                                  Illinois Official Reports

                                          Appellate Court



                             People v. Williams, 2013 IL App (1st) 112693




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



District & No.               First District, Fourth Division
                             No. 1-11-2693


Filed                        December 26, 2013
Rehearing denied             February 6, 2014
Modified upon
denial of rehearing          February 13, 2014


Held                         Defendant’s conviction for first-degree murder on an accountability
(Note: This syllabus         theory in a gang-related shooting was reversed and the cause was
constitutes no part of the   remanded with directions to impose a sentence on defendant for the
opinion of the court but     lesser offense of aggravated discharge of a firearm, since the evidence
has been prepared by the     was too inconsistent and conflicting to prove defendant’s guilt of
Reporter of Decisions        first-degree murder beyond a reasonable doubt, and the trial court also
for the convenience of       improperly required defendant to register as a sex offender in the
the reader.)                 absence of any indication that the charged offense was sexually
                             motivated.



Decision Under               Appeal from the Circuit Court of Cook County, No. 08-CR-1009(03);
Review                       the Hon. Maura Slattery Boyle, Judge, presiding.



Judgment                     Reversed and remanded for sentencing.
     Counsel on                  Michael J. Pelletier, Alan D. Goldberg, and Emily S. Wood, all of
     Appeal                      State Appellate Defender’s Office, of Chicago, for appellant.

                                 Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
                                 William L. Toffenetti, and Peter Maltese, Assistant State’s Attorneys,
                                 of counsel), for the People.




     Panel                       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 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

             1
              A jury trial was conducted simultaneously for codefendant Jackson.
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     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.
¶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.
                  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
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       [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 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.
¶ 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

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       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, 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 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

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       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 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 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
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       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
       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
       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
                                                    -7-
       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 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 response. Even assuming Figueroa’s
       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
                                                  -8-
       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).

¶ 30                                         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.




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