Opinion
No. 1-11-1622
05-08-2013
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JARMIE HAWKINS, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the
Circuit Court of
Cook County.
No. 07 CR 11374
Honorable
Mary Margaret Brosnahan,
Judge Presiding.
JUSTICE delivered the judgment of the court.
Presiding Justice Neville and Justice Pierce concurred in the judgment.
ORDER
¶ 1 Held: Where evidence established common design in acts of defendant and second gunman in firing multiple shots, defendant was properly convicted on accountability theory of aggravated battery with a firearm offense pertaining to shots that may have been fired by second gunman; defendant's conviction is affirmed. ¶ 2 Following a bench trial, defendant Jarmie Hawkins was convicted of three counts of aggravated battery with a firearm of victims Margaret Thomas, Cordell Street, and Talibah Cody, one count of aggravated discharge of a firearm as related to James Bentley, and one count of aggravated battery of Bentley. He was sentenced to 15-year terms for the three aggravated battery with a firearm convictions, 6 years for the aggravated discharge of a firearm conviction, and 5 years for the aggravated battery conviction, all to run concurrently. On appeal, defendant solely contests the guilty finding of aggravated battery with a firearm as to Cody, contending the evidence was insufficient to support the conviction because the State failed to prove whether defendant or a second gunman shot Cody and because the State failed to prove that defendant was accountable for the second gunman's shooting her. Defendant does not challenge the remaining convictions. ¶ 3 During a bench trial, the State presented evidence that on May 6, 2007, at approximately 5 p.m., a fight ensued which ultimately escalated into defendant shooting at a family after the mother and cousin verbally confronted defendant regarding the fight. ¶ 4 James Bentley, a high school sophomore at the time, testified that defendant attacked him while he walked his family dog with his 13-year-old sister, Talibah Cody, and two other cousins Darnice Weekly and Taveress Thomas. Defendant and another man, James Payne, called Bentley homophobic slurs and then attacked him, simultaneously punching Bentley numerous times about his face. In addition to Payne, defendant was standing with a larger group of people when the attack occurred. The fight ended when Bentley's aunt, Kate Brown, drove into the alley. ¶ 5 Bentley and his family then walked home where Bentley told his mother what happened. Bentley's mother, Margaret Thomas, went to talk to defendant about the fight. Bentley and four other female family members, Talibah Cody, Shavon Jackson, and twins Denise and Darnice Weekley, accompanied Thomas. Cordell Street, Bentley's cousin, was present at the home when Bentley told his mother what happened. Thomas told Street to stay at their house while she spoke to Bentley's attackers. ¶ 6 Bentley further testified that when he and his family arrived at 6126 South Bishop, where defendant was located with Payne and individuals named "Shine" and "Mook," Thomas asked defendant why he fought with Bentley. Defendant replied that he "jumped on [her] faggot-a*** son." ¶ 7 At this point, Bentley testified that Street approached defendant and Thomas, and asked defendant whether he fought with Bentley. Defendant replied affirmatively and suddenly pulled a gun from his waist. Street did not have anything in his hands when he approached defendant. When defendant brandished the handgun, Street struggled with him to take the weapon, but defendant retained control of the gun and repeatedly shot Street. Thomas turned and began to run, and defendant shot her. ¶ 8 After defendant began shooting, Bentley, Cody, Jackson, Darnice, and Denise ran to get into the car in the hopes of driving away. However, Bentley's mother had the car keys, so the group attempted to take cover in the car despite not being able to leave. Defendant approached the car and continued shooting while they were seated in the car. Bentley testified that defendant fired at least seven shots as they were running towards the car. He was approximately six feet away from defendant when defendant began firing. Mook began shooting from the porch sometime after defendant. He was aiming at the car. Bentley testified that Mook fired approximately three shots. Talibah could have been shot while she was in the car, but to the best of Bentley's knowledge, she was shot before she entered the car. Defendant only ceased firing at the passenger side of the car when his gun jammed and he was no longer able to fire shots. When defendant ceased shooting, the car occupants exited the vehicle and ran towards their house. Bentley found his mother, helped her to the alley, and waited for paramedics. ¶ 9 Thomas testified that when she approached defendant, Mook was standing on the porch, but then he went inside the house and came back outside onto the porch and began shooting. Street and Thomas testified that Mook, while standing on the porch, also shot at Street while Street was running away towards the alley. Darnice Weekly testified that Mook also shot at Thomas. Mook never approached the car, but Denise Weekly testified that Mook was a "few inches away from" defendant when Mook began shooting. ¶ 10 Shavon Jackson testified that she observed Mook shooting at the car while she had retreated inside the car with the others. She noticed Cody had a hole in her shirt and blood on her arm while they were running towards the car. ¶ 11 Denise Weekly testified she heard multiple shots before Mookie started shooting. She noticed Cody had been shot when they were running to the car. Denise testified that she did not know or remember whether defendant or Mook shot Cody. Darnice testified that Mook shot Cody, but she was not entirely sure. Cody testified that she was shot in the arm while she was running to the car, but she was unsure of who shot her. ¶ 12 Officer Keion Feazell arrived on the scene and observed a white Chevy Lumina with multiple gunshot holes and knocked out windows. He spoke to Street, Thomas, and Cody about their injuries and called an ambulance. Feazell spoke with people at the scene and learned that defendant and James Payne were possible offenders. He was never given the name "Mook" during his investigation. ¶ 13 Officer Lester Scott went to 6126 South Bishop to arrest defendant the next day. When Scott arrived, defendant was standing on the porch and then fled inside the house. Scott and his partner were permitted entry into the house and arrested defendant after finding him hiding in the attic. ¶ 14 Detective John Foster showed Bentley, Street, Shavon, Denise, and Darnice, a line-up and they all identified defendant as the shooter. Cody viewed the line-up but did not identify defendant. She testified that at the time of the line-up, she was afraid to identify defendant. Detective Scott Rief testified that Thomas identified defendant in a photo array, and Thomas confirmed this in her testimony. ¶ 15 Defense witnesses Michael Cherry (defendant's long-time friend), Michelle Stegall (defendant's sister), and April Black (defendant's neighbor) testified that defendant was not present on the scene during the shooting and that Street brandished a gun and began firing. None of these witnesses testified that there was a second shooter and did not implicate Mook at all. The State impeached all three witnesses with prior inconsistent statements. ¶ 16 During closing arguments, the State argued it was irrelevant whether the bullets that struck the victims belonged to defendant or Mook's gun, and that "[t]hey were together. They were out there shooting in broad daylight." In noting that Bentley, Street, Denise, Darnice, Jackson, and Thomas all identified defendant as the shooter, the trial court also concluded that the State's witnesses were more credible. It found defendant guilty of three counts of aggravated battery with a firearm for shooting Margaret Thomas, Cordell Street, and Talibah Cody, one count of aggravated discharge of a firearm for shooting at James Bentley, and one count of aggravated battery for attacking Bentley prior to the shooting. Defendant's motion for new trial was denied. He was sentenced to 15-year terms for aggravated battery with a firearm of Thomas, Street, and Cody, 6 years for aggravated discharge of a firearm as related to Bentley, and 5 years for aggravated battery of Bentley, all to run concurrently. ¶ 17 On appeal, defendant contends the State failed to prove him guilty beyond a reasonable doubt of aggravated battery with a firearm of Cody or that defendant was legally accountable for Mook, Cody's actual shooter. ¶ 18 The parties disagree about whether, based on the evidence presented at trial, it is possible to determine who fired the bullet that injured Cody. It is unnecessary for us to engage in the admittedly difficult task of discerning whether a bullet from defendant or Mook's gun struck Cody. Even if Mook fired the offending bullet, there was sufficient evidence to prove beyond a reasonable doubt that defendant was accountable for Mook's actions. ¶ 19 A defendant is accountable for the conduct of another when, "[e]ither before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense." 720 ILCS 5/5-2(c) (West 2006). To prove accountability, the State had to have demonstrated beyond a reasonable doubt that either (1) the defendant shared the criminal intent of the second gunman; or (2) there was a common criminal design between defendant and the second gunman. See People v. Perez, 189 Ill. 2d 254, 266 (2000). A common plan can be inferred from the circumstances surrounding the commission of the unlawful conduct and words of agreement are not necessary to establish a common plan. People v. Grimes, 386 Ill. App. 3d 448, 452 (2008). Further, the "common-design rule" applies where the defendant "set in motion the series of events which eventually culminated in [the victim's] death." People v. Cooks, 253 Ill. App. 3d 184, 190 (1993). A defendant's failure to intervene or voice opposition to an unknown shooter's actions, along with evidence that the defendant and an unknown shooter simultaneously approached and opened fired upon individuals suggests joint action. Id. ¶ 20 In reviewing the evidence in the light most favorable to the State, we find the State established defendant and Mook engaged in a common design to shoot the Bentley family. Defendant set in motion the series of events that led to Cody suffering a gunshot wound to her arm when he antagonized Bentley using homophobic slurs, initiated a fight with him, and then when Bentley's mother and cousin attempted to glean information regarding whether and why defendant fought Bentley, defendant opened fire on the entire Bentley family. The evidence showed that defendant and Mook stood together on the porch prior to Bentley's family arriving, which was immediately following defendant's fight with Bentley. While it is unclear exactly when Mook began shooting at the family, the evidence showed that Mook's gunfire began after defendant's and that defendant failed to intervene to stop Mook's shooting. Mook followed defendant's lead in shooting at the family. Further, it is not unreasonable to conclude that defendant and Mook shared an affiliation. Not only were the two standing together on the porch of 6126 South Bishop, but Margaret Thomas testified that she observed Mook enter and then exit the house prior to the shooting. The evidence also showed that defendant fled into this house when Officer Scott arrived at the home to arrest defendant. ¶ 21 Based on that evidence, defendant is culpable for Cody's shooting based on an accountability theory. See Cooks, 253 Ill. App. 3d at 189-90 (defendant was legally accountable for the acts of a second unidentified shooter under the common design theory when the defendant "set in motion" the series of events by convening several gang members to seek revenge and approaching a group of people, and then fleeing from the scene after the shooting); and People v. Merritte, 242 Ill. App. 3d 485 (1993) (defendants held accountable where defendants were assaulting victim, kicking him, and witnesses testified that another man arrived on the scene and began striking victim in the head with a metal milk crate, fracturing the victim's skull). In this case, the evidence demonstrated a common design and therefore, we conclude that defendant was properly found guilty beyond a reasonable doubt because he was accountable for the actions of the second shooter, Mook. ¶ 22 Defendant argues that he is not accountable for Mook's actions because Mook's motives for shooting at Cody remain unknown. Defendant speculates that Mook may have believed the occupants of the car were firing at him and acted in self-defense or that Mook might have harbored an independent grudge toward the victims. We will not reverse defendant's conviction on this basis because we need not "accept any possible explanation compatible with the defendant's innocence and elevate it to the status of reasonable doubt." See People v. Evans, 209 Ill. 2d 194, 212 (2004); quoting People v. Herrett, 137 Ill. 2d 195, 206 (1990). ¶ 23 Additionally, although defendant relies on People v. Fagan, 942 F.2d 1155 (1991), to support his contention that he is not accountable for Mook's actions, that case is distinguishable. In Fagan, the defendant rounded up a group of his fellow gang members to seek revenge on a rival gang. Id. at 1156. The defendant's gang walked by a group of individuals they believed to be rival gang members, and when the defendant and his gang were approximately 45 feet away from the individuals, defendant and one other gang member opened fired. Id. The evidence showed that an unknown individual approached the victim during the melee, pressed a gun into his back, and shot and killed him. Id. There was no evidence that the shooter was a member of the defendant's gang or that the victim was a member of the rival gang. Id. at 1159. Nothing in the record suggested a common design or even an association between the defendant and the unknown shooter. Id. Here, however, the common design was evident where defendant and Mook stood together on the porch before the shooting, immediately after defendant fought with Bentley. Mook followed defendant's lead in shooting at Bentley's family, and defendant fled into the house at 6126 South Bishop, the same house that Margaret Thomas observed Mook enter before he returned to the porch and began shooting. ¶ 24 Defendant's reliance on People v. Peterson, 273 Ill. App. 3d 412 (1995) is similarly misplaced. While we have outlined the evidence showing a common design between defendant and Mook, this court specifically highlighted in Peterson the "cross-purposes" of the defendant and the second shooter, rival gang members shooting at each other, in holding that defendant was not accountable for that shooter's actions. Id. at 420. In the present case, the common design of defendant and Mook was to open fire on the Bentley family. They were not shooting at each other, as in Peterson. ¶ 25 We find that defendant is guilty based on accountability, and conclude that even if Mook fired the shot that injured Cody, defendant is accountable for that injury. See Perez, 189 Ill. 2d at 267 (acts committed by one party are attributable to all parties to common design, making each party responsible for the consequences of the acts of others). Therefore, we need not address further defendant's sufficiency of the evidence claim. ¶ 26 Based on the foregoing, we affirm the judgment of the circuit court of Cook County ¶ 27 Affirmed.