                                                                             FIFTH DIVISION
                                                                             March 26, 2010

No. 1-08-3499

PEOPLE OF THE STATE OF ILLINOIS,                       )      Appeal from the
                                                       )      Circuit Court of
                Plaintiff-Appellee,                    )      Cook County.
                                                       )
       v.                                              )      05 CR 08886
                                                       )
SHAWN GARRETT,                                         )
                                                       )
                Defendant-Appellant.                   )      Honorable
                                                       )      Vincent M. Gaughan,
                                                       )      Judge Presiding.

       JUSTICE LAVIN delivered the opinion of the court:

       In this case, we consider the appeal of a robbery getaway driver who was convicted of

first-degree murder on a theory of accountability after an employee in the targeted store was

found shot to death by a gun that was never recovered. Following a jury trial, defendant Shawn

Garrett was found guilty and sentenced to 36 years' imprisonment. On appeal, defendant

contends that: (1) he was not proven guilty beyond a reasonable doubt; (2) the trial court erred by

refusing to suppress his videotaped statement; and (3) his sentence was excessive. Because we

ultimately reverse on defendant's contention that he was not proven guilty beyond a reasonable

doubt, it is unnecessary for us to address his remaining arguments. We will therefore recite only

those facts necessary for our consideration of that single issue.

                                          BACKGROUND

       All of the facts of this case occurred on the southeast side of the city of Chicago, where all

of the criminal protagonists lived and where the crime scene, a Family Dollar Store, was located.
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The victim, Marcel Hunt, was a stock manager at the Family Dollar Store on East 79th Street.

He was shot and killed in the store on December 20, 2004. The State sought to prove that

Shawn Garrett was guilty of first-degree felony murder under the theory of accountability for his

role in the planning of a robbery of the Family Dollar. Garrett was romantically involved with

Latonya Dextra, also known as Maria, a woman who worked at the discount store. Dextra's

daughter, Dollena, had a boyfriend named Demonte Bolden. Bolden and his brother, Demario

had a cousin named Timothy Burton. These three teenagers socialized at Dextra's house, which

was located near the Family Dollar. Over the course of several meetings, Garrett and the others

discussed various aspects of a planned robbery of the store, enlisting the inside assistance of his

girlfriend and utilizing the young men to perform the actual robbery. Garrett himself was to

contact the elder Dextra while she was working and determine a convenient time to rob the store,

which would occur while Dextra was secreting herself in another part of the store.

       According to Dextra's daughter, on December 20, 2004, the Bolden brothers, Garrett and

Burton were at her mother's house sitting at a dining room table talking to each other. She did not

hear the specific subject matter of the conversation, but Garrett told her that they were "about to

go handle some business." Approximately 30 minutes later, defendant returned in his car with

Demonte Bolden and told Dollena to go to the Family Dollar to see what was happening. Dollena

went to the store, saw that the police and an ambulance were there and then returned home.

Dollena testified that she did not see defendant or any of the others with a gun that day.

       Officer Tracy Rogers testified that at around 11:30 a.m. on the day of the incident, he

happened to be on patrol in the vicinity of the Family Dollar on 79th Street. As he approached

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the store, an employee standing outside made a gesture suggesting that something was happening

inside the store. Officer Rogers entered the store to investigate and he saw two individuals, at

least one of whom he recognized and who were later identified as Burton and Demario Bolden,

quickly exit. Officer Rogers followed them outside and called for them to stop. After Officer

Rogers addressed the two, they "grabbed their sides and stuff, and then they took off running."

Officer Rogers did not actually see any guns at the time, but testified that he "believed" they may

have been carrying guns because of the way they grabbed the sides of their pants.

       After the two ran, Officer Rogers immediately called for backup and pursued them on

foot. During the chase, Officer Rogers lost sight of the two at various times, but at one point he

saw Demario Bolden climbing over a fence with a gun in his hand. Officer Rogers momentarily

lost sight of him, but after turning a corner, he saw that two other officers had apprehended

Demario and that there was a gun on the ground. On cross-examination, Officer Rogers admitted

that he never saw defendant Garrett on the day of the incident, saw no illegal conduct occurring in

the Family Dollar and heard no gunshots coming from the store.

       Officer Theresa Almanza testified that she responded to Officer Rogers' call for assistance

and assisted in the pursuit. She obtained a description of an individual to pursue, whom she later

learned was Demario Bolden, and eventually located him. As she approached him, she saw a gun

in his hand and ordered him to drop it. He complied and was placed into custody by Officer

Almanza's partner. During cross-examination, Officer Almanza admitted that she never saw

Demario shoot the gun, commit armed robbery or threaten anyone for money.

       Officer John Jackson testified that he received a call for assistance from Officer Rogers,

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prompting him to respond. As he approached the area of the incident, he saw Officer Almanza

and other officers placing Demario Bolden into custody. While this was happening, Officer

Jackson retrieved and later inventoried the gun. He testified that when he inventoried the gun, he

marked it with his initials to allow him to identify it later. During trial, however, Officer Jackson

could not find his initials on the gun when he was asked to identify it, although he still believed it

was the same gun he had recovered.

           Detective John Otto testified that on December 20, 2004, he was assigned to investigate

the victim's murder and went to the Family Dollar. While at the store, he proceeded to a storage

area in the rear of the store where he saw the victim's body blocking a bathroom that Maria was

in. Detective Otto was eventually able to briefly speak with Maria and at that time believed she

was a witness. Detective Otto also interviewed Douglas Herd, the manager at the store on the

day of the incident, who related that no one had demanded or threatened him with a gun for

money.

           Little else transpired for the next three months until March 16, 2005, when Burton

appeared for a court date on an unrelated matter. Detective Otto learned of this ahead of time

and was able to speak with him. After speaking with him, Detectives Otto, Sandoval and Ayers

proceeded to a residence located at 8210 South Muskegon Avenue. Detectives Otto and Ayers

went to the front of the residence where they spoke with Maria, who agreed to go to the police

station.

           Detective Sandoval testified that when he arrived at the residence on South Muskegon, he

approached the rear of the residence from an alley and saw defendant walking out the back gate.

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Defendant agreed to accompany Detective Sandoval to the police station, where defendant was

arrested and given his Miranda rights. At some point, Detective Sandoval searched defendant and

found a note with the word "safe" next to a group of numbers, as well as various names (including

Maria's) and other numbers. It was later discovered that the "safe" numbers were codes for a safe

at another Family Dollar store where Maria had been transferred after the killing of Marcel Hunt.

       During his first conversation with the detectives, defendant denied any involvement in the

victim's murder but said that he had heard that Burton and the Bolden brothers had planned to rob

the Family Dollar on 79th Street. During a later conversation, defendant again denied any

involvement in the victim's murder. Detective Sandoval then informed him that others had

implicated him, which provoked defendant to do some soul searching, and during a third

conversation with the detective, Garrett allowed that the three teens asked him for a ride to the

Family Dollar and that he knew they were going to rob it. He then explained that after he

dropped them off, he waited in the parking lot for a time and left with one of the young men who

had fled the store and jumped into his car. After this conversation, Assistant State's Attorney

Frenzel arrived at the police station and spoke with defendant. During this conversation, Garrett

admitted his involvement in the attempted robbery of the Family Dollar and ultimately agreed to

give a videotaped statement.

       Cid Drisi, a forensic expert in firearm tool mark identification, testified that he received the

following items in relation to this case: a gun, three unfired .30-caliber cartridges and a fired

bullet. He testified that he "could not identify or eliminate" the fired bullet as having been fired

from the inventoried gun.

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       Near the end of the State's case-in-chief, defendant's videotaped statement was presented

to the jury. In it, defendant stated that he was 25 years old and went to high school through his

junior year. He stated that in the months prior to the incident, he, Maria, Burton and the Bolden

brothers discussed robbing the Family Dollar on 79th Street on six or seven occasions. The

particular store was chosen because Maria worked there. Defendant stated that he was to be the

driver and that on the day of the incident, he dropped the three teenage boys off at the Family

Dollar. Although he was supposed to remain at the location, he drove away but returned a short

while later. Upon returning, he picked up the fleeing Demonte Bolden and left the area. After

dropping that Bolden brother off, he claimed that he returned to the Family Dollar and saw that

the other brother had been arrested. Defendant did not mention that anyone had a gun or that

they had specifically planned to use a weapon.

       After the State presented its evidence, defendant made a motion for a directed verdict

which was denied. The defense then rested without presenting any witnesses. The jury found

defendant guilty of first-degree murder based on a theory of accountability and he was

subsequently sentenced to 36 years' imprisonment. This timely appeal followed.

                                            ANALYSIS

       On appeal, defendant first contends that the State's evidence did not establish his guilt

beyond a reasonable doubt. Given the fact that the State did not offer evidence that proved the

identity of the specific person who shot and killed Mr. Hunt, we are constrained to agree that,

under this factually and legally insufficient proof, Garrett cannot be criminally accountable for the

murder.

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       When a defendant challenges the sufficiency of the evidence to support his conviction, this

court must determine, after viewing the evidence in the light most favorable to the State, whether

any rational trier of fact could have found the essential elements of the offense beyond a

reasonable doubt. People v. Pollock, 202 Ill. 2d 189, 217 (2002). While the weight to be given

to the testimony, the credibility of the witnesses, the resolution of conflicting testimony, and the

reasonable inferences to be drawn from the evidence are the responsibility of the trier of fact, its

determination is nevertheless not conclusive and we will reverse a conviction where the evidence

is so unreasonable, improbable, or unsatisfactory as to justify reasonable doubt of defendant's

guilt. People v. Williams, 383 Ill. App. 3d 596, 637 (2008).

       In the case at bar, defendant was found guilty of first degree murder under accountability

principles. A person is legally accountable for the criminal conduct of another when:

               "[B]efore or during the commission of an offense, and with the intent to promote

       or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other

       person in the planning or commission of the offense. 720 ILCS 5/5-2(c) (West 2004).

To show accountability, the State was required to establish beyond a reasonable doubt that: (1)

defendant solicited, ordered, abetted, agreed or attempted to aid another in the planning or

commission of the crime; (2) defendant's participation took place before or during the commission

of the crime; and (3) the defendant had the concurrent intent to promote or facilitate the

commission of the crime. People v. Perez, 189 Ill. 2d 254, 267-68 (2000).

       Defendant's first degree murder charge was based on a theory of felony murder. The

relevant statute provides as follows: "A person who kills an individual without lawful justification

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commits first degree murder if, in performing the acts which cause the death: he is attempting or

committing a forcible felony other than second degree murder." 720 ILCS 5/9-1(a)(3) (West

2004). The requisite forcible felony in the prosecution of this case was attempted armed robbery,

(a charge that was not put before this jury as a lesser included offense) which requires that a

person, while carrying on his person or is otherwise armed with a dangerous weapon, take a

substantial step with the intent to take property from another by the use of force or threatening

the use of force. 720 ILCS 5/8-4(a), 18-1, 18-2 (West 2004).

       Defendant's first argument is that he could not be held accountable for the victim's death

because he agreed to a robbery and not an armed robbery. Specifically, he claims that there is no

evidence that he used, or agreed to the use of, a dangerous weapon and therefore he did not agree

to commit armed robbery. We find this specific argument to be lacking in legal merit, because

Illinois law is clear that one can be held accountable for a crime different than the one that was

planned. People v. Redmond, 341 Ill. App. 3d 498, 510 (2003). Indeed, the trial court

recognized this in the instruction submitted to the jury on accountability:

       "A person is legally responsible for the conduct of another person when, either before or

       during the commission of an offense, and with the intent to promote or facilitate the

       commission of an offense, he knowingly solicits, aids, abets, agrees to aid, or attempts to

       aid the other person in the planning or commission of an offense."

This instruction was taken directly from the Illinois Pattern Jury Instructions, Criminal, No. 5.03

(4th ed. 2000) (hereinafter IPI Criminal 4th), an instruction where the trial court is given the

choice to give the instruction based on "the offense" or "an offense." The committee notes on the

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instruction explain: "Use the bracketed word 'an' and use the bracketed paragraph when the

offense is different than the planned and intended offense, but done in furtherance of it." IPI

Criminal 3d No. 5.03, Committee Notes at 106, citing People v. Kessler, 57 Ill. 2d 493 (1974).

          The inchoate offense of attempted robbery has two distinct elements: that the offender (1)

with the intent to commit a specific offense, (2) does any act which constitutes a substantial step

toward the commission of that offense. 720 ILCS 5/8-4(a) (West 2004). The crime of attempt

requires a specific intent to commit the named offense. People v. Cruz, 248 Ill. App. 3d 473, 475

(1993).

          In the case sub judice, count XII of the charging instrument alleged that the five named

defendants committed the offense of attempt armed robbery:

          "in that they, with intent to commit the offense of armed robbery, did any act, entered the

          Family Dollar Store located at 2660 East 79th Street, Chicago, Cook County, Illinois

          while armed with a dangerous weapon, to wit: a firearm, which constituted a substantial

          step toward the commission of armed robbery."

Although Garrett may not have envisioned that an armed robbery was contemplated, as noted

above, that argument is singularly unavailing. Under prevailing principles of legal responsibility,

Garrett was accountable for the acts of his coconspirators. Section 5-2 of the Criminal Code of

1961 provides:

          "A person is legally accountable for the conduct of another when:

                                        ***

                 (c) Either before or during such commission he solicits, aids, abets, agrees or

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       attempts to aid such other person in the planning or commission of the offense." 720

       ILCS 5/5-2(c) (2004).

Thus, where a defendant agrees or attempts to aid another person in the planning or commission

of an offense, his liability attaches to any resulting offense, albeit one different from the planned

and intended offense. Moreover, a defendant may be held accountable for armed robbery even

where he asserts that he was unaware that his codefendant possessed a weapon. People v.

Bartlett, 91 Ill. App. 3d 138, 141 (1980); People v. Crutcher, 72 Ill. App. 3d 239, 244 (1979);

People v. Peters, 33 Ill. App. 3d 296, 299 (1975). Additionally, under the long-established

common design rule, "where two or more persons engage in a common criminal design or

agreement, any acts in furtherance thereof committed by one party are considered to be the acts of

all parties to the common design and are all equally responsible for the consequences of such

further acts." Kessler, 57 Ill. 2d at 496-97.

       At oral argument, the defense also maintained that in the absence of proof demonstrating a

robbery was actually attempted inside the Family Dollar Store, the evidence was insufficient to

establish the charged offense. However, in People v. Terrell, our supreme court recognized that

one of the most troublesome problems in the area of inchoate offenses is " 'when preparation to

commit an offense ceases and perpetration of the offense [attempt] begins.' " People v. Terrell, 99

Ill. 2d 427, 433 (1984), quoting Ill. Ann. Stat., ch. 38, par. 8–4(a), Committee Comments, at 512

(Smith-Hurd 1972). In Terrell, an anonymous call at 6:15 a.m. alerted the police that "two men,

armed with guns were hiding behind a service station." Terrell, 99 Ill. 2d at 429. On arrival, the

dispatched officers observed the defendant, crouched in the weeds 20 to 30 feet from the station,

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jump up and run with a gun, which he dropped while scaling a nearby fence. Terrell, 99 Ill. 2d at

430. Rejecting defendant's explanation that he was going to the station to buy cigarettes, the

court found this evidence sufficient to support his conviction for attempt armed robbery. Terrell,

99 Ill. 2d at 430, 436.

        Furthermore, active participation has never been a requirement for criminal guilt on a

theory of accountability. In the instant case, there was unequivocal evidence that defendant's

group intended to commit a robbery at the Family Dollar Store. In furtherance of that intent, the

State's evidence placed two members of the group inside the store, at least one of whom was

armed with a loaded weapon. Clearly, the proofs sufficed to show a substantial step was taken

toward the commission of the intended offense, rather than mere preparation. Had the State

elected to submit a verdict form on this charged offense, we would have no difficulty in affirming

any resulting conviction.

        Defendant's next argument, however, has legal merit. Here again, the charging instrument

is instructive. Count III, the felony murder charge, alleges that the named defendants:

        "Committed the offense of first degree murder *** in that they, without lawful

        justification, shot and killed Marcell [sic] Hunt during the attempt of a forcible felony, to

        wit: armed robbery, in violation of Chapter 720 Act 5 Section 9-1(a)(3)."

Pursuant to this charge, the State was required to prove that one or more of the named defendants

shot and killed Marcel Hunt and that the act occurred during the attempt to commit an armed

robbery. Accordingly, the jury was instructed, pursuant to Illinois Pattern Instructions, No. 5.03

(accountability) and 7.02 (murder) (IPI Criminal 4th Nos. 5.03, 7.02), on the elements of felony

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murder on a theory of accountability:

       "To sustain the charge of first degree murder, the State must prove the following

       propositions:

       First: That the defendant or one for whose conduct he is legally responsible, performed

       the acts which caused the death of Marcel Hunt; and

       Second: That when the defendant, or one for whose conduct he is legally responsible, did

       so, he was attempting to commit the offense of armed robbery." (Emphasis added.).

Thus, the jury was required to find, inter alia, beyond a reasonable doubt, that the defendant "or

one for whose conduct he is legally responsible," performed the acts which caused the death of

Marcel Hunt. In addition, the trial judge instructed the jurors on the common design rule,

providing:

       "To sustain the charge of first degree murder, it is not necessary for the State to show that

       it was or may have been the original intent of the defendant or one for whose conduct he

       is legally responsible to kill the deceased, Marcel Hunt.

       It is sufficient if the jury believes from the evidence beyond a reasonable doubt that the

       defendant and one for whose conduct he is legally responsible combined to do an unlawful

       act, such as to commit attempt armed robbery, and that the deceased was killed by one of

       the parties committing that unlawful act." (Emphasis added.) IPI Criminal 4th No. 5.03A.

Once more, the jurors were told that they must find beyond a reasonable doubt that the deceased

met his fate at the hands of one of the parties attempting to commit the offense of armed robbery.

       Notwithstanding the mandate of both instructions, the jurors could not plausibly find the

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requisite element of causation by any of the alleged offenders had been proved beyond a

reasonable doubt. Even viewing the evidence in a light most favorable to the State, as we must of

course do, there is a total absence of evidence proving or even suggesting who caused Marcel

Hunt's demise. Although there is clearly evidence placing two members of the group (Timothy

Burton and Demario Bolden) inside the premises and putting a weapon in Bolden's possession,

there simply is no evidence suggesting that the gun was the murder weapon or, for that matter,

that any weapon was fired contemporaneously with the entry or presence of the defendant's group

within the Family Dollar Store. No one testified that a gunshot was ever heard. Indeed, Officer

Rogers, who was patrolling the immediate vicinity while the attempted robbery was occurring,

affirmatively testified that he did not hear a gunshot. The proof is problematic and entirely

lacking as to the missing link of causation.

       Furthermore, although Officer Jackson could not find the markings he originally placed on

the gun when it was inventoried, he insisted during trial that it was the same gun he had originally

recovered. Witness testimony further indicates that there were various other individuals in the

store at the time of the attempted offense. Simply put, we find precious little in the way of

connecting facts to discuss here, which is precisely what we find to be problematic. It is not that

there is conflicting evidence of the murder (which a trier of fact could resolve), but instead a

complete lack of evidence. No physical evidence or testimony was offered to conclusively link

any of the criminal confederates with the shooting death of Mr. Hunt or that one of them had even

fired a gun on the day of the incident. Evidence consisting of Officer Rogers' testimony placing

Demario Bolden and Burton at the Family Dollar with a gun that did not conclusively fire the

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killing bullet, with nothing more, is patently insufficient to prove defendant accountable for the

victim's murder beyond a reasonable doubt, even in light of the considerable deference we afford

to a trier of fact.

        The defense cites Fagan v. Washington, 942 F.2d 1155 (7th Cir. 1991), a Seventh Circuit

Court of Appeals case which this court finds persuasive in its comprehensive discussion of Illinois'

accountability statute under a similar fact pattern. In Fagan, the defendant was part of a group of

gang members that assembled to attack a rival gang member. Evidence at trial conclusively

showed that while shooting at the victim, defendant was armed with a .22-caliber rifle and that his

codefendant was armed with a shotgun. The victim, however, was killed by a .38-caliber pistol

that someone had pressed into his back before firing. The pistol was never found and the shooter

was never identified. Defendant was originally convicted under an accountability theory but the

conviction was vacated by the United States District Court on review of the defendant's habeas

corpus petition. The Seventh Circuit affirmed the district court's decision, finding that

"accountability requires proof that the defendant shared with the person who actually committed

the crime for which the defendant is sought be held accountable a common design." Fagan, 942

F.2d at 1158. In applying that principle to the facts of the case, the court found that "[n]o

evidence was presented that [defendant] shared a common design with whoever shot [Green],"

and therefore his conviction was properly vacated. Fagan, 942 F.2d at 1159. We note that this

court has since favorably relied upon the accountability principles discussed in Fagan in People v.

Chirchirillo, 393 Ill. App. 3d 916 (2009) (conviction of unlawful possession of a weapon by a

felon through accountability was reversed where evidence did not establish that codefendant was

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in fact a convicted felon).

        Here, defendant's cohorts were undisputedly inside the Family Dollar and they intended to

rob the store. In Fagan, defendant was undisputedly at the scene of the murder. Here, the only

physical evidence of the murder consisted of the bullet which killed Mr. Hunt, which did not

match the recovered gun. In Fagan, the only physical evidence consisted of a bullet which did not

match either defendant's gun. In both cases, there was no other evidence suggesting that the

victim died as a result of the predicate offense and thus there was no evidence that defendant

shared a common design with whoever shot the victim, leading to a fatal lack of proof of

causation. The evidence at trial here only shows that defendant shared a common design with

those that committed the attempted armed robbery, for which he could have been held

accountable, but not the murder. Based on this evidence, we believe the trial court should have

granted defendant's motion for directed verdict at the close of the State's case and taken the case

from the jury. People v. Kelley, 338 Ill. App. 3d 273, 276-77 (2003), quoting 725 ILCS 5/115-

4(k) (West 2000).

        Although a trier of fact is afforded great deference, a conviction for a crime must

nevertheless be a conviction beyond a reasonable doubt and a failure to meet this burden entitles a

defendant to a finding of not guilty. This, obviously, is an analysis of the State's failure to meet its

burden of proof, not of defendant's innocence. Our supreme court's discussion in People v. Smith,

185 Ill. 2d 532, 545-46 (1999), which we quote at length, explains with great insight and clarity

the significance of this distinction:

        "A not guilty verdict expresses no view as to a defendant's innocence. Rather, it indicates

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        simply that the prosecution has failed to meet its burden of proof. While there are those

        who may criticize courts for turning criminals loose, courts have a duty to ensure that all

        citizens receive those rights which are applicable equally to every citizen who may find

        himself charged with a crime, whatever the crime and whatever the circumstances. When

        the State cannot meet its burden of proof, the defendant must go free. This case happens

        to be a murder case carrying a sentence of death against a defendant where the State has

        failed to meet its burden. It is no help to speculate that the defendant may have killed the

        victim. No citizen would be safe from prosecution under such a standard."

This lofty language is surely cold comfort for Mr. Hunt's family, but this court is under an

obligation to ensure that the State meets its burden in every case and especially in cases in which a

life is lost. Any conclusion as to the identity of the person who killed Mr. Hunt, under the

evidence that the State chose to put before this trial court and jury, would necessarily be the

product of nothing more than rank speculation. And this is no frivolous technicality; it represents

a fundamental failure in sustaining the required burden of proof on the most critical issue in the

prosecution of this defendant for murder and it requires us to free him despite the evidence of his

involvement in the underlying crime of robbery, for which he was not prosecuted. We therefore

conclude that the evidence presented at trial fell short of what is required in an accountability case

for felony murder, creating reasonable doubt as to defendant's guilt and we accordingly reverse on

this issue.

        Because we reverse on the sufficiency of the evidence, we decline to address defendant's

remaining contentions regarding his excessive sentence and the motion to suppress his videotaped

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statement.

       For the foregoing reasons, the judgment of the circuit court of Cook County is reversed.

       Reversed.

       TOOMIN, P.J., and HOWSE, J., concur.




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