                                      2013 IL App (1st) 112693

                                                                          FOURTH DIVISION
                                                                           December 26, 2013
                                             Modified on Denial of Rehearing February 13, 2014

No. 1-11-2693


THE PEOPLE OF THE STATE OF ILLINOIS,                 )      Appeal from the
                                                     )      Circuit Court of
       Plaintiff-Appellee,                           )      Cook County.
                                                     )
                      v.                             )
                                                     )
                                                     )      No. 08 CR 1009 (03)
CLARENCE WILLIAMS,                                   )
                                                     )
       Defendant, Appellant.                         )      The Honorable
                                                     )      Maura Slattery Boyle
                                                     )      Judge Presiding.



       JUSTICE LAVIN delivered the judgment of the court, with opinion.
       Presiding Justice Howse and Justice Fitzgerald Smith concurred in the judgment and
       opinion.

                                             OPINION

¶1     Following a bench trial, defendant Clarence Williams was found guilty of one count of

first-degree murder based on an accountability theory. Defendant received a sentence of 23 years

in prison and an additional 20-year firearm enhancement. 730 ILCS 5/5-8-1(a)(1)(a), (a)(1)(d)(ii)

(West 2006). On appeal, defendant asserts that (1) the evidence was insufficient to sustain his

conviction; (2) the trial court erred by admitting gang evidence through an unqualified witness

and a witness's prior consistent statement; (3) the murder was not sexually motivated and

defendant should not be required to register as a sex offender; and (4) defendant's mittimus

should be corrected to reflect that he was convicted of first-degree murder with a mandatory
No. 1-11-2693

firearm enhancement, not two first-degree murder convictions. We reverse defendant's

conviction for first-degree murder and remand for sentencing on the lesser offense of aggravated

discharge of a firearm.

¶2                                     BACKGROUND

¶3     On October 17, 2007, 10-year-old Arthur Jones (AJ) was shot and killed during an

apparent gang dispute. Defendant, whom the trial court ultimately found not to be a gang

member, was charged with first-degree murder along with codefendants Lesean Jackson and

Steven McCaskill. Andrew Bradley, then a 14-year-old, was subjected to juvenile delinquency

proceedings.

¶4     Over the course of a six-day bench trial, 15 witnesses testified.1 Johnell Brown testified

that he belonged to the Black P Stones street gang (P Stones), which "controlled" the north side

of 55th Street or Garfield Boulevard. The Jet Black Stones (Jets) also occupied the area as a

branch of the P Stones (collectively called the Stones). A rival street gang, the Gangsters

Disciples (GD), "controlled" the south side of 55th Street. Brown testified that around 3:30 p.m.

on the day of the incident he sold cigarettes at the corner of 55th Street and Halsted Street. He

also testified that he knew defendant, McCaskill and Jackson from the neighborhood and all

three were members of the Jets. When a fight broke out between the Stones and the GD in a gas

station on the south side of the boulevard, Brown went over to try and "squash" the fight, but

eventually got involved when he tried to rescue his friend Jimmy. Brown also saw defendant and

McCaskill in the area of the Shell station and then saw them leave together heading north.


       1
           A jury trial was conducted simultaneously for codefendant Jackson.

                                                 2
No. 1-11-2693

¶5     Eventually, Brown returned to his "business," crossing over to the east side of Halsted

Street, where he had hidden cigarettes and marijuana by the bus stop near the mall. While

standing there, Brown saw defendant, codefendant Jackson and McCaskill walk though the mall

area, but he could not recall Bradley's whereabouts. Brown also observed some high school

youths hanging out in the grassy area in the middle of the boulevard. He then saw Jackson, who

was standing behind the bus stop, point a semiautomatic gun toward the southwest corner of the

intersection. On direct examination, Brown testified that he heard defendant tell Jackson "to

wait" and then saw defendant walk toward the back of the mall. Brown then saw Jackson fire

four shots into the grassy area of the boulevard. Afterward, Brown took off running toward 54th

Street and heard another round of shots.

¶6     On cross-examination, Brown admitted that he was found guilty of manufacturing and

delivering a controlled substance in 2000, as well as possession of a controlled substance in 2003

and 2004. Brown allowed that he disliked defendant and wanted to "beat his ass" because of his

relationship with Brown’s sister. Regarding gang membership, Brown testified that he never saw

defendant get initiated into the Jets. In addition, Brown testified that he did not hear defendant

tell Jackson to wait before firing and he did not recall making that statement to detectives.

¶7     On redirect examination, over defense counsel’s objection, the judge allowed the State to

read into evidence prior consistent testimony that Brown had given before a grand jury to rebut a

charge of recent fabrication. The prior testimony included the following colloquy:

                "Q. Did you say anything when Lesean put up the gun?

                A. Yes.


                                                 3
No. 1-11-2693

                Q. What did you say?

                A. I told him not to shoot, there’s kids out there.

                Q. Did [defendant] say anything about this?

                A. Yes.

                Q. Did [defendant] say anything to [Jackson] or give him instructions?

                A. He say wait until they get closer, and then [Jackson] start firing."

¶8      Pursuant to a stipulation, defense counsel also introduced prior statements made by

Brown to Chicago police. In this statement, he said “if ya'll want me to turn State evidence and

that's what I'll have to do, and that's what I'll have to do but I ain't have nothing to do with it."

Brown was also quoted as saying "maybe they heard [defendant], it might have been [defendant]

they heard say wait until they get closer." The statement also indicated, "I said what I said. It's

one of the other people that could have said that, 'wait until they get closer'. Maybe [McCaskill]

or [defendant] said 'wait until they get closer.'" Finally in this statement, he stated "I don't fuck

with [defendant]. I want to beat his ass plenty of times for using my sister for her money."

¶9      Tierra Merchant testified that around 4 p.m., she entered the Subway restaurant at the end

of the mall and saw defendant talking on his cell phone in the parking lot. When Merchant was

leaving five minutes later, she saw defendant fire a pistol at least twice in a southwest direction

toward the Shell service station. Defendant had his face turned away and was not looking in the

direction he fired. Merchant then saw defendant flee north through the parking lot.

¶ 10    Johnny Figueroa testified that at the time of the incident, he drove his vehicle through the

parking lot behind the mall. He waited in the driveway to merge onto 55th Street when he heard


                                                    4
No. 1-11-2693

gunshots to the right of his car. He then saw an African-American man fire multiple shots in a

southwest direction at a crowd of people located in the median, but was unable to identify

defendant as the shooter from a photo array.

¶ 11    Teddy Plummer, who claimed injuries and memory problems resulting from being hit in

the head in an unrelated incident by a baseball bat, testified that he used to be friends with

McCaskill and Bradley from the neighborhood, but denied knowing Jackson. Plummer testified

that he did not remember (1) if Bradley, McCaskill or Jackson was a member of the Jets street

gang; (2) what happened on the afternoon of the incident; (3) going to the police station with his

parents thereafter; (4) signing his statement in which he claimed to have witnessed Bradley put a

9-millimeter handgun in Jackson's hoodie pocket; (5) identifying Jackson as the shooter; (6)

hearing someone tell Jackson to wait before shooting; or (7) testifying in front of the grand jury

to the factual account in his statement. On the second day that Plummer testified at defendant's

trial, Plummer's memory returned. Specifically, he remembered being at 55th Street and Halsted

Street after school. He then witnessed Bradley pass a 9-millimeter handgun to McCaskill, who

shot AJ. Plummer claimed that he told the grand jury he gave it to Jackson, because Plummer

felt bad telling on his friend McCaskill. He also told the grand jury that prior to Jackson firing

someone said, "no, don't do it, don't do it, stop, wait, wait," and testified that it sounded like

McCaskill. On cross-examination, Plummer claimed to have been afraid in 2007 because of his

non-gang affiliation and the Jets' code of silence. He had changed his recitation of the facts at the

grand jury hearing to protect himself and McCaskill, a known gang member.




                                                   5
No. 1-11-2693

¶ 12   Bradley, who had his charges reduced as part of a plea agreement in a corresponding

juvenile case, testified that he knew defendant, Jackson and McCaskill from the neighborhood.

On the day of the incident, Bradley ran into McCaskill on Bradley's way to the barbershop.

McCaskill had a black semiautomatic gun, handed it to Bradley, and asked him to shoot the gun

at the GD. After declining, McCaskill told Bradley to hand the gun to Jackson and Bradley

complied. He then walked to the barber shop on 54th Street and heard approximately three

gunshots fired from the other direction. He did not recall seeing defendant before or after either

round of gunshots. The State impeached Bradley with prior testimony given as part of his plea

agreement that he heard a second round of shots and then saw defendant running. Bradley

testified that he “may have” said that, but did not recall.

¶ 13   On cross-examination, Bradley testified that he (1) was willing to say whatever the State

wanted him to say; (2) did not see defendant on the street that day or at any time before or after

the shooting; and (3) did not see defendant shoot a gun. In addition, pursuant to a stipulation,

defense counsel read into evidence statements made by Bradley to Chicago police claiming that

Brown told Jackson to wait until the cars passed to start shooting.

¶ 14   Detective Robert Garza testified that he interviewed McCaskill on the night of the

incident and received the names of defendant, Bradley, Plummer and Jackson. McCaskill also

identified photographs of defendant and Jackson from a photo array. McCaskill eventually

incriminated himself.

¶ 15   McCaskill, who pled guilty to first-degree murder in this case, testified that he had known

defendant, Jackson and Bradley from the neighborhood. On the day of this incident, McCaskill,


                                                   6
No. 1-11-2693

a member of the Jets, said he was not involved in the fight at the Shell service station, but he did

shop in the mall across the street. McCaskill spoke to Bradley before the shooting and went to

McCaskill's grandmother's home, but failed to remember if he retrieved a gun from her couch.

He then returned to the mall with Bradley, but denied giving him a gun. In addition, McCaskill

observed Jackson at the mall, but did not see Bradley give Jackson a gun, or see Jackson even

holding a gun. McCaskill heard shots and ran away. Furthermore, McCaskill did not remember

telling Detective Garza any of the allegations in his written statement. The State also admitted

into evidence the videotape of McCaskill's conversation with Detective Garza, in which

McCaskill stated that he saw defendant participate in the fight at the Shell service station as

impeachment for his inconsistent testimony.

¶ 16   On cross-examination, McCaskill averred that he said anything he could to get himself

out of trouble. In addition, he testified that he gave the gun to Brown, who said wait until the

crowd crossed the street before firing. McCaskill further testified that he (1) did not see

defendant by the bus stop prior to the shooting; (2) did not see defendant talk to Jackson or

Bradley; and (3) never made a plan with defendant to shoot anyone. Over the prosecutor’s

objection, defense counsel read into evidence prior statements made by McCaskill to Chicago

police detectives. McCaskill claimed that Brown set the whole shooting up, told Jackson to wait

before firing, and gave the command to start shooting. In addition, he testified that defendant

had no involvement in the shooting.

¶ 17   The State, over defense counsel’s objection, also played a video of a conversation

defendant had with Assistant State's Attorney (ASA) Margaret Ogarek. Defendant claimed that


                                                 7
No. 1-11-2693

he was present at the fight at the Shell service station, but did not participate in it. He was

holding a gun in his pocket for a friend. After the fight, defendant saw McCaskill, who said he

was going to get "something," which defendant took to mean a gun. He went to his cousin's

house, but was sent back out by his aunt to look for his cousin. He saw a group of GD advancing

and a group of Stones nearby, so he walked over to the mall to avoid being caught up in the

conflict. He was on his cell phone near the Subway restaurant when he heard gunshots.

Defendant then fired one shot up into the air as a spontaneous response out of fear and to

disperse the crowd. It was never his intention to shoot or kill anyone. In addition, it was

stipulated that defendant had no gang tattoos.

¶ 18   The trial judge found defendant guilty of first-degree murder and found that defendant

personally discharged a firearm during the commission of the offense. After denying defendant's

motion for a new trial, the court sentenced him to 23 years in prison for his conviction of first-

degree murder and an additional 20 years pursuant to the statutory firearm enhancement. 730

ILCS 5/5-8-1(a)(1)(a), (a)(1)(d)(ii) (West 2006). We note that at sentencing, the court

specifically stated, "Do I think that you had gang affiliation? No." Subsequently, the trial court

denied defendant's motion to reconsider his sentence.

¶ 19                                           ANALYSIS

¶ 20   On appeal, defendant asserts the evidence was insufficient to sustain his conviction for

first-degree murder because he did not share any common criminal intent or design with any of

his codefendants. We agree. Where, as here, a defendant challenges the sufficiency of the

evidence to sustain his conviction, the question for the reviewing court is whether, after viewing


                                                  8
No. 1-11-2693

the evidence in the light most favorable to the prosecution, any rational trier of fact could have

found the essential elements of the crime were proven beyond a reasonable doubt. People v.

Smith, 185 Ill. 2d 532, 541 (1999). A criminal conviction will not be set aside unless the

evidence is so improbable or unsatisfactory that it creates a reasonable doubt of the defendant's

guilt. People v. Collins, 106 Ill. 2d 237, 261 (1985). In a bench trial, the trial judge has the

responsibility to determine the credibility of the witnesses, to weigh the evidence and draw

reasonable inferences. People v. Little, 322 Ill. App. 3d 607, 618 (2001). Nonetheless, the fact

finder's decision is not conclusive and the reviewing court may not allow unreasonable

inferences. People v. Cunningham, 212 Ill. 2d 274, 280 (2004). Furthermore, to sustain a

conviction for first-degree murder, the State must prove that a defendant killed an individual

without lawful justification and in performing the acts which caused the death, he intended to kill

or do great bodily harm or knew that his acts created a strong probability of death or great bodily

harm to that individual. 720 ILCS 5/9-1(a)(1), (a)(2) (West 2006); People v. Leach, 405 Ill. App.

3d 297, 311 (2010).

¶ 21    The principal issue in this case is whether defendant was proved legally accountable

beyond a reasonable doubt for the conduct of Jackson, whom the record indicates was the person

that the State theorized killed the victim. In a petition for rehearing, the State plainly asserts that

it did not attempt to persuade the trial judge and jury that it was codefendant Jackson who fired

the fatal shot, perhaps in an attempt to persuade this court that defendant may have been

responsible. Unfortunately for the State's new position, this statement is not only inconsistent

with the record of the trial itself, it was directly conceded at oral argument. The State expressly


                                                   9
No. 1-11-2693

admitted at oral argument that its theory at trial was that Jackson fired the shot that killed the

child and that defendant should be held accountable for Jackson's actions because they shared a

common design on that date and at that time. A defendant is accountable for the conduct of

another when he, either before or during the commission of an offense, and with the intent to

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

person in the planning of the offense. 720 ILCS 5/5-2(c) (West 2006); People v. Gabriel, 398 Ill.

App. 3d 332, 344-45 (2010). To prove accountability, the evidence must demonstrate beyond a

reasonable doubt that either (1) the defendant shared the criminal intent with codefendants; or (2)

there was a common criminal design between defendant and codefendants. People v. Perez, 189

Ill. 2d 254, 266 (2000).

¶ 22   Here, the State presented very little evidence on the issue of accountability. The parties

agree that this dispute commenced with the fight at the Shell service station. No one testified

that defendant was an instigator of that fight. Even assuming that he was fighting, the record

does not preclude the possibility that he was fighting defensively. In addition, while McCaskill

told defendant that McCaskill was going to go get a gun, the record does not indicate that

defendant responded to McCaskill's statement, let alone encouraged the conduct.

¶ 23   As to defendant's potentially accountable conduct that took place after the fight, the

State's case rested heavily on Brown's testimony. Although Brown's testimony with respect to

the trial of codefendant Jackson was corroborated by other witnesses, here, Brown's testimony

with respect to defendant's activities was uncorroborated. In addition, Brown's testimony was

inconsistent and self-serving. First, Brown told police that he would do whatever he could to


                                                  10
No. 1-11-2693

protect himself. He also informed police that he did not like defendant based upon what he felt

was an abusive relationship that defendant had with Brown's sister. During his interrogation with

police, an obvious effort was made to educate this soon-to-be crucial witness on the vagaries of

accountability law. Moreover, Brown's testimony on direct examination was thoroughly

decimated on cross-examination as to defendant allegedly telling Jackson "to wait." On cross-

examination, Brown testified that it could have been McCaskill (who had already pled guilty to

first-degree murder) that told Jackson to wait. The State attempted to repair the damage on

redirect examination by introducing Brown's grand jury testimony. Further, in its petition for

rehearing, the State contends that Brown's grand jury testimony was introduced substantively as a

prior inconsistent statement. See 725 ILCS 5/115-10.1 (West 2010). The record, however,

suggests that Brown's grand jury testimony was brought in as a prior consistent statement to

rehabilitate Brown. More to the point, the State's response brief in the case sub judice

specifically states that this testimony was "properly used for rehabilitative rather than substantive

purposes." The trial court's recounting of Brown's testimony reveals that there was virtually

nothing to establish any evidence that would tend to prove that defendant and Jackson shared a

common plan or design, with the most telling comment being the court's statement that it did not

believe that defendant had any gang affiliation. This does not support the State's common design

theory.

¶ 24      Here, even assuming Brown truthfully testified that defendant told Jackson "to wait"

before shooting, any resulting inference endeavoring to establish that defendant was aiding or

abetting Jackson was unreasonable under the evidence presented at trial which established that


                                                 11
No. 1-11-2693

this was a gang shooting, while also revealing that defendant himself had no gang affiliation.

Aside from gang affiliation, the State offered no other motive for defendant to conspire in a

gang-related crime. See Cunningham, 212 Ill. 2d at 283 (where a fact finder's judgment must be

reasonable in light of considering the whole record.) Although Brown testified that he saw

defendant with Jackson, only rank speculation would equate defendant's presence to his planned

participation in Jackson's conduct. Thus, the trial court's finding that defendant was conspiring

with Jackson conflicted with the State's theory of the crime, as well as the court's finding that

defendant was not in a gang. The inference was thus demonstrably unreasonable and it was this

inference that provided the sole legal basis for defendant's culpability on an accountability theory.

¶ 25   Furthermore, the overall evidence is still too conflicting and inconsistent to prove

defendant guilty beyond a reasonable doubt. Here, defendant's statement was corroborated by

McCaskill, Plummer and Bradley, who all testified that defendant had no knowledge of the

planned shooting against the GD before or during the commission of the crime. See id.; People

v. Estrada, 243 Ill. App. 3d 177, 184-85 (1993) (where to be convicted under a "common design"

theory, in addition to being present at the scene of the crime, the accountable party must have

some advanced knowledge of the criminal plan or scheme). In addition, Plummer testified to the

grand jury that it was McCaskill who told Jackson "to wait." Plummer testified that it was

McCaskill who shot AJ. Moreover, both Bradley and McCaskill testified that it was actually

Brown himself who uttered the "wait" instruction. Thus, the record presents an extraordinary

amount of conflicting evidence raising reasonable doubt of defendant's guilt. See People v.

McCarthy, 102 Ill. App 3d 519, 524 (1981) (where the reviewing court determined the evidence


                                                 12
No. 1-11-2693

at trial raised a reasonable doubt of the defendant's guilt because the record contained too many

instances of witnesses changing their stories, too many inconsistent details, and too many details

that were exactly the same in the testimony of several witnesses). If anything, the evidence at

trial is compelling that it was the State's witness, Brown, who could have been charged with

being accountable for Jackson's actions.

¶ 26   It also merits mention that the testimony of Brown and Merchant is conflicting as to

defendant's whereabouts at the time of the shooting. On direct examination, Brown provided a

blow-by-blow of the minutes leading up to the shooting. Brown testified that after defendant

told Jackson "to wait," defendant walked away toward the back of the mall. Brown did not

testify that any significant period of time passed before Jackson fired shots. Thus, Brown's

testimony suggests that Jackson fired immediately after defendant walked away. Merchant

testified, however, that five minutes before the shooting she saw defendant outside the Subway at

the opposite end of the strip mall. She also testified that defendant remained there when shots

were fired. Cf. People v. Nitz, 143 Ill. 2d 82, 104 (1991) (where the supreme court concluded

that there was no reasonable doubt of the defendant's guilt because the witnesses stated their time

estimates were approximations). Thus, in contrast to Brown's testimony suggesting that

defendant was at the bus stop immediately before the shooting, Merchant testified that the

opposite was true.

¶ 27   The State also directs our attention to Figueroa's testimony that defendant fired at the

crowd and Merchant's testimony that he fired blindly in contradistinction to defendant's

testimony that he fired up in the air as a spontaneous respone. Even assuming Figueroa's


                                                13
No. 1-11-2693

testimony was true in that respect, that alone does not demonstrate that defendant was acting in

furtherance of codefendant's criminal design, rather than his own. See People v. Phillips, 2012

IL App (1st) 101923, ¶ 22 (where if the defendant did not know that his codefendant had a gun,

then regardless of what else the defendant may have done, he did not intend to help his

codefendant commit the crime); Cf. People v. Coleman, 168 Ill. 2d 509, 533 (1995) (where the

trier of fact rejected the defendant's "innocent hypothesis" theory because mere surmise or

possibility was unsatisfactory to establish an accomplice committed the crime).

¶ 28   Based on the record as a whole, the trial court made an unreasonable inference when it

concluded that defendant acted in a common design with his codefendant Jackson. This

conclusion is simply improbable based on the evidence in this case and defendant's conviction

cannot stand. See McCarthy, 102 Ill. App 3d at 524. Therefore, the evidence was insufficient to

sustain defendant's conviction.

¶ 29   Defendant now asserts that he should be charged with the lesser offense of aggravated

discharge of a firearm. The State does not anywhere argue against this conclusion in the event

defendant's conviction is reversed. Accordingly, we reverse defendant's conviction for first-

degree murder and remand for sentencing for aggravated discharge of a firearm. In light of our

determination, we need not address the other contentions argued by defendant or the State. As a

final matter, however, we note that the parties dispute whether the trial court improperly required

defendant to register as a sex offender for what is seemingly a nonsexually motivated offense.

We direct the trial court to conform its determination in that regard to the Sex Offender

Registration Act. 730 ILCS 150/1 (West 2006).


                                                14
No. 1-11-2693

¶ 30                                  III. CONCLUSION

¶ 31   Based on the foregoing, we reverse the judgment of the circuit court and remand for

sentencing on the lesser offense of aggravated discharge of a firearm.

¶ 32   Reversed and remanded for sentencing.




                                                15
