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No. 3--01--0629

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2003

JUSTICE SCHMIDT delivered the opinion of the court:

At trial, it was undisputed that on March 1, 2000, JarvisJackson shot and killed Michael Douglas near Douglas's mother's homein Peoria Heights and then shot and killed Bertha Diaz in anapartment at 711 Shipman in Peoria. The issue at trial was whetherDwaine Johns was accountable for the homicides. The events leadingup to these murders were recounted by both the defendant, whotestified in his own behalf, and Jarvis Jackson, who testifiedagainst the defendant as part of a plea bargain in which the Stateagreed not to seek the death penalty against Jackson.

Defendant testified that on the evening in question, he agreedto accompany Jackson and Derrick Echols to "collect some money" fromMichael Douglas. The three men rode to 711 North Shipman in Peoriain Jackson's vehicle. Jackson knocked on the apartment door, kickedit in and entered the apartment. Defendant testified that he neversaw a gun until Jackson kicked in the door. At that point, Jacksonwaved the gun and told defendant and Echols to enter the apartment. Diaz and Douglas were sitting on the couch when the three entered theapartment. Jackson approached Douglas and demanded to know where"the shit" was. Defendant heard Douglas and Jackson argue andDouglas mentioned that "it" was at his mom's. Jackson then tookDouglas upstairs and returned with Douglas and a second gun. Hehanded the second gun to the defendant and told defendant to staywith Diaz.

Defendant remained in the apartment with Diaz for approximately45 minutes before Jackson returned. During that time, there was asmall baby in a playpen on the first floor and another small boyupstairs who came down and sat with Diaz. Diaz allegedly tolddefendant that Douglas did not keep that kind of "stuff" in the housebecause they had been robbed before. Defendant states that he toldDiaz that he was not there to get anything and did not even know whatwas going on. Defendant testified that he did not leave theapartment because he was afraid that Jackson was outside the door. Defendant claims that he kept the gun in his pocket the entire timethat he sat with Diaz during Jackson's absence. According todefendant, when Jackson returned, he told defendant to leave. Defendant gave Jackson the second gun and left the apartment. Ten tofifteen seconds later, defendant heard a gunshot.

Jackson left the apartment, shoved defendant into his car, andsped away. While they were driving away from the scene, Jacksonmentioned that he had shot Douglas because Douglas had tried to run. Jackson gave the gun to defendant and told him to hide it. Defendantsaid he buried it in his backyard, but the next day, he dug it up andreturned it to Jackson. Defendant did not go to the police until helearned that they were looking for him. He claimed that he initiallyremained quiet and did not inform police of what happened because hefeared Jackson and his brother, who had threatened him if he talked. Jackson threatened to tell the police that defendant was the shooterif he talked.

Defendant told a police detective in September of 2000 that heknew who killed Douglas and Diaz. However, he did not give anyfurther details until he gave a voluntary statement on January 6,2001. Defendant subsequently assisted the police by arranging tomeet Jackson at a Wal-Mart store, where Jackson was taken intocustody.

In rebuttal, Jackson testified that he, defendant and Echolshad planned to go to Douglas's residence to rob him and thatdefendant saw Jackson's gun when Jackson came to pick him up. Jackson also said that defendant was standing next to him when heshot Diaz. Jackson admitted that he initially told the police thatdefendant was the shooter, but in a later statement, he admitted thathe shot both Douglas and Diaz. He subsequently pled guilty to bothmurders and agreed to testify against defendant in exchange for asentence of natural life imprisonment.

ISSUES AND ANALYSIS

I. Accountability for Felony Murder

a. General Principles Involved

First, we consider defendant's contention that he was notproved guilty on the theory of accountability because the Statefailed to prove that he intended to promote or facilitate the robberyor attempted robbery of Douglas. The State argues that the defendantknew about the plan to rob Douglas, and the murders would not haveoccurred but for defendant's conduct.

Upon the conviction of a defendant, a reviewing court willpreserve the role of the trier of fact as weigher of the evidence byviewing the evidence in the light most favorable to the prosecution. People v. Collins, 106 Ill. 2d 237, 478 N.E.2d 267 (1985). Issues ofwitness credibility are reserved for the trier of fact as well. Therelevant question is whether any rational trier of fact could havefound the elements of the crime beyond a reasonable doubt. People v.Campbell, 146 Ill. 2d 363, 586 N.E.2d 1261 (1992).

A person commits attempted robbery when, with intent to commitrobbery, he takes any substantial step toward the commission of arobbery. 720 ILCS 5/8--4, 18--1(a) (West 2000). He commits arobbery when he takes property from the person or the presence ofanother by the use of force or by threatening the imminent use offorce. 720 ILCS 5/18--1(a) (West 2000).

To prove an offense by accountability, the State must provethat, either before or during the commission of an offense, thedefendant solicited, aided, abetted, agreed or attempted to aidanother in the planning or commission of the offense. 720 ILCS 5/5--2(c) (West 2000). While mere presence at the scene of an offense isnot culpable, proof that the defendant was present during thecommission of a crime without opposing or disapproving it, that hemaintained a close affiliation with the principal afterwards, andthat he failed to report the crime are all factors that may beconsidered in determining legal accountability. People v. Grice, 87Ill. App. 3d 718, 410 N.E.2d 209 (1980).

The "common design rule" provides that, where two or morepersons engage in a common criminal design or agreement, any furtheracts committed by one party are considered to be the acts of allparties to the common design and all are equally accountable for theconsequences of such further acts. People v. Jackson, 333 Ill. App.3d 962, 777 N.E.2d 626 (2002). A common design may be inferred fromthe circumstances surrounding the commission of a crime. People v.Lee, 247 Ill. App. 3d 505, 617 N.E.2d 431 (1993).

Felony murder derives its mental state from the underlyingintended offense. Felony murder seeks to deter persons fromcommitting forceable felonies by holding them responsible for murderif a death results. People v. Viser, 62 Ill. 2d 568, 343 N.E.2d 903(1975). A defendant may be found guilty of felony murder regardlessof a lack of intent to commit murder. People v. Moore, 95 Ill. 2d404, 447 N.E.2d 1327 (1983). Illinois adheres to a proximate causeapproach to felony-murder liability. People v. Lowery, 178 Ill. 2d462, 687 N.E.2d 973 (1997).

Applying these principles, we discuss below defendant'sconvictions for the felony murders of Michael Douglas and BerthaDiaz.

b. Accountability for Felony Murder of Douglas

The State's evidence established that defendant willinglyaccompanied Jackson and Echols to Douglas's home with the intent torob him. Defendant continued to participate in the criminalenterprise by agreeing to remain at Douglas's apartment, holdingBertha Diaz at gunpoint while Jackson and Echols escorted Douglas tohis mother's house to obtain Douglas's property. There is noquestion that defendant was a participant in the attempted armedrobbery of Douglas. The only logical presumption is that defendantheld Diaz at Douglas's apartment to keep her from notifying policewhile Jackson and Echols drove Douglas to his mother's house. Afterthe robbery or attempted robbery of Douglas, defendant resumed hisassociation with Jackson and did not report the incident to thepolice when he learned that Douglas had been killed during theattempted robbery. Furthermore, defendant took possession of themurder weapon immediately after the murder, hid it at his house forapproximately one day, thought better of that and then, rather thanturn the gun over to police, returned it to the shooter. Theevidence was thus more than sufficient to prove that defendant wasaccountable for the felony murder of Douglas. See, i.e., Jackson,333 Ill. App. 3d 962, 777 N.E.2d 626.

c. Accountability for Felony Murder of Bertha Diaz

Next, defendant contends that he cannot be held accountable forthe murder of Diaz because the attempted robbery or robbery ofDouglas ended before Diaz was shot. The State responds that thedefendant waived the argument. In his posttrial motion, thedefendant argued that the State's evidence was insufficient tosupport his convictions. While the argument he presents in thisappeal is more focused than the issue presented in the trial court,it nonetheless challenges the sufficiency of the State's evidence toconvict; therefore, we review the issue on its merits. People v.Thomas, 277 Ill. App. 3d 214, 660 N.E.2d 184 (1995).

Defendant relies on People v. Dennis, 181 Ill. 2d 87, 692N.E.2d 325 (1998), and People v. Shaw, 186 Ill. 2d 301, 713 N.E.2d1161 (1998), to support his argument that he cannot be guilty of thefelony murder of Bertha Diaz. He argues that since the underlyingfelony was the intended robbery of Michael Douglas, that robberyended upon the murder of Douglas and, therefore, he cannot be liableunder the felony-murder rule for the murder of Bertha Diaz. Wedisagree. Defendant's reliance on Dennis and Shaw is misplaced.

Dennis is an accountability case in which the supreme courtruled that the defendant could not be accountable for an armedrobbery even though he helped the perpetrator escape from the armedrobbery. This was so because the armed robbery was complete beforedefendant's involvement. It was complete because not only had theproperty been taken, but the threat of force had ceased before theescape. People v. Dennis, 181 Ill. 2d 87, 692 N.E.2d 325 (1998).

Shaw is a felony-murder case where the supreme court held thata defendant could not be held guilty of the felony murder of a policeofficer killed during an escape from an armed robbery. The supremecourt found that there was not sufficient evidence to show that thedefendant had anything to do with the armed robbery other than to bein the general vicinity and to transport the perpetrator away fromthe vicinity. People v. Shaw, 186 Ill. 2d 301, 713 N.E.2d 1161(1998). That is, in both Shaw and Dennis, the court found that thedefendants had nothing to do with the underlying felony of armedrobbery.

Here, defendant was a participant in the armed robbery. Hewent to the victim's home and held Bertha Diaz at gunpoint so thatJackson could take Douglas to look for the money elsewhere. Defendant held Bertha Diaz at gunpoint for approximately 45 minutesuntil Jackson returned. Defendant's use of force in this case was noless significant in effectuating the armed robbery than was that ofJackson. Likewise, the use of force against Bertha Diaz was no lesssignificant with respect to the armed robbery of Michael Douglas thanwas the use of force against Douglas himself. Obviously, this factwas not lost on the armed robbers, otherwise, all three of them wouldhave accompanied Michael Douglas to his mother's house to leaveBertha Diaz to do as she pleased, which probably would have includednotifying the police that an armed robbery was in progress.

Defendant then argues that with the death of Michael Douglas,the attempted robbery of Douglas was complete and therefore thesubsequent murder of Bertha Diaz, approximately four miles away,could not be a result of the armed robbery of Douglas. Not so. Forthe felony-murder rule to attach, the act causing the death must bothoccur during the underlying felony and be the direct and proximateresult of the felony. People v. McCarroll, 168 Ill. App. 3d 1020,523 N.E.2d 150 (1998); People v. Dekens, 182 Ill. 2d 247, 695 N.E.2d474 (1998). However, for the purposes of the felony-murder rule, thearmed robbery is not complete until the conspirators have won theirway to a place of temporary safety.

It is important to note that this armed robbery began at theapartment of Bertha Diaz at 711 Shipman in Peoria. Defendantremained at this scene, holding Bertha Diaz at gunpoint, untilJackson returned and executed her. The fact that Bertha Diaz was notthe intended victim of the armed robbery is irrelevant. People v.Bongiorno, 358 Ill. 171, 192 N.E.2d 856 (1934). Defendant arguesthat upon the murder of Douglas, the armed robbery was complete sinceDouglas could no longer be forced to part with property and since theuse of force against Douglas had ceased. This argument ignores thefact that the force being exerted against Bertha Diaz had not ceased. Likewise, one of the co-conspirators, the defendant, remained at theoriginal scene of the armed robbery with Bertha Diaz.

People v. Johnson, 55 Ill. 2d 62, 302 N.E.2d 20 (1973), is veryinstructive. In Johnson, at least two robbers entered a tavern andcommitted an armed robbery at gunpoint. Both had fled the tavern. Approximately two seconds later, one of the robbers reentered thetavern and fatally wounded a patron. It was argued by the defendantthat he could not be guilty of the felony murder of the patronbecause the armed robbery had been completed once the robbers hadfled the tavern. Our supreme court, in affirming the felony-murderconviction, stated, "Why [the shooter] returned two seconds afterleaving the tavern to kill the woman cannot be certainly determined,but the jury could have concluded that it was because he sensed shehad recognized him. By killing her he would improve the defendant'sand his chances for escape, would avoid detection for the crimes, andwould eliminate the possibility of [the victim] testifying againsthim." People v. Johnson, 55 Ill. 2d at 69. This is analogous to thesituation at bar. However, this is even a stronger case because,unlike in Johnson, here the threat of force against Bertha Diaz thatbegan the armed robbery did not cease, nor was it even interruptedmomentarily, until her execution. As in Johnson, here the jurycertainly could have concluded that by killing Bertha Diaz, Jacksonimproved the defendant's and his chances for escape, would avoiddetection for the crimes and would eliminate the possibility ofBertha Diaz testifying against him.

The force used to effectuate the attempted armed robbery ofMichael Douglas involved the force used against Bertha Diaz andMichael Douglas. The force used against Bertha Diaz began whenJackson, Echols, and defendant burst into Diaz's apartment and endedwhen Diaz was executed. There was more than sufficient evidence toconvict defendant of the felony murder of Bertha Diaz. Theconviction is affirmed.

II. Defendant's Natural Life Sentence

Defendant's attack on the imposition of his natural lifesentence is threefold. Defendant claims that such a sentenceviolates both the due process clause (Ill. Const. 1970, art. I,