People v. Shelton
Annotate this Case
SIXTH DIVISION
December 12, 1997
No. 1-95-2676
THE PEOPLE OF THE STATE OF ILLINOIS,
Plaintiff-Appellee,
v.
COREY SHELTON,
Defendant-Appellant. )
)
)
)
)
)
)
)
) Appeal from the
Circuit Court of
Cook County
Honorable
Thomas Hett,
Judge Presiding.
JUSTICE QUINN delivered the opinion of the court:
Following a jury trial, defendant was convicted of first
degree murder and attempt first degree murder. Defendant was
sentenced to concurrent terms of 55 years' imprisonment and 30
years' imprisonment, respectively. On appeal, defendant contends
that: (1) the trial court erred in instructing the jury on the
issue of transferred intent; (2) the trial court erred by admitting
the victim's obituary notice into evidence and allowing the jury to
review it during its deliberations; and (3) the trial court
improperly considered gang evidence during the sentencing hearing.
Jurisdiction is vested in this court pursuant to Supreme Court Rule
603 (134 Ill. 2d R. 603).
For the following reasons, we affirm.
The relevant facts are as follows. On June 11, 1993, William
Ware, James Hale, and Rodney Watson attended a party at 6500 South
Lowe Avenue in Chicago. At approximately 11:30 p.m., a gunman
fired shots into the group which fatally wounded Hale and injured
Ware. Neither Ware nor Watson were able to positively identify the
shooter, but both testified that the shooter was wearing dark
clothing and a hood.
Curtis Lloyd testified that on June 11, 1993, at approximately
11:30 p.m. he was sitting on the hood of his car which was parked
across the street from the scene of the shooting. Shortly before
the shooting, Lloyd saw defendant walk past him. Defendant was
wearing black clothing and a hood. Lloyd saw defendant cross the
street toward 6521 South Lowe Avenue. Lloyd then heard five or six
shots fired, and when he turned in the direction of the shots, he
saw defendant aiming and shooting a gun toward 6500 South Lowe
Avenue. Defendant then ran back across the street. Lloyd
identified defendant in a police line-up on June 29, 1993.
Willie Smith testified that he was employed as a security
guard for the Chicago Housing Authority. On June 11, 1993, he was
patrolling the building at 6500 South Lowe because it was a
"Gangster Disciple" hangout surrounded by "Black Disciple"
territory, and there were frequent problems in the area. That
night, Smith received a complaint that a party at 6521 South Lowe
Avenue was too loud. Upon arriving at the address, Smith saw
defendant fire a gun which caused Smith to dive to the ground.
Smith heard a total of seven to nine shots, and then saw two men
run from the area.
Chicago Police Officer Alvin Boone testified that on June 29,
1993, at approximately 8:30 p.m. he arrested defendant. Boone took
defendant to the police station where he was interviewed by
Detective James O'Brien. At that time, defendant denied any
involvement in the shooting of James Hale. Assistant State's
Attorney Peggy Chiampas also interviewed defendant on June 29,
1993. Defendant initially denied any involvement in the shooting,
but later admitted to his participation in the crime.
According to defendant, on June 11, 1993, he attended a
meeting of the "Black Disciples" gang, of which defendant was a
member since 1989. Defendant had attained the rank of "co-
minister" within the gang, and stayed after the meeting to talk
with other members of the gang who were in positions of authority.
At the post-meeting, defendant learned that a man by the name of
Howard was putting out cigarettes on the faces of girls associated
with the "Black Disciples." Howard was a member of the "Gangster
Disciples," a rival gang. A leader of the "Black Disciples" then
instructed defendant to meet a "crew" of fellow gang members and to
find and shoot Howard.
After receiving information that Howard was attending a party
near 65th Street and Lowe Avenue, defendant went to that area with
fellow gang members Jose, DC, and one other member whose name
defendant could not remember. Defendant said that he went with
Jose and DC to make sure they shot Howard. Upon arriving at the
building where the party was being held, defendant told the driver
of the car to wait for them. Defendant, Jose, and DC then exited
the car and walked toward the party. Jose and DC approached the
building from one side while defendant approached from another
side. Defendant saw Jose point a gun and attempt to fire, but the
gun jammed so the three men returned to their car. DC then told
defendant that his gun would not jam, and defendant told DC to
return to the party with Jose to shoot Howard. Jose and DC then
went back a second time, and according to defendant, once DC and
Jose opened fire, defendant fled the scene. Defendant then went to
a party and told a fellow gang member that they had taken care of
"business."
JoAnn Bruce testified that she was James Hale's mother. Bruce
identified People's Exhibit #31 as the victim's obituary notice.
The notice contained a picture of the victim and included
information about the victim and his family. The notice also
included a tribute and acknowledgment to the victim. The trial
court admitted the notice into evidence and allowed it to go back
with the jury during deliberations.
The defense rested without presenting evidence. The jury
found defendant guilty of first degree murder and attempt first
degree murder.
Initially, the State argues that defendant has waived each of
his arguments on appeal by either failing to object at trial or by
failing to include such an objection in a post-trial motion. See
People v. Enoch, 122 Ill. 2d 176, 186, 522 N.E.2d 1124 (1988). We
agree. However, the waiver doctrine acts as a limitation on the
parties, not as a limitation on the jurisdiction of this court.
Geise v. Phoenix Co., 159 Ill. 2d 507, 514, 639 N.E.2d 1273 (1994);
West Suburban Bank v. Lattemann, 285 Ill. App. 3d 313, 318, 674 N.E.2d 149 (1996). We may address issues not properly preserved by
the parties in order to achieve a just result and to maintain a
uniform body of precedent. Geise, 159 Ill. 2d at 514. In the
present case, we reach defendant's first two issues on appeal.
Defendant's first argument on appeal is that the trial court
erred in instructing the jury on transferred intent. We disagree.
Here, the jury was instructed as follows pursuant to Illinois
Pattern Jury Instruction 7.02:
To sustain the charge of first degree murder, the
State must prove the following propositions:
First: That the defendant, or one for whose conduct
he is legally responsible, performed the acts which
caused the death of James Hale; and
Second: That when the defendant, or one for whose
conduct he is legally responsible, did so, he intended to
kill or do great bodily harm to James Hale or another; or
He knew that his acts would cause death of [sic]
James Hale or another; or
He knew that his acts created a strong probability
of death or great bodily harm to James Hale or another.
Defendant argues that the "or another" language should only be
provided when the facts of the case show transferred intent, and
that the facts of this case do not present such a situation.
Under the doctrine of transferred intent, if a defendant
shoots at one person, with the intent to kill, but actually kills
an unintended victim, the defendant may be convicted of the crime
of murder for the death of the unintended victim. People v.
Forrest, 133 Ill. App. 2d 70, 72, 272 N.E.2d 813 (1971); People v.
Hill, 276 Ill. App. 3d 683, 688, 658 N.E.2d 1294 (1995). Defendant
argues that People v. Migliore, 170 Ill. App. 3d 581, 525 N.E.2d 182 (1988), stands for the proposition that the doctrine of
transferred intent is inapplicable in situations such as the
present case where the death of the unintended victim might have
been the result of a mistaken identity. This interpretation of
Migliore is incorrect.
In Migliore, the defendant was found guilty in a bench trial
of attempt murder after he fired gun shots at the victim's house.
Evidence in the record suggested that the defendant actually meant
to fire shots at the occupant of another house on the street.
Migliore, 170 Ill. App. 3d at 590. Upon discussing the doctrine of
transferred intent, the Migliore court distinguished the bad-aim
scenario from the mistaken-identity scenario. Under the bad-aim
scenario, the offender shoots at an intended victim, misses, and
strikes an unintended victim. Migliore, 170 Ill. App. 3d at 590.
Under the mistaken identity scenario:
"[I]n the semi-darkness A shoots, with intent to kill, at
a vague form he supposes to be his enemy B but who is
actually another person C; his well-aimed bullet kills C.
Here too A is guilty of murdering C, to the same extent
he would have been guilty of murdering B had he made no
mistake. A intended to kill the person at whom he aimed,
so there is even less difficulty in holding him guilty
than in the bad-aim situation. And of course A's
conceivable argument that his mistake of fact (as to the
victim's identity) somehow negatives his guilt of murder
would be unavailing; his mistake does not negative his
intent to kill; and on the facts as he supposes them to
be A is just as guilty of murder as he is on the facts
which actually exist." Migliore, 170 Ill. App. 3d at
590; citing 1 W. La Fave & A. Scott, Jr., Substantive
Criminal Law 3.12, at 402 (1986).
At no point did the Migliore court hold that the doctrine of
transferred intent is inapplicable in the mistaken-identity
situation. Rather, the court reiterated that a mistake in identity
does not negative an intent to kill. Accordingly, the court
affirmed the defendant's conviction. Migliore, 170 Ill. App. 3d at
590.
In the instant case, it is irrelevant whether the death of
Hale and the injury to Ware were the result of the shooter's bad-
aim or mistaken-identity because the doctrine of transferred intent
is applicable in either scenario. The wording of the first degree
murder statute and subsequent commentary on the statute require
such a conclusion. According to section 5/9-1 of the Illinois
Criminal Code of 1961:
"A person who kills an individual without lawful justification
commits first degree murder if, in performing the acts which
cause death:
(1) he either intends to kill or do great bodily harm, to
that individual or another, or knows that such acts will
cause death to that individual or another; or
(2) he knows that such acts create a strong probability
of death or great bodily harm to that individual or
another." 720 ILCS 5/9-1(a)(1),(2) (West 1994)(Emphasis
added).
The committee comments to this section of the code state:
"'Or another' recognizes the established principle often
described as 'transferred intent': if the offender has
the mental state which characterizes murder, he is guilty
or murder even if the person whom he kills is not the one
whom he intended to kill." 720 ILCS Ann. 5/9-1,
Committee Comments - 1961, at 14 (Smith-Hurd 1992).
As reflected in the committee comments, the "or another"
language was included in the statute to incorporate the concept of
transferred intent wherein the person murdered is not the one who
the offender intended to kill. As such, we find that the doctrine
of transferred intent finds equal application in either the bad-aim
or the mistaken-identity scenario.
In the instant case, the record is silent as to whether the
intended victim, Howard, actually was present at the party when the
shootings occurred. It is impossible to tell if the shooters fired
because: (1) they saw Howard, but missed him; or (2) they mistook
Hale or Ware for Howard; or (3) they just wanted to shoot anybody
at the 6500 South Lowe building because it was a "Gangster
Disciple" hangout. The facts of this case leave no doubt that the
shooter fired into a crowd of people, striking Hale and Ware.
Since it is unclear whether they were the intended victims, the
jury was properly instructed on the doctrine of transferred intent.
Defendant further argues prejudice based on the transferred
intent instruction because it was offered to the jury in
conjunction with an accountability instruction. Defendant argues
that the combination of these instructions relieves the State of
its burden to show that the murder of the unintended victim was in
furtherance of the crime agreed to by the non-shooter.
Jury instructions in criminal cases, "must be read as a whole.
'It is sufficient if the series of instructions, considered as a
whole, fully and fairly announce the law applicable to the
respective theories of the People and the defense.'" Terry, 99 Ill. 2d at 516, citing People v. Kolep, 29 Ill. 2d 116, 193 N.E.2d 753 (1963).
Here, the jury received Illinois Pattern Jury Instruction 5.03
on accountability which provides:
A person is legally responsible for the conduct of
another person when, either before or during the
commission of an offense, and with the intent to promote
or facilitate the commission of an offense, he knowingly
solicits, aids, abets, agrees to aid, or attempts to aid
the other person in the planning or commission of an
offense.
The word "conduct" includes any criminal act done in
furtherance of the planned and intended act. Illinois
Pattern Jury Instructions, Criminal, No. 5.03 (3d ed.
1992)(hereinafter IPI Criminal No. 5.03).
The Committee Note to IPI Criminal No. 5.03 reads, "[u]se the
bracketed word 'an' and use the [second] paragraph when the offense
charged is different than the planned and intended offense, but
done in furtherance of it." IPI Criminal No. 5.03, Committee Note
at 106 (West 1992); citing People v. Kessler, 57 Ill. 2d 493, 315 N.E.2d 29 (1974); People v. Terry, 99 Ill. 2d 508, 460 N.E.2d 746
(1984).
A person may be held legally accountable for the conduct of
another under section 5-2(c) of the Criminal Code of 1961 when:
"Either 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 1994).
Section 5-2(c) incorporates the common design rule which provides
that where two or more persons engage in a common criminal design
or agreement, any acts committed in furtherance of the plan by any
one party are considered to be the acts of all the parties, and all
are accountable for those acts. People v. Eubanks, 283 Ill. App.
3d 12, 20, 669 N.E.2d 678 (1996), citing Terry, 99 Ill. 2d at 508.
In the instant case, the State advanced alternative theories
of guilt. The State contended that either defendant shot the gun
himself, as Lloyd and Smith testified, or that DC and Jose fired
into the crowd pursuant to defendant's order for them to kill
Howard, as defendant claimed in his written confession. The State
may advance alternative theories of guilt. People v. Coleman, 248
Ill. App. 3d 371, 377, 918 N.E.2d 466 (1993). The jury could have
believed defendant's confession. Had they done so, defendant was
guilty of murder and attempt murder under the theory of
accountability.
Defendant argues that a defendant may be held accountable for
the murder of an unintended victim only when the State shows that
the actual crime committed was in furtherance of the crime agreed
to by the non-shooter. We agree, and this is exactly what the jury
in the instant case was instructed. However, the jury need not
find that the actual result was intended by the non-shooter,
rather, the jury need only find that the act committed was in
furtherance of the planned and intended offense. Thus, in the
present case, it was unnecessary for the jury to find that
defendant intended to kill Ware or Hale. Rather, the jury only
needed to find that their injuries were in furtherance of the
planned and intended offense, the killing of Howard.
When considered and read as a whole, the instructions in this
case fully and adequately informed the jury of the applicable law.
To adopt the defense argument would require this court to hold that
the State could never proceed under an accountability theory when
the jury would also be instructed on transferred intent. We reject
this argument. As such, the trial court properly instructed the
jury with both paragraphs of IPI Criminal 5.03, and we find that it
was proper for the trial court to instruct the jury on both
accountability and transferred intent.
Defendant next argues that the trial court erred when it
allowed the victim's obituary notice to go back to the jury. We
agree. Obituary notices of the type admitted in this case are
becoming increasingly common. Sending them back with a jury during
its deliberations can serve no conceivable purpose. However, under
the circumstances of this particular case, we find that the error
was harmless.
Intentional references to a victim's family are impermissible.
People v. Hope, 116 Ill. 2d 265, 278, 508 N.E.2d 202 (1986), citing
People v. Bernette, 30 Ill. 2d 359, 197 N.E.2d 436 (1964). The
rationale for excluding references to a victim's family is that
such information serves only to prejudice the defendant in the eyes
of the jury. Hope, 116 Ill. 2d at 275. Even so, comments about
the victim's family can constitute harmless error where the
defendant is not substantially prejudiced. People v. Flax, 255
Ill. App. 3d 103, 110-11, 627 N.E.2d 359 (1993); see also People v.
Pierson, 166 Ill. App. 3d 558, 565, 519 N.E.2d 1185 (1988)
(comments regarding victim and victim's family deemed harmless).
Here, given the overwhelming evidence against defendant, we
find that defendant was not substantially prejudiced by the
admission and jury review of the obituary notice. Both Willie
Smith and Curtis Lloyd saw defendant fire the shots which fatally
wounded Hare and injured Ware. Lloyd also identified defendant in
a police line-up 18 days after the shooting. In addition,
defendant's own statement established that he was involved in the
planning and commission of the offense. Further, the record
supports the conclusion that the notice was not intentionally
brought to the jury's attention through some premeditated act of
the State. See Hope, 116 Ill. 2d at 278. Accordingly, we find
that it was harmless error for the trial court to admit the
obituary notice and to allow the jury to consider it during
deliberations.
Defendant's final argument on appeal is that the trial court
erroneously considered evidence of defendant's gang membership
during the sentencing hearing. We are required by statutory
mandate to hold that defendant has waived this issue by failing to
file a post-trial motion alleging such error within 30 days of
sentencing. 730 ILCS 5/5-8-1(c) (West Supp. 1995); People v. Reed,
Nos. 81422, 81683 (Ill. Sup. Ct. Sept. 25, 1997).
In light of the foregoing, we affirm the judgement and
sentence of the circuit court.
Affirmed.
GREIMAN, P.J. and THEIS, J. concur.
December 12, 1997
No. 1-95-2676
THE PEOPLE OF THE STATE OF ILLINOIS,
Plaintiff-Appellee,
v.
COREY SHELTON,
Defendant-Appellant. )
)
)
)
)
)
)
)
) Appeal from the
Circuit Court of
Cook County
Honorable
Thomas Hett,
Judge Presiding.
JUSTICE QUINN delivered the opinion of the court:
Following a jury trial, defendant was convicted of first
degree murder and attempt first degree murder. Defendant was
sentenced to concurrent terms of 55 years' imprisonment and 30
years' imprisonment, respectively. On appeal, defendant contends
that: (1) the trial court erred in instructing the jury on the
issue of transferred intent; (2) the trial court erred by admitting
the victim's obituary notice into evidence and allowing the jury to
review it during its deliberations; and (3) the trial court
improperly considered gang evidence during the sentencing hearing.
Jurisdiction is vested in this court pursuant to Supreme Court Rule
603 (134 Ill. 2d R. 603).
For the following reasons, we affirm.
The relevant facts are as follows. On June 11, 1993, William
Ware, James Hale, and Rodney Watson attended a party at 6500 South
Lowe Avenue in Chicago. At approximately 11:30 p.m., a gunman
fired shots into the group which fatally wounded Hale and injured
Ware. Neither Ware nor Watson were able to positively identify the
shooter, but both testified that the shooter was wearing dark
clothing and a hood.
Curtis Lloyd testified that on June 11, 1993, at approximately
11:30 p.m. he was sitting on the hood of his car which was parked
across the street from the scene of the shooting. Shortly before
the shooting, Lloyd saw defendant walk past him. Defendant was
wearing black clothing and a hood. Lloyd saw defendant cross the
street toward 6521 South Lowe Avenue. Lloyd then heard five or six
shots fired, and when he turned in the direction of the shots, he
saw defendant aiming and shooting a gun toward 6500 South Lowe
Avenue. Defendant then ran back across the street. Lloyd
identified defendant in a police line-up on June 29, 1993.
Willie Smith testified that he was employed as a security
guard for the Chicago Housing Authority. On June 11, 1993, he was
patrolling the building at 6500 South Lowe because it was a
"Gangster Disciple" hangout surrounded by "Black Disciple"
territory, and there were frequent problems in the area. That
night, Smith received a complaint that a party at 6521 South Lowe
Avenue was too loud. Upon arriving at the address, Smith saw
defendant fire a gun which caused Smith to dive to the ground.
Smith heard a total of seven to nine shots, and then saw two men
run from the area.
Chicago Police Officer Alvin Boone testified that on June 29,
1993, at approximately 8:30 p.m. he arrested defendant. Boone took
defendant to the police station where he was interviewed by
Detective James O'Brien. At that time, defendant denied any
involvement in the shooting of James Hale. Assistant State's
Attorney Peggy Chiampas also interviewed defendant on June 29,
1993. Defendant initially denied any involvement in the shooting,
but later admitted to his participation in the crime.
According to defendant, on June 11, 1993, he attended a
meeting of the "Black Disciples" gang, of which defendant was a
member since 1989. Defendant had attained the rank of "co-
minister" within the gang, and stayed after the meeting to talk
with other members of the gang who were in positions of authority.
At the post-meeting, defendant learned that a man by the name of
Howard was putting out cigarettes on the faces of girls associated
with the "Black Disciples." Howard was a member of the "Gangster
Disciples," a rival gang. A leader of the "Black Disciples" then
instructed defendant to meet a "crew" of fellow gang members and to
find and shoot Howard.
After receiving information that Howard was attending a party
near 65th Street and Lowe Avenue, defendant went to that area with
fellow gang members Jose, DC, and one other member whose name
defendant could not remember. Defendant said that he went with
Jose and DC to make sure they shot Howard. Upon arriving at the
building where the party was being held, defendant told the driver
of the car to wait for them. Defendant, Jose, and DC then exited
the car and walked toward the party. Jose and DC approached the
building from one side while defendant approached from another
side. Defendant saw Jose point a gun and attempt to fire, but the
gun jammed so the three men returned to their car. DC then told
defendant that his gun would not jam, and defendant told DC to
return to the party with Jose to shoot Howard. Jose and DC then
went back a second time, and according to defendant, once DC and
Jose opened fire, defendant fled the scene. Defendant then went to
a party and told a fellow gang member that they had taken care of
"business."
JoAnn Bruce testified that she was James Hale's mother. Bruce
identified People's Exhibit #31 as the victim's obituary notice.
The notice contained a picture of the victim and included
information about the victim and his family. The notice also
included a tribute and acknowledgment to the victim. The trial
court admitted the notice into evidence and allowed it to go back
with the jury during deliberations.
The defense rested without presenting evidence. The jury
found defendant guilty of first degree murder and attempt first
degree murder.
Initially, the State argues that defendant has waived each of
his arguments on appeal by either failing to object at trial or by
failing to include such an objection in a post-trial motion. See
People v. Enoch, 122 Ill. 2d 176, 186, 522 N.E.2d 1124 (1988). We
agree. However, the waiver doctrine acts as a limitation on the
parties, not as a limitation on the jurisdiction of this court.
Geise v. Phoenix Co., 159 Ill. 2d 507, 514, 639 N.E.2d 1273 (1994);
West Suburban Bank v. Lattemann, 285 Ill. App. 3d 313, 318, 674 N.E.2d 149 (1996). We may address issues not properly preserved by
the parties in order to achieve a just result and to maintain a
uniform body of precedent. Geise, 159 Ill. 2d at 514. In the
present case, we reach defendant's first two issues on appeal.
Defendant's first argument on appeal is that the trial court
erred in instructing the jury on transferred intent. We disagree.
Here, the jury was instructed as follows pursuant to Illinois
Pattern Jury Instruction 7.02:
To sustain the charge of first degree murder, the
State must prove the following propositions:
First: That the defendant, or one for whose conduct
he is legally responsible, performed the acts which
caused the death of James Hale; and
Second: That when the defendant, or one for whose
conduct he is legally responsible, did so, he intended to
kill or do great bodily harm to James Hale or another; or
He knew that his acts would cause death of [sic]
James Hale or another; or
He knew that his acts created a strong probability
of death or great bodily harm to James Hale or another.
Defendant argues that the "or another" language should only be
provided when the facts of the case show transferred intent, and
that the facts of this case do not present such a situation.
Under the doctrine of transferred intent, if a defendant
shoots at one person, with the intent to kill, but actually kills
an unintended victim, the defendant may be convicted of the crime
of murder for the death of the unintended victim. People v.
Forrest, 133 Ill. App. 2d 70, 72, 272 N.E.2d 813 (1971); People v.
Hill, 276 Ill. App. 3d 683, 688, 658 N.E.2d 1294 (1995). Defendant
argues that People v. Migliore, 170 Ill. App. 3d 581, 525 N.E.2d 182 (1988), stands for the proposition that the doctrine of
transferred intent is inapplicable in situations such as the
present case where the death of the unintended victim might have
been the result of a mistaken identity. This interpretation of
Migliore is incorrect.
In Migliore, the defendant was found guilty in a bench trial
of attempt murder after he fired gun shots at the victim's house.
Evidence in the record suggested that the defendant actually meant
to fire shots at the occupant of another house on the street.
Migliore, 170 Ill. App. 3d at 590. Upon discussing the doctrine of
transferred intent, the Migliore court distinguished the bad-aim
scenario from the mistaken-identity scenario. Under the bad-aim
scenario, the offender shoots at an intended victim, misses, and
strikes an unintended victim. Migliore, 170 Ill. App. 3d at 590.
Under the mistaken identity scenario:
"[I]n the semi-darkness A shoots, with intent to kill, at
a vague form he supposes to be his enemy B but who is
actually another person C; his well-aimed bullet kills C.
Here too A is guilty of murdering C, to the same extent
he would have been guilty of murdering B had he made no
mistake. A intended to kill the person at whom he aimed,
so there is even less difficulty in holding him guilty
than in the bad-aim situation. And of course A's
conceivable argument that his mistake of fact (as to the
victim's identity) somehow negatives his guilt of murder
would be unavailing; his mistake does not negative his
intent to kill; and on the facts as he supposes them to
be A is just as guilty of murder as he is on the facts
which actually exist." Migliore, 170 Ill. App. 3d at
590; citing 1 W. La Fave & A. Scott, Jr., Substantive
Criminal Law 3.12, at 402 (1986).
At no point did the Migliore court hold that the doctrine of
transferred intent is inapplicable in the mistaken-identity
situation. Rather, the court reiterated that a mistake in identity
does not negative an intent to kill. Accordingly, the court
affirmed the defendant's conviction. Migliore, 170 Ill. App. 3d at
590.
In the instant case, it is irrelevant whether the death of
Hale and the injury to Ware were the result of the shooter's bad-
aim or mistaken-identity because the doctrine of transferred intent
is applicable in either scenario. The wording of the first degree
murder statute and subsequent commentary on the statute require
such a conclusion. According to section 5/9-1 of the Illinois
Criminal Code of 1961:
"A person who kills an individual without lawful justification
commits first degree murder if, in performing the acts which
cause death:
(1) he either intends to kill or do great bodily harm, to
that individual or another, or knows that such acts will
cause death to that individual or another; or
(2) he knows that such acts create a strong probability
of death or great bodily harm to that individual or
another." 720 ILCS 5/9-1(a)(1),(2) (West 1994)(Emphasis
added).
The committee comments to this section of the code state:
"'Or another' recognizes the established principle often
described as 'transferred intent': if the offender has
the mental state which characterizes murder, he is guilty
or murder even if the person whom he kills is not the one
whom he intended to kill." 720 ILCS Ann. 5/9-1,
Committee Comments - 1961, at 14 (Smith-Hurd 1992).
As reflected in the committee comments, the "or another"
language was included in the statute to incorporate the concept of
transferred intent wherein the person murdered is not the one who
the offender intended to kill. As such, we find that the doctrine
of transferred intent finds equal application in either the bad-aim
or the mistaken-identity scenario.
In the instant case, the record is silent as to whether the
intended victim, Howard, actually was present at the party when the
shootings occurred. It is impossible to tell if the shooters fired
because: (1) they saw Howard, but missed him; or (2) they mistook
Hale or Ware for Howard; or (3) they just wanted to shoot anybody
at the 6500 South Lowe building because it was a "Gangster
Disciple" hangout. The facts of this case leave no doubt that the
shooter fired into a crowd of people, striking Hale and Ware.
Since it is unclear whether they were the intended victims, the
jury was properly instructed on the doctrine of transferred intent.
Defendant further argues prejudice based on the transferred
intent instruction because it was offered to the jury in
conjunction with an accountability instruction. Defendant argues
that the combination of these instructions relieves the State of
its burden to show that the murder of the unintended victim was in
furtherance of the crime agreed to by the non-shooter.
Jury instructions in criminal cases, "must be read as a whole.
'It is sufficient if the series of instructions, considered as a
whole, fully and fairly announce the law applicable to the
respective theories of the People and the defense.'" Terry, 99 Ill. 2d at 516, citing People v. Kolep, 29 Ill. 2d 116, 193 N.E.2d 753 (1963).
Here, the jury received Illinois Pattern Jury Instruction 5.03
on accountability which provides:
A person is legally responsible for the conduct of
another person when, either before or during the
commission of an offense, and with the intent to promote
or facilitate the commission of an offense, he knowingly
solicits, aids, abets, agrees to aid, or attempts to aid
the other person in the planning or commission of an
offense.
The word "conduct" includes any criminal act done in
furtherance of the planned and intended act. Illinois
Pattern Jury Instructions, Criminal, No. 5.03 (3d ed.
1992)(hereinafter IPI Criminal No. 5.03).
The Committee Note to IPI Criminal No. 5.03 reads, "[u]se the
bracketed word 'an' and use the [second] paragraph when the offense
charged is different than the planned and intended offense, but
done in furtherance of it." IPI Criminal No. 5.03, Committee Note
at 106 (West 1992); citing People v. Kessler, 57 Ill. 2d 493, 315 N.E.2d 29 (1974); People v. Terry, 99 Ill. 2d 508, 460 N.E.2d 746
(1984).
A person may be held legally accountable for the conduct of
another under section 5-2(c) of the Criminal Code of 1961 when:
"Either 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 1994).
Section 5-2(c) incorporates the common design rule which provides
that where two or more persons engage in a common criminal design
or agreement, any acts committed in furtherance of the plan by any
one party are considered to be the acts of all the parties, and all
are accountable for those acts. People v. Eubanks, 283 Ill. App.
3d 12, 20, 669 N.E.2d 678 (1996), citing Terry, 99 Ill. 2d at 508.
In the instant case, the State advanced alternative theories
of guilt. The State contended that either defendant shot the gun
himself, as Lloyd and Smith testified, or that DC and Jose fired
into the crowd pursuant to defendant's order for them to kill
Howard, as defendant claimed in his written confession. The State
may advance alternative theories of guilt. People v. Coleman, 248
Ill. App. 3d 371, 377, 918 N.E.2d 466 (1993). The jury could have
believed defendant's confession. Had they done so, defendant was
guilty of murder and attempt murder under the theory of
accountability.
Defendant argues that a defendant may be held accountable for
the murder of an unintended victim only when the State shows that
the actual crime committed was in furtherance of the crime agreed
to by the non-shooter. We agree, and this is exactly what the jury
in the instant case was instructed. However, the jury need not
find that the actual result was intended by the non-shooter,
rather, the jury need only find that the act committed was in
furtherance of the planned and intended offense. Thus, in the
present case, it was unnecessary for the jury to find that
defendant intended to kill Ware or Hale. Rather, the jury only
needed to find that their injuries were in furtherance of the
planned and intended offense, the killing of Howard.
When considered and read as a whole, the instructions in this
case fully and adequately informed the jury of the applicable law.
To adopt the defense argument would require this court to hold that
the State could never proceed under an accountability theory when
the jury would also be instructed on transferred intent. We reject
this argument. As such, the trial court properly instructed the
jury with both paragraphs of IPI Criminal 5.03, and we find that it
was proper for the trial court to instruct the jury on both
accountability and transferred intent.
Defendant next argues that the trial court erred when it
allowed the victim's obituary notice to go back to the jury. We
agree. Obituary notices of the type admitted in this case are
becoming increasingly common. Sending them back with a jury during
its deliberations can serve no conceivable purpose. However, under
the circumstances of this particular case, we find that the error
was harmless.
Intentional references to a victim's family are impermissible.
People v. Hope, 116 Ill. 2d 265, 278, 508 N.E.2d 202 (1986), citing
People v. Bernette, 30 Ill. 2d 359, 197 N.E.2d 436 (1964). The
rationale for excluding references to a victim's family is that
such information serves only to prejudice the defendant in the eyes
of the jury. Hope, 116 Ill. 2d at 275. Even so, comments about
the victim's family can constitute harmless error where the
defendant is not substantially prejudiced. People v. Flax, 255
Ill. App. 3d 103, 110-11, 627 N.E.2d 359 (1993); see also People v.
Pierson, 166 Ill. App. 3d 558, 565, 519 N.E.2d 1185 (1988)
(comments regarding victim and victim's family deemed harmless).
Here, given the overwhelming evidence against defendant, we
find that defendant was not substantially prejudiced by the
admission and jury review of the obituary notice. Both Willie
Smith and Curtis Lloyd saw defendant fire the shots which fatally
wounded Hare and injured Ware. Lloyd also identified defendant in
a police line-up 18 days after the shooting. In addition,
defendant's own statement established that he was involved in the
planning and commission of the offense. Further, the record
supports the conclusion that the notice was not intentionally
brought to the jury's attention through some premeditated act of
the State. See Hope, 116 Ill. 2d at 278. Accordingly, we find
that it was harmless error for the trial court to admit the
obituary notice and to allow the jury to consider it during
deliberations.
Defendant's final argument on appeal is that the trial court
erroneously considered evidence of defendant's gang membership
during the sentencing hearing. We are required by statutory
mandate to hold that defendant has waived this issue by failing to
file a post-trial motion alleging such error within 30 days of
sentencing. 730 ILCS 5/5-8-1(c) (West Supp. 1995); People v. Reed,
Nos. 81422, 81683 (Ill. Sup. Ct. Sept. 25, 1997).
In light of the foregoing, we affirm the judgement and
sentence of the circuit court.
Affirmed.
GREIMAN, P.J. and THEIS, J. concur.
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