People v. Dennis
Annotate this Case
People v. Dennis, No. 79042 (2/20/97)
Docket No. 79042--Agenda 6--May 1997.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
ROMANCE DENNIS, Appellee.
Opinion filed February 20, 1998.
CHIEF JUSTICE FREEMAN delivered the opinion of the court:
Following a jury trial in the circuit court of Cook
County, defendant, Romance Dennis, was convicted of armed
robbery (720 ILCS 5/18--2(a) (West 1994)) on a theory of
accountability (720 ILCS 5/5--2 (West 1994)) and
sentenced to eight years' imprisonment. The appellate
court reversed defendant's conviction and remanded the
cause for a new trial. 271 Ill. App. 3d 1041. We granted
the State's petition for leave to appeal (166 Ill. 2d R.
315(a)) and now affirm the appellate court.
FACTUAL BACKGROUND
The testimony of Mario and Greg Perez, the victims
in this case, was essentially the same. Mario testified
that on July 15, 1991, he and his brother, Greg, self-
employed roofing contractors, were in search of a
hardware store to purchase paint and supplies. While
searching, Mario drove his truck into an alleyway in the
vicinity of Chicago Avenue and Springfield Road in
Chicago. A garbage truck was stopped in the alley in
front of him and blocked Mario s exit.
Because the alleyway was blocked, Mario turned off
his truck engine, opened his door and waited for the
garbage truck to move. In his rearview mirror, Mario
noticed a car, being driven by defendant, enter the alley
and pull up directly behind Mario s truck. Another
person, later identified as Ernest Jones, exited
defendant's car from the passenger side. Defendant then
backed the car into a "T" in the alley.
Greg, who was seated on the passenger side of the
truck, testified that he did not see the car pull behind
their truck. However, as Greg sat with Mario, a man with
a gun approached Greg and demanded money. Greg alerted
Mario about the gunman. Upon seeing the gun, Mario
grabbed from Greg's hand the four dollars which had been
intended for the purchase of the paint and supplies.
Mario jumped out of the driver's side of the truck and
pulled out a pocket knife to distract the gunman.
Nevertheless, the gunman was able to take a radio/compact
disc player from the truck's floor. Greg chased the
gunman with a barbecue fork. Mario further testified that
the gunman got back into the car, which, by that time,
had been turned around without Mario's noticing.
Officer Patricia Warner, a Chicago police officer,
testified that on July 15, 1991, as she and her partner,
Paul Sarpaulis, were driving westbound on Chicago Avenue,
they observed two subjects, later identified as Greg and
Mario Perez, and responded to their summons for
assistance. The Perez brothers told the officers that
they had just been robbed and gave the officers a
physical description of the robbers and of their vehicle.
The description ultimately led the officers to defendant,
who was later positively identified by the Perez
brothers.
Officer Warner further testified that she was
familiar with a three-story gray brick building at West
Chicago Avenue. It was her testimony that the area is a
known "dope spot," and that she had, in the past,
investigated the building for narcotics trafficking.
Officer Warner also testified that although she could not
recall the name or exact location, there is a hardware
store on Chicago Avenue.
Defendant's version of the facts are as follows. On
the date of the robbery, defendant and his fiancée drove
to Earnest Jones' home. After picking up Jones, the three
drove to a location on Chicago Avenue in Chicago with the
intent to purchase heroin.
Defendant entered an alley between Springfield and
Harding. Parked just ahead of him in the alley was a
garbage truck. A pickup truck entered the alley behind
him. Defendant drove up to a "T" in the alley, stopped,
and allowed Jones to exit the car. After Jones exited,
defendant made a right turn into the "T" alley because
the pickup truck was behind him. According to defendant,
the pickup was one which he had seen near the drug house,
which was accessible from this alley, on at least three
prior occasions.
Defendant testified that Mario Perez and "some black
guy" were sitting in Mario's truck. Before turning into
the "T" alley, defendant saw Mario exit the pickup truck.
Mario had money in his hand and was headed toward the
entrance of the drug house. At that time, defendant
further recounted, Jones and Mario were walking almost
side by side toward the house. Defendant stated that he
pulled into the "T" alley to wait for Jones' return
because he did not want to wait in close proximity to the
drug house, which is located on the other side of the
"T."
While defendant and his fiancée were waiting,
defendant saw Jones being chased toward the car by an
unknown male. When Jones arrived at the car, defendant
leaned to his fiancée and told her to open the door.
Jones jumped into the car, and, panicking, told defendant
to go. At the time, defendant, unaware of what had
actually occurred, thought that perhaps there had been a
"drug bust." Defendant sped off in the car.
When Jones reentered defendant's car, Jones was
carrying a small radio in his hand. Prior to this time,
defendant had not seen the radio and did not know from
where Jones had gotten the radio. Jones subsequently told
defendant that he had taken the radio from the "guys"
chasing him. He lifted his shirt and showed defendant a
revolver in his waistband. Prior to that time, defendant
had not seen the revolver.
After dropping Jones off, defendant went home,
talked to his mother and went to work. Afraid to tell the
police that he was at the drug house, defendant did not
notify the police about the occurrence in the alley. In
the interim, Officer Warner visited defendant's home. At
some later time, defendant telephoned Officer Warner, who
eventually met with defendant and placed him under
arrest.
After being placed under arrest, the police
transported defendant to the police station. Defendant
agreed to cooperate with the police and, to that end,
defendant was permitted to leave the station and to lead
the police to Jones' home. Defendant picked up Jones and
the two then traveled to defendant's home. After arriving
at defendant's house, both defendant and Jones were
placed under arrest.
Defendant testified that he did not know that Jones
had a gun or that Jones was going to commit the robbery.
On cross-examination, he stated that he had given Jones
money to purchase drugs for both him and for Jones.
At the close of the evidence, the jury was
instructed on, inter alia, the elements of armed robbery
and accountability. During deliberations, the jury sent
a note to the court asking, "When is the commission of
the offense complete?" Before the court made any
response, the jury sent a second note, asking, "Can we
please have the answer: When is the commission of the
crime over? Will you supply the answer." As stated in the
appellate court opinion, the court responded, "you may
consider the period of time and the activities involved
in escaping to a place of safety."
The jury subsequently returned a guilty verdict. On
appeal, the appellate court held that while the trial
court's decision to respond to the jury inquiry was
proper, the substance of the court's response constituted
reversible error. The appellate court, therefore,
reversed defendant's conviction and sentence and remanded
the cause for a new trial.
We granted the State's petition for leave to appeal.
The issue, as framed by the State, is whether the trial
court committed reversible error when, in response to the
jury's inquiry as to when the armed robbery was complete,
the court responded that the jury could consider "the
period of time and activities involved in escaping to a
place of safety." Defendant cross appeals. We now affirm
the appellate court.
DISCUSSION
The appellate court held that the robbery ended when
the Perez brothers gave up their property. Quoting from
this court's opinion in People v. Gaines, 88 Ill. 2d 342
(1981), the appellate court reasoned that "[t]he offense
of robbery is complete when force or threat of force
causes the victim to part with possession or custody of
property against his will." Flight from the scene, the
court opined, does not elongate the offense of robbery;
when Jones got into defendant's car, the offense was
over. When matched with the jury's questions, the trial
court's response told the jury that the escape was part
of the armed robbery. The trial court's response to the
jury's inquiry was "misleading and tantamount to a
directed verdict of guilty." Since the defendant
testified that he learned of the armed robbery as he
drove from the scene, the guilty verdict was made
inevitable, even if the jury believed that defendant had
no knowledge of the armed robbery before and during its
commission.
The court additionally held that impeachment of
defendant's trial testimony concerning his reasons for
being in the alley was proper where that testimony
differed from the statements which defendant had earlier
given to police. The court also held, without determining
the effect, that the State's argument concerning its own
credibility was improper. 271 Ill. App. 3d 1041.
Preliminarily, we acknowledge the State's admonition
to this court against issuing an advisory opinion. In
that regard, the State first notes that this court has
"demonstrated an apparent interest in addressing the
legal issue of whether one's participation in an `escape'
from a completed crime can make that person accountable
for the crime itself." Citing our recent decision in
People v. Batchelor, 171 Ill. 2d 367 (1996), the State
then asserts that, as in Batchelor, we need not reach
that issue. It is the State's contention that the
appellate court misperceived the trial court's
instruction as referencing Jones' escape once he
reentered defendant's car. However, the escape referenced
in the instruction was one not from a completed armed
robbery, but rather from a robbery in progress. That is,
the "escape" in this case is defendant's involvement in
Jones' flight from his pursuing victims. The evidence,
therefore, supports the conclusion that defendant was
involved in the robbery both before and during its
commission. Thus, as the necessary factual basis is
lacking, any opinion offered by the court on whether one
may be held accountable for participation in an escape
from a completed robbery would be advisory.
First, in light of the trial court's reliance on
People v. Hickman, 59 Ill. 2d 89 (1974), we agree with
the State that the court's instruction referred to Jones'
flight from his pursuing victims to defendant's waiting
car. Second, although the State counsels us against
determining whether escape forms a part of the offense of
robbery, by its argument, the State appears to have done
just that. In an effort to bring defendant's conduct
within the scope of the accountability statute, the State
first offers that for as long as Jones was fleeing his
pursuing victims the "robbery was in progress."
Defendant's conduct during Jones' flight, therefore,
occurred during the commission of the robbery. Because
the State equates Jones' flight with an "escape from a
robbery in progress," the State has, as a result,
determined not only that "escape" forms a part of the
offense of robbery, but also when the robbery is
complete. Whether Jones' conduct during such "escape" was
a part of a "robbery in progress" or part of a completed
offense is the issue to be decided on appeal.
Third, by its argument, the State appears to suggest
that we may dispose of the escape issue here in a manner
similar to our disposition in Batchelor. While this case
may be factually similar to Batchelor, it is procedurally
different. The issue of whether escape formed a part of
the offense of armed robbery in Batchelor arose in the
context of a sufficiency of the evidence claim. Applying
a reasonable doubt standard, we held that there was
sufficient evidence to convict, without regard to whether
escape formed a part of the substantive offense.
In this case, unlike in Batchelor, the issue of
whether escape forms a part of the offense of armed
robbery arises in the context of a claimed instructional
error. Instructional errors are reviewed under a harmless
error, not a reasonable doubt, analysis. When confronted
with a sufficiency of the evidence claim, the reviewing
court determines whether, viewing the evidence in the
light most favorable to the State, any rational trier of
fact could have found the essential elements of the crime
beyond a reasonable doubt. See Batchelor, 171 Ill. 2d at
376. Contrarily, the test for harmless error in the
context of an instructional error is whether the result
at trial would have been different had the jury been
properly instructed. People v. Johnson, 146 Ill. 2d 109,
137 (1991). Where the evidence of guilt is clear and
convincing, an instructional error may be deemed
harmless. People v. Moore, 95 Ill. 2d 404, 410 (1983).
Therefore, notwithstanding the sufficiency of
evidence in this case, which might support a finding of
guilt, application of the harmless error analysis
requires, in the first instance, a determination of
whether any error occurred--in other words, whether the
instruction was correct. Second, if there was error in
the instruction, we must then determine whether, in spite
of that error, evidence of defendant's guilt was so clear
and convincing as to render the error harmless beyond a
reasonable doubt. Because, in this case, the escape issue
underlies the claimed instructional error, whether escape
forms a part of the offense of armed robbery for purposes
of accountability is now squarely before us, and we,
therefore, address it.
Accountability
We begin our analysis with consideration of the
nature of accountability. A person is legally accountable
for another's criminal conduct 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 1992). Therefore, in order to hold
defendant accountable for this armed robbery, defendant
must have, with the requisite intent, aided or abetted
Jones prior to or during the commission of the offense.
There seems to be no question between the parties as
to the meaning of terms "aided" and "abetted" as they
appear in the accountability statute. The serious debate
centers, instead, on the phrase "during the commission of
an offense." The State maintains that the Criminal Code
of 1961 leaves unanswered what is meant by commission of
the offense. However, the State posits, because
accountability principles apply to deter people from
joining in on and facilitating the accomplishment of
criminal behavior, the doctrine of accountability
"attempts to find the outermost limits of an offense, in
order to deter the greatest amount of detrimental
behavior."
The State rejects, as contrary to accountability
purposes, utilization of an "elements of the offense"
approach to defining "during the commission of an
offense." The State offers that the better approach is to
view the offense as a "related series of continuous
events," in other words, to consider the res gestae of
the offense. The State contends that a res gestae
approach is consistent with accountability proposes
because, under such approach, a defendant would be held
accountable for his or her assistance at any point in
time during the res gestae of the offense.
Res gestae has been generally understood as an
evidentiary principle which was, at one time, employed as
one of the exceptions to the hearsay rule. See M. Graham,
Cleary & Graham's Handbook of Illinois Evidence sec.
803.2 (6th ed. 1994). The term "res gestae" means "the
subject matter of the thing done." People v. Jarvis, 306 Ill. 611, 615 (1923). Defined generally, res gestae
refers to the circumstances, facts, and declarations
which grow out of the main fact and serve to illustrate
its character, and which are so spontaneous and
contemporaneous with the main fact as to exclude the idea
of deliberation or fabrications. 23 C.J.S. Criminal Law
sec. 867 (1989). As long as the main transaction
continues, deeds emanating from it become a part of that
transaction. Jarvis, 306 Ill. at 615.
As a basis for the admissibility of hearsay
evidence, Illinois has abandoned the concept of res
gestae as amorphous, having been applied indiscriminately
and inhibiting any reasonable analysis. See People v.
Poland, 22 Ill. 2d 175, 180 (1961); see also Rockford
Clutch Division, Borg-Warner Corp. v. Industrial Comm'n,
37 Ill. 2d 62 (1967). "Res gestae" has continued,
however, as a viable concept, utilized by our courts as
descriptive of the continuous nature of a criminal
offense. See, e.g., People v. Trammell, 71 Ill. App. 3d
60 (1979); People v. Bradford, 71 Ill. App. 3d 731
(1979); People v. Chambliss, 69 Ill. App. 2d 459 (1966).
Nevertheless, utilization of the concept to define the
duration of a criminal offense for purposes of
accountability gives us pause. We believe that the same
infirmities which once plagued the res gestae concept as
an evidentiary rule would attach were we now to utilize
the concept to define the duration of a criminal offense
for accountability purposes.
Notwithstanding our apprehension concerning a res
gestae approach, there is a stronger, and more basic,
reason to reject it. Section 5--1 of the Criminal Code of
1961 sets out the general rule for accountability for
conduct of another. Pursuant to section 5--1, "[a] person
is responsible for conduct which is an element of an
offense if the conduct is either that of the person
himself, or that of another and he is legally accountable
for such conduct." (Emphasis added.) 720 ILCS 5/5--1
(West 1992). A plain reading of the statute supports the
conclusion that any conduct which is not set out as an
element of the offense cannot form the basis for
accountability based guilt.
Even People v. Cooper, 53 Cal. 3d 1158, 811 P.2d 742, 282 Cal. Rptr. 450 (1991), a case which the State
offers as supportive of its "series of continuous events"
approach, supports an elements approach in defining the
duration of an offense for accountability purposes. The
facts in Cooper may be briefly stated. The defendant and
his codefendants were parked in a shopping center parking
lot. The defendant walked over to a nearby wall and then
returned to the car. Several minutes later, the
codefendants ran across the parking lot and, without
stopping, slammed into a shopper and stole his wallet.
The codefendants fled to the car, which was moving with
its two right-side doors open. After the codefendants
jumped inside, defendant hurriedly drove from the lot.
The defendant was charged and convicted on a theory
of aiding and abetting an armed robbery. At trial, the
court instructed the jury, inter alia, that "[a] robbery
is complete when the perpetrator has eluded his pursuers,
if any; has reached a place of temporary safety and is in
unchallenged possession of the stolen property after
having effected an escape with such property." Defendant
claimed that with respect to the robbery, the evidence
proved no more than that he was an accessory after the
fact. On appeal, the defendant claimed error in the
court's instruction. The court of appeals agreed and, on
that basis, reversed the defendant's conviction.
The case was taken up by the California Supreme
Court, which was asked to determine the duration of the
commission of robbery for purposes of aiding and abetting
liability. The court first noted that once all elements
of a robbery are satisfied the offense has been initially
committed and the principal may be found guilty of
robbery. This threshold of guilt-establishment is a fixed
point in time, but is not synonymous with "commission" of
a crime. For purposes of aider and abettor liability, the
court held, commission of a robbery continues until all
acts constituting the offense have ceased. Cooper, 53 Cal. 3d at 1164, 811 P.2d at 747, 282 Cal. Rptr. at 455.
It is this portion of the court's reasoning in
Cooper upon which the State relies in arguing against an
elements approach to defining the duration of an offense.
Had the court's reasoning ended there, we could find it
supportive of the State's position. However, although the
court's opinion in Cooper may properly be viewed as an
endorsement of a "series of continuous events" approach,
that approach is nonetheless applied within the narrow
context of the elements of the offense. Thus, to
determine the duration of the commission of robbery, the
Cooper court did not focus simply on the series of events
which occurred during the perpetration of the offense,
but also considered those events within the context of
the "duration of the final element of the robbery" as
provided by statute. (Emphasis in original.) Cooper, 53 Cal. 3d at 1165, 811 P.2d at 747-48, 282 Cal. Rptr. at
455-56.
As we understand Cooper, under California law,
asportation is the final element required to constitute
the offense of robbery. For purposes of establishing
guilt, the asportation element is initially satisfied by
evidence of slight movement; it is not confined to a
fixed point in time. The majority construed the
asportation element as continuing for as long as the
property is being carried away to a place of temporary
safety. Therefore, under California law, in order to be
convicted for aiding and abetting a robbery, a defendant
must form the necessary intent to facilitate or encourage
commission of the robbery prior to or during the carrying
away of the property to a temporary place of safety.
Cooper, 53 Cal. 3d at 1165, 811 P.2d at 748, 282 Cal. Rptr. at 456. The court in Cooper made clear its position
that for purposes of aider and abetter liability,
delineation of a crime logically required consideration
of the particular elements which constitute the crime.
Finding no evidence to the contrary, the court held that
because the escape and asportation coincided, the
erroneous instruction was harmless beyond a reasonable
doubt. But see Cooper, 53 Cal. 3d at 1173, 811 P.2d at
753, 282 Cal. Rptr. at 461 (Kennard, J., dissenting)
(finding that majority's grafting of the carrying away to
a place of safety conduct onto the asportation element of
robbery to be incongruous with the elements of the
offense approach).
A purer example of the elements approach to the
duration question may be found in State v. Baker, 303
N.J. Super. 411, 697 A.2d 145 (1997). In Baker, the
defendant was tried and convicted of committing armed
robbery as an accomplice or aider and abettor. During
deliberations, the jury had inquired of the trial court
as to when the commission of a crime ended. The trial
court responded that the jury could consider defendant's
immediate flight after the robbery. On appeal, the
defendant claimed instructional error in that the court
permitted the jury to convict him even if his only
participation in the robbery was to drive from the scene
after learning of the robbery. The reviewing court first
recognized that the crime of robbery is ongoing in
nature. Additionally, the court noted that "immediate
flight after the attempt or commission," in that case,
driving from the scene, constituted an included statutory
element of robbery. The instruction, having followed the
elements of the offense, was deemed proper.
Based upon the plain language in our accountability
statute, we conclude that, for purposes of
accountability, the duration of the commission of an
offense is defined by the elements of the offense. In
this case, we necessarily consider those elements which
constitute the offense of armed robbery. Consistent with
our accountability statute, a defendant may be held
accountable for the commission of armed robbery if,
either before or during the commission of the offense, he
aided or abetted Jones in "conduct which is an element of
[the] offense."
Duration of the Commission of Armed Robbery
Armed robbery is the taking of property "from the
person or presence of another by the use of force or by
threatening the imminent use of force" while "armed with
a dangerous weapon." 720 ILCS 5/18--1, 18--2(a) (West
1994). A taking from the person or presence is met when
the property is in the possession or control of the
victim and the robber uses violence or fear of violence
as the means to take it. People v. Smith, 78 Ill. 2d 298,
302-03 (1980). Although the required force or threat of
force must either precede or be contemporaneous with the
taking of the victim's property (People v. Foster, 198
Ill. App. 3d 986, 994 (1990); People v. Cox, 197 Ill.
App. 3d 1028, 1038-39 (1990)), use of a dangerous weapon
at any point in a robbery will constitute armed robbery
as long as it reasonably can be said to be a part of a
single occurrence (Foster, 198 Ill. App. 3d at 994-95).
Sufficient force exists where the force used is part of
a series of events that constitute a single incident or
occurrence. Foster, 198 Ill. App. 3d at 995.
Generally, where a victim observes a weapon, a
sufficient threat of force exists (People v.
Hollingsworth, 120 Ill. App. 3d 177, 179-80 (1983));
however, the mere threat of the imminent use will suffice
(People v. Taylor, 129 Ill. 2d 80, 84 (1989)). In the
absence of facts to show that fear was reasonable, a mere
subjective feeling of fear will not support a conviction
for robbery. Hollingsworth, 120 Ill. App. 3d at 179. The
offense of robbery is complete when force or threat of
force causes the victim to part with possession or
custody of property against his will. Smith, 78 Ill. 2d
at 303; see also People v. Baker, 365 Ill. 328 (1936)
(holding that a robbery is complete when property is
moved from its customary location with the intent to
deprive the owner of the property, even though escape
with the property is thwarted); see also People v.
Campbell, 234 Ill. 391 (1908).
Consistent with jurisprudence developed in our
appellate court, the State construes force to include not
only the force used in the taking, but also the force
used to effectuate the defendant's departure. See, e.g.,
People v. Kennedy, 10 Ill. App. 3d 519 (1973); People v.
Ditto, 98 Ill. App. 3d 36 (1981); People v. Ortiz, 156
Ill. App. 3d 170 (1987). The appellate court in this case
clearly disagreed with this line of reasoning, holding
that the robbery ended when the Perez brothers gave up
their property. The appellate court's position is,
however, consistent with Smith, 78 Ill. 2d 298. Jones was
criminally liable and the offense of robbery was
completed, for purposes of a guilt determination, at the
moment in time when he forcefully took the radio. His
conduct beyond the taking neither enhanced nor diminished
his criminal culpability for robbery.
Smith would appear to be inconsistent with those
appellate court cases which have held, in effect, that
the robbery continues for as long as force is being used,
either to perfect the taking of property or to effectuate
a departure from the scene. However, as the State
correctly perceives, Smith may be read to define the
minimum conduct required to constitute a completed
robbery. In our view, the appellate court's broad
construction of the force element is not an unreasonable
one and tends to capture that conduct which is the true
essence of an armed robbery offense.
In many instances, flight or an escape is
effectuated by use of force. It is the accompanying force
which properly continues the commission of the offense.
However, the fact that an escape is made possible by
reason of the use of force does not render escape an
element of the offense. In a case where an escape is
accomplished without force, it cannot reasonably be
argued that such escape is a part of the substantive
offense.
Neither flight from pursuing victims nor escape are
included as elements in the statutory definition of
robbery. See 720 ILCS 5/18--2(a)(2) (West 1994). Thus,
consistent with Smith, the offense of armed robbery is
complete when force or threat of force causes the victim
to part with possession or custody of property against
his will. Although the force which occurs simultaneously
with flight or an escape may be viewed as continuing the
commission of the offense (see, e.g., Kennedy, 10 Ill.
App. 3d 519; Ditto, 98 Ill. App. 3d 36; Ortiz, 156 Ill.
App. 3d 170), it is the force, not escape, which is the
essence and constitutes an element of the offense. The
commission of an armed robbery ends when force and
taking, the elements which constitute the offense, have
ceased.
In sum, it has long been emphasized that the gist of
the offense of robbery is the force or fear of violence
directed at the victim in order to deprive him of his
property. Taylor, 129 Ill. 2d 80; Burke v. People, 148 Ill. 70 (1893). A person who forms the intent to
facilitate an escape only after the forceful taking of
property has occurred can neither aid nor facilitate the
conduct which is an element of robbery. That person is
less culpable than the perpetrator and his action serves
merely to impede apprehension of the perpetrator. This
separate offense is subject to penalization under the
current version of our "accessory-after-the-fact"
provision. See 720 ILCS 5/31--5 (West 1994).
We acknowledge that, at least in the context of
felony murder, we have held that if a killing occurs in
the course of an escape from a robbery, the escape is
within the operation of the felony-murder rule. That rule
had its genesis in People v. Bongiorno, 358 Ill. 171, 173
(1934), citing People v. Boss, 210 Cal. 245, 290 P. 881
(1930). In Bongiorno, this court recognized, as a
principle of law, that where two or more persons are
engaged in a conspiracy to commit robbery and an officer
is murdered while in immediate pursuit of either or both
of the offenders who are attempting escape from the scene
of the crime with the fruits of the robbery, either in
possession of one or both, the crime of robbery is not
complete at the time of the murder, inasmuch as the
conspirators had not then won their way, even momentarily
to a place of temporary safety, and the possession of the
plunder was nothing more than a scrambling possession.
Accord People v. Golson, 32 Ill. 2d 398, 408 (1965);
People v. Johnson, 55 Ill. 2d 62, 68 (1973); People v.
Hickman, 59 Ill. 2d 89, 94 (1974) (holding that the
period of time and activities involved in escaping to
place of safety are part of crime itself); People v.
Smallwood, 102 Ill. 2d 190 (1984) (holding that the act
of robbery itself has not necessarily been completed at
time victim surrenders the property so that no further
consequences will attach to robber's conduct subsequent
to surrender of property).
The State does not now seek, and we are not
inclined, to extend the felony-murder escape rule to
apply in accountability cases. Certain policy
considerations inform our decision. Felony murder and
accountability have theoretically different
underpinnings. Felony murder seeks to deter persons from
committing forcible felonies by holding them responsible
for murder if a death results. People v. Viser, 62 Ill. 2d 568 (1975). Because of the extremely violent nature of
felony murder, we seek the broadest bounds for the
attachment of criminal liability. For that reason, in
felony murder, a defendant's liability is not limited to
his culpability for commission of the underlying felony.
A defendant may be found guilty of felony murder
regardless of a lack either of intent to commit murder
(see People v. Moore, 95 Ill. 2d 404 (1983)), or even
connivance with a codefendant (see People v. Burke, 85
Ill. App. 3d 939 (1980)). Our continued adherence to a
proximate cause approach is further exemplary of how
broadly we seek to extend the reaches of criminal
liability in the case of felony murder. See People v.
Lowery, 178 Ill. 2d 462 (1997); see also Hickman, 59 Ill. 2d 89.
Unlike felony murder, accountability focuses on the
degree of culpability of the offender and seeks to deter
persons from intentionally aiding or encouraging the
commission of offenses. Holding a defendant who neither
intends to participate in the commission of an offense
nor has knowledge that an offense has been committed
accountable does not serve the rule's deterrent effect.
Further, the attachment of liability in such situations
contravenes general concepts of criminal culpability. The
felony-murder escape rule contemplates neither knowledge
nor intent. Thus, the rule is irreconcilable with our
accountability statute and we decline to apply it in that
context. See In re D.C., 259 Ill. App. 3d 637 (1994),
overruled in part, People v. Taylor, 287 Ill. App. 3d 254
(1997) (holding that felony-murder escape rule does not
apply for purposes of accountability); accord Cooper, 53 Cal. 3d 1158, 811 P.2d 742, 282 Cal. Rptr. 450; but see
Trammel, 71 Ill. App. 3d 60 (applying felony-murder
escape rule outside context of felony murder).
The Court's Instruction
In answer to the jury's inquiry concerning when the
armed robbery had ended, the trial court responded that
"you may consider the period of time and activities
involved in escaping to a place of safety." The State
acknowledges that this instruction is consistent with the
felony-murder escape rule as provided in Hickman. In
fact, the trial court noted that the rule was drawn from
Hickman, but the court perceived the rule to be,
nonetheless, applicable. Regardless, the State argues
that based upon the circumstances in this case, the trial
court's response to the jury's questions was proper. In
the State's view, the appellate court mistakenly assumed
that the trial court's response instructed the jurors
that they could consider the period of time and the
activities involved subsequent to the completed offense
of armed robbery. In fact, however, the trial court's
instruction merely informed the jury that the offense
included the period of time when the victims were
attempting to regain control of their property;
codefendant was attempting to prevent the victims from
regaining possession of their property while, at the same
time, to effect a forceful departure from the scene.
Therefore, the State argues, the instruction did not
erroneously expand the offense of armed robbery.
As we have stated, we agree that the court's
instruction may be interpreted to reference the activity
during Jones' flight from his pursuing victims.
Nevertheless, as we have stated, neither a defendant's
flight from pursuing victims nor escape constitute
elements of the offense of armed robbery. Where force is
used to accomplish either flight or escape, such conduct
may properly be viewed as continuing the force element of
the offense. It is the force involved, not the flight or
the escape, which constitutes the offense. In instructing
juries on the offense of armed robbery, trial courts
should focus on the particular elements of the offense,
i.e., taking and use of force. The court's instruction
here was a statement of the felony-murder escape rule. As
that rule is not applicable for accountability purposes
and, further, as escape is not "conduct which is an
element of an offense" for which defendant may be held
accountable, the court's instruction was erroneous. We
next consider the effect of the erroneous instruction.
Harmless Error Analysis
The State argues, generally, that any error caused
by the trial court's response to the jury's questions was
harmless because the evidence of defendant's knowing
participation in the armed robbery was overwhelming. In
order for an alleged error in instructions to be
considered harmless, it must be demonstrated that the
result of a trial would not have been different if the
proper instruction had been given. People v. Johnson, 146 Ill. 2d 109, 137 (1991); see also People v. Davis, 10 Ill. 2d 430, 443 (1957) (holding that an "error in the
giving or refusing of instructions will not, alone,
justify a reversal when the evidence of the defendant's
guilt is so clear and convincing *** that a jury could
not reasonably have found the defendant not guilty");
People v. Fierer, 124 Ill. 2d 176 (1988) (rejecting
harmless error because incorrect instruction might have
altered the outcome of the trial).
The State recounts, at length, facts which,
according to the State, support at least the inference
that defendant was involved in the commission of this
offense. The State's theory of the case is that defendant
planned to commit the robbery, if not from the time he
picked up Jones, then at least from the time that he
entered the alley. However, the fact that the jury
inquired as to when the robbery ended supports the
conclusion that the jury did not find that defendant was
involved in planning the robbery either prior to picking
up Jones or from the time that he entered the alley.
The State's additionally offered facts (that
defendant was able to observe the robbery as it was being
committed; that he drove the getaway car; that he failed
to report the commission of the offense; that he planned
to share in the proceeds; and that his testimony was
incredible and inconsistent) are equally unavailing. Not
even presence at the scene, coupled with flight or
knowledge that a crime is being committed, is sufficient,
without more, for accountability purposes. People v.
Taylor, 164 Ill. 2d 131, 140 (1995); see also People v.
Foster, 198 Ill. App. 3d 986 (1990). Additionally, to be
legally accountable, a driver must knowingly drive the
getaway car. See People v. Ross, 100 Ill. App. 3d 607
(1981); People v. Bartlett, 91 Ill. App. 3d 138 (1980).
It was defendant's testimony that he was unaware that a
robbery had occurred until after Jones reentered the car.
Moreover, defendant's driving speedily from the alley is
conduct consistent with his testimony that he feared a
"drug bust" had occurred. Further, there was no testimony
that the plan to share in the proceeds from the robbery
were made prior to Jones' admitting to defendant that he
had robbed the Perez brothers. Finally, inconsistencies
in testimony, as well as credibility of witnesses, even
of the defendant, are issues for the trier of fact to
resolve.
In sum, it was defendant's uncontradicted testimony
he was unaware of a robbery until Jones reentered his
car. It was his further testimony that actions in the
alley, as well as his flight therefrom, were out of
concern for being at the drug house. Officer Warner's
testimony corroborated defendant's testimony concerning
the location of the drug house and drug trafficking
activity in the alley. While it is conceivable that
defendant was a part of the armed robbery, it is just as
conceivable that his presence in the alley and subsequent
conduct was related to drug-trafficking activity. The
escape could have been from the perceived "drug bust" as
easily as it could have been from the robbery.
Incidentally, and as the State argues, if in fact
the appellate court perceived the trial court's
instruction to reference defendant's driving from the
scene, it is reasonable to conclude that the jury might
also have interpreted the instruction to fix the escape
at the time of the car getaway. There is no evidence that
the use of force, once Jones was inside the car,
continued. Even if the jury believed defendant's version
of the facts, the instruction that it could "consider the
period of time and activities involved in escaping to a
place of safety" might have provided the basis for the
guilty verdict. But for the erroneous instruction, which,
in response to the jury's completion inquiry, told the
jury that it could consider escape, the result at trial
might have been different.
On this record, we do not find evidence in support
of defendant's armed robbery conviction so clear and
convincing as to render the erroneous instruction
harmless beyond a reasonable doubt. Cf. Cooper, 53 Cal. 3d 1158, 811 P.2d 742, 282 Cal. Rptr. 450 (holding that
because escape and asportation coincided, and there was
no evidence to the contrary, erroneous instruction was
harmless beyond reasonable doubt).
Defendant's Cross-Appeal
In his cross-appeal, defendant claims error in the
prosecution's closing argument and in the use of his
explanation to the police to discredit his trial
testimony. Because we have decided that the trial court's
erroneous instruction was reversible error, we do not
address these claims.
CONCLUSION
For the reasons stated above, we affirm the judgment
of the appellate court, which reversed defendant's
conviction and remanded the cause to the circuit court
for retrial. As there is sufficient evidence upon which
a jury may base a conviction for armed robbery, upon
retrial, defendant will not be subjected to double
jeopardy.
Appellate court judgment affirmed.
JUSTICE NICKELS, dissenting:
I disagree with the majority's cramped, unrealistic
interpretation of the phrase "during the commission of an
offense" as used in section 5--2 of the Criminal Code. In
the majority's view, for accountability purposes the
duration of an offense coincides precisely with the
formal elements of the offense. The majority ostensibly
reaches this conclusion by considering the phrase in
conjunction with section 5--1 of the Criminal Code.
However, the thrust of section 5--1 is simply that an
individual may be held responsible for the elements of an
offense based not only on his or her own conduct but also
on conduct for which he or she is accountable. That does
not tell us what we need to know in this case: When is
one person accountable for the conduct of another? In the
majority's view, aiding or abetting must occur before all
of the elements of the offense have been completed. In
the State's view, the "commission" of an offense includes
both the formal elements of the offense and
contemporaneous, closely related events as well. In
either case, one who participates in the commission of an
offense is accountable for the primary offender's conduct
pursuant to section 5--2, and is therefore responsible
for the elements of the offense under section 5--1.
Accordingly, section 5--1 does not resolve the issue
before this court.
To justify its approach, the majority suggests that
one who aids or abets a robbery before the robber has
gained control of the loot is more culpable than one
whose involvement begins immediately after that point. I
do not believe, however, that the degree of culpability
in the two situations is qualitatively different so as to
affect the determination of criminal responsibility.
Armed robbery is a crime of violence, and while the
robber is still at the scene, trying to make good his or
her escape, the danger of violence inherent in the
offense persists. This is true whether or not the robber
actually uses force in making his getaway. In my view,
this consideration amply warrants imposing accomplice
liability on one who assists an armed robber in his
immediate flight from the crime.
As the majority is forced to acknowledge, its
definition of the duration of an offense is inconsistent
with the definition governing application of the
statutory felony murder rule under section 9--1(a)(3) of
the Criminal Code (720 ILCS 5/9--1(a)(3) (West 1996)).
Illinois courts have also rejected a rigid, technical
"elements of the offense" approach like the majority's in
other settings. For instance, under section 12--14(a)(2)
of the Criminal Code (720 ILCS 5/12--14(a)(2) (West
1996)), the offense of criminal sexual assault is
enhanced to aggravated criminal sexual assault if the
offender caused bodily harm to the victim "during the
commission of the offense." It has been held that
injuries inflicted after a sexual assault will support a
conviction of aggravated criminal sexual assault when the
acts causing injury "were part of an unbroken series of
events and were both very near in time and closely linked
to the forced sexual acts." People v. Thomas, 234 Ill.
App. 3d 819, 825 (1992); see also People v. Colley, 188
Ill. App. 3d 817 (1989). I believe that the offense of
armed robbery should be viewed in similarly fluid terms
for purposes of determining accountability. Accordingly,
I dissent.
Docket No. 79042--Agenda 6--May 1997.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
ROMANCE DENNIS, Appellee.
Opinion filed February 20, 1998.
CHIEF JUSTICE FREEMAN delivered the opinion of the court:
Following a jury trial in the circuit court of Cook
County, defendant, Romance Dennis, was convicted of armed
robbery (720 ILCS 5/18--2(a) (West 1994)) on a theory of
accountability (720 ILCS 5/5--2 (West 1994)) and
sentenced to eight years' imprisonment. The appellate
court reversed defendant's conviction and remanded the
cause for a new trial. 271 Ill. App. 3d 1041. We granted
the State's petition for leave to appeal (166 Ill. 2d R.
315(a)) and now affirm the appellate court.
FACTUAL BACKGROUND
The testimony of Mario and Greg Perez, the victims
in this case, was essentially the same. Mario testified
that on July 15, 1991, he and his brother, Greg, self-
employed roofing contractors, were in search of a
hardware store to purchase paint and supplies. While
searching, Mario drove his truck into an alleyway in the
vicinity of Chicago Avenue and Springfield Road in
Chicago. A garbage truck was stopped in the alley in
front of him and blocked Mario s exit.
Because the alleyway was blocked, Mario turned off
his truck engine, opened his door and waited for the
garbage truck to move. In his rearview mirror, Mario
noticed a car, being driven by defendant, enter the alley
and pull up directly behind Mario s truck. Another
person, later identified as Ernest Jones, exited
defendant's car from the passenger side. Defendant then
backed the car into a "T" in the alley.
Greg, who was seated on the passenger side of the
truck, testified that he did not see the car pull behind
their truck. However, as Greg sat with Mario, a man with
a gun approached Greg and demanded money. Greg alerted
Mario about the gunman. Upon seeing the gun, Mario
grabbed from Greg's hand the four dollars which had been
intended for the purchase of the paint and supplies.
Mario jumped out of the driver's side of the truck and
pulled out a pocket knife to distract the gunman.
Nevertheless, the gunman was able to take a radio/compact
disc player from the truck's floor. Greg chased the
gunman with a barbecue fork. Mario further testified that
the gunman got back into the car, which, by that time,
had been turned around without Mario's noticing.
Officer Patricia Warner, a Chicago police officer,
testified that on July 15, 1991, as she and her partner,
Paul Sarpaulis, were driving westbound on Chicago Avenue,
they observed two subjects, later identified as Greg and
Mario Perez, and responded to their summons for
assistance. The Perez brothers told the officers that
they had just been robbed and gave the officers a
physical description of the robbers and of their vehicle.
The description ultimately led the officers to defendant,
who was later positively identified by the Perez
brothers.
Officer Warner further testified that she was
familiar with a three-story gray brick building at West
Chicago Avenue. It was her testimony that the area is a
known "dope spot," and that she had, in the past,
investigated the building for narcotics trafficking.
Officer Warner also testified that although she could not
recall the name or exact location, there is a hardware
store on Chicago Avenue.
Defendant's version of the facts are as follows. On
the date of the robbery, defendant and his fiancée drove
to Earnest Jones' home. After picking up Jones, the three
drove to a location on Chicago Avenue in Chicago with the
intent to purchase heroin.
Defendant entered an alley between Springfield and
Harding. Parked just ahead of him in the alley was a
garbage truck. A pickup truck entered the alley behind
him. Defendant drove up to a "T" in the alley, stopped,
and allowed Jones to exit the car. After Jones exited,
defendant made a right turn into the "T" alley because
the pickup truck was behind him. According to defendant,
the pickup was one which he had seen near the drug house,
which was accessible from this alley, on at least three
prior occasions.
Defendant testified that Mario Perez and "some black
guy" were sitting in Mario's truck. Before turning into
the "T" alley, defendant saw Mario exit the pickup truck.
Mario had money in his hand and was headed toward the
entrance of the drug house. At that time, defendant
further recounted, Jones and Mario were walking almost
side by side toward the house. Defendant stated that he
pulled into the "T" alley to wait for Jones' return
because he did not want to wait in close proximity to the
drug house, which is located on the other side of the
"T."
While defendant and his fiancée were waiting,
defendant saw Jones being chased toward the car by an
unknown male. When Jones arrived at the car, defendant
leaned to his fiancée and told her to open the door.
Jones jumped into the car, and, panicking, told defendant
to go. At the time, defendant, unaware of what had
actually occurred, thought that perhaps there had been a
"drug bust." Defendant sped off in the car.
When Jones reentered defendant's car, Jones was
carrying a small radio in his hand. Prior to this time,
defendant had not seen the radio and did not know from
where Jones had gotten the radio. Jones subsequently told
defendant that he had taken the radio from the "guys"
chasing him. He lifted his shirt and showed defendant a
revolver in his waistband. Prior to that time, defendant
had not seen the revolver.
After dropping Jones off, defendant went home,
talked to his mother and went to work. Afraid to tell the
police that he was at the drug house, defendant did not
notify the police about the occurrence in the alley. In
the interim, Officer Warner visited defendant's home. At
some later time, defendant telephoned Officer Warner, who
eventually met with defendant and placed him under
arrest.
After being placed under arrest, the police
transported defendant to the police station. Defendant
agreed to cooperate with the police and, to that end,
defendant was permitted to leave the station and to lead
the police to Jones' home. Defendant picked up Jones and
the two then traveled to defendant's home. After arriving
at defendant's house, both defendant and Jones were
placed under arrest.
Defendant testified that he did not know that Jones
had a gun or that Jones was going to commit the robbery.
On cross-examination, he stated that he had given Jones
money to purchase drugs for both him and for Jones.
At the close of the evidence, the jury was
instructed on, inter alia, the elements of armed robbery
and accountability. During deliberations, the jury sent
a note to the court asking, "When is the commission of
the offense complete?" Before the court made any
response, the jury sent a second note, asking, "Can we
please have the answer: When is the commission of the
crime over? Will you supply the answer." As stated in the
appellate court opinion, the court responded, "you may
consider the period of time and the activities involved
in escaping to a place of safety."
The jury subsequently returned a guilty verdict. On
appeal, the appellate court held that while the trial
court's decision to respond to the jury inquiry was
proper, the substance of the court's response constituted
reversible error. The appellate court, therefore,
reversed defendant's conviction and sentence and remanded
the cause for a new trial.
We granted the State's petition for leave to appeal.
The issue, as framed by the State, is whether the trial
court committed reversible error when, in response to the
jury's inquiry as to when the armed robbery was complete,
the court responded that the jury could consider "the
period of time and activities involved in escaping to a
place of safety." Defendant cross appeals. We now affirm
the appellate court.
DISCUSSION
The appellate court held that the robbery ended when
the Perez brothers gave up their property. Quoting from
this court's opinion in People v. Gaines, 88 Ill. 2d 342
(1981), the appellate court reasoned that "[t]he offense
of robbery is complete when force or threat of force
causes the victim to part with possession or custody of
property against his will." Flight from the scene, the
court opined, does not elongate the offense of robbery;
when Jones got into defendant's car, the offense was
over. When matched with the jury's questions, the trial
court's response told the jury that the escape was part
of the armed robbery. The trial court's response to the
jury's inquiry was "misleading and tantamount to a
directed verdict of guilty." Since the defendant
testified that he learned of the armed robbery as he
drove from the scene, the guilty verdict was made
inevitable, even if the jury believed that defendant had
no knowledge of the armed robbery before and during its
commission.
The court additionally held that impeachment of
defendant's trial testimony concerning his reasons for
being in the alley was proper where that testimony
differed from the statements which defendant had earlier
given to police. The court also held, without determining
the effect, that the State's argument concerning its own
credibility was improper. 271 Ill. App. 3d 1041.
Preliminarily, we acknowledge the State's admonition
to this court against issuing an advisory opinion. In
that regard, the State first notes that this court has
"demonstrated an apparent interest in addressing the
legal issue of whether one's participation in an `escape'
from a completed crime can make that person accountable
for the crime itself." Citing our recent decision in
People v. Batchelor, 171 Ill. 2d 367 (1996), the State
then asserts that, as in Batchelor, we need not reach
that issue. It is the State's contention that the
appellate court misperceived the trial court's
instruction as referencing Jones' escape once he
reentered defendant's car. However, the escape referenced
in the instruction was one not from a completed armed
robbery, but rather from a robbery in progress. That is,
the "escape" in this case is defendant's involvement in
Jones' flight from his pursuing victims. The evidence,
therefore, supports the conclusion that defendant was
involved in the robbery both before and during its
commission. Thus, as the necessary factual basis is
lacking, any opinion offered by the court on whether one
may be held accountable for participation in an escape
from a completed robbery would be advisory.
First, in light of the trial court's reliance on
People v. Hickman, 59 Ill. 2d 89 (1974), we agree with
the State that the court's instruction referred to Jones'
flight from his pursuing victims to defendant's waiting
car. Second, although the State counsels us against
determining whether escape forms a part of the offense of
robbery, by its argument, the State appears to have done
just that. In an effort to bring defendant's conduct
within the scope of the accountability statute, the State
first offers that for as long as Jones was fleeing his
pursuing victims the "robbery was in progress."
Defendant's conduct during Jones' flight, therefore,
occurred during the commission of the robbery. Because
the State equates Jones' flight with an "escape from a
robbery in progress," the State has, as a result,
determined not only that "escape" forms a part of the
offense of robbery, but also when the robbery is
complete. Whether Jones' conduct during such "escape" was
a part of a "robbery in progress" or part of a completed
offense is the issue to be decided on appeal.
Third, by its argument, the State appears to suggest
that we may dispose of the escape issue here in a manner
similar to our disposition in Batchelor. While this case
may be factually similar to Batchelor, it is procedurally
different. The issue of whether escape formed a part of
the offense of armed robbery in Batchelor arose in the
context of a sufficiency of the evidence claim. Applying
a reasonable doubt standard, we held that there was
sufficient evidence to convict, without regard to whether
escape formed a part of the substantive offense.
In this case, unlike in Batchelor, the issue of
whether escape forms a part of the offense of armed
robbery arises in the context of a claimed instructional
error. Instructional errors are reviewed under a harmless
error, not a reasonable doubt, analysis. When confronted
with a sufficiency of the evidence claim, the reviewing
court determines whether, viewing the evidence in the
light most favorable to the State, any rational trier of
fact could have found the essential elements of the crime
beyond a reasonable doubt. See Batchelor, 171 Ill. 2d at
376. Contrarily, the test for harmless error in the
context of an instructional error is whether the result
at trial would have been different had the jury been
properly instructed. People v. Johnson, 146 Ill. 2d 109,
137 (1991). Where the evidence of guilt is clear and
convincing, an instructional error may be deemed
harmless. People v. Moore, 95 Ill. 2d 404, 410 (1983).
Therefore, notwithstanding the sufficiency of
evidence in this case, which might support a finding of
guilt, application of the harmless error analysis
requires, in the first instance, a determination of
whether any error occurred--in other words, whether the
instruction was correct. Second, if there was error in
the instruction, we must then determine whether, in spite
of that error, evidence of defendant's guilt was so clear
and convincing as to render the error harmless beyond a
reasonable doubt. Because, in this case, the escape issue
underlies the claimed instructional error, whether escape
forms a part of the offense of armed robbery for purposes
of accountability is now squarely before us, and we,
therefore, address it.
Accountability
We begin our analysis with consideration of the
nature of accountability. A person is legally accountable
for another's criminal conduct 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 1992). Therefore, in order to hold
defendant accountable for this armed robbery, defendant
must have, with the requisite intent, aided or abetted
Jones prior to or during the commission of the offense.
There seems to be no question between the parties as
to the meaning of terms "aided" and "abetted" as they
appear in the accountability statute. The serious debate
centers, instead, on the phrase "during the commission of
an offense." The State maintains that the Criminal Code
of 1961 leaves unanswered what is meant by commission of
the offense. However, the State posits, because
accountability principles apply to deter people from
joining in on and facilitating the accomplishment of
criminal behavior, the doctrine of accountability
"attempts to find the outermost limits of an offense, in
order to deter the greatest amount of detrimental
behavior."
The State rejects, as contrary to accountability
purposes, utilization of an "elements of the offense"
approach to defining "during the commission of an
offense." The State offers that the better approach is to
view the offense as a "related series of continuous
events," in other words, to consider the res gestae of
the offense. The State contends that a res gestae
approach is consistent with accountability proposes
because, under such approach, a defendant would be held
accountable for his or her assistance at any point in
time during the res gestae of the offense.
Res gestae has been generally understood as an
evidentiary principle which was, at one time, employed as
one of the exceptions to the hearsay rule. See M. Graham,
Cleary & Graham's Handbook of Illinois Evidence sec.
803.2 (6th ed. 1994). The term "res gestae" means "the
subject matter of the thing done." People v. Jarvis, 306 Ill. 611, 615 (1923). Defined generally, res gestae
refers to the circumstances, facts, and declarations
which grow out of the main fact and serve to illustrate
its character, and which are so spontaneous and
contemporaneous with the main fact as to exclude the idea
of deliberation or fabrications. 23 C.J.S. Criminal Law
sec. 867 (1989). As long as the main transaction
continues, deeds emanating from it become a part of that
transaction. Jarvis, 306 Ill. at 615.
As a basis for the admissibility of hearsay
evidence, Illinois has abandoned the concept of res
gestae as amorphous, having been applied indiscriminately
and inhibiting any reasonable analysis. See People v.
Poland, 22 Ill. 2d 175, 180 (1961); see also Rockford
Clutch Division, Borg-Warner Corp. v. Industrial Comm'n,
37 Ill. 2d 62 (1967). "Res gestae" has continued,
however, as a viable concept, utilized by our courts as
descriptive of the continuous nature of a criminal
offense. See, e.g., People v. Trammell, 71 Ill. App. 3d
60 (1979); People v. Bradford, 71 Ill. App. 3d 731
(1979); People v. Chambliss, 69 Ill. App. 2d 459 (1966).
Nevertheless, utilization of the concept to define the
duration of a criminal offense for purposes of
accountability gives us pause. We believe that the same
infirmities which once plagued the res gestae concept as
an evidentiary rule would attach were we now to utilize
the concept to define the duration of a criminal offense
for accountability purposes.
Notwithstanding our apprehension concerning a res
gestae approach, there is a stronger, and more basic,
reason to reject it. Section 5--1 of the Criminal Code of
1961 sets out the general rule for accountability for
conduct of another. Pursuant to section 5--1, "[a] person
is responsible for conduct which is an element of an
offense if the conduct is either that of the person
himself, or that of another and he is legally accountable
for such conduct." (Emphasis added.) 720 ILCS 5/5--1
(West 1992). A plain reading of the statute supports the
conclusion that any conduct which is not set out as an
element of the offense cannot form the basis for
accountability based guilt.
Even People v. Cooper, 53 Cal. 3d 1158, 811 P.2d 742, 282 Cal. Rptr. 450 (1991), a case which the State
offers as supportive of its "series of continuous events"
approach, supports an elements approach in defining the
duration of an offense for accountability purposes. The
facts in Cooper may be briefly stated. The defendant and
his codefendants were parked in a shopping center parking
lot. The defendant walked over to a nearby wall and then
returned to the car. Several minutes later, the
codefendants ran across the parking lot and, without
stopping, slammed into a shopper and stole his wallet.
The codefendants fled to the car, which was moving with
its two right-side doors open. After the codefendants
jumped inside, defendant hurriedly drove from the lot.
The defendant was charged and convicted on a theory
of aiding and abetting an armed robbery. At trial, the
court instructed the jury, inter alia, that "[a] robbery
is complete when the perpetrator has eluded his pursuers,
if any; has reached a place of temporary safety and is in
unchallenged possession of the stolen property after
having effected an escape with such property." Defendant
claimed that with respect to the robbery, the evidence
proved no more than that he was an accessory after the
fact. On appeal, the defendant claimed error in the
court's instruction. The court of appeals agreed and, on
that basis, reversed the defendant's conviction.
The case was taken up by the California Supreme
Court, which was asked to determine the duration of the
commission of robbery for purposes of aiding and abetting
liability. The court first noted that once all elements
of a robbery are satisfied the offense has been initially
committed and the principal may be found guilty of
robbery. This threshold of guilt-establishment is a fixed
point in time, but is not synonymous with "commission" of
a crime. For purposes of aider and abettor liability, the
court held, commission of a robbery continues until all
acts constituting the offense have ceased. Cooper, 53 Cal. 3d at 1164, 811 P.2d at 747, 282 Cal. Rptr. at 455.
It is this portion of the court's reasoning in
Cooper upon which the State relies in arguing against an
elements approach to defining the duration of an offense.
Had the court's reasoning ended there, we could find it
supportive of the State's position. However, although the
court's opinion in Cooper may properly be viewed as an
endorsement of a "series of continuous events" approach,
that approach is nonetheless applied within the narrow
context of the elements of the offense. Thus, to
determine the duration of the commission of robbery, the
Cooper court did not focus simply on the series of events
which occurred during the perpetration of the offense,
but also considered those events within the context of
the "duration of the final element of the robbery" as
provided by statute. (Emphasis in original.) Cooper, 53 Cal. 3d at 1165, 811 P.2d at 747-48, 282 Cal. Rptr. at
455-56.
As we understand Cooper, under California law,
asportation is the final element required to constitute
the offense of robbery. For purposes of establishing
guilt, the asportation element is initially satisfied by
evidence of slight movement; it is not confined to a
fixed point in time. The majority construed the
asportation element as continuing for as long as the
property is being carried away to a place of temporary
safety. Therefore, under California law, in order to be
convicted for aiding and abetting a robbery, a defendant
must form the necessary intent to facilitate or encourage
commission of the robbery prior to or during the carrying
away of the property to a temporary place of safety.
Cooper, 53 Cal. 3d at 1165, 811 P.2d at 748, 282 Cal. Rptr. at 456. The court in Cooper made clear its position
that for purposes of aider and abetter liability,
delineation of a crime logically required consideration
of the particular elements which constitute the crime.
Finding no evidence to the contrary, the court held that
because the escape and asportation coincided, the
erroneous instruction was harmless beyond a reasonable
doubt. But see Cooper, 53 Cal. 3d at 1173, 811 P.2d at
753, 282 Cal. Rptr. at 461 (Kennard, J., dissenting)
(finding that majority's grafting of the carrying away to
a place of safety conduct onto the asportation element of
robbery to be incongruous with the elements of the
offense approach).
A purer example of the elements approach to the
duration question may be found in State v. Baker, 303
N.J. Super. 411, 697 A.2d 145 (1997). In Baker, the
defendant was tried and convicted of committing armed
robbery as an accomplice or aider and abettor. During
deliberations, the jury had inquired of the trial court
as to when the commission of a crime ended. The trial
court responded that the jury could consider defendant's
immediate flight after the robbery. On appeal, the
defendant claimed instructional error in that the court
permitted the jury to convict him even if his only
participation in the robbery was to drive from the scene
after learning of the robbery. The reviewing court first
recognized that the crime of robbery is ongoing in
nature. Additionally, the court noted that "immediate
flight after the attempt or commission," in that case,
driving from the scene, constituted an included statutory
element of robbery. The instruction, having followed the
elements of the offense, was deemed proper.
Based upon the plain language in our accountability
statute, we conclude that, for purposes of
accountability, the duration of the commission of an
offense is defined by the elements of the offense. In
this case, we necessarily consider those elements which
constitute the offense of armed robbery. Consistent with
our accountability statute, a defendant may be held
accountable for the commission of armed robbery if,
either before or during the commission of the offense, he
aided or abetted Jones in "conduct which is an element of
[the] offense."
Duration of the Commission of Armed Robbery
Armed robbery is the taking of property "from the
person or presence of another by the use of force or by
threatening the imminent use of force" while "armed with
a dangerous weapon." 720 ILCS 5/18--1, 18--2(a) (West
1994). A taking from the person or presence is met when
the property is in the possession or control of the
victim and the robber uses violence or fear of violence
as the means to take it. People v. Smith, 78 Ill. 2d 298,
302-03 (1980). Although the required force or threat of
force must either precede or be contemporaneous with the
taking of the victim's property (People v. Foster, 198
Ill. App. 3d 986, 994 (1990); People v. Cox, 197 Ill.
App. 3d 1028, 1038-39 (1990)), use of a dangerous weapon
at any point in a robbery will constitute armed robbery
as long as it reasonably can be said to be a part of a
single occurrence (Foster, 198 Ill. App. 3d at 994-95).
Sufficient force exists where the force used is part of
a series of events that constitute a single incident or
occurrence. Foster, 198 Ill. App. 3d at 995.
Generally, where a victim observes a weapon, a
sufficient threat of force exists (People v.
Hollingsworth, 120 Ill. App. 3d 177, 179-80 (1983));
however, the mere threat of the imminent use will suffice
(People v. Taylor, 129 Ill. 2d 80, 84 (1989)). In the
absence of facts to show that fear was reasonable, a mere
subjective feeling of fear will not support a conviction
for robbery. Hollingsworth, 120 Ill. App. 3d at 179. The
offense of robbery is complete when force or threat of
force causes the victim to part with possession or
custody of property against his will. Smith, 78 Ill. 2d
at 303; see also People v. Baker, 365 Ill. 328 (1936)
(holding that a robbery is complete when property is
moved from its customary location with the intent to
deprive the owner of the property, even though escape
with the property is thwarted); see also People v.
Campbell, 234 Ill. 391 (1908).
Consistent with jurisprudence developed in our
appellate court, the State construes force to include not
only the force used in the taking, but also the force
used to effectuate the defendant's departure. See, e.g.,
People v. Kennedy, 10 Ill. App. 3d 519 (1973); People v.
Ditto, 98 Ill. App. 3d 36 (1981); People v. Ortiz, 156
Ill. App. 3d 170 (1987). The appellate court in this case
clearly disagreed with this line of reasoning, holding
that the robbery ended when the Perez brothers gave up
their property. The appellate court's position is,
however, consistent with Smith, 78 Ill. 2d 298. Jones was
criminally liable and the offense of robbery was
completed, for purposes of a guilt determination, at the
moment in time when he forcefully took the radio. His
conduct beyond the taking neither enhanced nor diminished
his criminal culpability for robbery.
Smith would appear to be inconsistent with those
appellate court cases which have held, in effect, that
the robbery continues for as long as force is being used,
either to perfect the taking of property or to effectuate
a departure from the scene. However, as the State
correctly perceives, Smith may be read to define the
minimum conduct required to constitute a completed
robbery. In our view, the appellate court's broad
construction of the force element is not an unreasonable
one and tends to capture that conduct which is the true
essence of an armed robbery offense.
In many instances, flight or an escape is
effectuated by use of force. It is the accompanying force
which properly continues the commission of the offense.
However, the fact that an escape is made possible by
reason of the use of force does not render escape an
element of the offense. In a case where an escape is
accomplished without force, it cannot reasonably be
argued that such escape is a part of the substantive
offense.
Neither flight from pursuing victims nor escape are
included as elements in the statutory definition of
robbery. See 720 ILCS 5/18--2(a)(2) (West 1994). Thus,
consistent with Smith, the offense of armed robbery is
complete when force or threat of force causes the victim
to part with possession or custody of property against
his will. Although the force which occurs simultaneously
with flight or an escape may be viewed as continuing the
commission of the offense (see, e.g., Kennedy, 10 Ill.
App. 3d 519; Ditto, 98 Ill. App. 3d 36; Ortiz, 156 Ill.
App. 3d 170), it is the force, not escape, which is the
essence and constitutes an element of the offense. The
commission of an armed robbery ends when force and
taking, the elements which constitute the offense, have
ceased.
In sum, it has long been emphasized that the gist of
the offense of robbery is the force or fear of violence
directed at the victim in order to deprive him of his
property. Taylor, 129 Ill. 2d 80; Burke v. People, 148 Ill. 70 (1893). A person who forms the intent to
facilitate an escape only after the forceful taking of
property has occurred can neither aid nor facilitate the
conduct which is an element of robbery. That person is
less culpable than the perpetrator and his action serves
merely to impede apprehension of the perpetrator. This
separate offense is subject to penalization under the
current version of our "accessory-after-the-fact"
provision. See 720 ILCS 5/31--5 (West 1994).
We acknowledge that, at least in the context of
felony murder, we have held that if a killing occurs in
the course of an escape from a robbery, the escape is
within the operation of the felony-murder rule. That rule
had its genesis in People v. Bongiorno, 358 Ill. 171, 173
(1934), citing People v. Boss, 210 Cal. 245, 290 P. 881
(1930). In Bongiorno, this court recognized, as a
principle of law, that where two or more persons are
engaged in a conspiracy to commit robbery and an officer
is murdered while in immediate pursuit of either or both
of the offenders who are attempting escape from the scene
of the crime with the fruits of the robbery, either in
possession of one or both, the crime of robbery is not
complete at the time of the murder, inasmuch as the
conspirators had not then won their way, even momentarily
to a place of temporary safety, and the possession of the
plunder was nothing more than a scrambling possession.
Accord People v. Golson, 32 Ill. 2d 398, 408 (1965);
People v. Johnson, 55 Ill. 2d 62, 68 (1973); People v.
Hickman, 59 Ill. 2d 89, 94 (1974) (holding that the
period of time and activities involved in escaping to
place of safety are part of crime itself); People v.
Smallwood, 102 Ill. 2d 190 (1984) (holding that the act
of robbery itself has not necessarily been completed at
time victim surrenders the property so that no further
consequences will attach to robber's conduct subsequent
to surrender of property).
The State does not now seek, and we are not
inclined, to extend the felony-murder escape rule to
apply in accountability cases. Certain policy
considerations inform our decision. Felony murder and
accountability have theoretically different
underpinnings. Felony murder seeks to deter persons from
committing forcible felonies by holding them responsible
for murder if a death results. People v. Viser, 62 Ill. 2d 568 (1975). Because of the extremely violent nature of
felony murder, we seek the broadest bounds for the
attachment of criminal liability. For that reason, in
felony murder, a defendant's liability is not limited to
his culpability for commission of the underlying felony.
A defendant may be found guilty of felony murder
regardless of a lack either of intent to commit murder
(see People v. Moore, 95 Ill. 2d 404 (1983)), or even
connivance with a codefendant (see People v. Burke, 85
Ill. App. 3d 939 (1980)). Our continued adherence to a
proximate cause approach is further exemplary of how
broadly we seek to extend the reaches of criminal
liability in the case of felony murder. See People v.
Lowery, 178 Ill. 2d 462 (1997); see also Hickman, 59 Ill. 2d 89.
Unlike felony murder, accountability focuses on the
degree of culpability of the offender and seeks to deter
persons from intentionally aiding or encouraging the
commission of offenses. Holding a defendant who neither
intends to participate in the commission of an offense
nor has knowledge that an offense has been committed
accountable does not serve the rule's deterrent effect.
Further, the attachment of liability in such situations
contravenes general concepts of criminal culpability. The
felony-murder escape rule contemplates neither knowledge
nor intent. Thus, the rule is irreconcilable with our
accountability statute and we decline to apply it in that
context. See In re D.C., 259 Ill. App. 3d 637 (1994),
overruled in part, People v. Taylor, 287 Ill. App. 3d 254
(1997) (holding that felony-murder escape rule does not
apply for purposes of accountability); accord Cooper, 53 Cal. 3d 1158, 811 P.2d 742, 282 Cal. Rptr. 450; but see
Trammel, 71 Ill. App. 3d 60 (applying felony-murder
escape rule outside context of felony murder).
The Court's Instruction
In answer to the jury's inquiry concerning when the
armed robbery had ended, the trial court responded that
"you may consider the period of time and activities
involved in escaping to a place of safety." The State
acknowledges that this instruction is consistent with the
felony-murder escape rule as provided in Hickman. In
fact, the trial court noted that the rule was drawn from
Hickman, but the court perceived the rule to be,
nonetheless, applicable. Regardless, the State argues
that based upon the circumstances in this case, the trial
court's response to the jury's questions was proper. In
the State's view, the appellate court mistakenly assumed
that the trial court's response instructed the jurors
that they could consider the period of time and the
activities involved subsequent to the completed offense
of armed robbery. In fact, however, the trial court's
instruction merely informed the jury that the offense
included the period of time when the victims were
attempting to regain control of their property;
codefendant was attempting to prevent the victims from
regaining possession of their property while, at the same
time, to effect a forceful departure from the scene.
Therefore, the State argues, the instruction did not
erroneously expand the offense of armed robbery.
As we have stated, we agree that the court's
instruction may be interpreted to reference the activity
during Jones' flight from his pursuing victims.
Nevertheless, as we have stated, neither a defendant's
flight from pursuing victims nor escape constitute
elements of the offense of armed robbery. Where force is
used to accomplish either flight or escape, such conduct
may properly be viewed as continuing the force element of
the offense. It is the force involved, not the flight or
the escape, which constitutes the offense. In instructing
juries on the offense of armed robbery, trial courts
should focus on the particular elements of the offense,
i.e., taking and use of force. The court's instruction
here was a statement of the felony-murder escape rule. As
that rule is not applicable for accountability purposes
and, further, as escape is not "conduct which is an
element of an offense" for which defendant may be held
accountable, the court's instruction was erroneous. We
next consider the effect of the erroneous instruction.
Harmless Error Analysis
The State argues, generally, that any error caused
by the trial court's response to the jury's questions was
harmless because the evidence of defendant's knowing
participation in the armed robbery was overwhelming. In
order for an alleged error in instructions to be
considered harmless, it must be demonstrated that the
result of a trial would not have been different if the
proper instruction had been given. People v. Johnson, 146 Ill. 2d 109, 137 (1991); see also People v. Davis, 10 Ill. 2d 430, 443 (1957) (holding that an "error in the
giving or refusing of instructions will not, alone,
justify a reversal when the evidence of the defendant's
guilt is so clear and convincing *** that a jury could
not reasonably have found the defendant not guilty");
People v. Fierer, 124 Ill. 2d 176 (1988) (rejecting
harmless error because incorrect instruction might have
altered the outcome of the trial).
The State recounts, at length, facts which,
according to the State, support at least the inference
that defendant was involved in the commission of this
offense. The State's theory of the case is that defendant
planned to commit the robbery, if not from the time he
picked up Jones, then at least from the time that he
entered the alley. However, the fact that the jury
inquired as to when the robbery ended supports the
conclusion that the jury did not find that defendant was
involved in planning the robbery either prior to picking
up Jones or from the time that he entered the alley.
The State's additionally offered facts (that
defendant was able to observe the robbery as it was being
committed; that he drove the getaway car; that he failed
to report the commission of the offense; that he planned
to share in the proceeds; and that his testimony was
incredible and inconsistent) are equally unavailing. Not
even presence at the scene, coupled with flight or
knowledge that a crime is being committed, is sufficient,
without more, for accountability purposes. People v.
Taylor, 164 Ill. 2d 131, 140 (1995); see also People v.
Foster, 198 Ill. App. 3d 986 (1990). Additionally, to be
legally accountable, a driver must knowingly drive the
getaway car. See People v. Ross, 100 Ill. App. 3d 607
(1981); People v. Bartlett, 91 Ill. App. 3d 138 (1980).
It was defendant's testimony that he was unaware that a
robbery had occurred until after Jones reentered the car.
Moreover, defendant's driving speedily from the alley is
conduct consistent with his testimony that he feared a
"drug bust" had occurred. Further, there was no testimony
that the plan to share in the proceeds from the robbery
were made prior to Jones' admitting to defendant that he
had robbed the Perez brothers. Finally, inconsistencies
in testimony, as well as credibility of witnesses, even
of the defendant, are issues for the trier of fact to
resolve.
In sum, it was defendant's uncontradicted testimony
he was unaware of a robbery until Jones reentered his
car. It was his further testimony that actions in the
alley, as well as his flight therefrom, were out of
concern for being at the drug house. Officer Warner's
testimony corroborated defendant's testimony concerning
the location of the drug house and drug trafficking
activity in the alley. While it is conceivable that
defendant was a part of the armed robbery, it is just as
conceivable that his presence in the alley and subsequent
conduct was related to drug-trafficking activity. The
escape could have been from the perceived "drug bust" as
easily as it could have been from the robbery.
Incidentally, and as the State argues, if in fact
the appellate court perceived the trial court's
instruction to reference defendant's driving from the
scene, it is reasonable to conclude that the jury might
also have interpreted the instruction to fix the escape
at the time of the car getaway. There is no evidence that
the use of force, once Jones was inside the car,
continued. Even if the jury believed defendant's version
of the facts, the instruction that it could "consider the
period of time and activities involved in escaping to a
place of safety" might have provided the basis for the
guilty verdict. But for the erroneous instruction, which,
in response to the jury's completion inquiry, told the
jury that it could consider escape, the result at trial
might have been different.
On this record, we do not find evidence in support
of defendant's armed robbery conviction so clear and
convincing as to render the erroneous instruction
harmless beyond a reasonable doubt. Cf. Cooper, 53 Cal. 3d 1158, 811 P.2d 742, 282 Cal. Rptr. 450 (holding that
because escape and asportation coincided, and there was
no evidence to the contrary, erroneous instruction was
harmless beyond reasonable doubt).
Defendant's Cross-Appeal
In his cross-appeal, defendant claims error in the
prosecution's closing argument and in the use of his
explanation to the police to discredit his trial
testimony. Because we have decided that the trial court's
erroneous instruction was reversible error, we do not
address these claims.
CONCLUSION
For the reasons stated above, we affirm the judgment
of the appellate court, which reversed defendant's
conviction and remanded the cause to the circuit court
for retrial. As there is sufficient evidence upon which
a jury may base a conviction for armed robbery, upon
retrial, defendant will not be subjected to double
jeopardy.
Appellate court judgment affirmed.
JUSTICE NICKELS, dissenting:
I disagree with the majority's cramped, unrealistic
interpretation of the phrase "during the commission of an
offense" as used in section 5--2 of the Criminal Code. In
the majority's view, for accountability purposes the
duration of an offense coincides precisely with the
formal elements of the offense. The majority ostensibly
reaches this conclusion by considering the phrase in
conjunction with section 5--1 of the Criminal Code.
However, the thrust of section 5--1 is simply that an
individual may be held responsible for the elements of an
offense based not only on his or her own conduct but also
on conduct for which he or she is accountable. That does
not tell us what we need to know in this case: When is
one person accountable for the conduct of another? In the
majority's view, aiding or abetting must occur before all
of the elements of the offense have been completed. In
the State's view, the "commission" of an offense includes
both the formal elements of the offense and
contemporaneous, closely related events as well. In
either case, one who participates in the commission of an
offense is accountable for the primary offender's conduct
pursuant to section 5--2, and is therefore responsible
for the elements of the offense under section 5--1.
Accordingly, section 5--1 does not resolve the issue
before this court.
To justify its approach, the majority suggests that
one who aids or abets a robbery before the robber has
gained control of the loot is more culpable than one
whose involvement begins immediately after that point. I
do not believe, however, that the degree of culpability
in the two situations is qualitatively different so as to
affect the determination of criminal responsibility.
Armed robbery is a crime of violence, and while the
robber is still at the scene, trying to make good his or
her escape, the danger of violence inherent in the
offense persists. This is true whether or not the robber
actually uses force in making his getaway. In my view,
this consideration amply warrants imposing accomplice
liability on one who assists an armed robber in his
immediate flight from the crime.
As the majority is forced to acknowledge, its
definition of the duration of an offense is inconsistent
with the definition governing application of the
statutory felony murder rule under section 9--1(a)(3) of
the Criminal Code (720 ILCS 5/9--1(a)(3) (West 1996)).
Illinois courts have also rejected a rigid, technical
"elements of the offense" approach like the majority's in
other settings. For instance, under section 12--14(a)(2)
of the Criminal Code (720 ILCS 5/12--14(a)(2) (West
1996)), the offense of criminal sexual assault is
enhanced to aggravated criminal sexual assault if the
offender caused bodily harm to the victim "during the
commission of the offense." It has been held that
injuries inflicted after a sexual assault will support a
conviction of aggravated criminal sexual assault when the
acts causing injury "were part of an unbroken series of
events and were both very near in time and closely linked
to the forced sexual acts." People v. Thomas, 234 Ill.
App. 3d 819, 825 (1992); see also People v. Colley, 188
Ill. App. 3d 817 (1989). I believe that the offense of
armed robbery should be viewed in similarly fluid terms
for purposes of determining accountability. Accordingly,
I dissent.
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