Opinion
NO. 5-11-0151
10-31-2013
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RAYMOND HARRIS, Defendant-Appellant.
NOTICE
Decision filed 10/31/13. The text of this decision may be changed or corrected prior to the filing of a Petition for Rehearing or the disposition of the same.
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
St. Clair County.
No. 08-CF-1477
Honorable
Milton S. Wharton,
Judge, presiding.
JUSTICE CHAPMAN delivered the judgment of the court.
Presiding Justice Spomer and Justice Cates concurred in the judgment.
ORDER
¶ 1 Held: In a bench trial, the court did not commit reversible error when it found the defendant guilty on a theory of accountability where prosecutor argued this as an alternative theory in the State's closing argument.
¶ 2 The defendant, Raymond Harris, appeals his conviction for murder after a bench trial. The defendant admitted to police that he went to the home of the victim with his brother and a friend to confront the victim about a matter involving the defendant's brother. He admitted that all three were armed. He did not, however, explicitly admit that any of them actually shot the victim. The court found that the evidence was not sufficient to prove beyond a reasonable doubt that the defendant actually pulled the trigger; however, the court found that the evidence was sufficient to prove the defendant guilty under a theory of accountability. On appeal, the defendant argues that the court erred in inserting this theory into the case after closing arguments. We affirm. ¶ 3 On the morning of October 6, 2008, Amarian Williams was shot to death on the front porch of his mother's home. His mother, Beverly Williams, found him. In a statement to police shortly after the murder, Ms. Williams stated that after taking her younger children to school that morning, she went back to bed and asked Amarian to wake her up at noon. However, she awoke to the sound of the front door opening and closing. Shortly thereafter, she heard three gunshots. When Ms. Williams went outside to see what happened, she found Amarian on the porch, slumped over. He was unresponsive. Ms. Williams saw that Amarian was bleeding from his head. She saw a single vehicle speeding away, but did not see anyone else in the vicinity. ¶ 4 Nearly two months later, on November 25, 2008, the defendant was arrested on an unrelated warrant. He was also wanted for questioning in the murder of Amarian Williams. The arresting officers found the defendant hiding in a closet. When they got him out of the closet, they noticed that he was limping. Asked if he was injured, the defendant said that he had been shot a few days earlier. He was transported to St. Louis University Hospital. ¶ 5 The following day, the defendant gave a video-recorded interview to police in his hospital room. The defendant admitted that he went to the Williams home on the morning of the murder with Douglas Griggs and Jaron Jamison. Griggs is the defendant's younger brother. He explained the reason he went to Amarian's house that morning as follows: "I just heard that he fucked with my little brother, man." The defendant told the police that he and Griggs both had guns in their truck. Although the defendant did not know what type of gun Griggs had, he stated that his gun was a nine-millimeter Ruger. ¶ 6 When one of the officers asked the defendant if his brother shot Amarian, the defendant said "No." When asked if Jaron Jamison shot Amarian, the defendant stated that Jamison did not shoot him either. The officer then stated, "So your brother didn't shoot and Jaron didn't shoot. That only leaves one other person." The defendant responded, "I ain't gonna say on camera that I shot anybody." The defendant further stated that he did not want to "get anybody in trouble." He admitted that he threw his gun off the Eads Bridge a few days later. ¶ 7 On December 9, 2008, the defendant was charged with first-degree murder in the death of Amarian Williams. The criminal complaint alleged that the defendant caused Amarian's death by shooting him in the head. It did not allege that he was responsible for the conduct of Douglas Griggs or Jaron Jamison. ¶ 8 The defendant waived his right to a jury trial, and the matter came for a bench trial in October 2010. The parties stipulated that Beverly Williams would testify consistently with her statement to police, and the statement was read into evidence. In addition, the recording of the defendant's interview with police was played for the court. ¶ 9 Two East St. Louis detectives testified to the circumstances surrounding the defendant's arrest. Detective Kenneth Berry testified that police had been unable to locate or contact the defendant in the weeks following the murder of Amarian Williams. As noted previously, the defendant was not arrested until November 25, 2008, which was approximately seven weeks after the murder. Detective Berry testified that police received an anonymous tip telling them where the defendant could be found. Detective Andre Hanson testified that "about ten" officers were present when the defendant was arrested. He further testified that when they found the defendant, he was hiding in a closet. The defendant initially denied being Raymond Harris. According to Detective Hanson, when an officer asked where Harris could be found, the defendant told officers that Harris "had just left." ¶ 10 Detective Berry testified about the circumstances surrounding the defendant's video-recorded statement. He testified that three officers were present. Prior to beginning the interview, one of the officers asked the defendant if he was under the influence of any medication, and the defendant said that he was only taking antibiotics. Detective Berry acknowledged that the defendant was scratching himself during the interview and was receiving some type of medication intravenously. However, Detective Berry testified that the defendant appeared to be coherent and did not seem to be impaired by medication. ¶ 11 Ronald Locke, a forensic scientist specializing in firearms and tool mark identification, testified for the State. Locke examined a bullet recovered from the exterior door frame of the Williams home and a bullet and two fragments recovered from Amarian Williams during the autopsy. He explained that while it is not possible to determine whether the bullets were fired from any specific gun, it is possible to determine what class of gun could have fired the bullets. Locke determined that both bullets were fired from a nine-millimeter or .38-caliber gun. He testified that the two fragments could not be identified. ¶ 12 Locke next testified that he was asked to examine a nine-millimeter Ruger pistol provided to him by the police to determine whether the bullets could have been fired from that gun. We note that the gun provided to Locke for this examination was not the defendant's gun; the defendant's gun was thrown into the Mississippi River and was never recovered. The State did not contend that the gun was the murder weapon. Locke explained that this determination can be made by examining the rifling marks on a bullet. Rifling marks are marks made by the lands and grooves in the barrel of a gun. Locke determined that the pistol he was given could not have fired either of the two bullets. He explained that the gun had right rifling characteristics, while the rifling marks on both bullets indicated that they had been fired from a gun with left rifling characteristics. ¶ 13 In closing arguments, the State argued that even though the defendant refused to explicitly say he pulled the trigger, he essentially confessed to being the shooter. The prosecutor pointed out that the defendant admitted going to the Williams home to confront Williams while armed. Additionally, he pointed out that the defendant told police that neither Griggs nor Jamison shot Amarian Williams, "thereby, by process of elimination, making him the shooter." The prosecutor further argued that the fact that the defendant threw his gun into the river also demonstrates that the defendant was the shooter. However, he also argued, "Under [the defendant's] version of events, your Honor, even if this Court didn't believe that he was the one that pulled the trigger, I would submit to the Court that under a theory of accountability" the defendant would be accountable for the actions of his brother Doug. ¶ 14 Defense counsel argued that the defendant's vague statements about who pulled the trigger did not amount to a confession that he had done so. She argued that the defendant simply refused to name the shooter, pointing out that he said, "I don't want to get anybody in trouble." Defense counsel did not respond to the State's argument that the defendant might be found guilty under a theory of accountability. ¶ 15 The court announced its findings from the bench. The court first noted that the defendant was aware that he was the focus of the investigation into Amarian Williams' murder when he gave his statement to police. The court went on to note that, in his statement, the defendant "absolve[d] other individuals from responsibility for the victim's death without stating directly that he was responsible." The court found that this was "not [a] conclusive admission or a conclusive denial." ¶ 16 The court found, however, that there was "clear evidence" of concerted action on the part of the defendant, Griggs, and Jamison. The court emphasized the evidence that the defendant and two others armed themselves and went to Williams' house to confront him. The court noted that Beverly Williams did not hear any argument or struggle-she heard only the door open and close a single time and three gunshots. The court found this to be evidence that the defendant, Griggs, and Jamison "came to that house with a common purpose, and that purpose was to kill the victim." The court also highlighted the fact that Beverly Williams saw a single vehicle leaving the scene at a high rate of speed and did not see any individuals attempting to flee on foot. The court reasoned that the fact that the suspects fled together showed that they were engaged in a common plan. ¶ 17 The court concluded that the evidence was not sufficient to prove beyond a reasonable doubt that the defendant "directly pulled the trigger," but the court did find the evidence sufficient to prove beyond a reasonable doubt that the defendant was guilty under a theory of accountability. The court subsequently sentenced the defendant to 30 years in prison. The defendant filed a motion to reduce his sentence, which the court denied. This appeal followed. ¶ 18 The defendant argues that the court erred by considering the accountability theory after closing arguments. In support of this contention, he cites People v. Millsap, 189 Ill. 2d 155, 724 N.E.2d 942 (2000). There, the defendant was charged with robbery and home invasion. Millsap, 189 Ill. 2d at 156, 724 N.E.2d at 943. The victim testified that she was awakened early in the morning by an intruder placing a gloved hand over her face and telling her that he wanted her money. Millsap, 189 Ill. 2d at 156-57, 724 N.E.2d at 943-44. She testified that she was unable to see anything during the robbery and could not be certain that there was a second intruder. Millsap, 189 Ill. 2d at 157, 724 N.E.2d at 943. However, she heard the intruder say, "Look over there," which she thought was addressed to another person. Millsap, 189 Ill. 2d at 157, 724 N.E.2d at 943-44. In addition, the victim testified that when the intruder left, he told her that "they" were leaving. Millsap, 189 Ill. 2d at 157, 724 N.E.2d at 944. ¶ 19 The defendant in Millsap was arrested in an alley near the victim's apartment. In his possession was a wallet later identified as one belonging to the victim. Millsap, 189 Ill. 2d at 158, 724 N.E.2d at 944. The victim was unable to identify the defendant as the intruder. However, she identified the wallet in his possession as a wallet that was stolen from her apartment. Millsap, 189 Ill. 2d at 157-58, 724 N.E.2d at 944. ¶ 20 At trial, the State did not pursue an accountability theory or request that the jury be instructed on guilt by accountability. Neither party addressed the issue of accountability in its arguments to the jury. Millsap, 189 Ill. 2d at 159, 724 N.E.2d at 945. However, 40 minutes into deliberations, the jury sent the court a note asking if an accomplice is "just as guilty" as an offender who causes injury during a home invasion. Millsap, 189 Ill. 2d at 160, 724 N.E.2d at 945. Over the defendant's objection, the court gave the jury an instruction on accountability, noting that there was some evidence of a second intruder. Millsap, 189 Ill. 2d at 160, 724 N.E.2d at 945. ¶ 21 On appeal, the defendant argued that by instructing the jury on a new theory after it began its deliberations, the court deprived him of his right to address this theory in his closing argument. Millsap, 189 Ill. 2d at 160, 724 N.E.2d at 945. In agreeing with this contention, our supreme court first noted that the procedure followed by the trial court contravened section 2-1107 of the Code of Civil Procedure, which is applicable in criminal proceedings pursuant to Supreme Court Rule 451. Millsap, 189 Ill. 2d at 163, 724 N.E.2d at 947 (citing 735 ILCS 5/2-1107(c) (West 1998); and Ill. S. Ct. R. 451(c) (eff. July 1, 1997)). That statute requires that jury instructions be determined before the parties begin their arguments to the jury. Millsap, 189 Ill. 2d at 163, 724 N.E.2d at 947 (quoting 735 ILCS 5/2-1107(c) (West 1998)). The supreme court explained that the purpose of this requirement "is obvious: it allows the attorneys to know the law on which the jury will be instructed so that the attorneys can tailor their arguments accordingly." Millsap, 189 Ill. 2d at 163, 724 N.E.2d at 947. ¶ 22 The court then emphasized that, by giving the accountability instruction when it did, the trial court there "not only violated a statutory procedure, it impinged upon a constitutional right." Millsap, 189 Ill. 2d at 164, 724 N.E.2d at 947. This is because the constitutional right to representation by counsel has been held to include the right to have counsel give a closing argument. Millsap, 189 Ill. 2d at 164, 724 N.E.2d at 947 (quoting Herring v. New York, 422 U.S. 853, 860 (1975)). The Millsap court noted that the defendant there was not completely precluded from making a closing argument. The court nevertheless found that under the circumstances presented, he was denied his right to make a closing argument because he was denied the right "to address the theory of guilt upon which he may have been convicted." Millsap, 189 Ill. 2d at 164, 724 N.E.2d at 947. ¶ 23 The court reached this conclusion for two reasons. First, the defendant was effectively denied an opportunity to argue that there was no second intruder. As the court explained, there was "no reason for him to make that argument in the absence of an accountability instruction." Millsap, 189 Ill. 2d at 165, 724 N.E.2d at 947. Second, to support a conviction on a theory of accountability, the State must prove additional elements. Millsap, 189 Ill. 2d at 165, 724 N.E.2d at 948. That is, the State must prove that the defendant (1) solicited or aided another or attempted to aid another in the commission of a crime; (2) participated before or during the commission of the crime; and (3) had the specific intent to facilitate the crime. Millsap, 189 Ill. 2d at 165, 724 N.E.2d at 948 (citing 720 ILCS 5/5-2 (West 1996)). The supreme court pointed out that because defense counsel could not have anticipated that the jury would be given an accountability instruction until after closing arguments, the defendant was denied an opportunity to argue that the State did not prove these elements. Millsap, 189 Ill. 2d at 165, 724 N.E.2d at 947. ¶ 24 The defendant acknowledges that the issue in Millsap was the propriety of giving a jury instruction after both parties had completed their closing arguments and the jury had begun deliberating. This case involves a bench trial, where there was no need to provide instructions. Thus, the statutory procedure governing the proper time for determining jury instructions is inapplicable. The defendant argues, however, that he was denied his constitutional right to make a closing argument addressing the theory of accountability under the circumstances presented. He correctly points out that when a criminal defendant opts for a bench trial, he does not waive any of the rights afforded criminal defendants other than the right to be tried by a jury. People v. Barham, 337 Ill. App. 3d 1121, 1130, 788 N.E.2d 297, 304 (2003) (citing People v. Rivers, 410 Ill. 410, 419, 102 N.E.2d 303, 307 (1951)). We agree with the defendant that the right to make a closing argument addressing all relevant theories of guilt is applicable in a bench trial; however, we are not persuaded that he was denied this right under the circumstances presented here. ¶ 25 As we have discussed, the Millsap court found that the defendant was effectively denied his right to make a closing argument because the introduction of a new theory after closing arguments deprived him of an opportunity to argue that there was no second intruder and that the State did not meet its burden of proving the elements of guilt by accountability. We note that here, undisputed evidence established that the defendant was present when Amarian Williams was shot to death, that two other individuals were with him, and that at least two of the three were armed. Thus, the only argument that the defendant could have made to address the accountability theory was that the State failed to prove the elements of accountability. As we will next explain, the defendant was not deprived of the opportunity to attempt to make this argument. ¶ 26 Here, in stark contrast to what occurred in Millsap, the State introduced the theory of accountability into the case before defense counsel gave her closing argument. This gave defense counsel an opportunity to address the elements of accountability. ¶ 27 It is true, as the defendant emphasizes, that the State's theory of the case throughout the trial was that the defendant was the shooter. Much of the State's evidence supported this theory. Although the defendant's statement to police was somewhat vague, he specifically denied that either Griggs or Jamison shot Williams, which left the defendant as the only possible shooter. In addition, he threw his gun into the Mississippi River so it would not be found, an action that makes sense only if the defendant was the shooter. ¶ 28 The State's forensic expert, however, testified that the bullets that were recovered could not have been fired from the Ruger pistol he examined. This testimony, which was elicited during direct examination by the State, may not have been anticipated by the prosecution. The testimony provided support for the theory that Griggs may have shot Williams. As discussed by the court in its ruling, there was substantial evidence to support the theory that the defendant, Griggs, and Jamison acted with a common purpose to kill Amarian Williams. The State was entitled to make closing arguments based on this evidence. Had the defendant been tried before a jury, the State would have been entitled to request a jury instruction on accountability. See People v. Barnard, 208 Ill. App. 3d 342, 349-50, 567 N.E.2d 60 (1991) (noting that both the defendant and the State are entitled to instructions that are supported by at least slight evidence). The fact that the allegations in the complaint and the theory presented to the court in the State's opening statement addressed only the defendant's guilt as a principal does not preclude the State from arguing that the defendant may also be guilty by accountability if the evidence that develops at trial supports that theory. See People v. Bradley, 348 Ill. App. 3d 677, 682, 810 N.E.2d 494, 498 (2004). ¶ 29 Had the defendant opted for a jury trial, there would have been an instructions conference after the close of evidence. This would have given both parties somewhat more time than they had here to decide whether and how to address the accountability issue in their closing arguments. We do not find this fact dispositive. In a jury trial, the instructions conference ordinarily takes place after the close of evidence and just before closing arguments. Thus, attorneys for both parties must decide how to frame their closing arguments in a jury trial at essentially the same time they made that decision here. We do not believe that the fact that a defendant opts for a bench trial should deprive the State of the opportunity to make an accountability argument to the court as long as that argument is supported by the evidence and the defendant has an opportunity to respond to the argument. ¶ 30 We find additional support for our decision in People v. Laabs, 2011 IL App (3d) 090913, 957 N.E.2d 1259, and People v. Wilson, 312 Ill. App. 3d 276, 726 N.E.2d 740 (2000). Neither case is factually analogous to the instant case. However, the dispositive issue in both cases was whether the theory of accountability had been raised during closing arguments. In both cases, the courts considered and rejected arguments that jury instructions on accountability were interjected into the cases by statements in the defendants' closing arguments. Laabs, 2011 IL App (3d) 090913, ¶ 20, 957 N.E.2d 1259; Wilson, 312 Ill. App. 3d at 287, 726 N.E.2d at 748. ¶ 31 Finally, we note that the defendant argues in his reply brief that Millsap stands for the proposition that the court may not inject a new theory into a case after the close of evidence. Our reading of Millsap does not support this contention. The court expressly stated that it was addressing the problem of introducing a new theory of guilt after closing arguments, and the focus of the opinion was on whether defense counsel had the opportunity to address all applicable theories in closing arguments. In addition, as just discussed, the Laabs and Wilson courts focused their analysis on whether the accountability theory was injected into the case during closing arguments, not earlier. We conclude that under the circumstances of this case, the defendant was not deprived of an opportunity to address the State's argument of guilt by accountability. ¶ 32 For the reasons stated, we affirm the defendant's conviction. ¶ 33 Affirmed.