People v. Ross

JUSTICE McBRIDE, specially concurring in part and dissenting in part:

I respectfully dissent from the majority’s decision to affirm the convictions of Demel Hannah. I would remand the matter for a new trial based upon the failure to give the withdrawal instruction requested by defendant. I concur with the majority’s decision regarding all other issues raised by Hannah and I concur in all respects with the decision to affirm the convictions of Mario Ross.

My reasons for the dissent are as follows. A defendant is entitled to have the jury instructed on any legally recognized defense which is supported by some evidence, including slight evidence. People v. Jones, 175 Ill. 2d 126, 132 , 676 N.E.2d 646 (1997).

In deciding whether to instruct on a defense theory, the court’s role is to determine whether there is some evidence supporting that theory; it is not the court’s role to weigh the evidence. Jones, 175 Ill. 2d at 132 .

Generally, a defendant is required to produce some evidence at trial regarding an affirmative defense but will be excused from presenting that evidence where the State’s evidence raises the issue of an affirmative defense. Jones, 175 Ill. 2d at 132 . Moreover, a defendant is not required to testify or offer any evidence where there is circumstantial evidence presented to raise a defense. Jones, 175 Ill. 2d at 133 .

Unless the evidence before the trial court is so clear and convincing as to permit the court to find as a matter of law that there is no affirmative defense, the issue of whether a defendant should be relieved of criminal responsibility by reason of his defense must be determined by the jury with proper instruction as to the applicable law. Jones, 175 Ill. 2d at 132 .

Finally, where there is some foundation for the instruction because there is some slight evidence shown in the record, it is an abuse of discretion for the trial court to refuse to so instruct the jury. Jones, 175 Ill. 2d at 132 .

As the majority points out, “[i]t is the communication of intent, not the naked fact of withdrawal, that determines whether a defendant is released from accountabihty liabifity.” 329 Ill. App. 3d at 886. The withdrawal must also be timely so as to give the coconspirators a reasonable opportunity to follow the example and to refrain from further action before the act is committed. The trier of fact must be able to find that the accused whoUy and effectively detached himself from the criminal enterprise before the crime is in the process of consummation or has become so inevitable that it cannot reasonably be stayed. Quiroz, 229 Ill. App. 3d at 245; 720 ILCS 5/5—2(c)(3) (West 1998).

Although the evidence presented at trial showed that defendant initiated a plan to rob the Nic and Pic store, it also disclosed that defendant was not present at any time during the commission of the robbery and shooting that took place on January 18, 1996. This is not to suggest that a defendant can be absolved from accountability liability simply because he is absent from the scene. Presence at the scene of the crime is not a required element of accomplice liability. People v. Nino, 279 Ill. App. 3d 1027 , 665 N.E.2d 847 (1996). A person absent from the scene of the crime can be charged as an accomphce if he or she participated in the plan. Nino, 279 Ill. App. 3d at 1032 . Nonetheless, in this particular case under these particular facts, if defendant’s complete absence from the scene can be said to amount to some evidence of a communication of a withdrawal, then the instruction should have been given. It can also be said that if the defendant’s absence from the scene was some evidence of a communication of a withdrawal, it was timely because the defendant was not present immediately before the commission of these offenses began.

The defendant’s statement indicated that the planning of the robbery took place at meetings held in December 1995 and on January 17, 1996. According to defendant’s statement, the robbery was to occur on January 18, 1996, but only defendant was to go inside the store and his codefendant and accomplices were to act as lookouts outside the store at particular locations on the streets nearby. Even though Hannah did not appear at the store at any time on January 18, 1996, his codefendant and two accomplices carried out an armed robbery and murder without his presence or assistance during the actual commission of the offenses. Considering the elaborate plan that had been conceived by this 16-year-old “coordinator” and the fact that defendant did not show up at all to carry out the plan, this evidence, in my opinion, could be circumstantially viewed as some evidence that defendant was communicating to his other youthful cohorts that he was withdrawing from the planned robbery.

In his statement, defendant also indicated that he did not show up on the day of the robbery because his mother made him go to school. Primarily because of this portion of defendant’s statement, the trial court found that there was no evidence from which the jury could conclude the defendant was withdrawing from the offenses. In my opinion, by focusing solely upon this portion of the defendant’s statement, the trial court was not determining whether there was some evidence of the withdrawal defense but was weighing the evidence.

Because there was other evidence in that same statement that suggested defendant had a “change of plan,” that he was shocked to hear what happened and because the jury is free to accept or reject any portion of the evidence received at trial, I believe defendant was entitled to the instruction on his theory of the defense, even though the evidence might be viewed as slight.

Hannah elected not to testify at trial but called one of his high school teachers, who testified that defendant was in school at the time of the robbery and shooting. Although Hannah told the assistant State’s Attorney that his mother made him go to school on January 18, 1996, there is no evidence that this fact was somehow relayed to his accomplices. This conduct, that is, Hannah’s failure to appear and participate at the time of the commission of the offenses, could have conveyed his intent to withdraw to the accomplices. Defendant argued that this fact and the other evidence presented were sufficient to warrant the withdrawal instruction.

I agree with the defendant and believe that there was some evidence of a communication of the intent to withdraw. First, there was the State’s evidence which established defendant was not present at any time during the actual commission of these offenses. Second, there was testimony presented that on January 18, 1996, defendant was at school, and after school he went to the YMCA. This testimony, which established his complete absence from the scene before, during and immediately after the commission of these offenses, amounted to the presentation of some circumstantial evidence of a communication of defendant’s intent to withdraw to the other offenders.

As pointed out in Jones, the defendant is not required to testify to warrant an instruction on a defense. Nor do I believe that the giving of the withdrawal instruction requires evidence of a verbal communication to the codefendant or an accomplice. I believe all that is required is a showing of some evidence of a communication of an intent to withdraw. Further, the question of whether the defendant is entitled to an instruction should be determined by looking at the whole of the evidence, and this is true even when the instruction is based upon facts which are inconsistent with the defendant’s own testimony. People v. Jefferson, 257 Ill. App. 3d 258, 265 , 628 N.E.2d 925 (1993).

The cases cited by the majority and those decisions relied upon by the trial court did not involve the refusal of the trial court to give a withdrawal instruction. In fact, in Quiroz a withdrawal instruction was given. Quiroz, 229 Ill. App. 3d at 243. Rybka did not consider the issue of a trial court’s refusal to give a withdrawal instruction, but involved the sufficiency of the evidence. Rybka, 16 Ill. 2d at 406-07. Both cases involved situations where the defendants were present at or near the crimes at the time that they were committed. These decisions don’t answer the withdrawal instruction issue before this court.

Although defendant was deeply involved in the planning of the offense, to the extent that he was to retrieve the gun to be used and only he was to enter the store, the evidence still shows that he was detached from the offenses for which he was on trial, at the time the commission of those offenses began.

Because this was an accountability case and the State was required to show “(1) the defendant solicited, ordered, abetted, agreed, or attempted to aid *** in the planning or commission of the crime; (2) the defendant’s participation took place before or during the commission of the crime; and (3) the defendant had the concurrent intent to promote or facilitate the commission of the crime” (In re W.C., 167 Ill. 2d 307, 337 , 657 N.E. 2d 908 (1995)), I believe the defendant was also entitled to have the jury consider the defense of withdrawal.

In my opinion, it was error to prevent defendant from presenting this defense by means of the tendered instruction. Therefore, I respectfully dissent from that portion of the opinion and would remand Hannah’s case for a new trial.