding that there was a common design or agreement to shoot
Taylor.
¶ 70 For the foregoing reasons, I would affirm defendant’s conviction for the murder of
Collins but reverse the conviction for the attempted murder of Taylor and remand for
resentencing.
-15-