People v. Duncan modified August 18

No. 1-96-3750

SECOND DIVISION
JUNE 16, 1998

THE PEOPLE OF THE STATE OF ILLINOIS, ) APPEAL FROM
) THE CIRCUIT COURT
Plaintiff-Appellee, ) COOK COUNTY.
)
v. ) No. 93 CR 1352
)
ALLEN DUNCAN, ) THE HONORABLE
) JAMES D. EGAN,
Defendant-Appellant. ) JUDGE PRESIDING.

JUSTICE COUSINS delivered the opinion of the court:
Defendant Allen Duncan and codefendants Jermail Lake, Lemont
Lake and Tineshea Lake were charged by indictment with two counts
of first degree murder in the shooting death of Alvin Gilmore.
After a bench trial, defendant was found guilty of first degree
murder and sentenced to 21 years' imprisonment.
On appeal, defendant Allen Duncan contends that: (1) his
conviction should be reversed because there was no written jury
waiver and because the trial court failed to ensure that he
understood the difference between a bench trial and a jury trial,
failed to inform him that he had a constitutional right to be
tried by a jury of his peers and failed to ensure that the waiver
of his right to a jury was knowing and voluntary; and (2) the
State failed to prove him guilty of first degree murder under a
theory of accountability.
BACKGROUND
Events that began with a street encounter between two women
and a slap ended on December 26, 1992, with a hail of bullets
being fired at and into a building. As a result, Alvin Gilmore,
who was inside the building, suffered a fatal gunshot wound to
the head.
On December 26, 1992, Lashundia Davis, while on her way to a
store by her home, ran into Tineshea Lake, who was with two other
women, Rashawn Jackson and Kimberly Manning. Tineshea had
previously dated Lashundia's boyfriend, Orlando Potts. Rashawn
approached Lashundia, said something to her and slapped her
across the face. At this point, Tineshea said "let's get her."
Lashundia then ran home and spoke to her sister and brother, who
then accompanied her to Tineshea's home. At Tineshea's house,
Lashundia offered to fight Tineshea but Tineshea refused and
Lashundia went home. On her way home, Lashundia ran into her
mother and her boyfriend, Orlando Potts. After they conversed,
Orlando Potts went to Tineshea's house and broke windows in her
house.
Ben Harden testified for the State pursuant to a plea
agreement in which first degree murder charges against him were
dropped and he received a sentence of 12 years' imprisonment for
aggravated discharge of a firearm. According to Harden's
testimony, he was in a car with Lemont Lake when Lemont stopped
to make a phone call in response to a page he received on his
pager. Harden testified that Lemont appeared to be angry when he
got back in the car and told Harden that "[t]hey was bogus."
Lemont then drove to defendant's apartment on 55th and Union
Streets. Once inside, Lemont told defendant to "give me that,"
at which point defendant retrieved a black, 9 millimeter gun
along with a loaded clip and handed it to Lemont. Lemont put the
loaded clip into the gun.
Lemont Lake, Ben Harden and defendant left defendant's
apartment where, soon thereafter, they saw Jermail Lake and Shon
Scott. Lemont told Jermail and Shon, "They was bogus for doing
that." Defendant, Lemont Lake and Ben Harden then drove to the
Lake house at 39th and Prairie, where they met Jermail Lake and
Shon Scott, who had driven separately. Rashawn Jackson was
sweeping up the glass from the window that Orlando Potts had
broken. Harden further testified that Tineshea told Lemont that
Orlando had broken the windows because she had called him "out
[sic] his name." Harden also testified that Tineshea told the
group, which consisted of himself, defendant, Lemont Lake,
Jermail Lake and Shon Scott, that they should go to Orlando's
house and "kick his ass," but that they should be careful because
someone would be there. Lemont then pulled out the 9 millimeter
gun and said, "don't worry about it."
Defendant, Lemont Lake, Ben Harden, Shon Scott and Jermail
Lake left the apartment and walked northbound on Prairie to
Lashundia's house. Lashundia lived at 3932 S. Prairie, which is
a low-rise housing unit. When they reached a tree about 30 feet
away from Orlando's apartment, Lemont told the group to stop,
pulled the gun out of his jacket and aimed it toward the
apartment. As Lemont fired the gun he said, "watch me light
this place up." He fired 16 shots at the apartment. On cross-
examination, Harden testified that he could see people in
Orlando's apartment before Lemont began shooting.
Defendant, Ben Harden, and Lemont Lake ran to Lemont's car
and defendant drove them to Lemont's house, where they drank and
watched videos. Jermail Lake and Shon Scott arrived 5 to 10
minutes later. Jermail then made a phone call in which Ben heard
him say, "Is everybody straight? Is she O.K.?" Approximately 15
minutes later, the police arrived and arrested everyone.
At trial, Lashundia Davis testified that, at about 6:30
p.m., shortly after Orlando had gone to Tineshea's home to break
her windows, she was at home with her mother, siblings, Eric
Watkins and her nieces and nephews, including Alvin Gilmore.
Eric Watkins looked out the window and said something that caused
Lashundia to look out the window. When Lashundia looked out the
window she saw defendant, Rashawn Jackson, Kimberly Manning,
Tineshea, Lemont Lake and Jermail Lake approaching her apartment
from the courtyard directly across from her apartment. Lashundia
claimed that the group was within 40 feet of her apartment at one
time prior to shooting. Prior to the shooting, 14 year-old Alvin
Gilmore was sitting at the kitchen table near a window.
Testimony established that he died from a gunshot wound to his
brain.
At the conclusion of simultaneous bench and jury trials,
all of the defendants were found guilty of first degree murder.
Defendant was sentenced to 21 years' imprisonment and now
appeals.
We affirm.
ANALYSIS
I
Defendant first contends that he is entitled to a new trial
because he did not waive his right to a jury trial in writing as
is required by section 115--1 of the Code of Criminal Procedure
of 1963 (725 ILCS 5/115--1 (West 1992)), nor did he
understandingly and knowingly waive his right to a jury trial in
open court.
Section 115--1 of the Code states that "[a]ll prosecutions
*** shall be tried by the court and a jury unless the defendant
waives a jury trial in writing." 725 ILCS 5/115--1 (West 1992).
However, in People v. Tooles, 177 Ill. 2d 462, 464, 687 N.E.2d 48, 49 (1997), the Illinois Supreme Court recently reiterated the
well-settled rule that the failure to secure a written jury
waiver does not require a new trial where it can be shown that
the defendant's waiver was otherwise understandingly made.
Tooles, 177 Ill. 2d at 464, 687 N.E.2d at 49; 725 ILCS 5/103-6
(West 1992). Rather, the determination of whether a jury waiver
was made understandingly turns on the facts and circumstances of
each particular case. Tooles, 177 Ill. 2d at 469, 687 N.E.2d at
51, citing People v. Tye, 141 Ill. 2d 1, 24, 565 N.E.2d 931
(1990).
Defendant argues that Tooles requires that the trial court
question the defendant in order to ensure that his jury waiver is
understandingly made. In Tooles, the supreme court reviewed the
trial records of three defendants, Tyreese Tooles, William Farmer
and Demarco Gray, in order to ascertain whether each defendant
had understandingly waived his right to a jury trial. In each
trial, the respective trial courts spoke directly to the
defendants. Defendants Tooles and Gray were asked whether they
understood the difference between a bench and jury trial. Tooles,
177 Ill. 2d at 469, 472, 687 N.E.2d at 52, 53. Tooles was asked
whether his desire to waive his right to a jury trial was the
product of any promises or threats. Tooles, 177 Ill. 2d at 469,
687 N.E.2d at 52. Furthermore, both Tooles and Farmer were told
that their right to a jury trial was a constitutional right.
Tooles, 177 Ill. 2d at 469, 687 N.E.2d at 52. It was explained
to defendants Farmer and Gray that waiving their right to a jury
trial would result in a judge, without a jury, deciding the case.
Tooles, 177 Ill. 2d at 469-472, 687 N.E.2d at 52-53. In light
of these facts, the supreme court concluded that all the
defendants had understandingly waived their right to a jury
trial.
In the case sub judice, defendant argues that, under Tooles,
a trial court is now required to follow the factors mentioned in
Tooles, i.e., inform the defendant that his right to a jury trial
is a constitutional right, explain the difference between a bench
and jury trial and question whether the defendant's desire to
waive his right to a jury trial is the product of any promises or
threats in order to ensure that a defendant's jury waiver is
understandingly made. We believe defendant misinterprets
Tooles. In our view, Tooles does not require specific
admonishments or advice to a defendant. To the contrary, citing
People v. Smith, 106 Ill. 2d 327, 478 N.E.2d 357 (1985), the
Tooles court specifically stated:
"[W]e review each defendant's trial record to determine
whether he understandingly waived his right to a jury. In
doing so we observe that, while the circuit court must
insure that a defendant's jury waiver is understandingly
made, no set admonition or advice is required before an
effective waiver of that right may be made. Smith, 106 Ill. 2d at 334. The determination whether a jury waiver was made
understandingly instead turns on the facts and circumstances
of each particular case. People v. Tye, 141 Ill. 2d 1, 24
(1990)." (Emphasis added.) Tooles, 177 Ill. 2d at 469, 687 N.E.2d at 51.
People v. Smith, 106 Ill. 2d 327, 478 N.E.2d 357 (1985), in
turn, cites People v. Frey, 103 Ill. 2d 327, 469 N.E.2d 195
(1984), for the proposition that no set admonition or advice is
required before an effective jury waiver may be made. Smith, 106 Ill. 2d at 334.
In People v. Frey, 103 Ill. 2d 327, 469 N.E.2d 195, the
record on appeal included only the record of the bench trial and
did not include a record of the discussions between the court and
defense counsel prior to trial. Frey, 103 Ill. 2d at 330. The
appellate court ordered a new trial because it did not believe
the record supported a finding that the defendant had implicitly
or explicitly waived a jury trial. Frey, 103 Ill. 2d at 331-32.
The Illinois Supreme Court disagreed and concluded that the
defendant's jury waiver was valid because the defendant was
present on occasions when the matter of a bench trial was
discussed. Frey, 103 Ill. 2d at 333. The supreme court
concluded that the orders that had been filed prior to trial that
were included in the record indicated that a bench trial had been
set and therefore reflected defense counsel's willingness to try
the case before the court. Frey, 103 Ill. 2d at 332-33. The
supreme court further noted that, on the day of trial, a colloquy
took place between the court and defendant in which the only
reference made to a bench trial was the trial court's comments on
the matter. The trial court stated: "[t]hese causes were set
today for purposes of bench trial and the issues presented by all
three counts pending against this defendant. Are the People
ready for trial at this time?" (Emphasis omitted.) Frey, 103 Ill. 2d at 331. The supreme court pointed out that, typically, an
accused speaks and acts through his attorney and, therefore,
effect is given to jury waivers made by defense counsel in
defendant's presence where the defendant gives no indication of
any objection to the court. Frey, 103 Ill. 2d at 332. In this
way, the supreme court concluded, the accused will not be
permitted "to gamble on the outcome before the judge without a
jury and then if dissatisfied make a belated demand for a jury."
Frey, 103 Ill. 2d at 333.
Thus, Tooles holds that, in the absence of a written jury
waiver or specific admonishment or advice by the trial court, a
defendant has nevertheless knowingly, understandingly and
voluntarily waived his constitutional right to a jury trial in
open court when he permits his counsel in his presence and
without his objection to waive his right to a jury trial on his
behalf.
In the instant case, the following colloquy occurred:
"THE COURT: Mr. Scott [defendant]. You understand that
Mr. Levin is going to be representing Lamonte [sic] at a
jury trial, yourself at a bench trial. Is that what you
wish to have?
MR. SCOTT: Yes, sir.
THE COURT: [To defense counsel Mr. Levin] Who is your
other client?
MR. LEVIN [defense counsel]: Allen Duncan.
THE COURT: Mr. Duncan.
DEFENDANT: Yes I do, judge.
THE COURT: You understand Mr. Levin is going to be
representing Lamonte [sic] Lake on a jury trial and he's
elected, been elected, you will be proceeding to a bench
trial and he will be representing both of you. You
understand that?
DEFENDANT: Yes.
THE COURT: That's your wish?
DEFENDANT: Yes.
THE COURT: All right."
Here, defendant was specifically asked whether he wanted a
bench trial and whether he understood that Mr. Levin would be
representing him at the bench trial. Defendant responded
directly to the trial court's inquiries. Thus, the record shows
that defendant understandingly waived his right to a jury.
In People v. Asselborn, 278 Ill. App. 3d 960 (1996), the
following colloquy occurred:
"THE COURT: Have a seat. Jury waiver. Bench or jury?
MR. LEVIN [Defense counsel]: It will be a bench your
Honor." Asselborn, 278 Ill. App. 3d at 962.
We concluded that the defendant in that case properly waived his
right to a jury trial in open court because he was present during
the colloquy and failed to object to his counsel's actions.
Asselborn, 278 Ill. App. 3d at 962-63.
Notably, in Asselborn, the court spoke to the attorney in
defendant's presence. Here, the court not only spoke to the
attorney, the court spoke to the defendant and the defendant said
yes and indicated that he understood that he was electing to
proceed with a bench rather than jury trial. Thus, the record
establishing waiver in the instant case is even stronger than the
record in Asselborn.
Defendant relies on People v. Scott, 293 Ill. App. 3d 241,
687 N.E.2d 1154 (1997), in which the Fifth District Appellate
Court reversed the defendant's conviction because his written
jury waiver had been filed outside open court. Furthermore, the
defendant was not present when a jury waiver was finally
mentioned and waived in open court. Scott, 293 Ill. App. 3d at
244. However, Scott is distinguishable from the instant case.
Here, defendant was present in open court and responded directly
to the trial court's inquiries. Accordingly, under Tooles, we
cannot conclude that defendant failed to properly waive his right
to a jury trial.
II
Finally, defendant argues that there was insufficient
evidence to convict him of first degree murder under a theory of
accountability. Specifically, he argues that the State failed
to prove beyond a reasonable doubt that he was part of a common
criminal design or common plan to commit a battery or to
participate in the shooting that resulted in the death of Alvin
Gilmore. We disagree.
Section 5--2(c) of the Criminal Code incorporates the common
design rule, which provides that where two or more people 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.
720 ILCS 5/5--2(c) (West 1992); People v. Shelton, 293 Ill. App.
3d 747, 754, 688 N.E.2d 831 (1997); People v. Eubanks, 283 Ill.
App. 3d 12, 20-21, 669 N.E.2d 678 (1996). Moreover, a defendant
may be charged with murder based on a theory of accountability
where the defendant enters a common design to commit only a
battery, yet a murder is committed during the course of the
battery. People v. McClain, 269 Ill. App. 3d 500, 505, 645 N.E.2d 585 (1995).
Here, defendant was accountable for the actions of Lemont.
The evidence presented indicates that defendant gave Lemont the
nine millimeter gun that was used in the shooting. The group met
at the Lake home where Tineshea told the group, which included
defendant, that they should "kick [Orlando's] ass." At that
point, Lemont displayed a gun and told Tineshea not to worry
about it. Thus, defendant was a party to a common criminal
design. See Eubanks, 283 Ill. App. 3d at 21. Defendant then
left with the group and went directly to Lashundia's house with
the intent to hurt Orlando Potts. After the shooting, defendant
drove part of the group back to Lemont Lake's house. The fact
that Lemont shot Alvin Gilmore during the execution of the
group's common plan to hurt Orlando Potts is sufficient to hold
defendant accountable for the shooting. In light of these
circumstances, defendant was accountable for the murder of Alvin
Gilmore.
For the reasons cited herein, the judgments of the circuit
court of Cook County are affirmed. As part of our judgment, we
grant the State's request and assess defendant $150 as costs for
this appeal.
Affirmed.
McNULTY, P.J., and TULLY, J., concur.