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                               Appellate Court                           Date: 2016.12.08
                                                                         09:52:33 -06'00'




                   People v. Williams, 2016 IL App (1st) 133459



Appellate Court    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption            HALIK WILLIAMS, Defendant-Appellant.



District & No.     First District, Second Division
                   Docket No. 1-13-3459



File               September 30, 2016
Rehearing denied   October 19, 2016


Decision Under     Appeal from the Circuit Court of Cook County, No. 00-CR-3807; the
Review             Hon. Matthew E. Coghlan, Judge, presiding.



Judgment           Affirmed.



Counsel on         Michael J. Pelletier, Alan D. Goldberg, and Kieran M. Wiberg, all of
Appeal             State Appellate Defender’s Office, for appellant.

                   Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
                   Mary P. Needham, and Margaret G. Lustig, Assistant State’s
                   Attorneys, of counsel), for the People.



Panel              JUSTICE NEVILLE delivered the judgment of the court, with
                   opinion.
                   Justice Mason concurred in the judgment and opinion.
                   Presiding Justice Hyman specially concurred, with opinion.
                                             OPINION

¶1       Halik Williams, the defendant, appeals from the circuit court’s dismissal, upon the State’s
     motion, of his petition and supplemental petition for relief pursuant to the Post-Conviction
     Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2004)). On appeal, defendant contends that
     the court erred in dismissing the petitions because he made a substantial showing that he was
     denied effective assistance of trial and appellate counsel. He also contends that the court erred
     because the petitions made a substantial showing of actual innocence based upon new evidence
     that establishes no one that defendant was accountable for caused the victim’s death, and,
     therefore, the victim’s death was not first degree murder. We affirm.
¶2       Following simultaneous, but severed, bench trials with codefendants Warren Hardy and
     David Sapp, defendant was found guilty of first degree murder based upon a theory of
     accountability. Defendant was sentenced to 30 years in prison.
¶3       The evidence at defendant’s trial established that the victim, Anthony King, died from
     electrocution on the third rail of Chicago Transit Authority train tracks on September 5, 1999.
     The victim’s death arose out of confrontation at the Morse Station platform between a group of
     Gangster Disciples consisting of defendant, codefendants, and Jason Moody, and a group of
     current and former Vice Lords consisting of the victim, Jonathan Lejman, Dennis Myles, and
     Dwayne Johnson.
¶4       At trial, Jason Moody testified that he was walking when he heard a “woo, woo” so he
     looked up and saw codefendant Sapp on the “el” platform waving him up. As Moody
     continued walking, he saw Lawrence Brooks sitting in a parked car and codefendant Hardy on
     the street. Codefendant Hardy said that some “hooks” were on the platform. Moody explained
     that “hooks” was a disrespectful term for members of the Vice Lords gang. Moody was a
     member of the Gangster Disciples and the Morse “el” stop was part of the gang’s territory.
¶5       Once on the platform, Moody saw the victim and codefendant Hardy fighting on the train
     tracks. Codefendant Hardy was punching the victim, and the victim was trying to push
     codefendant Hardy away. At one point, Moody “heard sparks.” The victim was on the third rail
     and codefendant Hardy was on the platform. Moody then saw defendant hit the victim on the
     head with a cane five times. After the fifth blow, the cane broke.
¶6       Jonathan Lejman testified that he was a former member of the Vice Lords and grew up with
     the victim. On the night of the victim’s death, Lehman, the victim, Myles, and Johnson were
     celebrating both the victim’s release from prison and the victim’s birthday. Although the group
     exited the train at the Morse stop, they “had no business over there” because it was Gangster
     Disciple territory, so they went back up to the platform. Lejman, Myles and the victim sat on a
     bench. Johnson went to the other entrance of the platform.
¶7       Defendant, who was holding a cane, and codefendant Sapp then approached. Defendant
     asked if Lejman was “White C.” Lejman stood up and replied that “White C” was dead. He
     stated that his group was not “on any gang banging or none of that”—that is, they were not
     looking for trouble. Codefendant Sapp replied, “We’re hook killers.” Lejman understood this
     to mean that codefendant Sapp’s group belonged to the Vice Lords. As Lejman continued to
     say that his group was just trying to get home, he moved closer to defendant, who was “being
     fidgety,” so that defendant would not be able to swing the cane at him. As Lejman moved
     closer, defendant said “Man, didn’t I tell your bitch ass to back up off me?” Lejman backed up.


                                                 -2-
       Shortly thereafter, defendant swung the cane at Lejman. Lejman, the victim, and Myles all ran
       to the end of the platform. Lejman jumped on the tracks and kept running. He stopped when he
       did not hear anyone behind him. When Lejman turned around, he saw defendant swinging a
       cane at someone on the tracks. He ran back and discovered the victim on the tracks.
¶8          Dennis Myles testified that although he was in a gang, he was not “gang banging” that
       night. When defendant took a swing at Lejman with the cane, Lejman ran away. Myles and the
       victim followed. When Myles saw Lejman jump onto the tracks and defendant “fixing to go
       after him,” Myles turned around. Although the victim initially turned around, the victim then
       jumped onto the tracks. Myles followed the victim onto the tracks and ran past him. Myles then
       heard “Oh, we got one!” and turned around to see the victim “on the floor.” Defendant was on
       the tracks, and he hit the victim three times in the head with the cane. During
       cross-examination, Myles acknowledged that he had made a statement to police which
       indicated that the victim jumped off the platform. However, he testified that that the person
       who transcribed his statement “didn’t hear [him] all the way right,” and that the statement was
       incorrect.
¶9          Detective Steve Schorsch testified that he and another detective spoke with defendant on
       September 7, 1999, in an interview room at Area 3. He was also present when defendant later
       spoke to an assistant State’s Attorney. Defendant declined to make a written or videotaped
       statement; rather, defendant agreed to say what had happened. Schorsch took notes as
       defendant spoke. Defendant later reviewed these notes and agreed that they were accurate.
¶ 10        Defendant stated that he was driving with codefendant Sapp and Sapp’s cousin, Lawrence
       Brooks, when he looked up and saw “White C.” He told Brooks to pull over. Defendant and
       codefendant Sapp got out of the car. Defendant was holding a cane. Once up on the platform,
       codefendant Sapp stated, “They were Vice Lord killers, hook killers.” Codefendant Hardy and
       Moody were also on the platform. Defendant asked one of the men if he was “White C.” At one
       point “White C” and the two men with him began to run. Defendant chased “White C.” The
       other two men ran toward codefendant Hardy. As defendant turned, he saw codefendant Hardy
       grab one of the men. He watched as codefendant Hardy and the man fell onto the train tracks.
       Codefendant Hardy pushed the other man onto the tracks and that man was “electrified.”
¶ 11        Assistant Chief Medical Examiner Mitra Kalelkar testified that she performed an autopsy
       on the victim. She noted electrical burns on the victim’s abdomen, hands, and left wrist. There
       were also lacerations and cuts on the victim’s head and face. After an internal and external
       examination, she concluded that the victim died as the result of electrocution.
¶ 12        In finding defendant and codefendants guilty of first degree murder, the trial court relied on
       the common design rule as stated in People v. Terry, 99 Ill. 2d 508, 514-15 (1984). In denying
       defendant’s motion for a new trial which argued, in pertinent part, that the victim’s fall to the
       tracks was an accident after the completion of the underlying felony of assault or battery, the
       trial court stated that when two or more persons join together to commit an offense, even “a
       minor offense which involves violence,” the parties are responsible for “everything” that
       occurs as a result of the agreement. The court stated that the circumstances of the case “all lead
       to the conclusion that these parties entered into an agreement to at least commit an assault or
       misdemeanor battery on the victim in this case, which resulted in his death.” The court
       “agreed” that “perhaps” defendant and codefendants did not set out to commit a murder, “but
       they are responsible for all of the consequences of that which they did set out to do.” The court
       then sentenced defendant to 30 years in prison.

                                                    -3-
¶ 13        On appeal, defendant contended that the evidence was insufficient to prove beyond a
       reasonable doubt that he was guilty of first degree murder pursuant to an accountability theory.
       Defendant argued, inter alia, that he did not have the intent or knowledge required to support a
       murder conviction.
¶ 14        In rejecting defendant’s argument this court found that the evidence “clearly established”
       that defendant was not only present during the crime, but that he “actively devised and initiated
       the encounter” with the victim. See People v. Williams, No 1-03-0292, slip order at 9-10
       (2005) (unpublished order under Supreme Court Rule 23). This court noted that defendant was
       the first to notice the Vice Lords on the platform, he directed Brooks to park, he confronted the
       Vice Lords on the platform, and he struck the victim five times on the head with a cane after the
       victim was electrocuted. Id. We therefore concluded that the trial court did not err in finding
       that there was a common design to establish defendant’s intent, and properly held defendant
       accountable for the victim’s death. Id. at 9.
¶ 15        In 2005, defendant filed a pro se petition for postconviction relief alleging, inter alia, that
       he was denied the effective assistance of trial counsel by counsel’s failure to impeach Jason
       Moody with an affidavit in which Moody averred that he struck the victim on the head with a
       cane and to argue at trial that defendant was actually innocent because it was Moody, rather
       than defendant, who struck the victim on the head with a cane. Attached to the petition in
       support was defendant’s unnotarized affidavit.
¶ 16        In his affidavit, defendant averred that Moody met with trial counsel’s investigator
       sometime in 2000. Defendant further averred that trial counsel told him that during this
       meeting Moody admitted that Moody was the person who struck the victim with a cane after
       the victim was electrocuted. Defendant then averred that trial counsel “assured” him that
       counsel would subpoena the investigator to testify at trial regarding this meeting, and counsel
       would submit Moody’s affidavit as evidence at trial. However, trial counsel did not submit the
       affidavit at trial. When defendant asked trial counsel why the affidavit was not submitted at
       trial and why counsel did not cross-examine Moody about the affidavit, counsel replied that he
       did not believe that the State had sufficient evidence to convict defendant, and he therefore did
       not think that he needed to present the testimony of the investigator at trial.
¶ 17        Defendant also averred that Moody came to visit him twice before trial. During the first
       meeting, Moody stated that if defendant wanted him to “tell the truth” defendant had to pay
       him $5000 before trial and $5000 after trial. During the second meeting, defendant told Moody
       that he needed more time to get the money. Moody responded that defendant’s “time was up”
       and left. Defendant averred that although he told trial counsel and the jail’s Office of Internal
       Affairs about the first meeting, so that the second meeting could be recorded, he did not receive
       a response from either the jail or trial counsel.
¶ 18        Defendant finally averred that he had tried unsuccessfully to obtain a copy of Moody’s
       affidavit and the name of the investigator from trial counsel. However, trial counsel refused to
       disclose the name of the investigator or to give defendant a copy of Moody’s affidavit and the
       discovery from the case because defendant had a balance due of $3400.
¶ 19        The circuit court docketed the petition and appointed postconviction counsel. In August
       2011, postconviction counsel field a certificate pursuant to Illinois Supreme Court Rule 651(c)
       (eff. Dec. 1, 1984), stating that counsel had reviewed defendant’s pro se petition for
       postconviction relief, certain police reports, other discovery material, the trial transcript,
       common-law record, and the order issued in defendant’s direct appeal. The certificate further

                                                    -4-
       stated postconviction counsel had communicated with defendant in person and over the phone
       and had interviewed or investigated “a number of witnesses” in an effort to further substantiate
       defendant’s claims. The certificate finally stated that counsel was “unable to supplement or
       amend” defendant’s pro se petition. The State then filed a motion to dismiss.
¶ 20        In December 2011, private counsel filed an appearance on behalf of defendant. In light of
       private counsel’s statement to the court that a supplemental petition would be filed, the State
       requested and was granted leave to withdraw its motion to dismiss.
¶ 21        In January 2013, counsel filed a supplemental postconviction petition. The supplemental
       petition alleged that newly discovered evidence—the affidavit of codefendant
       Sapp—established that defendant was not guilty of murder because the victim fell onto the
       tracks accidently. The supplemental petition further alleged that defendant had made a
       substantial showing that there was a reasonable probability that a new trier of fact would find
       defendant not guilty of first degree murder and would instead, “at most,” find him guilty of
       involuntary manslaughter. The supplemental petition finally alleged that trial counsel was
       ineffective because he failed to argue that defendant was guilty of the lesser-included offense
       of involuntary manslaughter. Attached to the supplemental petition in support was the affidavit
       of codefendant Sapp.
¶ 22        In his affidavit, codefendant Sapp averred that he told police that he, defendant, and
       codefendant Hardy went to the train platform in order to fight with rival gang members.
       Defendant walked up to Lejman (who was standing with the victim), Myles, and “Little
       Wayne.” Defendant was holding a cane and swung it to prevent Lejman “from getting in his
       face.” Lejman ran away and defendant chased him. The victim and Myles began to run after
       defendant but then turned around and ran the other way. At one point, Myles crossed in front of
       the victim, jumped down onto the train tracks, and ran away. This action seemed to “catch” the
       victim off guard, and the victim lost his balance and fell onto the tracks. Codefendant Hardy
       then either fell or jumped down. Codefendant Sapp averred that although he told the police that
       “the whole thing” was an accident, the police said that defendant and Moody had already made
       statements. The police told him what to say so that he could “go home.” The State then filed a
       motion to dismiss. Attached to defendant’s response to the State’s motion was a notarized copy
       of defendant’s original affidavit. The circuit court subsequently granted the State’s motion.
¶ 23        On appeal, defendant contends that the circuit court erred when it granted the State’s
       motion to dismiss because he made a substantial showing of a constitutional deprivation.
       Defendant first contends that he was denied the effective assistance of trial counsel because
       trial counsel failed to impeach Moody with evidence that it was Moody, not defendant, who
       struck the victim with a cane. Defendant further contends that he was denied the effective
       assistance of appellate counsel because appellate counsel failed to challenge the sufficiency of
       the evidence supporting defendant’s conviction when the trial court found that neither
       defendant nor any codefendant had the “requisite mental state to commit first degree murder.”
       Defendant finally contends that he has made a substantial showing of actual innocence based
       upon new evidence which established that no one that he was “accountable for” caused the
       death of the victim and, therefore, the victim’s death could not be first degree murder.
¶ 24        The Act provides a procedural mechanism through which a defendant may assert a
       substantial denial of his constitutional rights in the proceedings which resulted in his
       conviction. 725 ILCS 5/122-1 (West 2004); People v. Davis, 2014 IL 115595, ¶ 13. If the
       circuit court does not dismiss the postconviction petition as frivolous or patently without merit,

                                                   -5-
       then the petition advances to the second stage where counsel is appointed to represent the
       defendant, if requested (725 ILCS 5/122-4 (West 2004)), and the State is allowed to file
       responsive pleadings (725 ILCS 5/122-5 (West 2004)).
¶ 25       At the second stage of proceedings under the Act, it is the defendant’s burden to make a
       “substantial showing of a constitutional violation.” People v. Pendleton, 223 Ill. 2d 458, 473
       (2006). A “substantial showing” of a constitutional violation is a measure of the legal
       sufficiency of a defendant’s well-pled allegations of a constitutional violation which, if proved
       at an evidentiary hearing, would entitle him to relief. People v. Domagala, 2013 IL 113688,
       ¶ 35. Therefore, all well-pled facts in the petition that are not positively rebutted by the trial
       record are taken to be true. Pendleton, 223 Ill. 2d at 473. If a defendant makes a substantial
       showing that his constitutional rights were violated, the matter proceeds to a third stage
       evidentiary hearing where the circuit court serves as a fact finder, resolves evidentiary
       conflicts, weighs credibility, and determines the weight to be given testimony and evidence.
       Domagala, 2013 IL 113688, ¶¶ 34, 46. We review the circuit court’s dismissal of a
       postconviction petition at the second stage of proceedings under the Act de novo. Pendleton,
       223 Ill. 2d at 473.
¶ 26       Defendant first contends that his petitions made a substantial showing that he was denied
       the effective assistance of trial and appellate counsel.
¶ 27       To prevail on a claim of ineffective assistance of counsel, a defendant must satisfy the
       two-pronged test set forth in Strickland v. Washington, 466 U.S. 668 (1984). Specifically, “a
       defendant must prove that defense counsel’s performance fell below an objective standard of
       reasonableness and that this substandard performance created a reasonable probability that, but
       for counsel’s errors, the result of the proceeding would have been different.” People v.
       Graham, 206 Ill. 2d 465, 476 (2003). When challenging appellate counsel’s performance, a
       defendant must show both that appellate counsel’s performance was deficient and that, but for
       counsel’s errors, there is a reasonable probability that the appeal would have been successful.
       People v. English, 2013 IL 112890, ¶ 33.
¶ 28       Because the failure to satisfy either prong of the Strickland test precludes a finding of
       ineffective assistance of counsel (People v. Enis, 194 Ill. 2d 361, 377 (2000)), a court “need not
       determine whether counsel’s performance was deficient before examining the prejudice
       suffered by the defendant as a result of the alleged deficiencies” (Strickland, 466 U.S. at 697).
       Our supreme court has held that “Strickland requires actual prejudice be shown, not mere
       speculation as to prejudice.” People v. Bew, 228 Ill. 2d 122, 135 (2008). Thus, at the second
       stage of the proceedings under the Act, defendant has the burden to make a substantial showing
       that a reasonable probability exists that the outcome of the proceedings would have been
       different had his counsel’s performance been different. See People v. Harris, 206 Ill. 2d 293,
       307 (2002) (affirming the trial court’s dismissal of an ineffective assistance of counsel claim
       without an evidentiary hearing where the defendant failed to make a substantial showing of
       prejudice).
¶ 29       Here, defendant contends that he was denied the effective assistance of trial counsel
       because counsel failed to impeach Moody with evidence that it was Moody, rather than
       defendant, who struck the victim with a cane. Defendant acknowledges that the affidavit in
       which Moody averred that it was he, rather than defendant, who struck the victim with a cane
       was not attached to either the pro se postconviction petition or the supplemental petition.
       Defendant also acknowledges that he did not attach affidavits from either Moody or trial

                                                   -6-
       counsel regarding this affidavit, but argues that he cannot be expected to obtain affidavits in
       which counsel admits ineffectiveness or Moody admits perjury. He also explains that because
       he never knew the investigator’s name, he could not obtain the investigator’s affidavit. The
       State responds that defendant’s petitions were properly dismissed because his unsupported
       allegations failed to make the requisite substantial showing of a constitutional violation.
¶ 30        Section 122-2 of the Act requires that a petition “shall have attached thereto affidavits,
       records, or other evidence supporting its allegations or shall state why the same are not
       attached.” 725 ILCS 5/122-2 (West 2004). The purpose for requiring “affidavits, records, or
       other evidence” is to establish that the allegations in a postconviction petition are capable of
       objective or independent corroboration. People v. Delton, 227 Ill. 2d 247, 254 (2008). The
       “affidavits and exhibits which accompany a petition must identify with reasonable certainty
       the sources, character, and availability of the alleged evidence supporting the petition’s
       allegations.” Id.
¶ 31        In the case at bar, defendant’s contention that trial counsel failed to impeach Moody with
       an affidavit revealing that it was Moody, rather than defendant, who struck the victim with a
       cane lacks any evidentiary support. Even accepting defendant’s argument that he cannot be
       expected to obtain an affidavit from trial counsel in which trial counsel admits ineffectiveness
       (see People v. Hall, 217 Ill. 2d 324, 333-34 (2005)), defendant has failed to attach an affidavit
       or exhibit containing evidence supporting his allegation. Defendant did not attach an affidavit
       from Moody or provide an affidavit from the investigator who obtained the affidavit at issue.
       In the absence of such affidavits, this court cannot determine whether the proposed witnesses
       could have provided testimony favorable to defendant, and further review of this claim is
       unnecessary. See Enis, 194 Ill. 2d at 380 (to sustain an ineffective assistance of counsel claim
       for counsel’s failure to investigate or present a witness, the defendant’s allegation must be
       supported by an affidavit from that witness that contains the witness’s proposed testimony).
       Therefore, we conclude that because defendant failed to attach any witness affidavits to his
       petitions, his own affidavit notwithstanding, which support this allegation, he has failed to
       make a substantial showing that he was denied the effective assistance of trial counsel. See
       Domagala, 2013 IL 113688, ¶ 35.
¶ 32        Defendant next contends that he made a substantial showing that he was denied the
       effective assistance of appellate counsel because appellate counsel failed to argue on direct
       appeal that defendant could not be held accountable for the victim’s murder because no one
       that he was accountable for had the requisite mental state to commit first degree murder.
       Defendant argues that in the absence of a principal who acted with the requisite mental state, it
       was inappropriate for the trial court to apply the common design rule to find him guilty of first
       degree murder under a theory of accountability.
¶ 33        To establish ineffective assistance of appellate counsel, a defendant must show both that
       appellate counsel’s performance was deficient and that, but for counsel’s errors, there is a
       reasonable probability that the appeal would have been successful. English, 2013 IL 112890,
       ¶ 33. “Appellate counsel is not required to brief every conceivable issue on appeal, and counsel
       is not incompetent for choosing not to raise meritless issues.” People v. Maclin, 2014 IL App
       (1st) 110342, ¶ 32. When the underlying issue has no merit, a defendant cannot show how he
       was prejudiced by appellate counsel’s failure to raise that issue on appeal. People v. Lacy, 407
       Ill. App. 3d 442, 457 (2011).


                                                   -7-
¶ 34       Here, defendant argues that appellate counsel should have relied upon the trial court’s
       comment that neither defendant nor his companions had the requisite mental state to commit
       murder to argue that the evidence at trial did not prove defendant guilty of murder beyond a
       reasonable doubt. Thus, the question before this court is whether, had appellate counsel argued
       that defendant was not proven guilty beyond a reasonable doubt of murder because no one
       defendant was accountable for had the requisite mental state to commit first degree murder,
       this court would have reversed defendant’s conviction.
¶ 35       Initially, we note that the State contends that this argument is barred by the doctrine of
       res judicata when this court on direct appeal considered and rejected defendant’s contention
       that he was not proven guilty of first degree murder beyond a reasonable doubt because he did
       not have the requisite mental state to commit first degree murder. See People v. Tate, 2012 IL
       112214, ¶ 8 (issues raised and decided on direct appeal are barred by res judicata, and issues
       that could have been raised but were not are forfeited).
¶ 36       However, in the instant appeal, defendant raises a different contention, whether his lawyer
       was ineffective for failing to argue that no one for whom he was accountable had the requisite
       mental state to commit first degree murder. A claim is not forfeited or otherwise procedurally
       barred when a postconviction petition alleges ineffective assistance of appellate counsel based
       upon a failure to raise that claim on direct review. See People v. Youngblood, 389 Ill. App. 3d
       209, 214-15 (2009) (“it is well established that a postconviction claim will not be forfeited
       where the alleged forfeiture stems from the incompetence of appellate counsel”); People v.
       Blair, 215 Ill. 2d 427, 450-51 (2005) (“It has long been held that res judicata and forfeiture do
       not apply where fundamental fairness so requires; where the alleged forfeiture stems from the
       incompetence of appellate counsel; or where facts relating to the claim do not appear on the
       face of the original appellate record.”). In the case at bar, because defendant contends that
       appellate counsel was ineffective for failing to challenge the sufficiency of the evidence based
       upon codefendants’ lack of the requisite mental state to commit first degree murder, this issue
       is not procedurally barred, and we will therefore address it.
¶ 37       When reviewing a challenge to the sufficiency of the evidence, the relevant question is
       whether, after viewing the evidence in the light most favorable to the State, any rational trier of
       fact could have found the essential elements of the crime beyond a reasonable doubt. People v.
       Brown, 2013 IL 114196, ¶ 48. The trier of fact is responsible for evaluating the credibility of
       the witnesses, weighing witness testimony, and determining what inferences to draw from the
       evidence. People v. Ross, 229 Ill. 2d 255, 272 (2008). This court reverses a defendant’s
       conviction only where the evidence is so unreasonable, improbable, or unsatisfactory that a
       reasonable doubt of his guilt remains. Brown, 2013 IL 114196, ¶ 48.
¶ 38       A person commits first degree murder when, in performing the acts which cause a victim’s
       death, he knows that such acts will create a strong probability of death or great bodily harm to
       the victim. See 720 ILCS 5/9-1(a)(2) (West 1998). A person is legally accountable for the
       conduct of another person when, either before or during the commission of an offense, and
       with the intent to promote or facilitate such commission, he solicits, aids, abets, or agrees or
       attempts to aid such other person in the planning or commission of the offense. 720 ILCS
       5/5-2(c) (West 1998). A defendant may be deemed accountable for acts performed by another
       pursuant to a common criminal plan or purpose. People v. Taylor, 164 Ill. 2d 131, 140-41
       (1995).


                                                    -8-
¶ 39        The common design rule provides that when two or more people engage in a common
       criminal design or agreement, any acts in the furtherance of that design or agreement
       committed by one party are considered to be the acts of all parties to the design or agreement,
       and all are equally responsible for the consequences of those further acts. In re W.C., 167 Ill. 2d
       307, 337 (1995). Proof of the common design need not be supported by words of agreement
       but may be drawn from the circumstances surrounding the commission of the act. Taylor, 164
       Ill. 2d at 141.
¶ 40        Here, viewing the evidence at trial in the light most favorable to the State, as we must
       (Brown, 2013 IL 114196, ¶ 48), there was sufficient evidence to find defendant guilty beyond a
       reasonable doubt of first degree murder under an accountability theory. The evidence at trial
       established, through the testimony of Moody, Lejman, and Myles, as well as Schorsch’s
       testimony regarding defendant’s statement, that when defendant noticed a group of rival gang
       members on the platform, he told Brooks to stop the car and then went to the platform to
       confront them. Once on the platform, and after Sapp announced they were “hook killers,”
       defendant approached Lejman and swung a cane at Lejman. In the ensuing chaos, codefendant
       Hardy grabbed the victim, and both men fell onto the train tracks. Specifically, Moody testified
       that codefendant Hardy and the victim fought on the train tracks, and defendant stated that
       codefendant Hardy pushed the victim onto the tracks causing the victim to be “electrified.”
¶ 41        Defendant relies on the trial court’s statements that it did not believe that defendant and
       codefendants intended to kill anyone, and he concludes that the facts, as found by the trial
       court, did not establish the necessary elements of first degree murder. We disagree.
¶ 42        People v. Phillips, 2014 IL App (4th) 120695, is instructive. In that case, the defendant
       intended to hit a woman named Frazier in the eye in retaliation for injuries she inflicted on the
       mother of his children. The defendant went to Frazier’s home accompanied by his friend,
       Shaunessy Grimes. Grimes was to identify Frazier for the defendant because the defendant did
       not know her. Grimes brought a rifle along in order to protect the defendant while the
       defendant attacked Frazier. When the men arrived at Frazier’s house, however, they saw a
       crowd of people. The defendant changed his mind about attacking Frazier and planned to leave
       because he was afraid he would be attacked by the crowd. Grimes then fired the rifle once. A
       member of the crowd was killed. The defendant later admitted his involvement in the shooting
       and was convicted of first degree murder and unlawful possession of a weapon by a felon
       pursuant to an accountability theory.
¶ 43        On appeal, the court affirmed the defendant’s murder conviction, finding that he could not
       escape liability for the murder merely because his original intention was only to attack Frazier.
       Id. ¶¶ 31, 34. The court concluded that “[b]y attaching himself to a group bent on illegal acts,
       defendant became accountable for all the crimes of his companions, including the shooting.”
       Id. ¶ 34. The court also noted that to be accountable for the shooting under the common design
       rule, the defendant need not have shared Grimes’s intent to fire the rifle; rather, “[b]y setting
       out to commit a crime with Grimes, defendant rendered himself legally accountable for [the]
       shooting.” Id. ¶¶ 44, 53.
¶ 44        The Phillips court also cited People v. Tarver, 381 Ill. 411 (1942), which involved two
       groups of young men, the Tarver group and the Walker group. After a member of the Tarver
       group got into a fight with a member of the Walker group, eight members of the Tarver group
       agreed to confront the Walker group. Mack, a member of the Tarver group, agreed to go only if
       he was assured there would be no shooting. However, Mack took a revolver along. During the

                                                    -9-
       subsequent confrontation, Tarver took Mack’s gun and fatally shot Lacey Walker. Mack was
       later convicted of murder under an accountability theory. In affirming Mack’s conviction, our
       supreme court found that there was abundant evidence that the Tarver group “banded together”
       for the purpose of avenging the prior beating. Id. at 415. The court also noted that it was clear
       there was “ill feeling” between the two groups and that Mack was a member “of a gang
       assembled for the purpose of disturbing the peace and doing unlawful acts.” Id. at 415-16.
       Therefore, “[a] shot fired by one of the defendants, under the circumstances shown, was a shot
       fired by all and all of them must answer for the result.” Id. at 416.
¶ 45        Similarly here, it is clear that defendant and codefendants went to the train platform to
       confront rival gang members. Although it may be true that they did not intend to kill anyone at
       that time, ultimately, the result of the confrontation was codefendant Hardy and the victim
       fighting on the train tracks, which culminated in the victim being electrocuted. See Terry, 99
       Ill. 2d at 515-16 (our supreme court acknowledged that the common design rule “does impose
       liability for murder even though a misdemeanor was originally intended”).
¶ 46        Contrary to defendant’s assertion, the State was not required to prove that defendant and
       codefendants shared the same intent with regard to the charged offense (i.e., first degree
       murder). Rather, the State needed only to prove that defendant had the intent to promote or
       facilitate a crime. See Phillips, 2014 IL App (4th) 120695, ¶ 43. Under the common design
       rule, because the defendant and his codefendants were engaged 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 responsible for the consequences of those further acts.
       720 ILCS 5/5-2 (c) (West 2010). By attaching himself to a group bent on an illegal action,
       defendant became accountable for all the crimes of his companions, including those of
       codefendant Hardy; defendant cannot “escape liability merely because his criminal intentions
       did not rise to the level of murder.” Phillips, 2014 IL App (4th) 120695, ¶ 34.
¶ 47        As our supreme court has held, “there is no question that one can be held accountable for a
       crime other than the one that was planned or intended, provided it was committed in
       furtherance of the crime that was planned or intended.” (Emphasis in original.) People v.
       Fernandez, 2014 IL 115527, ¶ 19.
¶ 48        In this case, this court cannot say that no rational trier of fact could have found defendant
       guilty of first degree murder pursuant to the common design rule when the evidence at trial
       established that defendant and codefendants were on the train platform (at defendant’s behest
       according to his statement to the police) to confront the victim; that, Hardy, one of the
       defendant’s companions, pushed the victim on the train tracks; and that Hardy’s act created a
       strong probability of death or great bodily harm to the victim. Terry, 99 Ill. 2d at 515-16.
¶ 49        This court reverses a defendant’s conviction only where the evidence is so unreasonable or
       unsatisfactory that a reasonable doubt of his guilt remains (Brown, 2013 IL 114196, ¶ 48); this
       is not one of those cases.
¶ 50        Defendant cannot show that he was prejudiced by appellate counsel’s failure to raise this
       meritless issue on direct appeal. See Lacy, 407 Ill. App. 3d at 457 (if the underlying issue has
       no merit, defendant cannot show how he was prejudiced by appellate counsel’s failure to raise
       it on direct appeal). Therefore defendant’s petition failed to make a “substantial showing of a
       constitutional violation.” Domagala, 2013 IL 113688, ¶ 35.
¶ 51        Defendant finally contends that he has made a substantial showing of actual innocence
       because codefendant Sapp’s affidavit establishes that the victim fell onto the tracks after being

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       startled by Myles, and therefore, no one for whom defendant was accountable was responsible
       for the victim’s death.
¶ 52       To “succeed on a claim of actual innocence, the defendant must present new, material,
       noncumulative evidence that is so conclusive it would probably change the result on retrial.”
       People v. Coleman, 2013 IL 113307, ¶ 96. “New means the evidence was discovered after trial
       and could not have been discovered earlier through the exercise of due diligence.” Id. Material
       means the evidence is “relevant and probative” of the defendant’s innocence, and
       noncumulative means the evidence adds to what the factfinder heard at trial. Id. A reviewing
       court “must be able to find that petitioner’s new evidence is so conclusive that it is more likely
       than not that no reasonable juror would find him guilty beyond a reasonable doubt.” People v.
       Sanders, 2016 IL 118123, ¶ 47. Well-pleaded factual allegations in the postconviction petition
       and its supporting evidence are taken as true unless they are positively rebutted by the record.
       Id. ¶ 48.
¶ 53       Defendant argues that codefendant Sapp’s affidavit is newly discovered evidence because
       codefendant Sapp was simultaneously prosecuted for the victim’s death so defendant had no
       way to obtain his testimony at trial, and that it is noncumulative in that it presents “a narrative
       of events that was not heard before.” He further argues that taken as true Sapp’s affidavit
       exonerates him because the act which caused the victim’s death was committed by Myles
       rather than defendant or codefendants.
¶ 54       Initially, we note that codefendant Sapp’s account of events is largely consistent with the
       sequence of events that was outlined at trial. Specifically, defendant and codefendants went to
       the platform to confront members of a rival gang; defendant engaged in a conversation with
       Lejman; defendant swung a cane at Lejman; and Lejman, Myles, and the victim ran away. It is
       only in the manner in which the victim ended up on the tracks that is “new,” as codefendant
       Sapp avers that the victim was startled by Myles, lost his balance, and fell onto the tracks. Even
       if we accept defendant’s conclusion that the facts contained in codefendant’s Sapp’s affidavit
       are new and noncumulative because he did not testify at defendant’s trial, we cannot agree that
       codefendant Sapp’s affidavit, taken as true, is of such a conclusive character that it would
       probably change the result at retrial. See People v. Washington, 171 Ill. 2d 475, 489 (1996) (the
       most important element of a claim of actual innocence is whether the evidence is of such
       conclusive character that it would probably change the result on retrial).
¶ 55       We find People v. Edwards, 2012 IL 111711, to be instructive. There, the defendant
       claimed actual innocence, in part, based on newly discovered evidence in the form of an
       affidavit from a codefendant, Eddie Coleman. The Edwards court found the codefendant’s
       affidavit to be newly discovered evidence, due to the fact no amount of diligence could have
       forced the codefendant to violate his fifth amendment right to avoid self-incrimination if he
       chose not to do so. Id. ¶ 38. The Edwards court noted that the codefendant averred that the
       defendant “ ‘had nothing to do with this shooting’ *** [and] was neither ‘a part [of nor] took
       part in this crime.’ ” Id. ¶ 39. The Edwards court also noted that the codefendant “critically
       does not assert that petitioner was not present when the shooting took place.” (Emphasis in
       original.) Id. The court then determined that the codefendant’s affidavit did not raise the
       probability that, in light of the new evidence, it was more likely than not that no reasonable
       juror would have convicted the defendant. Id. ¶ 40. Finally, the Edwards court agreed with the
       appellate court’s conclusion that the codefendant’s averment, that he was the principal


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       offender, did not exonerate the defendant, who had been convicted of murder under an
       accountability theory. Id. ¶ 39.
¶ 56        Here, we find that codefendant Sapp’s affidavit does not remove defendant from the train
       platform or the events leading up to the victim’s death; rather, it offers an alternative
       explanation for how the victim ended up on the tracks. The evidence at trial established that the
       victim fell to the tracks as the result of a struggle with codefendant Hardy, whereas
       codefendant Sapp avers that the victim lost his balance after being startled by Myles.
¶ 57        Although codefendant Sapp avers that the victim lost his balance and fell onto the tracks,
       the fact remains that Moody testified at trial that he saw codefendant Hardy and the victim
       fighting immediately prior to the victim being on the tracks, and defendant stated that
       codefendant Hardy and the victim fell onto the tracks together. Accordingly, we cannot
       conclude that the information contained in codefendant Sapp’s affidavit “is so conclusive that
       it is more likely than not that no reasonable juror would find [defendant] guilty beyond a
       reasonable doubt.” Sanders, 2016 IL 118123, ¶ 47. Rather, we find that at best the evidence
       contained in the affidavit merely affects the issue of the sufficiency of the evidence and
       therefore does not totally vindicate defendant. See People v. Adams, 2013 IL App (1st)
       111081, ¶ 36 (evidence of a defendant’s actual innocence must support his total vindication or
       exoneration, not merely present a reasonable doubt as to his guilt). Therefore, defendant has
       failed to make a substantial showing of actual innocence. See Domagala, 2013 IL 113688,
       ¶ 35.
¶ 58        For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

¶ 59      Affirmed.

¶ 60        JUSTICE HYMAN, specially concurring.
¶ 61        I agree with my colleagues that the trial court properly dismissed Williams’s petition for
       postconviction relief. I write separately to elaborate on the evidence needed to prove
       accountability for first degree murder. The State must show not only that Williams possessed
       the necessary mental state to be accountable for the actions of his codefendants, but also that at
       least one person in the group possessed the necessary mental state for first degree murder.
       Williams argues that the State did not do so and so the evidence was insufficient. To the
       contrary, the State presented the necessary evidence and accordingly, I agree that his claim
       fails.
¶ 62        Accountability, in itself, is not a crime. People v. Shaw, 186 Ill. 2d 301, 325 (1998). Rather,
       it is a method of proving culpability for an underlying crime. People v. Hicks, 181 Ill. 2d 541,
       547 (1998). The defendant is held accountable for the actions of the “principal” who commits
       the underlying crime.
¶ 63        Here, the underlying crime is first degree murder, and the State needed to present sufficient
       evidence of all its elements—including evidence of intent (knowing that the actions had a
       strong probability of causing death or great bodily harm to the victim). See People v. McIntyre,
       2011 IL App (2d) 100889, ¶ 12 (to find defendant guilty under accountability theory, State
       must first establish prima facie case against principal). If the State does not establish the
       elements of the underlying crime as committed by the principal, then a defendant cannot be
       held accountable for aiding, abetting, or attempting to aid the principal in planning or


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       committing the offense. See People v. Chirchirillo, 393 Ill. App. 3d 916, 925 (2009)
       (defendant cannot be accountable for unlawful possession of weapon by felon where State
       failed to establish that principal was felon); see also People v. Gibson, 403 Ill. App. 3d 942,
       950 (2010), abrogated on other grounds by People v. Bailey, 2014 IL 115459.
¶ 64       The State’s choice to charge Williams on an accountability theory does not excuse the
       State from proving the elements of first degree murder. See People v. Jaimes, 2014 IL App
       (2d) 121368, ¶ 38 (to obtain conviction based on accountability, State must prove that
       principal actually committed offense). That element of intent for first degree murder is wholly
       separate and apart from the mens rea encompassed in the accountability statute, which requires
       that the accountable person have the intent to promote or facilitate the commission of the
       underlying crime. 720 ILCS 5/5-2(c) (West 1998).
¶ 65       In practice, we rarely need to unwind these two levels of intent.
¶ 66       Accountability cases generally fall into two groups. The first group is the “leader-follower”
       scenario, where the “leader” commits the murder but the “follower” is accountable. See, e.g.,
       People v. Phillips, 2014 IL App (4th) 120695, ¶ 34 (where Phillips and friend Grimes had
       common design to punch victim, Phillips was accountable for Grimes’s actions in shooting
       another person when assault plan went awry). For example, defendants A and B agree to rob
       the victim. Defendant A shoots the victim but defendant B does not physically harm the victim
       at all. Defendant A has the requisite mens rea for first degree murder (knowing that shooting
       the victim has a strong probability of causing death or great bodily harm). Defendant A is the
       “principal.”
¶ 67       Defendant B does not have that mens rea for first degree murder, but under the
       accountability statute, Defendant B can still be liable because he or she had a common design
       with A to commit the robbery. There is no question of who shot the victim, and no question that
       both the mens rea for first degree murder and the mens rea for accountability were present
       within this group of defendants. See People v. Mischke, 278 Ill. App. 3d 252, 262 (1995)
       (where codefendants involved in common design to commit aggravated assault or battery
       against victims, codefendants “did not have to actively participate in [victim’s] murder in order
       to be guilty under the accountability theory”).
¶ 68       The second common group of accountability cases is the “mystery shooter” scenario, when
       the chaos of the situation makes it impossible to tell who struck the fatal blow against the
       victim. See, e.g., People v. Cooper, 194 Ill. 2d 419, 422-23 (2000) (codefendant gang members
       were both guilty of first degree murder by accountability, though it was unclear which
       codefendant actually shot at victims during confrontation with rival gang). Defendants C and
       D agree to rob the victim, but during the crime a gunshot rings out, striking and killing the
       victim. In the aftermath, no physical evidence indicates whether it was C or D who pulled the
       trigger, and neither will turn against the other. But we can infer that at least one of those
       defendants had the mens rea for first degree murder (because the victim was shot), and we need
       not identify the “principal” to hold both accountable for the murder (because both had a
       common design). See id. at 435-36 (defendants may be found guilty under accountability
       theory even if identity of principal is unknown, if each had common design).
¶ 69       Williams’s case, as he presents it, is more unusual. He alleges that no one in the group of
       defendants (himself, Sapp, and Hardy) had the intent to kill Anthony King, and so he cannot be
       accountable for first degree murder because no murder occurred. See People v. Griffin, 247 Ill.
       App. 3d 1, 15 (1993) (if act committed by codefendants was not a crime, defendant cannot be

                                                  - 13 -
       held accountable for it). But he omits the State’s evidence that Hardy grabbed King, fought
       with him, and pushed him onto the train tracks. We can infer from this that Hardy, at least, had
       the mens rea for first degree murder. And we can infer from Williams’s actions that he had a
       common design with Hardy. So his scenario is more like that of the “leader-follower”
       situation.
¶ 70       Williams is correct that the State needed to prove that the mens rea for first degree murder
       was present within the group of codefendants. A case could arise where the State would not be
       able to meet that burden (see, e.g., Chirchirillo, 393 Ill. App. 3d at 925-26), but this is not that
       case.




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