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Docket No. 86871-Agenda 5-September 2000

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee and
Cross-Appellant, v. MARCUS COOPER et al., Appellants and
Cross-Appellees.

Opinion filed November 22, 2000.

CHIEF JUSTICE HARRISON delivered the opinion of the court:

Following a joint bench trial held in the circuit court of Cook County, Marcus Cooper and Chester Starnes (defendants)were convicted of the first degree murder of Derrick Henderson (720 ILCS 5/9-1(a)(2) (West 1994)) and the aggravatedbattery with a firearm of Charles Robinson (720 ILCS 5/12-4.2(a)(1) (West 1994)). Both convictions were based on anaccountability theory. The appellate court affirmed defendants' convictions for aggravated battery with a firearm, butreversed the first degree murder convictions and remanded the cause to the trial court for a determination of whetherdefendants were prejudiced in their defense by the State's failure to include a charge of felony murder in defendants'indictments. Nos. 1-95-3211, 1-95-3212 cons. (unpublished order under Supreme Court Rule 23). The appellate courtfurther ordered that should the trial court find that defendants were not prejudiced, it could then consider whether the Statesufficiently proved defendants guilty of felony murder. We allowed defendants' alternative petition for appeal as a matterof right or leave to appeal. 134 Ill. 2d R. 317; 177 Ill. 2d R. 315.

Defendants argue before this court that the appellate court erred in remanding the cause for consideration of whether theState sufficiently proved defendants guilty of felony murder after the appellate court reversed defendants' convictions forfirst degree murder on the basis that defendants were not accountable for the murder. Defendants also contend that theirconvictions for aggravated battery with a firearm should be reversed. The State on cross-appeal argues that defendants wereproperly convicted of first degree murder based on an accountability theory.

In summary, the record reveals that on June 25, 1994, a shooting occurred in the City of Chicago between members of theGangster Disciples and Black Disciples, rival street gangs. Both defendants admitted being Gangster Disciples, as didTracy Stofer, who was tried with defendants and acquitted. Henderson, the murder victim, was also a member of theGangster Disciples. Robinson, the aggravated battery with a firearm victim, was a member of the Black Disciples.Robinson testified at trial that he saw defendants shooting at the Black Disciples. Some of the Black Disciples returned fire.Henderson was killed and Robinson was shot twice. The trial court made factual findings that both defendants had firedweapons in the direction of the Black Disciples, that it was "foreseeable" that the Black Disciples would return fire, andthat Henderson was killed as a result of the return fire by the Black Disciples. The trial court therefore found defendantsguilty of first degree murder and aggravated battery with a firearm.

Thereafter, at the hearing on defendants' post-trial motions, the trial court clarified that defendants were found guilty offirst degree murder under accountability principles rather than felony-murder principles, because the State never chargedfelony murder in the indictment. The trial court further explained that it had found that defendants were the initialaggressors, that the Black Disciples had returned fire in self-defense, and that defendants were properly found guilty of the"knowing murder of Derrick Henderson because they knew and it was foreseeable that when they fired *** death or greatbodily harm could result and it was foreseeable that in firing at rival gang members that rival gang members may haveweapons to return fire." The trial court also stated that it specifically found Robinson to be credible with regard to theidentity of the shooters. Finally, because Robinson was wounded by either Cooper or Starnes, "under either situation[defendants] are accountable for that aggravated battery with a firearm." The trial court then denied defendants' post-trialmotions and, following a sentencing hearing, imposed on Cooper concurrent terms of 25 years' imprisonment for the firstdegree murder conviction and 18 years' imprisonment for the aggravated battery with a firearm conviction. Starnes wassentenced to 50 years' imprisonment for the first degree murder conviction and a concurrent term of 30 years'imprisonment for the aggravated battery with a firearm conviction.

On direct appeal, the appellate court held that defendants could not be convicted of first degree murder based on anaccountability theory because the State had not proven the first requirement for accountability, the commission of an overtact. Under section 5-2(c) of Illinois' accountability statute (720 ILCS 5/5-2(c) (West 1994)), a person is legallyaccountable for the conduct of another when: "Either before or during the commission of an offense, and with the intent topromote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planningor commission of the offense." Here, the appellate court found there was no evidence that either defendant "solicited aBlack Disciple to kill Henderson, aided or abetted the Black Disciple shooter who killed Henderson, or agreed or attemptedto aid any rival gang member in murdering Henderson, a Gangster Disciple." Nos. 1-95-3211, 1-95-3212 cons.(unpublished order under Supreme Court Rule 23).

We agree with the appellate court that defendants' first degree murder convictions could not be based upon a theory ofaccountability as set forth in section 5-2(c), and the State does not contest this point. Instead, the State, in its cross-appeal,argues that section 5-2(a) of the accountability statute (720 ILCS 5/5-2(a) (West 1994)) is applicable here and that itshould be employed to uphold defendants' first degree murder convictions. Thus, we first address whether defendants'murder convictions can be upheld under section 5-2(a).

As a preliminary matter, we note that while the State did not raise this issue on direct appeal, pursuant to Supreme CourtRule 318(a) the State, as appellee in this court, "may seek and obtain any relief warranted by the record on appeal withouthaving filed a separate petition for leave to appeal." 155 Ill. 2d R. 318(a); see also People v. Schott, 145 Ill. 2d 188, 201(1991) (where the trial court is reversed by the appellate court and the appellee in that court brings the case here for furtherreview, he may raise any question properly presented by the record to sustain the trial court's judgment, even though thatquestion was not raised or argued in the appellate court). Further, and contrary to defendants' contention, this court isauthorized by section 4(c) of article VI of the Illinois Constitution and Supreme Court Rules 315(a) and 604(a) to reviewjudgments of the appellate court, including cases where the appellate court has reversed a criminal conviction. See Peoplev. Schwartz, 58 Ill. 2d 274, 275-77 (1974); Ill. Const. 1970, art. VI,