Opinion
No. 1-13-0546
04-07-2014
PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LAVERRIC DONALDSON, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the
Circuit Court of
Cook County
No. 11 CR 01152
Honorable
Thomas J. Hennelly,
Judge Presiding.
PRESIDING JUSTICE delivered the judgment of the court.
Justices Hoffman and Delort concurred in the judgment.
ORDER
Held: Evidence at trial was not sufficient to prove defendant guilty of delivery of a controlled substance under an accountability theory.¶ 1 Defendant Laverric Donaldson was convicted of delivery of a controlled substance under an accountability theory. On appeal, defendant argues that the evidence at trial was insufficient to prove him guilty of the offense. We reverse. ¶ 2 In October 2010, a team of Chicago police officers planned to conduct an undercover narcotics purchase. The team included two surveillance officers, an undercover buy officer, and two enforcement officers. According to the plan, the surveillance officers would observe a location where they suspected narcotics transactions were occurring. After identifying a suspected seller, the surveillance officers would notify the undercover officer, who would then approach the seller and purchase narcotics. When the transaction was complete, the surveillance officer would leave the area and notify the enforcement officers, who would then arrest the seller. ¶ 3 Officers Louie and Daniels were tasked to perform surveillance during the operation, and when they arrived in the area they set up separate surveillance points. According to both officers, they saw two men standing on a nearby street corner. One of the men was identified as Jermaine Webb and the other was defendant. The officers testified that they observed the men for about ten to fifteen minutes. While the officers watched, they saw what they believed to be four to five narcotics transactions. During each apparent transaction, an unknown person would approach Webb and engage in conversation. Webb would then leave the corner and walk a short distance down the street. Although Louie was unable to see where Webb went, Webb remained in view of Daniels, who testified that Webb walked to a parked car and retrieved a small plastic bag from the ground near the rear driver's side wheel. After removing items from the bag, Webb replaced the bag and returned to the corner, where both officers saw Webb pass something to the unknown person, who then left the scene. During the course of the transactions, defendant remained on the corner and did not accompany Webb to the car. ¶ 4 Believing that Webb was selling narcotics, the surveillance officers radioed the undercover officer, Officer Bishop, who was waiting nearby in an unmarked car. After receiving a description of Webb, Bishop drove to the corner, where Webb approached her. Bishop asked Webb for two "blows" (slang for heroin), and Webb once again walked over to a nearby parked car and retrieved some items by the rear driver's side tire. When Webb returned, he handed Bishop two small bags containing what was later determined to be heroin. Bishop then gave Webb a $20 bill whose serial number the team had previously recorded, and she left the scene. ¶ 5 During the transaction, Bishop only saw Webb and did not see defendant. According to the surveillance officers, who witnessed the entire transaction, just prior to Bishop's arrival defendant had left the corner and crossed the street, where he remained until Bishop departed. After she left, however, both surveillance officers saw Webb cross the street to rejoin defendant. Daniels (but not Louie) saw Webb hand defendant some money, and then the two walked back across the street together. ¶ 6 After leaving the area, Bishop radioed to the team that a successful narcotics transaction had occurred. Officer Kuykendall, one of the enforcement officers, testified that he received a description of the alleged sellers and was told that a confirmed narcotics transaction had taken place. When he and his partners arrived at the buy location, they apprehended defendant and Webb, who fit the descriptions Kuykendall had received. After searching the pair, Kuykendall discovered that defendant had the prerecorded $20 bill in his pocket, as well as about another $100. Kuykendall did not arrest defendant and Webb at that time, however, because the team planned to gather additional evidence about narcotics transactions in the area before making a series of arrests. Kuykendall let defendant and Webb go after gathering identifying information about them, and defendant and Webb were arrested pursuant to warrants several months later and were charged with delivery of a controlled substance. ¶ 7 Webb appears to have accepted a plea bargain (the record is not entirely clear on that point), but defendant proceeded to a jury trial, where he was convicted of delivery of a controlled substance under an accountability theory. The circuit court sentenced defendant to seven and a half years incarceration, and defendant appealed. ¶ 8 The only issue on appeal is whether the evidence at trial was sufficient to convict defendant of delivery of a controlled substance under an accountability theory. When reviewing a challenge to the sufficiency of the evidence, we must "consider[ ] all of the evidence in the light most favorable to the prosecution" and "must determine whether any rational trier of fact could have found beyond a reasonable doubt the essential elements of the crime." People v. Brown, 2013 IL 1141196, ¶48. "[A] reviewing court will not substitute its judgment for that of the trier of fact on issues involving the weight of the evidence or the credibility of the witnesses. [Citations.] Although these determinations by the trier of fact are entitled to deference, they are not conclusive. Rather, a criminal conviction will be reversed where the evidence is so unreasonable, improbable, or unsatisfactory as to justify a reasonable doubt of the defendant's guilt. [Citations.] This same standard of review applies regardless of whether the defendant receives a bench or jury trial." Id. ¶ 9 The State tried defendant based on an accountability theory, which is governed by section 5-2 of the Criminal Code of 1961 (720 ILCS 5/5-2 (West 2010)). As relevant here, the section states:
"When accountability exists. A person is legally accountable for the conduct of another when:The analysis in this type of case is fact driven, and the supreme court summarized some important considerations in People v. Taylor, 164 Ill. 2d 131, 140-41 (1995):
* * *
(c) either before or during the commission of an offense, and with the intent to promote or facilitate that commission, he or she solicits, aids, abets, agrees, or attempts to aid that other person in the planning or commission of the offense." 720 ILCS 5/5-2 (West 2010).
"Mere presence of a defendant at the scene of a crime does not render one accountable for the offense. [Citations.] Moreover, presence at the scene plus knowledge that a crime was being committed, without more, is also insufficient to establish accountability. [Citation.] Nevertheless, active participation has never been a requirement for¶ 10 Importantly, in order to hold a defendant accountable for the crimes of another, the defendant must not only both help and intend to help the principal in the criminal act, but must also form the requisite intent and perform the requisite act before or during the offense. See People v. Phillips, 2012 IL App (1st) 101923, ¶15. Any actions performed or intent formed after the crime is complete are irrelevant to accountability. See Phillips, 2012 IL App (1st) 101923, ¶¶15-18; cf. generally Rosemond v. United States, 572 U.S. ___ (2014) (discussing accountability liability in the context of federal criminal law). ¶ 11 There is no question that the evidence was sufficient to prove that Webb committed the crime of delivery of a controlled substance, but that is not the issue. The problem in this case is that, apart from his presence at the scene, there is no evidence that defendant intended to aid or aided Webb in the commission of the crime. Although the surveillance officers saw defendant standing on the corner and talking with Webb, the officers could not hear anything that was said. More importantly, even if we assume for the sake of argument that defendant was aware that Webb intended to engage in multiple narcotics transactions, the mere fact that defendant knew that a crime was being or about to be committed and did not leave the scene is insufficient on its own to make him accountable for the crime. See Taylor, 164 Ill. 2d at 140. Defendant must have taken at least some action that would indicate his intent to help Webb commit the crime, but there is no evidence of any such action in the record. Indeed, Kuykendall did not witness any crime, and Bishop saw only Webb when she purchased the narcotics. ¶ 12 While the two surveillance officers witnessed not only the transaction with Bishop but also the four to five previous suspected transactions, there is no evidence that defendant participated in these transactions in any way. On cross-examination at trial, Louie testified:
the imposition of criminal guilt under an accountability theory. [Citation.] One may aid and abet without actively participating in the overt act."
"Q. And you already stated you never saw [defendant] receive any money from Mr. Webb?¶ 13 Daniels testified almost identically:
A. Yes. That's correct, yes.
Q. And you couldn't hear any of the conversations that were taking place?
A. That's correct.
Q. You didn't see [defendant] making any gestures towards passing by vehicles to attract their attention?
A. No.
Q. You didn't see him – you didn't hear him yelling anything as far as rocks or blows?
A. No.
Q. And the prior transactions prior to Officer Bishop, you never saw [defendant] receive any money from Mr. Webb on those prior occasions either; is that fair to say?
A. No.
***
Q. Okay. And you never saw [defendant] go to the location where Mr. Webb was going, where the suspect narcotics were?
A. No."
"Q. I want to take you back just briefly and ask you about some of your observations that you saw prior to Officer Bishop making her controlled purchase?¶ 14 Even taking this testimony in the light most favorable to the State, there is no evidence of any actions that defendant took prior to or during Webb's drug transaction with Bishop, much less any that could reasonably be construed as evidence that defendant aided or intended to aid Webb. At most, there is evidence that defendant received the marked $20 bill from Webb after the transaction with Bishop. This did not occur until after the transaction with Bishop was complete, however, and accountability must be based on a defendant's actions "either before or during the commission of an offense." 720 ILCS 5/5-2(c) (West 2010). Receiving the marked $20 bill from Webb therefore cannot be used as evidence that defendant aided or intended to aid Webb commit the crime because it occurred after the crime was already complete. Cf. Phillips, 2012 IL App (1st) 101923, ¶20 (finding that evidence that a defendant helped a principal escape from the scene of a shooting "is not something that the trier of fact is legally entitled to consider" in determining accountability). ¶ 15 The State argues that this case is similar to People v. Tinoco, 185 Ill. App. 3d 816 (1989). In that case, the defendant was charged with delivery of a controlled substance. Defendant was present in a hotel room during several narcotics transactions, and he argued that his mere presence was insufficient to hold him accountable for the principal's conduct. We upheld the defendant's conviction, however, finding that the evidence showed that the "defendant's position transcended that of a mere observer." Id. at 823. We noted that not only was the defendant present in the room during each transaction, but he also discussed the quality and quantity of the drugs with the undercover officer. Additionally, during several transactions, the principal handed the defendant the marked funds immediately after receiving them from the undercover officer and while still in the officer's presence. See id. at 824. ¶ 16 Although this case bears some superficial similarities to Tinoco, the critical distinction is that the evidence here is clear that defendant did not receive the marked funds until after the transaction was already complete and Bishop had left the area. In contrast, the defendant in Tinoco was an active participant in multiple transactions and received the marked funds from the principal immediately after not one but several transactions. Moreover, the defendant in Tinoco was not merely a passive observer but actively conversed with the undercover officer about the narcotics. There is no similar evidence in this case. Had there been some evidence that Webb handed something to defendant after every suspected narcotics transaction or that defendant approached or solicited any of the buyers, then there would be at least some evidence of intentional participation in Webb's crime and this case would be analogous to Tinoco. Cf. also People v. Moore, 365 Ill. App. 3d 53 (2003) (conviction based on accountability upheld where principal engaged in conversation with potential buyers and nonverbally directed the buyers to the defendant, who received the money for the sale before the principal gave the drugs to the buyers). But neither Bishop nor Kuykendall saw defendant at the scene, and even the surveillance officers who did see defendant there expressly testified that defendant did nothing more than stand near Webb and talk with him. Tinoco is therefore distinguishable. ¶ 17 Even viewing the evidence in the light most favorable to the State, there is simply no evidence that defendant did anything either before or during Webb's transaction with Bishop that would render him accountable for Webb's crime. Defendant's conviction must therefore be reversed. ¶ 18 Reversed.
A. Okay.
Q. You stated you saw four to five transactions. You never saw or heard [defendant] soliciting or trying to wave down vehicles, did you?
A. No.
Q. You never saw him – You never heard him say anything, did you?
A. No, I didn't.
Q. You didn't see him go over to the parked car where the narcotics were, did you?
A. No.
Q. You didn't – In fact, prior to those four to five prior transactions, you also never saw Mr. Webb hand [defendant] any of that money, did you?
A. No."