                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Laabs, 2011 IL App (3d) 090913




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    MITCHELL L. LAABS, Defendant-Appellant.


District & No.             Third District
                           Docket No. 3-09-0913


Filed                      October 18, 2011


Held                       Defendant’s conviction for felony murder was reversed and the cause was
(Note: This syllabus       remanded for a new trial where the trial court abused its discretion when,
constitutes no part of     in response to a jury question, it instructed the jury on accountability, a
the opinion of the court   new theory of guilt, after jury deliberations had begun.
but has been prepared
by the Reporter of
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Rock Island County, No. 08-CF-273;
Review                     the Hon. Walter D. Braud, Judge, presiding.



Judgment                   Reversed and remanded.
Counsel on                  Susan M. Wilham, of State Appellate Defender’s Office, of Springfield,
Appeal                      for appellant.

                            Jeff Terronez, State’s Attorney, of Rock Island (Terry A. Mertel and
                            Robert M. Hansen, both of State’s Attorneys Appellate Prosecutor’s
                            Office, of counsel), for the People.


Panel                       PRESIDING JUSTICE CARTER delivered the judgment of the court,
                            with opinion.
                            Justices Holdridge and O’Brien concurred in the judgment and opinion.




                                               OPINION

¶1          After a jury trial, defendant, Mitchell L. Laabs, was convicted of felony murder (720
        ILCS 5/9-1(a)(3) (West 2006)) and was sentenced to 50 years’ imprisonment. Defendant
        appeals, arguing that: (1) he was denied a fair trial when the trial court instructed the jury on
        a new theory of guilt, accountability, in response to a jury question, after jury deliberations
        had begun; and (2) his sentence is excessive. We reverse defendant’s conviction and sentence
        and remand the case for a new trial.

¶2                                              FACTS
¶3          In March of 2008, defendant was charged as a principal with felony murder for the May
        31, 2007, shooting death of Darrell Little. Little was shot during a robbery attempt that
        involved defendant and four other subjects (the four accomplices). The State’s theory of the
        case was that defendant acted as a principal in the murder of Little and that defendant was
        the person who actually shot Little. The charging instrument alleged that defendant, without
        lawful justification and while attempting a forcible felony, robbery, shot Darrell Little in the
        abdomen with a semiautomatic handgun and thereby caused the death of Little.
¶4          Defendant’s case proceeded to a jury trial in July of 2009. The charging instrument
        remained the same, and defendant was still charged as a principal–the person who had
        actually shot Little during the course of an attempted robbery. Prior to trial, as part of its trial
        strategy, the State flipped the four accomplices against defendant. In exchange for their
        cooperation and agreement to testify against defendant, the accomplices were given favorable
        plea deals and were charged with, and pled guilty to, attempted armed robbery, instead of
        felony murder.
¶5          Although defendant was not charged under a theory of accountability, the issue came up
        several times during defendant’s trial. The first such instance was during opening statements.

                                                    -2-
     As part of his opening statement, the prosecutor told the jury:
              “At the end of the day, you are going to be tasked with the duty of taking all of the
         evidence that you hear, combine it together to help you decide whether or not you’re
         believing people. I’ll conclude this for you. There will be no doubt in anybody’s mind
         at the close of all the evidence that some bad decisions were made. There should be no
         doubt at the close of all the evidence that Darrell Little was a victim of a felony murder.
         The only question I think that you will be left with at the end of the day is going to be
         who is responsible, who is criminally culpable for killing Darrell Little. Now, maybe you
         are going to find that the four boys [the four accomplices] that testify are criminally
         culpable. Maybe you will find that, but you are not asked to decide whether or not they
         are guilty of First-Degree Murder. The only person that you are going to have to decide
         that issue on is the Defendant in the case. You will find at the close of all of the evidence
         and after arguments and the instructions of the law that the Defendant is guilty of First-
         Degree Murder.”
     Defense counsel responded in his opening statement:
              “At the conclusion of all the evidence the problem is the State can’t prove beyond a
         reasonable doubt who did this shooting. They have made a choice. They have chosen [the
         defendant], and they are calling in witnesses that they gave deals to attempt armed
         robbery I believe is what the group pled to and they let each one of them not be charged
         with felony murder as long as they cooperate and they name [the defendant].
              It’s absolutely impossible that not one of those individuals was in the room with what
         happened. It’s not at all hard to believe that the whole group was in there threatening this
         man. You will hear evidence from some State witnesses that there were [sic] more than
         one person seen or heard in the room where the shooting happened, but nobody knows
         who did the shooting, nobody carried a gun, nobody saw a gun. Yet these four are the
         road to conviction for [the defendant]. That’s wrong.”
     After defense counsel completed his opening statement, the prosecutor asked if he and
     defense counsel could approach the court. A bench conference was held at that time, off the
     record. Although there is no record of that conference, it appears from the prosecutor’s
     statement at a later point in the trial that the bench conference had to do with the issue of
     accountability.
¶6       During the evidence phase of defendant’s jury trial, numerous witnesses were called to
     testify. The evidence established that on May 30, 2007, in the afternoon or evening, the
     defendant and the four accomplices (sometimes referred to as the group) were together. The
     four accomplices knew each other well and were close. Defendant, however, was more of
     an acquaintance. Some of the members of the group had been smoking marijuana that day.
     The group, either collectively or certain individual members, came up with the idea to rob
     a person (the target subject), who sold cannabis, and to take the cannabis from that person.
     At about 1:45 a.m. on May 31, defendant and the four accomplices took a black-colored
     vehicle to an apartment complex in Moline where the target subject lived. One of the
     accomplices drove the vehicle. They circled the block a few times looking for the right area
     of the apartment complex. Defendant and three of the accomplices got out of the vehicle and


                                               -3-
       went over to the apartment complex. The other accomplice, who was driving the vehicle,
       remained in the vehicle.
¶7         The target subject, however, was not at home. At that point, defendant and the three
       accomplices came across Mr. Little. Although the record is not quite clear on this issue, it
       appears that Little may have been leaving his apartment at the time. Little was on his cell
       phone talking to his girlfriend. A scuffle allegedly ensued between defendant and Little,
       which was heard by Little’s neighbor and by Little’s girlfriend over the phone. Little’s
       girlfriend heard Little saying that he did not have anything and that they could check his
       pockets. Believing that he was being robbed, Little’s girlfriend told her friend to call 9-1-1,
       while she remained on the phone listening to what was happening, until someone hung up
       Little’s phone.
¶8         The struggle continued into Little’s apartment, which had a narrow entranceway.
       Allegedly, defendant entered farther into the apartment, and the three accomplices stood
       somewhat in a row, closer to the door. All four accomplices testified that they did not have
       a gun that night, that they did not see defendant with a gun that night, and that they did not
       know that defendant had a gun. One of the accomplices saw Little on the floor of the
       apartment and knew that Little was not the target subject that they were looking for. A
       resident of one of the apartments across from Little’s apartment heard the commotion, looked
       out the window, and saw the silhouette of what appeared to be Little being robbed by
       approximately three subjects, with one of the subjects holding a gun on Little. That resident
       went to get the apartment manager and as he did so, a single shot rang out. Little’s neighbor
       also heard the shot. According to the three accomplices, they heard the shot as well but did
       not see defendant shoot Little. Defendant and the three accomplices ran from the area.
       Defendant and two of the three accomplices were in phone contact with the fourth
       accomplice, who was still in the vehicle. Those phone calls and the time and duration were
       documented by phone records, some of which showed a location near the apartment
       complex. Within a short time, defendant and the three accomplices were picked up by the
       fourth accomplice, and they left the area. According to all four accomplices, in the car ride
       home, they never discussed what happened. Nor did they discuss it amongst themselves later.
¶9         Little ran to a cab that was waiting, told the driver that he had been shot, and asked the
       driver to take him to the hospital. The driver went a block and then pulled over and called
       an ambulance. Little passed out in the cab. When the ambulance arrived, Little was taken to
       the hospital where he died a short while later. The fatal wound was a single gunshot which
       grazed Little’s leg, entered his abdomen, traveled upwards, and went through his aorta,
       causing massive internal bleeding.
¶ 10       The following afternoon, defendant left town and took a bus to Minneapolis. Defendant
       gave a male friend money to purchase the ticket for him, and the ticket was in the male
       friend’s name. Bus records were admitted, which showed that a ticket to Minneapolis had
       been purchased on the date in question in the name of defendant’s male friend. Defendant
       allegedly told a female friend, who gave him a ride to the bus station, that he tried to rob a
       guy in Moline the night before and that he shot the guy in the gut because he thought the guy
       was reaching for a gun.


                                                -4-
¶ 11        Defendant did not testify at the trial. However, defense counsel thoroughly cross-
       examined the key State witnesses, including the four accomplices. In addition, defense
       counsel called to the witness stand an inmate at the jail, who was in a cell block with
       defendant. The inmate testified that while in jail, he had overheard one of the accomplices
       telling someone else that defendant was not supposed to be in jail and that they had lied
       about defendant so that they could get out of jail themselves.
¶ 12        During the jury instruction conference, the issue of accountability again surfaced. After
       a brief discussion, the attorneys agreed that accountability was not a part of the case and that
       the jury would not be instructed on the issue of accountability. The trial court did not take
       a position on the matter and merely adhered to the parties’ agreement. However, during
       closing argument, defense counsel attacked the credibility of the four accomplices, who were
       all friends of each other but only an acquaintance of defendant, and suggested “that the
       evidence [showed] that three of these four could have been involved and done the shooting.”1
       The State objected to that comment, and a conference was held outside the hearing of the
       jury. The following conversation ensued:
                 “[PROSECUTOR]: This is why the accountability instruction–
                 THE COURT: Not going to accountability.
                 [PROSECUTOR]: This is why accountability was withdrawn because there was no
            evidence to back up what he is arguing right now. The evidence would show that one of
            these guys could have done the shooting even with that evidence the accountability
            instruction establishes that he is still guilty of murder but they’re not getting instructed
            because as we all agreed there was no evidence to that effect and he wasn’t going to
            argue that.
                 ***
                 [DEFENSE COUNSEL]: The evidence that the State put on was that there were [sic]
            a group there was at least three people in the room, all of the other young men, all of the
            other men testified that they were there, they didn’t see anything. We–it’s just–it’s just
            as believable that one of them carried the gun in as [the defendant], because nobody saw
            somebody [sic] had a gun. I am saying based on the lack of pinpointing where the gun
            is, any of those people in there could have shot him. That’s all I said.
                 THE COURT: Yeah, I think it’s okay.
                 [PROSECUTOR]: That makes the accountability instruction.
                 THE COURT: It may or it may not. ***
                 [PROSECUTOR]: I think he is entitled to argue it’s incredible–it might be that [the
            defendant] did nothing about it. But if his argument was one of the other boys during the
            course of this robbery did it then the accountability instruction is absolutely relevant.
                 THE COURT: Not if [the defendant] didn’t know he was going to commit a robbery.
                 [PROSECUTOR]: There is evidence of that.


               1
               One of the accomplices remained in the car.

                                                 -5-
     THE COURT: I’m going to have the jury step aside.
     (The following proceedings were had out of the presence of the jury.)
     THE COURT: Okay. As the Philadelphia Story says, like I’m in sixth grade.
     [PROSECUTOR]: Here goes then. There is no evidence to back up [defense
counsel’s] argument on this point. First, he is arguing facts that are not in evidence.
Second, if he is creating an inference, if he is arguing based on reasonable inferences,
those reasonable inferences if adduced from the facts in evidence, give rise to the need
for the accountability instruction. There would be evidence of accountability from at least
two of the witnesses who say that there was in fact a plan to go rob somebody, albeit
Demarco Thorton that intent could transfer to Darrell Little. There is–if this is the
inference that [defense counsel] is trying to create, that inference can be cured by the
instruction on accountability for which we had the conference on instruction, [defense
counsel] said he wasn’t going to do this, and now he is doing this.
     THE COURT: Mr. [Defense Counsel].
     [DEFENSE COUNSEL]: The point I am making to the jury Your Honor, is that there
is a group of people who ultimately saw nothing and did nothing and they were in the
same position as the defendant. The defendant is charged with felony murder and any of
those people who were in that apartment could have had a gun, could have done the
shooting.
     THE COURT: Yeah, but how does that–I am inclined at first blush to say that it’s
within the parameters of rationality from the facts in evidence that somebody else could
have shot the defendant–the deceased, but if I get there, how do I escape the
accountability instruction? And if I need the accountability instruction, how do I escape
the fact that the parties agreed to withdraw it and therefore the State didn’t argue it[?]
     [PROSECUTOR]: And beyond that, judge, the fact that [the defendant’s] own
counsel is basically arguing for an acquittal that would ultimately lead to his conviction
on the accountability instruction.
     THE COURT: It’s complicated. Read back the last statements made by defense
counsel before the objection, please. The last argument.
     (The previous statement was read in open court.)
     THE COURT: There is evidence that the three others were involved, but I’d have to
agree with the State that there is no evidence that anyone else could have done the
shooting, other than pure speculation. There is not one statement directly or indirectly
that connects anybody to the deceased. There is a lot of evidence that nobody knows who
is wrestling with the deceased at the time of the shooting, the silhouette person didn’t
know. The lady next door didn’t know. The other defendants, co-defendants, or not co-
defendants in this case but the other persons there who were out there in the car, all
minimized their testimony, but having done so none of them said that they had a gun or
that they did the shooting. The only admission we have is the one that connects the
defendant to the shooting.
     I think it’s a fair argument for the defense that the four friends got together and


                                      -6-
cooked up a story blaming it on the defendant. But I think it’s a stretch to say that there
is evidence that one of the other three did it. And I know I am splitting hairs here, but I
think I am splitting them in the right way. Your opening statement, [defense counsel],
was that the confederates cooked up the story and blamed it on the non-friend. And that’s
kind of the case that you’ve left the jury with. There are really no eyewitnesses to the
shooting. And absent the Alaniz testimony [the female subject who gave defendant a ride
to the bus and to whom defendant allegedly admitted shooting Little], and the flight, I
mean there [are] a lot of circumstantial facts to show that the person who probably did
it was the defendant, but in terms of actual admissions or anything concrete, it’s Alaniz.
So I think it’s within the bounds of the evidence for you to argue that Alaniz is a liar,
which is what you would have to say, and that it’s just as likely as not that somebody else
shot him, but I don’t think you can take it to the next step, which is that there is evidence
that somebody other than the defendant who shot the gun because there is no such
evidence. I think circumstantially you can argue what I’ve just said.
    [DEFENSE COUNSEL]: Well, Your Honor, I thought the point being made was
there were other people who had an opportunity to commit this offense. There were other
people seen in the room and those other people are not telling the truth.
    THE COURT: I think you can say that. But you can’t say that there is evidence.
    [DEFENSE COUNSEL]: Well, that is evidence the fact that people are seen through
the window up to three people, three or four different voices.
    THE COURT: All these are circumstantial facts that you can argue.
    [DEFENSE COUNSEL]: So that is what I was working on.
    [PROSECUTOR]: But he is arguing to create the inference that somebody else did
the shooting. I am assuming that’s why he is arguing that.
    THE COURT: Oh, yes, of course he is.
    [PROSECUTOR]: And once that’s the case, the accountability instruction becomes
very relevant. He objected to the accountability instruction in the conference on
instructions.
    THE COURT: We do have that quandary, don’t we?
    [DEFENSE COUNSEL]: Yes.
    [PROSECUTOR]: And now I get to get up if this is allowed and say, well, actually
the plan does not matter now, ladies and gentlemen.
    THE COURT: I don’t want to shut you down, Mr. [Defense Counsel], because there
is only one person on trial for murder and that’s your client. So I don’t want to shut your
mouth, but I am in a box now, too, because the State’s Attorney has had the rug pulled
out from under him because he didn’t get to argue accountability, which could have
broadened the whole scope of his argument to include every possibility, and now he’s
only got the one shot which is he did it, and even if I allow you to expand it, he’s in a
position of now being the defense attorney, he is going to have to defend his position in
his next argument, and why didn’t he say that before? And I certainly don’t want to do
anymore instructions to the jury in-between ’cause that would be much too much of a

                                      -7-
            highlight and yet I am still reluctant to shut your mouth because of the reasons I have
            already given. Do you persist? Do you want to make this argument?
                [DEFENSE COUNSEL]: No, I don’t wish to make an issue of accountability.
                THE COURT: Here is where I think it has to go. I think if you persist in arguing
            accountability, in essence, passing the buck off to one of the other guys, then I am
            reluctantly going to have to let you do it, then I’m going to have to let the defense–the
            State talk about why it doesn’t matter, and I’m going to have to add the instruction in. I
            think that’s where I have to land in terms of what my responsibility is as the trier of fact.
            So if–I can sustain the objection and then it’s clean and it’s me, but if you want to persist,
            and I know the State’s Attorney will be angry with me for a couple of weeks but he’ll get
            over it.
                [PROSECUTOR]: I will adapt either way, judge.
                THE COURT: But I’m going to have to let you do it. But if so, then the State is going
            to get to challenge it in his reargument, in his rebuttal argument, and then I’m going to
            add that instruction into the mix.
                [DEFENSE COUNSEL]: Well, I will attempt to finish my argument without
            mentioning anything that may be interpreted as accountability.
                THE COURT: Okay. We’ll play it the way–you play it as you will from here. I think
            that is where I have to go. Okay. Bring the jury back in.”
       When the jury returned, the trial court informed the jurors that the objection was sustained
       and that they were to disregard the comment as being outside the evidence.
¶ 13        After the closing arguments were concluded, the jury was instructed on the law. The
       initial instructions did not include an accountability instruction. During the second day of
       deliberations, the jury came back with a question for the trial court. The jury’s question read
       as follows: “Under Illinois law during a robbery if one of the robbers commits murder all are
       liable for that murder?” The trial court and the attorneys discussed how the question would
       be answered. The following conversation ensued:
                “THE COURT: *** The obvious answer is, yes, but that doesn’t answer all the
            questions. How do you propose we respond to this, Mr. State’s Attorney?
                [PROSECUTOR]: Judge, if I may create a brief record.
                THE COURT: Yes.
                [PROSECUTOR]: The court recalls following opening statements by both counsel–
                THE COURT: How about first just tell me how you think I ought to respond to this.
                [PROSECUTOR]: I think the court should answer the question and give the jury
            directive on the rule of law.
                THE COURT: So you’re requesting instructions and my short answer of yes?
                [PROSECUTOR]: I would request the instructions, and if the court chooses to
            answer, yes, that’s fine.
                THE COURT: All right. Now make your record.
                [PROSECUTOR]: As a matter of a brief record, both counsel conducted opening

                                                  -8-
statements. Before I called my first witness I asked all–if all counsel could approach the
bench, the court allowed that. I indicated at that time that defense counsel’s opening
statement created an accountability, if that was the case theory they were proceeding on,
it created an accountability scenario that would deem the instructions to be appropriate.
I don’t recall whether or not the court agreed at that time, but I do recall we addressed
that issue at the outset. We then proceeded to call the witnesses. During the course of the
testimony [defense counsel] inquired as to whether or not all of these witnesses received
deals in exchange for their testimony to implicate [the defendant], so that started laying
the foundation for [the defendant] didn’t kill Mr. Little, you all just got deals to avoid
murder yourself. That’s exactly the line of defense that he created on cross-examination.
Then in the defense case-in-chief the witness that they decided to call established the fact
that Andre Richardson [one of the four accomplices] admitted in jail to lying and
basically framing [the defendant] for the homicide. At no point does [defense counsel]
confront anybody that [the defendant] was not part of this. As a matter of fact in his
opening statement he acknowledged that the evidence would show that [the defendant]
was there but he was the outsider and that the jury or that these four boys pointed the
finger at [the defendant] because they got deals. Then in the conference on instructions,
the informal conference, I offered up the accountability instructions to the court
highlighting the fact that at this point–at the informal conference on instructions there
had not been any evidence by the defense. At the informal conference on instructions I
highlighted the fact that based on [defense counsel’s] opening statement, we had
evidence of–or there could be evidence of accountability. We decided that we would
address it as it came up. Defense proceeded with their case, presented Delvonte Hearn
[defendant’s cell mate]. Delvonte Hearn said that Andre Richardson lied about–or Andre
Richardson admitted to lying on [the defendant]. The defense rested. The State
argues–and we do the conference on instructions, the formal conference on instructions
at that point. I have in that formal conference on instructions the accountability
instructions as to felony murder. At that time it was agreed that [defense counsel] was
not going to argue the accountability issues. I said that is when it would be proper for the
instruction. Everybody agreed that [defense counsel] wasn’t going to do that, at that point
the instructions were withdrawn. We then proceed to closing arguments. I argued [the
defendant] as principal, not as an accountable act. [Defense counsel] gets up and begins
the process of arguing that [the defendant] is not the principal. I object. Initially the court
overruled my objection. We take up the matter outside the presence of the jury, we go
through the process of arguing about the instructions and things of that nature, [defense
counsel] said that he would not pursue that line of argument further. We then go back on
at which time [defense counsel] continues with the fact that these four boys made up a
story, [the defendant] is the outsider, they’ve all got deals. The direct implication of that
is that [the defendant] is not the shooter. Again, no evidence showing that [the defendant]
was not present and not participating, but just that [the defendant] was not the shooter.
     THE COURT: Okay. I got it. What do you think I ought to do?
     [DEFENSE COUNSEL]: Your Honor, I presented evidence and argued to the jury
that [the defendant] was not guilty of this offense. You can’t trust the testimony of the

                                       -9-
other people. I never named a person that did it, I never said the other four did it, I just
said there were five people there and [the defendant’s] involvement more or less is
because they, the State, bought the testimony through giving them deals.
     Accountability was specifically excluded in the case by the State was [the defendant]
did it [sic], these other people were there, and they’re going to testify to it. Individual
responsibility of [the defendant] that’s how they pled the case and that’s how the jury was
instructed. Now the State’s saying that I brought accountability back into it and I
disagree. I don’t think there is anything I said or did that–what would bring
accountability in? I don’t want accountability in. I don’t want to argue [the defendant]
along with these other people were there and somebody else shot him and named that
person and we open up this door where they’re all accountable. For some reason, the
State wanted to go after him individually and charge the others the way they did. And I
simply pointed out it was unfair that the–[defendant] is getting charged with murder
because of lies by the other individuals. We don’t know who shot–nobody saw who shot
him, nobody saw a gun. The evidence is weak. I argued to them proof beyond a
reasonable doubt.
     THE COURT: Okay. Here is the way it stacks up in my mind. The defendant was
charged with shooting Darrell Little himself. And that’s how the case got tried. That was
the charge and that was the State’s evidence. It came in primarily through Myranda
Alaniz. The defense case was that the defendant didn’t shoot the deceased and that
everybody got a deal to lie on the defense. There is really no evidence that anybody could
have shot the decedent other than one of the five people that were there, four people, one
was in the car. So one of the four people who were present, including the defendant, shot
the deceased. So it’s clearly an accountable case because there is more than enough
evidence that there was a robbery. We’re in this pickle because both the State and the
defense for their own respective reasons decided to pull the accountability instruction out
of the box. And everybody knew where they were going when they did that. So I am not
impressed by anybody’s woe is me argument or surprise argue [sic]. Everybody–the State
had their reasons why tactically why they didn’t want to the preferred to do it this way,
presumably to try to off set the deals that we’re made. And the defense had a reason why
they didn’t want it, because they probably couldn’t win the case if there was an
accountability instruction. But I think the question I have to ask myself is, whether this
is a new theory. It’s not a new charge but whether it’s a new theory that is not being
presented after the jury commenced its deliberations.
     Clearly the defense’s theory is that the other guys who were one in all guilty of
murder, were not charged with murder because they had a deal. The bottom line there is
that they were guilty of murder too, but they got together and dumped it all on [the
defendant] and therefore they weren’t charged with murder. If we now tell the jury that
it’s accountable, it’s an accountability issue, was the defense denied an opportunity to
respond to it? No, they weren’t. All of the evidence that could possibly be developed on
this question was presented. All of the people that were there, except the defendant,
testified.
     At the core of all of this, it’s the defendant’s theory to the jury that one of the other

                                      -10-
guys committed the murder, one or more of the other guys committed the murder and
blamed it on him.
    If the accountability instruction was there, would that have damaged his ability to
defend with that theory? I don’t believe so because there was nothing else really he could
say. The entire defense–the factual defense was thoroughly presented. If the
accountability instruction had been given timely, as it’s pretty obvious now that it should
have been, the evidence would not have changed, the defendant didn’t testify. Because
the only evidence that he could present that would help himself is that he was never
there, they not only dumped it on him, but he was not there.
    I am really dragging this out and being reluctant because–
    [DEFENSE COUNSEL]: Your Honor.
    THE COURT: Yes.
    [DEFENSE COUNSEL]: The fact that the defendant didn’t testify was a decision we
made based on how the case was being tried. If we knew that accountability was going
to be argued, he may have testified. He didn’t testify because we thought the four
witnesses were not that strong.
    [PROSECUTOR]: Judge, the instructions conference occurs at the close of the
evidence. [The defendant] has to make that call well before instructions are talked about.
    THE COURT: I’m sure [the defendant] didn’t testify because of his record.
    I’m going to give the instruction. And so the Appellate Court can tell me where I
went wrong, if that’s what happened. Accountability, the factual basis for a theory of
accountability has been introduced by the defense, actually they have introduced the
reverse of it. They’re saying we’re not accountable because I didn’t do it, one of those
guys did it, and so I’m not guilty. Factually, as a matter of law, he is guilty if one of those
guys did it. So, when I am looking at the statute, the defendant has not been denied his
right to reply to the theory, and that’s the bottom line that I have to look at. Whether the
defendant was unable to present a defense to this new theory because I am introducing
an instruction that expands the playing field, I am clearly expanding the playing field but
I am not expanding it to the defendant’s detriment, because he had an opportunity to
present the theory because in fact he is the one that introduced the theory. So I am taking
my chances on giving the instruction. Bring the jury in please.
    (The following proceedings were had in the presence of the jury.)
    THE COURT: Please be seated. Ms. Reporter, please show that the jury is back in
court with a question. *** The question is, ‘Under Illinois law during a robbery if one
of the robbers commits murder, are all liable for that murder.’ And for the record I am
displaying the answer. And the answer is, ‘Yes.’
    I am going to give you two additional instructions.
    ‘To sustain the charge of first degree murder, it is not necessary for the State to show
that it was or may have been the original intent of the defendant or one for whose
conduct he is legally responsible to kill the deceased, Darrell Little.
    It is sufficient if the jury believes from the evidence beyond a reasonable doubt that

                                       -11-
           the defendant and one for whose conduct he is legally responsible combined to do an
           unlawful act, such as to commit Attempt Robbery and that the deceased was killed by
           one of the parties committing that unlawful act.’
                The second instruction. ‘A person is legally responsible for the conduct of another
           person when, either before or during the commission of an offense, and with the intent
           to promote or facilitate the commission of an offense, he knowingly solicits, aids, abets,
           agrees to aid, or attempts to aid the other person in the planning or commission of the
           offense.
                The word “conduct” includes any criminal act done in furtherance of the planned and
           intended act.’
                That concludes this answering of the question. You may return the jury to their
           deliberations, please.”
¶ 14       After the jury left the room and went back to deliberations, the trial court discussed the
       matter further. Of relevance to this appeal, the following comments were made:
                “THE COURT: *** [T]here could be no doubt that the defendant is in a different
           position given the instruction that I just gave them than he was before, good or bad, I
           don’t know what the jury is thinking, but maybe he is better off now than he was before.
           Maybe he is worse off, but he certainly is in a different place. But my concern simply is
           whether the defense had an opportunity to reply to this theory.
                [PROSECUTOR]: Well, my point, judge, is that this may–we don’t know this may
           not be even in reference to the defendant. It may be in reference to how good of a deal–
                THE COURT: We never get to know that, nor do I have any right to be thinking
           about that when I am making a decision. You get a new instruction after they deliberate
           when they were not originally instructed if it’s not a new theory, which it isn’t, and if the
           jury–if the defendant had an opportunity to present evidence regarding that theory. Both
           of those tests have been met, that’s why I have done it. Everything else is neither here nor
           there. Period.”
¶ 15       About two hours later, the jury returned with a verdict and found defendant guilty of
       felony murder. Defendant filed a motion for new trial and argued, among other things, that
       the trial court committed reversible error in giving the jury the accountability instruction.
       After a hearing, the trial court denied the motion, stating in part:
                “With regard to accountability, I think I made the right decision and we’ll just have
           to see. It’s not something that happens every day, but it isn’t the first time that it’s
           happened and I think the State is correct and I believe that I was correct when I ruled that
           the question of accountability is always on the table. And when a question of law
           presented or requested by the jury it is my duty to properly instruct them and I believe
           that I have properly instructed them. So the motion with regard to accountability will be
           denied. And therefore the motion for new trial will be denied.”
       After a sentencing hearing, defendant was sentenced to 50 years’ imprisonment. Defendant’s
       motion to reconsider sentence was denied, and this appeal followed.



                                                 -12-
¶ 16                                           ANALYSIS
¶ 17        On appeal, defendant argues first that he was denied his due process right to a fair trial
       when the trial court instructed the jury on a new theory of guilt, accountability, in response
       to a jury question after the jury had begun its deliberations. Defendant asserts that the trial
       court’s conduct deprived him of the right to address the theory of accountability in his
       closing argument and requires that his conviction be reversed and that his case be remanded
       for a new trial. The State does not dispute that accountability was a new theory of guilt and
       that it was error for the trial court to instruct the jury on that new theory after deliberations
       had already begun. The State argues, however, that the error was harmless because the issue
       of accountability was interjected into the case by defense counsel in closing argument and
       because the evidence of defendant’s guilt as a principal was overwhelming.
¶ 18        A trial court’s determination of whether to give a particular jury instruction will not be
       reversed on appeal absent an abuse of discretion. See People v. Jamison, 207 Ill. App. 3d
       565, 567 (1991). An abuse of discretion occurs where the trial court’s ruling is arbitrary,
       fanciful or unreasonable, or where no reasonable person would take the view adopted by the
       trial court. People v. Donoho, 204 Ill. 2d 159, 182 (2003).
¶ 19        In People v. Millsap, 189 Ill. 2d 155 (2000), our supreme court addressed the same issue
       that is raised in the present case in a similar factual context. In discussing that issue, the
       supreme court stated as follows:
                 “The general rule when a trial court is faced with a question from the jury is that the
            court has a duty to provide instruction to the jury when the jury has posed an explicit
            question or requested clarification on a point of law arising from facts about which there
            is doubt or confusion. [Citation.] Nevertheless, a trial court may exercise its discretion
            to refrain from answering a jury question under appropriate circumstances. [Citation.]
            Appropriate circumstances include when the instructions are readily understandable and
            sufficiently explain the relevant law, where further instructions would serve no useful
            purpose or would potentially mislead the jury, when the jury’s inquiry involves a
            question of fact, or where the giving of an answer would cause the court to express an
            opinion that would likely direct a verdict one way or another. [Citation.] Further, the
            court should not submit new charges or new theories to the jury after the jury commences
            its deliberations. [Citation.]
                                                  ***
                 *** Because the court in this case instructed the jury on accountability after the jury
            had begun its deliberations, defendant’s attorney was entirely deprived of an opportunity
            to defend against that theory.
                 Significantly, the court’s response to the jury’s question not only violated a statutory
            procedure, it impinged upon a constitutional right. The United States Supreme Court held
            in Herring v. New York, 422 U.S. 853, 857-59, 45 L. Ed. 2d 593, 598, 95 S. Ct. 2550,
            2553-54 (1975), that a defendant’s right to make a closing argument is guaranteed by the
            Constitution. ***
                                                  ***
                 When faced with the jury’s question, the court should have told the jurors that they

                                                 -13-
           had the instructions applicable to this case and that they should keep deliberating. The
           State elected to charge defendant as a principal and to argue that defendant was guilty as
           a principal. If, as the State insists, an accountability instruction was appropriate in this
           case, the State should have asked for such an instruction at the proper time. It was too
           late for the State to change its theory of the case after the case had been sent to the jury.
           The court should not submit new charges or new theories to the jury after the jury
           commences its deliberations. [Citation.]” Millsap, 189 Ill. 2d at 160-65.
¶ 20       This court had addressed a similar issue almost 10 years earlier in People v. Jamison and
       had reached the same conclusion. See Jamison, 207 Ill. App. 3d at 567-68. Based upon
       Millsap and Jamison, there can be no dispute in the present case, and indeed there is no
       dispute, that the trial court erred in instructing the jury on a new theory of guilt,
       accountability, during deliberations, in response to the jury’s question. See Millsap, 189 Ill.
       2d at 160-65; Jamison, 207 Ill. App. 3d at 567-68. Although the State argues that the error
       was harmless because it was interjected by defense counsel in closing argument and because
       the evidence of defendant’s guilt as the principal in this case was overwhelming, we are not
       persuaded by that argument. The supreme court in Millsap outright rejected any claim of
       harmless error in this context, stating: “Clearly, the court’s error was not harmless. The
       Constitution guarantees defendants the right to make a closing argument, no matter how
       ‘ “simple, clear, unimpeached, and conclusive the evidence may seem.” ’ ” Millsap, 189 Ill.
       2d at 166 (quoting Herring, 422 U.S. at 860 (quoting Yopps v. State, 178 A.2d 879, 881
       (Md.1962))). Moreover, we are not convinced that defense counsel’s brief comment in
       closing argument, that one of the accomplices could have shot the victim, was sufficient to
       interject the issue of accountability into this case. See People v. Wilson, 312 Ill. App. 3d 276,
       285 (2000). To draw that inference, we would have to speculate as to the thought process of
       the jury during deliberations that led to the posing of the question to the trial court. In
       addition, even if we were to conclude that this was invited error, we have found no authority
       to suggest that invited error, however slight, would allow us to ignore the clear precedent set
       forth in Millsap.
¶ 21       In reaching the conclusion that we have reached in the present case, we have found the
       case of People v. Wilson, cited above, to be nearly factually identical to the present case and
       highly persuasive. In Wilson, the defendant was charged as a principal with murder and under
       a theory of accountability with armed robbery. Wilson, 312 Ill. App. 3d at 277-83. Because
       the defendant was charged as a principal with murder, the jury was not instructed on a theory
       of accountability as to the murder charge. Wilson, 312 Ill. App. 3d at 282-83. During closing
       arguments, defendant’s attorney commented that one of the accomplices was believed to
       have had a gun and could have been the person who shot the victim. Wilson, 312 Ill. App.
       3d at 287. After 10 hours of deliberations, the jury asked a question that raised an issue of
       accountability as to the murder charge. Wilson, 312 Ill. App. 3d at 283. Over defense
       counsel’s objection, the trial court instructed the jury on accountability, and the jury
       subsequently convicted defendant. Wilson, 312 Ill. App. 3d at 283-84. The appellate court,
       following Millsap and Jamison, found that the defendant had been denied his due process
       right to a fair trial in that the jury was instructed on a new theory of the case after
       deliberations had started and defendant was not given an opportunity to make a closing

                                                 -14-
       argument on that new theory. Wilson, 312 Ill. App. 3d at 285-87. In reaching that conclusion,
       the appellate court rejected the State’s assertion that defense counsel had interjected the issue
       into the case by his comments in closing argument, stating:
                “Arguments and statements based upon the facts and evidence, or upon reasonable
           inferences drawn therefrom, are within the scope of proper closing. [Citation.] Under the
           particular facts of this case, the defense’s arguments and statements were based upon
           reasonable inferences drawn from the evidence. Unlike the trial court’s conclusion, we
           do not believe defense counsel’s argument gave rise to an inference that defendant had
           aided, abetted, or had acted in concert with anyone else in shooting the victim. The
           evidence pertaining to the murder charge did not support the accountability instruction.
           The State and the defense were advocating an all-or-nothing decision, i.e., either
           defendant shot Taylor or he did not. By tendering the accountability instruction, the court
           interjected into the case a theory that was contrary to the theories of the defense and the
           State and, perhaps, allowed the jury to avoid making the difficult decision of whether
           defendant had been proved guilty beyond a reasonable doubt of murder by settling for a
           compromise decision based on a theory that the defense had had no chance to address.
                We conclude that, because the defense never had the opportunity to argue
           accountability as it pertained to the murder charge and because the jurors’ query after 10
           hours of deliberation implied that they had not yet reached a verdict on the murder charge
           and had some concerns as to whether defendant was the shooter, the trial court abused
           its discretion in submitting an instruction that presented a new theory. [Citation.] We are
           cognizant that the State also did not have an opportunity to argue accountability, but
           defendant was far more prejudiced by the defense’s inability to address the inapplicability
           of this theory than was the State. Allowing the instruction provided the State with two
           theories on which the jury could base its finding of guilty of murder rather than on the
           single original theory presented at trial that defendant shot the murder victim. As
           defendant was possibly convicted upon a theory that he was never given a chance to
           address, we believe he was denied a fair trial.” Wilson, 312 Ill. App. 3d at 287.
¶ 22       Based upon the rulings in Millsap, Jamison, and Wilson, we find that defendant was
       denied a fair trial in the instant case when the trial court instructed the jury on a new theory
       of guilt, accountability, in response to a jury question, after jury deliberations had begun.
       Therefore, we reverse defendant’s conviction for felony murder and remand this case for a
       new trial. Even though it is clear from the record that the trial court knew the law in this area,
       considered the impact of the choices available to it, thoroughly discussed this issue with the
       attorneys before making a decision, and placed its thought process on the record for the
       benefit of this court, we still must conclude that the trial court committed an abuse of
       discretion when it found that accountability was not a new theory and instructed the jury on
       accountability after jury deliberations had already begun. See Millsap, 189 Ill. 2d at 160-65;
       Jamison, 207 Ill. App. 3d at 567-68; Wilson, 312 Ill. App. 3d at 285-87.
¶ 23       Having determined that defendant is entitled to a new trial, we need not specifically
       address defendant’s second contention, that his sentence of 50 years’ imprisonment was
       excessive.


                                                 -15-
¶ 24      For the foregoing reasons, we reverse defendant’s conviction and sentence for felony
       murder and remand this case for a new trial.

¶ 25      Reversed and remanded.




                                            -16-
